LAW DAY: Lawmakers Strive to Strike Regulatory Balance

By 
Elizabeth A. Elliott
The Daily Record

A foundational component of the rule of law is that the general public must be aware of the law so that everyone can be held accountable.

Not everyone needs to know every law, of course. The same is true when it comes to writing law.

The law is written by legislators who don’t always know the details or have the technical know-how to spell out everything necessary for a law to have the intended result.

That’s where regulators step in, spelling out those details — in perhaps too much detail, some would argue — to make it clear what is expected to comply with legal requirements. Enforcement of those regulations is part of the rule of law that underpins society

Crystal Rhoades, a member of the Nebraska Public Service Commission, said regulations oftentimes get a bad rap.

“People think the less regulation is better and, if we don’t have regulation, it’s better for the businesses and consumers,” she said. “But when you’re talking about the reliability of the telephone service or 911 network or pipeline safety and trains so they don’t derail, it’s a good idea to have regulations in place to keep everybody safe.”

Rhoades said something that gets lost in the discussion is that most people don’t have the same level of expertise that regulators do.

“I would say generally speaking it’s probably better if regulations are left to regulators who are subject matter experts,” she said. “The underlying statutes are better left to the lawmakers.”

Rhoades said that regulations stem from legislation.

“Lawmakers have a substantial vested interest in getting their legislation right,” Rhoades said. “For the most part, they try to address the major problems they’re seeing for their constituents. They may know they want bus drivers and taxi drivers have rules regulating their conduct but don’t know how often vehicles need to be inspected to be safe. The nuts-and-bolts details are better addressed through rules and regulations.”

She said the legislature passes the law and it gives the directive.

“It’s up to us to try to the best of our ability to figure it out,” Rhoades said.

To find a balance, Rhoades said they have ongoing conversations with lawmakers.

“Most of the time if they’re going to be introducing a bill that would potentially impact our industry, we offer to help provide the information about how it would impact everyone.”

Justin Hurwitz, associate professor of law at University of Nebraska College of Law in Lincoln, said that there’s no easy answer to finding a balance between regulators and lawmakers.

“There are all sorts of approaches — examples where Congress actually specifies very clear technological standards for technologies in a statute is the easy case scenario,” he said. “The next level down is when Congress incorporates standards into a statute, such as when Congress in the EPA requires the use of the best available technologies — whatever that technology happens to be and whatever we fight over and decide is the best technology.”

Hurwitz said that technology, though, can change.

“Unsurprisingly this is the sort of thing there’s a lot of litigation over — when are new technologies adopted, how quickly do you need to embrace them, are they actually better? What does best mean? Most effective, cost effective?” Hurwitz said.

Another level down is Congress having no idea what to do to achieve an outcome, so they don’t write it into statute but instead tell a federal agency to figure it out.

“You figure out how to regulate this. This is, in a sense for ordinary small businesses and consumers, the worst of all possible worlds because you need to be an expert,” Hurwitz said. “You need to understand the agency, the rules and if you are a company in a regulated industry, you’re going to have lawyers who will lobby and practice before the agency.”

Hurwitz said there are challenging in understanding how regulation is applied, so that’s where the courts give guidance.

“With agency-based things, you’re constantly going to have every industry group, every anti-industry group, consumer group going to the agency saying you need to do a rule making or adjust or tweak this definition or rule,” Hurwitz said. “It’s a constant fight over what that language means because the agencies can constantly update it.”

He said there are reasons that lawmakers take these approaches.

“In the early 20th century, the New Deal expansion of regulatory authorities, Congress wrote the rules and agencies implemented them. Post New Deal, we started to transition to the technocratic ideas model where Congress said we have a Department of Transportation, so you develop the rules, you’re the experts, we’re not,” Hurwitz said. “The latest iterations recognized it’s not about technology, it’s about politics — now it’s about who is going to be in charge of agencies so we can figure out who gets to make those rules. That’s the politic view of it.”

Doug Kagan, chairman of Nebraska Taxpayers for Freedom, said that his organization works on advocacy related to taxes, spending and government regulations

“We ascribe to the policy of cost benefit. That means if the state or federal government puts in a regulation, is it going to cost the taxpayers more than the citizens taxpayers will benefit,” he said.

Kagan gave the example of the Americans with Disabilities Act which passed years ago.

“The original intent was to help disabled people get around. The problem with federal regulations is the Congress can pass the laws and have a specific intent, but when they pass regulations, they’re not interpreted by state legislature or house or senate but by the bureaucrats,” Kagan said. “They are expanded to cost the taxpayers a lot of money.”

He said the state might pass a law that says school districts have to incorporate multicultural curriculum, which means the school districts have to spend more money to implement the regulation. 

“It requires more staff time, teachers, but the state doesn’t pay for it because it’s an unfunded mandate,” Kagan said. “Another example was when counties had to house inmates charged with state crimes. The original law said state would fund it.”

Kagan said that his view of how to solve the problem of balance is generally to be skeptical of regulations in the first place. But when it’s needed, regulators should be aware of who pays the bill.

“But if you’re going to force counties to house inmates who do state crimes, the state ought to pay for it, not the taxpayers,” he said. “As far as Congress goes, what they should do when they pass these laws, make them very specific so that bureaucrats can’t interpret them in ways that expand the expenses.”

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