The Battle Has Just Begun

The battle to prevent passage of the Obamacare legislation ended when it was enacted on March 23, 2010. Now the battle turns to how that legislation will be implemented.

Kevin Hassett, in his August 1, 2010 editorial on, reported that Obamacare “creates 68 grant programs, 47 bureaucratic entities, 29 demonstration or pilot programs, six regulatory systems, six compliance standards and two entitlements.”

Obamacare will now be handed to these bureaucratic entities to write implementing regulations. Now is the time for those concerned with the encroachments of the federal government to fight those encroachments at the regulatory level. Americans for Limited Government is committed to monitoring regulations from federal agencies in order to prevent the Obama Administration from making an already bad piece of legislation worse through the regulatory process.

How to Prevent Bad Regulations

The promulgation of regulations, if done correctly, is very time consuming. Several statutes including the Administrative Procedures Act, the Paperwork Reduction Act, and others govern the process and structure of rulemaking proposals and final regulations.
Under the Administrative Procedures Act the public generally must be given the opportunity to comment on regulatory proposals before the agency finalizes a regulation. The agency publishes a “Notice of Proposed Rule Making” for public comment, reviews those comments, and later publishes a final rule that explains how the agency took the public comments into consideration in its final decision. In its explanation the agency must explain the options it considered and why it choose the one it did. Every comment must be given a reasoned response.

Liberals have long used this comment process to fight regulations that they don’t like, yet those who believe in limited government rarely engage in these nuts-and-bolts types of fights.

Our Plan

Step One – Surveillance: We are watching news sources and notices in the Federal Register for proposed rules.

Step Two – Research and Analysis: Rulemakings tend to be very technical in nature. This necessitates a large amount of background research to ascertain the potential impact of a particular proposal.

Step Three – Respond by providing substantive, thorough comments on regulatory proposals and leading the grass-roots response.

Step Four – Litigation: We scrutinize rulemakings for compliance with the Administrative Procedures Act and plan to take legal action when it is found that the Department has failed to follow its legal obligations.

Step Five – Congressional Review Act: The Congressional Review Act subjects regulations from the Executive Departments and Agencies to review by Congress. After a rulemaking is finalized, a copy of that rulemaking is required to be submitted to Congress. Congress then has 60 legislative days to review the rulemaking and can vote to overturn it. We will work with Members in Congress to insure that “resolutions of disapproval” are introduced to overturn offensive regulations.

Step Six – Utilize Other Bureaucratic Traps for the Unwary Regulator: In certain cases, regulations require additional clearance by other federal government offices before becoming effective. Under the Paperwork Reduction Act, an agency must submit an “information collection request” for review to the Office of Management and Budget anytime a regulation makes changes to the type and amount of information that must be reported to the federal government. Unless the Office approves the information collection request, the reporting requirement cannot be enforced by the agency. The analysis and assumptions found in an agency’s information collection request can be challenged again at this point. The Office takes these challenges into consideration when deciding whether to grant the information collection request. Certain parts of the Obamacare legislation require reporting by private entities to the federal government. As such, the information collection request process provides an opportunity to slow down or stop certain parts of these forthcoming regulations.

In some cases, the Small Business Administration must provide certification as to the impact of a regulation on small business.

Some are estimating that 20,000 regulations will be necessary to implement Obamacare. This could represent a decade of work by thousands of government employees. There are a lot of places for them to make mistakes and we will be watching.