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Administrative Law Absent Due Process Endangers Liberty

Administrative Law Absent Due Process Endangers Liberty

Wednesday, 24 May 2017 09:16 AM Current | Bio | Archive

Americans cannot be "deprived of life, liberty, or property, without due process of law." The Constitution, however, says nothing about "due process of legislation."

But until recently American legislatures at the federal and state level observed due process of legislation. Legislative committees including members of both parties closely scrutinized bills, debated, and tightened them. Public hearings allowed interested parties and experts to testify.

Administrative rulemaking included similar formalities. Since 1946 the Administrative Procedure Act has required agencies to publish proposed rule changes in the Federal Register and collect criticisms and suggestions. Agencies must consider this feedback before finalizing rules.

Presidents have traditionally consulted department heads and other government experts, drawing on their experience and perspectives before issuing executive orders.

Recently, however, Congress, administrative agencies, and the president have not always observed these niceties. President Donald Trump, apparently without consulting government experts, issued an executive order barring entrance of people from certain countries into the U.S. His hastily issued executive order was shot down by courts, but not before causing widespread inconvenience.

During the Obama administration some agencies used "ruling letters" not just to clarify but to change the actual meaning of administrative rules. To amend the rules would have required complying with the Administrative Procedure Act, but the ruling letters had the same effect.

Notably, a ruling letter changed the previously understood definition of "discrimination based on sex" in federal law. Legal action was then threatened against schools barring transgender students from the restrooms of their choice.

When the U.S. House of Representatives recently passed the American Health Care Act (AHCA), its committees neither examined the bill carefully nor called in experts to publicly testify about its probable consequences. It did not consider extensive foreign experience with medical insurance. It did not even wait for the cost-benefit report from the Congressional Budget Office (CBO) and it held only three hours of floor debate with no amendments allowed.

The House thus carelessly enacted legislation that could have a dramatic impact on health care for millions and on a sector constituting nearly one fifth of the country's Gross Domestic Product (GDP).

Although the Constitution does not mandate due process of legislation, the fact that Congress imposed procedural requirements on administrative rulemaking suggests that Congress should hold itself to the same standard. After all, administrative rules only fill in the details on laws enacted by Congress, whereas acts of Congress can have far wider consequences.

The worst method of legislating in the U.S. has been the "initiative," which lets citizens draft proposed laws and place them on the ballot. Due process of legislation has always been absent from the initiative. Written by private groups without considering conflicting perspectives, initiative proposals concentrate entirely on their sponsor's goal.

Unlike state legislatures, people who draft initiatives do not incorporate the compromises needed to avoid injuring other important interests. Initiatives are especially troublesome when they allocate money without weighing the importance of the program they are supporting against other possible uses of tax money. Since initiatives are not the result of due process of legislation, we should always vote against them unless there are overwhelming arguments in favor.

Thankfully, the American Health Care Act passed so cavalierly by the House cannot become law unless the U.S. Senate concurs with it, which it apparently won't do. We can thank the Senate, which will try to draft its own bill, for this. However Senate Republicans seem bent on duplicating the lack of due process which afflicted the House bill.

They are not holding hearings, not listening to expert witnesses, not considering foreign experience. They are negotiating the terms of their own bill behind closed doors, no Democrats allowed.

This is not how legislation that affects a sector counting for one fifth of the GDP should be made and there is little chance it will produce wise policy. Any laws, rules or executive orders made without due process of legislation should be given our undivided suspicion, and voters should start demanding that politicians respect this process.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his PhD from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Any law, rule, or executive orders made without due process of legislation should be given our undivided suspicion, and voters should start demanding that politicians respect due process.
1946, apa, cbo, gdp
Wednesday, 24 May 2017 09:16 AM
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