Regulations and the Election Cycle

The word “regulation” usually elicits some sort of negative response by the construction and business community. More often than not, the general view of regulations is not consistent with the arguments regulators cite for the need of regulations. Public good, environmental protections and human welfare are some of the more common justifications for the proposal, study and implementation of regulations. Instead, regulations are known more synonymously with increased costs, business restrictions and bureaucratic paperwork. There is an obvious disconnect between those proposing and implementing regulations (who favor regulation) and the business community (who largely oppose regulations calling them “burdensome”).
Part of the problem is political. The White House’s occupying party largely chooses what regulatory priorities will disseminate from agency offices and who the President will appoint to oversee these priorities. The sheer mention of political underpinnings carries a heightened divisiveness in contemporary government. Therefore, we should not be surprised that there will be, no matter the regulation or who is proposing it, opposition to any proposed change in the way businesses go about their work.

The political nature of regulation making indicates that elections matter. President Obama campaigned in 2008 on curbing greenhouse gasses, so it should come as no surprise that regulations restricting pollution have been proposed. But who really goes into the voting booth thinking, “I think this candidate will impose new regulations in a way that most closely adheres to my personal beliefs?” Very few, if any.

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The ethos of American-style government is that the Congress makes the laws and the President executes them while the Supreme Court ensures the laws are appropriate. But this understanding isn’t quite as accurate as the general public probably understands or largely cares about. While the Congress does pass the laws, the way those laws are written always leaves to the administration how the laws are to be implemented. This provides a great deal of leeway to the administration for interpreting how Congress meant to implement the law practicality. And therein lays the rub. How “practicality” is defined is subjective, to be interpreted undoubtedly in accordance with the administration’s governmental ideology or to the party’s political benefit.

Make no mistake, Congress has long been punting the details of lawmaking to the administration — this is what started regulation making in the first place. Once Congress concedes this ability to the administration, it is very difficult to get the authority back. Have you ever tried putting toothpaste back in the tube? It is not easy to undo what took decades to normalize.

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As a result of Congress’ concession on the details of laws, administrations have continually pushed the limits of what is “intended” by particular law. Congress, with the power of the purse, has been successful at delaying or killing regulations, but only on a small fraction of those implemented. Administrations have largely been able to implement regulation and guidance without interference from Congress, but that may all be changing.

Speaker of the House John Boehner (R-OH) recently announced the House of Representatives would file a lawsuit against President Obama essentially suing the President for damages resulting from the President overstepping his constitutional authority by subverting and actively changing the law. Specifically, House Republicans believe the President has gone too far in implementing and carrying out the laws on the book. One such example, the Affordable Care Act, which specifically dictates dates in which specific provisions of the law are to be implemented, was unilaterally changed and delayed by President Obama. The Affordable Care Act dictates that the employer mandate — the provision requiring businesses to provide healthcare to their employees — is to go into effect Jan. 1, 2014. Prior to that date, President Obama announced that the employer mandate would not actually go into effect until 2015. Citing also the President’s outspoken refusal to slow deportation of undocumented immigrants, House Republicans believe the President is changing the law by choosing what aspects of the law to enforce. Republicans are essentially arguing that the President does not have the constitutional authority to change the laws.

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While it is unclear exactly how this issue will unfold, it is clear that it could have substantial impact on how future regulations are implemented or formulated. It is possible that the Supreme Court could, as they have historically done, avoid hearing the case. This would essentially give President Obama and future presidents precedent to act without Congress’ consent in substantially altering the implementation of laws. This could spell trouble for the construction industry and business community as it will further embolden future administrations to pursue regulatory priorities. At first, this slippery slope could only result in marginally different policies between the President and Congress, as President Obama’s supporters argue in regard to the Employer Mandate implementation date, but could, over time, incrementally increase the authority of the President to subvert or outright ignore laws passed by Congress. That gives substantial powers to the administration in terms of regulation creation.

On the other hand, politics is historically known to take on characteristics of a pendulum. What may seem like the new status quo is almost certain to see a reversal as the political landscape inevitably swings counter. There has been a consistent increase in the number of regulations proposed over the last decade that is due for a correction. Hopefully that means regulations based on science, need and verifiable data that make business work better and safer, rather than the politically advantageous regulations currently in the docket, are on the horizon.

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Will Brown is NUCA’s government Relations Manager.