Legislation of the Year

Hundreds of bills have been enacted into law over the last few months and, of course, even more got flushed down the proverbial gender-neutral toilet. The media has blown up stories over bathrooms, counselors, Bibles, and guns, but I think one of the best bills passed this year is one you never heard of. It could prove to be very important in controlling state government. And its potential impact became even more apparent by the Fourth Circuit’s “bathroom bill” ruling this week.

Try to stay calm as I tell you that the bill made changes to the Uniform Administrative Procedures Act. How, you think, could a person like me be excited about something as boring and irrelevant sounding as administrative procedures? I’ll tell you what the bill did that is so good, but you have to understand why the regulation of administrative procedures is so important.

In case you don’t know, administrative rules and regulations issued by government agencies are increasingly subversive of representative government.

The best, most current example is what has happened with Title IX. When Congress enacted Title IX, it prohibited discrimination in educational opportunities on the basis of sex. But Congress left its job undone (as is par for the course anymore), because it didn’t spell out how the law applied in a variety of situations, like with bathrooms and locker rooms.

So the U.S. Department of Education (DOE) started promulgating regulations to “interpret” the law, and those regulations have the force of law the same as if voted on by Congress. Congress lets DOE and its other agencies run wild.

For example, for two years Congress has let the Department of Education run around telling schools that the word “sex” in Title IX really means “gender identity.” Now the Fourth Circuit Court of Appeals said that what the department has been saying goes as law unless Congress does something to change that in the future (which it won’t).

But unlike Congress, Tennessee’s Legislature has done something about agency regulations. Except in certain instances, agencies must bring their rules and regulations before the House and Senate Government Operations Committee for review. When I was in the Senate (then controlled by Democrats), they were affectionately called the Government Oops Committees, because they had no power to do anything and consequently did nothing.

That has changed in recent years as the committees have increasingly used their power to discontinue agencies to “encourage” them to make changes. That has been good, but Senate Bill 2389/House Bill 2068 literally takes some power back from the government agencies.

First, the agencies can no longer just say to the committees that they need some regulation and explain why. The agencies must “demonstrate [to the committees], by convincing evidence, that consideration of [certain] factors . . . in their totality, justifies the continued existence of an agency rule.”

Those factors now include such things as proving that “the rule is necessary and essential for the agency to serve persons affected by the rule” instead of just necessary for “public policy considerations,” the old law. The agency must show that “the rule will result in economic efficiency for persons served by the agency and persons affected by the rule.” In other words, the question now is more whether the regulation is good for us, not the agency.

But the new law also gives the Government Operations committees a new power. In the past, the committees could vote to ask the agency not to adopt a rule, but that was it. Now the committee can vote to request that the General Assembly repeal the regulation. This isn’t huge, but a vote of a 19-member committee directed to the 99 members of the General Assembly to the effect that a regulation should be repealed will carry a lot more weight in the consideration of legislation to repeal that regulation than if the legislation was simply filed by an legislator unhappy with the regulation.

The Legislature beginning to assert its control over government agencies that can pour out rules and regulations faster than citizens can keep up with them is a good first step toward restraining government and putting government back in the hands of those who are more accountable to the people, our legislators instead of bureaucrats. Thank you, Sen. Bell and Rep. Daniel for bringing this legislation.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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