Members of Congress are good, decent, patriotic men and women who believe their policies are in the nation’s best interest. No American should doubt this sentiment. But another fact is also true. The inability of Congress to legislate because of partisan gridlock is surrendering vast amounts of power to the president and federal agencies.
Ostensibly, congressional inaction should favor Democrats because the president is from the same party. But in reality, both parties lose when Congress fails to act. Our Constitution recognizes a balance of power that is finite within each branch of government. However, when Congress fails to act, it surrenders legislative power and emboldens the president and federal agencies to operate outside of their constitutional authority.
In recent weeks, the president has used his power to sign executive orders on issues ranging from gun control to cybersecurity. Every president has used executive orders to implement his agenda. While Republicans and Democrats worry the White House is acting unilaterally without input from Congress, the executive orders have not spurred Congress into action.
The inability of Congress to legislate encourages federal agencies to propose rules and regulations that usurp congressional power.
I spent 18 years in Congress conducting oversight and investigations holding federal regulators accountable to our laws and congressional legislative intent. I know full well that federal agencies, such as the Food and Drug Administration, are critical in protecting the health and safety of the American people. Still, federal agencies need to be held accountable for the tremendous regulatory power they wield, which affects our lives, businesses and our nation’s economy.
For example, in 1976, Congress passed the Toxic Substances Control Act to protect consumers against dangerous chemicals. Thirty-six years later, the TSCA desperately needs updating. While protecting Americans from harmful materials should be noncontroversial, like everything else on Capitol Hill, it has become a political football.
Last August, the Senate Environment and Public Works Committee advanced the TSCA rewrite, known simply as the Safe Chemicals Act. With only Democratic support, the full Senate never considered the Safe Chemicals Act.
Not surprisingly, the inability of Congress to update the TSCA has emboldened the Environmental Protection Agency to operate outside congressional intent and existing law.
A glaring example of how federal agencies exceed their authority when Congress fails to act is the EPA’s desire to regulate silicones. Silicones are materials found in everyday products from lipstick to medical devices.
While the Senate was attempting to update the TSCA, the EPA and silicone manufacturers began negotiating a voluntary environmental-monitoring program. This program was to be paid for and administered by the manufacturers. The EPA stated that it desired real world information to determine how two silicone materials behaved in the environment. The data would then provide a baseline to establish a risk assessment. The EPA’s request seemed logical.
But seven months later, the agency and the silicone industry are still at loggerheads over just how much monitoring needs to be conducted to provide the EPA the data it seeks. If a voluntary agreement is not reached, the EPA has threatened to dissolve negotiations and issue its own rules that would require the industry to spend tens of millions of dollars to conduct extensive environmental monitoring.
The EPA claims it has the authority to require environmental monitoring of chemicals like silicones under the existing TSCA law. However, the EPA does not have such authority because the key section under the TSCA only applies to toxicity testing, not collecting monitoring data. Even TSCA experts such as Charles Auer, former head of the EPA’s Office of Pollution Prevention and Toxics, question whether the EPA could require a more extensive program under current law.
The EPA’s interest in obtaining real world data about silicones is understandable, but it cannot justify overstepping its authority to regulate an industry. EPA officials realize a regulatory hammer yields them more power than a handshake to regulate chemicals and silicones beyond their statutory authority.
Over the next two years, I remain hopeful that this new Congress will seek bipartisan solutions and conduct vigorous oversight of agencies exceeding authority. Members of Congress must protect and cherish their legislative power as set forth in the Constitution. Congressional inaction should not surrender legislative power to the president or federal agencies no matter how well-intended their goals.
Former Rep. Bart Stupak, D-Mich., served from 1993 to 2011 and chaired the House Energy and Commerce Subcommittee on Oversight and Investigation. He is a partner at Venable in Washington, D.C. Venable has represented chemical companies, but Stupak is not lobbying on any legislation or the issue covered in this opinion piece.