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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 7/8/13

Posted in Constitutional Issues in Regulations, Regulatory Process

The Administration announcement that the employer sanctions provision of the Patient Protection and Affordable Care Act (PPACA) would not be implemented for another year, until 2015, stirred debate on the legality of that delay.  On the other hand, the United States Supreme Court (SCOTUS) decision that the Defense of Marriage Act (DOMA) was unconstitutional stirred debate on how many regulations will need to be changed how much.  Agencies are keeping the Office of Management and Budget (OMB) busy with new regulatory reviews – including a second proposal for regulating greenhouse gases by new power plants, while one organization lost its “agency” status for the purpose of regulations.

Healthcare Paperwork:  The Administration announced a one year delay in enforcement of the complex PPACA requirement that employers with 50 or more employees working 30 hours per week (130 hours per month) provide affordable minimum essential health care coverage.  The Administration’s short justification focused on the lack of information – a doff to the Paperwork Reduction Act (PRA) perhaps – but much more lies beneath the surface.

The Department of the Treasury (DOTr) Internal Revenue Service (IRS) proposed regulations to implement individual liability for the shared responsibility payment for not maintaining minimum essential coverage in February, but that rule remains far from completion, as does the implementation of State run (or defaulted Federal) health care exchanges to fill gaps in private insurance.  None of these requirements are likely to be in place by the end of this year, so the delay in the employer mandate really comes as no surprise.  The Administration has not conceded that other parts of the health care Cretan labyrinth will not be implemented on time, but that appears quite likely because the provisions of this Minotaur are interrelated and interdependent.  Only time will tell if one regulation can stand without the others.

DOMA the reg:  When the United States Supreme Court held the Defense of Marriage Act (DOMA) amendment to the Dictionary Act unconstitutional in United States v. Windsor, Justice Kennedy noted that “Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations, has a far greater reach.”  Moreover, Kennedy wrote, the case before SCOTUS concerned estate taxes, but DOMA “is more than a simple determination of what should or should not be allowed as an estate tax refund.  Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.”

Shortly after SCOTUS released its decision, President Obama (POTUS) commented “… I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  The interjection of an additional dependence on State law with the demise of DOMA’s simple (if controversial) overlay of numerous statutory decisions complicates any review of the legion of discrete statutes and regulations – adopted quite independently of DOMA on the basis of individual legislative policy decisions.  Administration wishes aside, this process will not be swift.

Greenhouse Gases & Electric Power Plants:  While debate continued to swirl over the Administration’s announced plan to regulate greenhouse gases from existing power plants, the Environmental Protection Agency (EPA) submitted a new proposed for OMB review for new generating units.  EPA previously proposed Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generation Units in April 2012, and received 2,682,625 comments (which may be only 14,861 after eliminating mass mailings and duplicates) according to Regulations.gov.  Threshing the wheat from the chaff may have lead EPA to substantially modify that proposal.  Speculation has abounded that the new proposal will be “weaker,” but the new proposal may also reflect the adjusted and much higher “social cost of carbon” adopted in the interim.

Emergency Medicare & Medicaid:  Not to be ignored, Department of Health and Human Services (HHS) submitted a new economically significant Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers to OMB for review.  The submission proposes to ensure that Medicare and Medicaid providers and suppliers adequately plan for both natural and man-made disasters and coordinate with emergency preparedness systems.  OMB and the emergency response agencies will need to evaluate whether this rule adds value to the already extensive preparedness system or just another layer of bureaucracy.

Railroads & Agencies:  The United States Court of Appeals for the District of Columbia held that the National Railroad Passenger Corporation – aka Amtrak, a government corporation – was unconstitutionally granted regulatory authority over its priority of service among railroads, violating a “cousin” of the all but moribund non-delegation doctrine.  The rare decision in Association of American Railroads v. Department of Transportation (DOT) on statutory construction, entity analysis, and the scope of constitutional power may have little – or a lot – of meaning for the arcane world of government sponsored enterprises (GSEs), depending on the details of their creation.  The court held that Amtrak could not share with the Federal Railroad Administration authority to adopt regulations because it was a corporation, not an agency, albeit a corporation with a most dominant United States stockholder and appropriations benefactor.