From gas stoves to prairie chickens, Missouri Republican declares a war on federal regulators

Tribune Content Agency

WASHINGTON — Sen. Eric Schmitt teased his first bill in January when he joined the effort to defend gas stoves from the federal government.

Around the time the Missouri Republican was sworn into his first term in the U.S. Senate, a commissioner on the U.S. Consumer Product Safety Commission suggested that the group, which is designed to protect Americans from harmful household goods, might look into regulations to limit gas stoves for their health and environmental hazards.

The suggestion, not yet a fully formed rule, sparked instant backlash from conservatives, including Schmitt.

“The gas stove ban is the latest in a long line of stupid ideas that make their way into regulations,” Schmitt wrote on Twitter at the time. “For every new reg proposed agencies should have to eliminate 2 or more. Congress should have to vote on new regs. Then voters could fire Reps & Senators who vote for this nonsense.”

It took around five months of being in Congress before Schmitt wrote a bill attempting to do just that. It would require that every time a new administrative regulation is introduced, the agency has to repeal three existing regulations.

“So the Trump administration did that,” said Susan Dudley, a professor at George Washington University who focuses on regulations. “Trump had a rule, for every new regulation he had to find two to remove. And it turns out that part may not be that hard. Because there are a lot of little things that you can remove and do one big thing.”

The Code of Federal Regulations is four times as big as the Code of Laws passed by Congress — there are more than 185,000 pages of regulations compared to 44,000 pages of laws, according to a paper Dudley wrote for Daedalus, a journal published by the American Academy of Arts and Sciences.

Schmitt was the last freshman senator to introduce his first bill. It has little chance of passing a Democratic-controlled Senate.

Schmitt’s professed goal isn’t just one bill. Instead, he’s focused on taking apart the administrative state, which he said has gained too much power and is interfering with the freedom of everyday Americans.

He means the broad swath of alphabet agencies that compose the federal government and interpret and enforce the laws passed by Congress: like the Environmental Protection Agency, the Centers for Medicare and Medicaid Services, the Centers for Disease Control and Prevention, the Social Security Administration, the Federal Aviation Administration, the Federal Emergency Management Agency, and the Food and Drug Administration.

Sally Katzen, a professor at New York University Law School, said those agencies, and the rules they create, are important for things like clean air, clean water and safe food, workplaces and financial systems.

“While people will say let’s get rid of regulations, there’s very little agreement on what should be thrown overboard and for good reason,” Katzen said. “Regulations have made us a healthier, safer, more prosperous, more competitive country.”

Schmitt calls them a grave threat to the country.

“To me, the biggest threat to the constitutional republican form of government is the growth of the administrative state,” Schmitt said. “And so this is an opportunity to take that on.”

Conservatives have long pushed back against expanded power for the federal government with Republicans often echoing a line from President Ronald Reagan’s inaugural address that “government is not the solution to our problem; government is the problem.”

Today’s version of the limited government argument, like much of modern politics, is waged in the form of a culture war. Conservatives express outrage over regulations on gas stoves or the energy efficiency of refrigerators, or the amount of smog allowed to come out of cars or whether the government should be allowed to protect the lesser prairie chicken.

Schmitt’s goal, he said, is to stop people who aren’t elected from being allowed to make these rules. He wants to claw back the power that Congress has handed over to the executive branch and give it back to Congress. He said under the current system voters can’t hold someone accountable for creating a rule they don’t like, contending it’s part of the reason people no longer trust the government.

“In a representative form of government like we have, giving away that much power to the ‘experts’ is fraught with peril,” Schmitt, who as attorney general was especially critical of the mask guidance issued by the Centers for Disease Control and Prevention during the COVID-19 pandemic. “It doesn’t work.”

It is part of a push Schmitt first made as Missouri’s attorney general when he sued the federal government in order to knock down rules in court, like a Biden administration rule that would have eliminated up to $20,000 in student debt for some Americans. The case is pending before the U.S. Supreme Court, which is expected to issue a ruling in the near future.

But instead of using the courts, Schmitt is now aiming to fundamentally change how Congress operates. If he gets his way, the infamously divided body would have to craft laws that focus on the minutia of things like water rights and financial regulations, rather than turning those decisions over to the experts at the administrative agencies to promulgate rules based on the law as is the typical practice.

Often, when Congress passes a law, the legislation gives power to an agency to craft rules to help the law go into effect.

When Congress passed the Inflation Reduction Act last year — a piece of legislation largely focused on climate policy — it was heralded by Sen. Joe Manchin, a West Virginia Democrat and one of the Senate’s key swing votes who helped write it. In the time since, as the executive branch has begun writing rules to enact the policy, Manchin has turned against his own bill, criticizing the Environmental Protection Agency, the agency empowered by his legislation.

He’s taken to boosting a different mechanism to scale back regulations — the Congressional Review Act. Over the past few months, Manchin has joined Republicans several times in attempt to eliminate executive branch rules they don’t like — including protections for the lesser-prairie chicken and Biden’s version of Waters of the U.S., which was overturned by a U.S. Supreme Court ruling last week.

But while they’ve been able to voice their disapproval, Biden can still veto the resolutions, keeping the rules in place. Overriding the veto would take two thirds of both chambers, something Congress has not been able to accomplish.

Schmitt has signed on to a bill sponsored by Sen. Rand Paul, a Kentucky Republican, that would reverse the process so that instead of being able to vote to express displeasure about a rule, Congress would vote to approve any new rules. The bill has not made it out of committee.

Still conservatives are enthusiastic at the prospect of reining in government if Republicans win control of both the House and Senate in 2024, particularly as they’ve found their framing of government overreach to be popular back in their home states and districts.

Anthony Campau, the former chief of staff for the Office of Information and Regulatory Affairs in the Trump administration, said Republican voters care about regulatory issues. He attended a rally by then-President Donald Trump where the former president criticized Waters of the U.S. by its acronym, WOTUS.

“He didn’t have to spell it out or provide context,” Campau said. “They knew exactly what he was talking about and how it impacted them. They jumped to their feet and gave him a roaring standing ovation about the rollback of an acronym. This stuff is real. People get this.”

Katzen, the NYU law professor, noted that if more of the power for creating rules was shifted back to Congress, party polarization would make it difficult to pass any new rules, since Republicans and Democrats. already have trouble agreeing on some of the most pressing policy issues, like immigration reform and gun laws.

“The issues that confronted the first, second and third Congresses did not have the complexity of issues like climate change or immigration,” Katzen said. “And as the subjects became more difficult to navigate, it became much more difficult for part time legislators to come up with the answers.”

Schmitt said party polarization should not be an excuse for Congress handing power over to the executive branch.

“The truth is, that’s not a good reason,” Schmitt said. “That’s not a reason to go outside of the constitutional structure that held people accountable in this form of government to say, well Congress hasn’t acted, so let’s let some experts decide. I don’t think that’s a good solution.”