Stephen E. Herbits is an American businessman, former consultant to several Secretaries and Deputy Secretaries of Defense, executive vice president and corporate officer of the Seagram Company, advisor to the President's Advisory Commission on Holocaust Assets, and secretary general of the World Jewish Congress. He was the youngest person to be appointed commissioner on the Gates Commission. Herbits' career has specialized in "fixing" institutions – governmental, business, and not-for-profit – with strategic planning and management consulting.
Republicans see government regulation as intrinsically bad; Democrats argue that regulations are protections and a necessary element of a democratic society. Yet, there is an opportunity for a convergence of views.
Some have described the difference as between a lack of intelligence and bad judgment by noting that intelligence is the intellectual gathering and perhaps understanding of information, sometimes for application, while bad judgment is an unjustified or emotionally driven attitude or action.
The Supreme Court decision in the case of Sackett v. EPA decided the case based on both. Will it be smart or partisan?
Over nearly two and a half centuries, Federal regulation has emerged organically when the public determined a need. The first Federal regulation followed the Civil War when the public demanded government intervention to assure proper treatment, including “repatriation,” of the fallen. Each subsequent regulation addressed the needs at that time: the Sherman Antitrust Act in 1890 followed by multiple health and safety protections.
The intentional first Article of the U.S. Constitution, the Congress created a process or regulation, which is deliberately designed to be a process of mediation between conflicting interests. Corporations, a government created mechanism for conducting business, are designed to make profits by providing goods and services, regardless of their impact on the public. That system was and remains needed. However, this design to maximize shareholder and executive profit creates its own centrifugal force – greed.
To attempt a balance between corporate profits and the public’s needs and interests, the Congress repeatedly developed a carefully constructed process to mediate between those interests.
That process consists of rulemaking with public input, investigation and adjudication, and enforcement. In each, the regulatory format was created because the traditional three branches of government could not do the job. The Executive Branch was subject to too much partisan control. The Judicial Branch works so slowly as to make final decisions long after the health and safety protections have done too much damage. With large portions of its personnel changing, Congress could not learn the matters sufficiently, nor adjudicate nor enforce.
As a result, the Congress created a “Fourth Branch” in order to effectively address technical requirements in the “modern” area for health and safety, the inability to investigate and adjudicate failures to follow rules, and the ability to enforce them in a timely manner.
Imagine, for instance, a pharmaceutical company creating an ingestible drug to do whatever, making whatever claim, and selling it to the public without a check and balance on its safety and efficacy.
Imagine our rivers and lakes today without the Environmental Protection Agency – a need publicized by Rachel Carson in her 1962 book Silent Spring (one of her four books), recommended by a Republican president and enacted by a bi-partisan Congress. Now, in a significant shift, six members of the Judiciary Branch will make decisions for the agencies.
Not long ago, the FAA’s delegation of quality control to Boeing’s 737 Max resulted in hundreds of deaths, severe interference in the economy, and further loss of the public’s trust in government. This was a direct result of the failure of a regulatory agency to perform its duties responsibly -- a salient example that illustrates how essential regulatory agencies are in protecting the public.
There is, of course, the right of appeal to the judiciary for the failure to follow procedures set by Congress, but that is a far cry from usurping Congress and the regulatory agency’s ability to regulate at all.
It is no excuse that after years of institutional performance, some regulatory agencies need to refresh their system of rulemaking, investigation, adjudication, and enforcement. A specific, OMB authorized process -- similar to what corporations or auditors pay consultants to perform -- should begin that process immediately.
The need for an effective regulatory process is no excuse for today’s hyper-partisan Supreme Court to undermine the Fourth Branch with its own partisan decisions as to what is and what is not a “major” decision by Congress and undermine their carefully created mediation process to resolve conflict. Every rule now becomes unreliable. Short-term hyper-partisanship supported by lobbying and campaign contributions could become the new rule-making process.
The Third Branch of government, the Supreme Court, should not replace Congress’s role in creating, reviewing, and amending where necessary, the “Fourth Branch.”
