Alan Zendell, February 19, 2021
If we learned anything during the last few years it’s to be wary of anything that comes out of a politician’s mouth, especially when there’s a good chance there is a hidden agenda behind the words. Trumpers and Tea Partiers constantly rail against federal regulations, often claiming they’re part of a conspiracy to replace capitalism with socialism. That’s about the same as suggesting that teaching children manners is equivalent to suppressing their creativity and freedom of expression. The intent of federal regulation is no more about restricting capitalism than teaching our children to behave civilly is about turning them into robots.
It might help to remove the mantle of bogeyman from regulation. Our Constitution grants Congress the sole power to pass laws, which in a perfect world, are supposed to reflect the will of the people. But laws tend be statements of principles and concepts. When Congress passed the Social Security Act, for example, and then modified it to include Medicaid, (health care for people in poverty and the disabled,) it laid out a set of goals and minimum standards. Most laws include layers of nuance to allow states and local jurisdictions some leeway to deal with local conditions. Enforcing the Social Security Act was far more complex than pulling someone over for speeding.
The bridge that links federal laws to actionable rules and policies is regulation. Congress passes a law, and then it becomes the province of the Executive Branch to translate the wording of the new statute into enforceable rules, that is, to create regulations that assure adherence to Congress’ wishes. Before any regulation is put in place, the government designates a period of time for public comment, town halls, and these days, debate in both public and social media. Regulations are not edicts of a king. They are intended to serve the common good while allowing states the flexibility they need to apply them to their individual circumstances.
Medicaid is an excellent example of the regulation process, particularly in light of the current push to get the eleven states that held out passing expansions under the Affordable Care Act. Medicaid regulations are written by the Centers for Medicare and Medicaid in the Department of Health and Human Services. The people who draft them understand that one size does not fit all. For example, all states must provide eligible recipients with a standard minimum list of health services, but states can add to the list and request waivers if they think they have a better way to serve their populations. Hundreds of such waivers are currently in force. Even then, the regulations are not absolute. A state need not comply if it wants to run and pay for its own program. The regulations are the requirements for obtaining federal financial assistance.
Most regulations attempt to meet a common need. Problems arise when competing financial interests politicize them. The classic example is the body of environmental protection regulations. The fight between scientists, environmental advocates, and polluting businesses has raged since the National Environmental Protection Act was passed by Congress in 1970, by a Republican Administration. Regardless of which side you’re on, the problem is lobbying and politics, not the regulatory process.
The latest example of why this is so critical is the current weather disaster in Texas. There are two national electric power grids in the United States, one for the eastern half of the country and one for the west. Their purpose is to enable power to be shared in emergencies like the current crisis in Texas. Since weather emergencies never impact the entire country at the same time, most local areas have a surplus power supply that can be shared when the demand in one region exceeds supply. The systems that comprise the U. S. power grid are privately owned, not some giant government utility. But in order to assure compatibility and maintain reliability standards, the systems that participate must comply with a set of regulations. No single entity profits from the regulations. They’re all about serving the common good.
As with Medicaid, states were not required to join one of the national grids, but in order to be connected to them and receive federal assistance they had to agree to abide by the regulations. Texas chose to go it alone, believing they could handle their own problems and would never need to borrow power from other states. In doing so they committed the same error as people who believe they don’t need fire insurance. They don’t – until there’s a fire. Texas politicians abhor federal regulation. In this case that fundamental prejudice cost its citizens dearly. It’s a catastrophe for millions of Texans that could have been avoided by preventing political views from overriding common sense.