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as to content of the rules in question and has no provision

for Congress to amend or modify, or to suggest amendments

or modifications to, the rules it considers.

It permits

Congress only to veto rules of which it disapproves, and

requires Congress to scrutinize no rules at all if it so


H.R. 3658 requires only that rules be laid before

Congress for thirty days; the only rules to be thoroughly

scrutinized are those referred to committee, which become

effective in sixty days if not vetoed.

It is difficult to

see how H.R. 3658's "negative affirmance" procedure is any

greater interference with the administrative process than

are the activitiesof the GAO, the Comptroller General, or

oversight or appropriations committees.

Another ground for support for the bill is the fact

that Congress has at least a special interest in legisla

tive activity that creates crimes or offenses and at most

exclusive control over that activity.

Courts have repeat

edly held that Congress cannot delegate to the executive

the authority to declare crimes.

United States v. Grimaud, - 16

220 u.s. 506 (1910), compare with Light v. United States,

220 u.s. 523; United States v. Eaton, 144 U.S. 677, 688

(1891); United States v. Louisville & N.R. Co., 176 F.

942 (1910); People v. Grant, 275 N.Y.S 74 (1934), aff'd

per curiam 267 N.Y. 508, 196 N.E. 553 (1935).


sanctions imposed by administrative regulations have been

held to derive their force and effect not from the regula

tions, but from the authority of the enabling statute

itself, United States v. Grimaud, supra, and where an

enabling statute does not provide for criminal sanctions,

regulations imposing criminal penalties have been nulli


United States v. Louisville & N.R. Co.,


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It has also been held that even if an enabling statute

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Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter

Poultry v. United States, 295 U.S. 495 (1935) imposed on

delegations in general, Professor Jaffe wrote in 1947 that

the authority of Grimaud appeared sound.

Jaffe, supra.,

- 17

The implication of these cases is that administrative

rule-making which involves criminal penalties is an

area of concern to Congress and possibly an area in which

only Congress can constitutionally act.

In either event,

H.R. 3658 is a valid means of protecting this interest.

If Congress alone can act in this domain, there is no

separation of powers problem at all, since the proposed

administrative rules would have no effect on their own.

The New Wave of Government

Regulation of Business Reprinted from Business and Society Review, Fall 1975

Murray L. Weidenbaum There is a striking but little-noticed parallel between the standard liberal concern with governmental infringement on the civil liberties of individuals and the rising conservative concern with governmental infringement on the freedom of individuals acting as business executives. The first target is often termed “Big Brother.” The second could be called “Big Mother.”

Many liberals are outraged by the arbitrary "no-knock" powers of federal investigative agencies, yet they readily ignore the unchallenged no-knock power used by other federal agencies in their regulation of private business. Federal inspectors are an increasingly important physical presence in private industry. The Supreme Court has ruled that air pollution inspectors do not need search warrants to enter the property of suspected polluters as long as they do not enter are as closed to the public. The unannounced and warrantless inspections were held not to be in violation of constitutional protections against un reasonable search and seizure.

The inspectors of the Labor Department's Occupational Safety and Health Administration (OSHA) can go further. They have noknock power to enter the premises of virtually any business in the United States, without a warrant or even prior announcement, to inspect for health and safety violations. Jail terms are provided in the OSHA law for anyone tipping off a “raid.”

Federal regulatory agencies do not always feel obliged to follow normal standards of fairness in dealing with business firms. Consider the possibility of biased decision-making inherent in the recent agreement between the U.S. National Institute for Occupational Safety and Health (NIOSH), the agency that does the basic research underlying new OSHA regulations, and the Amalgamated Clothing Workers.

Under the agreement, the official federal study of safety and health hazards in the clothing industry is being conducted by a union

Murray L. Weidenbaum, a former bureaucrat himself (he was once assistant secretary of the treasury), is now director of the Center for the Study of American Business at Washington University in St. Louis, and an adjunct scholar of the American Enterprise Institute.

employee and financed by the union. In the words of the OSHA publication which enthusiastically reported the undertaking, “The union will help obtain the cooperation of plant managers.” It is painful to try to picture the reaction of a company management to the investigation of its premises by its union on behalf of the government!

The New Model of Government Regulation

The traditional notion of government regulation of business is based on the model of the Interstate Commerce Commission: A federal commission is established to regulate a specific industry, with the related concern of promoting the well-being of that industry.

In some cases-because of the unique expertise possessed by the members of the industry, or its job enticements for regulators who leave government employment-the regulatory commission becomes a captive of the industry it is supposed to regulate, and the public or consumer interest is subordinated or even ignored. At least, this is a popular view of the federal regulatory process. In addition to the ICC, other agencies which have been criticized on this ground include the Civil Aeronautics Board, the Federal Communications Commission, and the Federal Power Commission.

Although that type of federal regulation of business surely may continue, the new regulatory efforts established by the Congress in recent years generally follow a fundamentally different pattern. The new federal agencies are broader in scope than the ICC-CAB-FCCFPC model. Yet in important aspects, they are far more restricted. In the cases of the Environmental Protection Agency, the Equal Employment Opportunity Commission, the Consumer Product Safety Commission, the Federal Energy Administration, and the Occupational Safety and Health Administration, the regulatory agency is not limited to a single industry. Their jurisdictions extend to the bulk of the private sector and, at times, to the public sector as well. It is this far-ranging reach that makes it impractical for any single industry to dominate these regulatory activities in the manner of the traditional model.

Yet, in comparison to the older agencies, the newer federal regulators, in many important ways, operate in a far narrower sphere. That is, they are not concerned with the totality of a company or

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