Rules: the other way to make laws A4 Thursday, February 16, 2012
A few bills in the Legislature this year deal with state regulations and how they are made. In discussing these bills, I was reminded that most people don’t participate in the rulemaking process, don’t understand how it works, and so might not appreciate the benefits of improving it. Rulemaking is not limited to agencies with the word “regulation” in their title. Lots of agencies have regulatory authority, which is conveyed by statutory language creating that authority. Where some agencies — such as the boards and commissions in the Department of Regulation and Licensing — generally focus on a particular industry, others, like Taxation and Revenue, may make rules affecting large classes of taxpayers. Regulations add specificity to statutes. The language in the law is often general, and detail is required so that people who have
EDITORIAL
OPINION
MERILEE DANNEMANN
TRIPLE SPACED
to comply with the rules will know more precisely what their rights and obligations are. The state’s regulations can be found in the New Mexico Administrative Code, published online by the state Commission of Public Records. The code itself is a relatively recent development; until it was organized, agencies published their own rules by their own methods in their own formats. The code is a big improvement except for an arcane formatting and numbering system that is daunting for the beginner.
Roswell Daily Record
Proposed rules and notices about them are published in the New Mexico Register, also published by this commission. Before the register was created, these notices were published as legal ads in newspapers, creating long gray columns of tiny type, a source of income for the newspapers, and a chance for a few diligent readers to find this information. The New Mexico Register no doubt saves the state a great deal of money, but it’s not exactly on the rack at your supermarket checkout stand. The agency may maintain a list of individuals or organizations who have indicated interest in its regulatory activities and send notices to those people. A public hearing is held at which comments from the public are listened to, and the agency may modify a rule based on that input. Interested parties may also submit comments in writing,
whether or not they attend the hearing. The agency is not required, however, to change the rule in response to comments or complaints. I learned all this from a state agency attorney several years ago. This was the procedure he followed. But the law relating to this process, the New Mexico Rules Act (Article 14-4 of the statutes), is surprisingly sketchy. Most of what I just described isn’t in it. The attorney told me the rulemaking process is derived from case law, meaning a series of court decisions. This year’s House Bill 34 and Senate Bill 257 are attempts to make the process more transparent. They have not moved very far in the 2012 session. Once enacted, regulations have the force of law. As a matter of basic constitutional principles, rulemaking violates the doctrine of separation of powers, which is intended to pro-
tect the citizens from abuse by government. Legislators make laws but are not the enforcers of the laws they make; but rules are made by the agencies that have the power to enforce them. With the best of intentions, regulators may tend to make rules with a bias toward their own convenience and less regard for yours. They also pay attention to the folks who show up at their hearings, who tend to be members of organized special interest groups, not the general public and usually not the press. You might think that the rulemaking structure would have extra scrutiny designed into it, to prevent misuse of power. Well, so far not exactly. Contact Merilee Dannemann at www.triplespacedagain.com. © New Mexico News Services 2012
Payroll tax cut
On the payroll tax cut, Republicans are playing tiddlywinks. Democrats are playing poker. President Barack Obama and the Democrats in Congress want to extend the 2 percentage-point cut in the payroll tax — the Social Security tax most workers pay — that was enacted in December 2010. The tax cut expired in December 2011 but was extended until Feb. 29. The cut dropped to 4.2 percent from 6.2 percent the amount of income each employee is taxed. The options are for another short-term extension, to Dec. 31 (and through the November election) or to make the tax cut permanent. Congressional negotiators also are approaching a Feb. 17 deadline, when Congress is scheduled to go into recess. Democrats have pushed the tax cut because it goes to working people, whom they want to attract as voters. Republicans have been hesitant because the tax cut adds close to $90 billion a year to the federal deficit. The deficit is expected to be $1.1 trillion through fiscal year 2012, which ends on Sept. 30. That amount was a bit less than the $1.3 trillion deficit for fiscal year 2011. But it’s an incredible amount of money that adds to the current federal debt of $15.3 trillion. Are Democrats bluffing? Would they let the payroll tax cut expire at the end of this month, thus sticking it to workers and throwing blame on Republicans? AP reported that some Republicans want “to partially pay for the two percentage point payroll tax holiday through freezing federal workers’ pay and requiring more affluent seniors to pay higher Medicare premiums.” Well, we’re all for freezing federal workers’ pay, which according to some studies is double that of equivalent jobs in the private sector. And Medicare needs to be reformed. But those issues can be dealt with later. Republicans should start playing some real poker. They should call the Democrats’ bluff and insist on making the payroll tax cut permanent. “It would continue the economic growth we’re enjoying, and that’s good news,” Esmael Adibi told us; he’s director of the A. Gary Anderson Center for Economic Research at Chapman University. “A big portion of that will be spent by consumers. If Republicans say ‘no,’ then come the election, Democrats could say the Republicans didn’t help working people.” We believe that making the payroll tax cut permanent — or at least extending it to Dec. 31 — would send a signal that Congress is serious about continuing the current economic growth, which after all is modest, thus forestalling a recession. An economic crash would create more joblessness, which in turn also would cut payroll tax payments because the unemployed don’t pay the tax. As to the deficit and debt, they ought to be dealt with through cutting current spending. There’s plenty of room for savings in a fiscal 2012 budget projected to run to $3.7 trillion. Long-run solutions to these problems, as well as to Medicare, Social Security and other entitlements, will have to wait until the presidential and congressional races are decided in November. Until then, Republicans should put on their poker faces and increase the bid to a permanent payroll tax cut. Guest Editorial The Orange County Register
DEAR DOCTOR K: My elderly father lives with my family. But I have my own health issues and don’t think I’ll be able to care for him much longer. What are my options for long-term care? DEAR READER: When I was in medical school, there were basically two options for longterm care: People moved in with their kids, or they were cared for in nursing homes. Nursing homes were an option only if the older folks had medical conditions that required constant nursing care. Many people had no place in their homes for their parents. Also, there was no one at home during the day to be there for their parents when they needed help. And it was both unnecessary and humiliating for many
Never trust government numbers JOHN STOSSEL CREATORS SYNDICATE
President Obama said in his State of the Union speech, “We’ve already agreed to more than $2 trillion in cuts and savings.” That was reassuring. The new budget he released this week promises $4 trillion in “deficit reduction” — about half in tax increases and half in spending cuts. But like most politicians, Obama misleads. Cato Institute economist Dan Mitchell cut through the fog to get at the truth of the
Doonesbury
ASK DR. K UNITED MEDIA SYNDICATE
parents to become dependent. There are now more options for people like your father. There is a much better chance today that you will find something that suits your father’s medical condition and his degree of independence. For people who are only slightly impaired, group homes offer a good option. Also called board-and-care homes, they
$2 trillion “cut.” “We have a budget of, what, almost $4 trillion? So if we’re doing $2 trillion of cuts,” Mitchell said, “we’re cutting gover nment in half. That sounds wonderful.” But what the president was talking about is not even a cut. The politicians just agreed that over the next 10 years, instead of increasing spending by $9.48 trillion, they’d increase it by “just” $7.3 trillion. Calling that a “cut” is nonsense. Mitchell gave an analogy: “What if I came to you and said, ‘I’ve been on a diet for
offer help with activities of daily living, but each resident has his own private space. Senior apartments and subsidized senior housing enable residents to live independently while receiving help with tasks such as shopping and laundry. The buildings are designed with the elderly and wheelchair-bound in mind. In an assisted-living facility, your father would live independently. But he could receive assistance with daily tasks as well as nursing supervision. Continuing-care retirement communities offer skilled nursing care and allow you to increase services over time. They have different types of living arrangements for people with different levels of independence.
the last month, and I’ve gained 10 pounds. Isn’t that great?’ You would say: ‘Wait, what are you talking about? That’s insane.’ And I said: ‘I was going to gain 15 pounds. I’ve only gained 10 pounds, therefore my diet is successful.’” Democrats use this deceit when they want more social spending. Republicans use it for military spending. And the press buys it. The Washington Post has been writing about “draconian cuts.” “The politicians know this game,” Mitchell said. “The
There often are common spaces where the residents meet each other and various activities occur. Many have medical facilities somewhere in the complex of buildings. They often have a common kitchen and cafeteria where residents can get food. Your father might start with an independent apartment and a bit of extra assistance. Over time, he may need to take advantage of increasing levels of care. Skilled nursing facilities, or nursing homes, provide the most far-reaching services. They offer long-term, around-theclock care. And they can care for people with significant illnesses or mental or physical disabiliSee DR. K, Page A5
special interests know this game. Everyone gets a bigger budget every year. ... And we wind up, sooner or later, being Greece.” We are definitely on the road to bankruptcy. “We have maybe 10, 15 years’ advanced notice. And what’s frustrating is that we’re not taking advantage of that, even as we see these other countries collapsing into social chaos and disarray.” Mitchell points out that the politicians don’t even have to make actual cuts to save the
See STOSSEL, Page A5
25 YEARS AGO
Feb. 16, 1987 • Del Norte Elementary School has announced the Dragons of the Month for December 1986. They are: sixth grade — Bryan Determan and Eric Neria; fifth grade — Kim Bartl and Jason McCleskey; fourth grade — Tina Barron, Brian Daniels, Joel Ortega and Coby Pritchard; third grade — Clifford Ginanni, Shannon Kreager, Melissa Ontiveros and Brandon Winnie; second grade — Kendra Cleveland, Andrea Flores and Joey Young; first grade — Jimmy Atchison, Joshua Murrell, Lorenzo Ontiveros and Jayton Wakefield; and kindergarten —Noland Edmonson, Melanie LaPlant and Shauna Sherfick.