Attorney says he hopes study on constitutionality of HHS rulings results in political accountability

Attorney Thomas Berry said in an interview that aired Thursday on Hill.TV’s “Rising” that he hopes a new study on the constitutionality of rulings issued by the Department of Health and Human Services (HHS) results in political accountability for all three branches of government. 

“We’re not trying to nitpick or put this study forward to get attention,” Berry, an attorney at the Pacific Legal Foundation told host Buck Sexton on “Rising” on Wednesday. “We’re trying to actually bring political accountability back.” 

“We really think that the executive branch simply doesn’t realize that this has been unconstitutional,” he continued.

The study from the Pacific Legal Foundation found that 71 percent of 2,952 regulations issued by HHS from 2001 to 2017 were issued by “low-level officials and career employees,” who the foundation says “lacked the authority to do so.” 

Hill.TV has reached out to HHS for comment on the study. 

“All three branches have a way to solve this. The courts absolutely can strike down rules that have been issued in this way,” Berry said. “Congress could pass a statute saying a rule is not effective unless it’s signed and issued by someone who has Senate confirmation, and the president with a stroke of the pen could issue an executive order saying no agency within his administration is going to publish something in the federal register that isn’t signed by a Senate-confirmed officer.” 

“We think bringing attention to this issue is the first step in hopefully prodding at least one of the branches to take this seriously,” he said.