Department of Education officials appear to be backing away from a confrontation with Congress over the fate of four department regulations vetoed on Capitol Hill earlier this year.
While maintaining that the vetoed regulations are still valid and final, a department aide said yesterday that Secretary Shirley Hufstedler has ordered a review of the four rules because of concern expressed by members of Congress.It wouldn't be unusual to make changes in final regulations, the aide added.
Chairman Carl Perkins (D-Ky.) of the House Education and Labor Committee and 31 members of the panel wrote Hufstedler June 12 to complain about reports that she was planning to ignore the vetoes. Such action would be "arrogant" and "irresponsible," the House members wrote.
Hufstedler told senior staff members they were "entitled to implement the regulations in question in spite of Congress' disapproval." She acted on the basis of a legal opinion from Attorney General Benjamin R. Civiletti that Congress had no constitutional power to black department regulations.
The decision appeared to set up a legal battle between the two branches of government, but Hufstedler's recent plan to review the disputed regulations seems to offer a way out. Congressional vetoes of other regulations never reached the confrontation stage because the affected agencies rewrote the regulations to satisfy Congress.
Perkins said in a telephone interview yesterday that he was confident that Congress had acted legally. "We created those departments as creatures of Congress. We vetoed those regulations, which we had a right to do, and we're going to stand by it," he said.
Perkins said some House members have threatened to cut Education Department appropriations if the agency continued to defy the vetoes, though he said he did not favor that approach.
Rep. Elliott H. Levitas (D-Ga.) has said he will offer amendments to every money bill in Congress declaring that none of the funds can be used to implement regulations vetoed by Congress.
"We obviously want to de-escalate what has become an unfortunate public clash between two forces with mutual interests," the Education Department aide said.
In a June 19 reply to Perkins' letter, Acting Secretary Steven Minter told the chairman that the new department was working "to establish an improved regulations-writing process and to recognize and incorporate congressional intent and concern."
"We have developed a procedure that we hope will reduce substantially the time it will take the department to issue regulations," he said. "The secretary shares your concern for issuing shorter regulations and putting them in English."
In the floor debate before the veto votes, Perkins and other House members complained that their early comments about the pending regulations had been ignored by the department and that the rules went beyond the intent of Congress.
Perkins recalled yesterday that the House committee had problems in the 1960s with the writers of education program regulations. "And these youngsters kept getting worse," he said. Finally he put a staff counsel to work reading the department's rules and decided "they were becoming a burden on us."
The Carter administration's position has been that congressional vetoes will be given serious consideration, but are not considered legally binding. The Department of Education now appears ready to try to calm the irritated legislators without giving up its legal argument. If the vetoed regulations are modified, administration officials can say it was their decision -- not congressional pressure -- that led to the change.