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Draining the Regulatory Swamp; The Congressional Review Act has teeth
Topic Started: Mar 1 2017, 08:54 AM (86 Views)
George K
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Finally
https://www.wsj.com/articles/draining-the-regulatory-swamp-1488328398

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Draining the Regulatory Swamp

The Congressional Review Act is even better than we thought.

Nancy Pelosi says Republicans have accomplished nothing in 2017, and no doubt she wishes that were true. But the House has already voted to repeal 13 Obama-era regulations, and President Trump signed his third on Tuesday. Now the GOP should accelerate by fully utilizing the 1996 Congressional Review Act.

Republicans chose the damaging 13 rules based on a conventional reading of the CRA, which allows Congress to override regulations published within 60 legislative days, with simple (50-vote) majorities in both chambers. Yet the more scholars examine the law, which had only been used successfully once before this year, the clearer it is that the CRA gives Congress far more regulatory oversight than previously supposed.

Spearheading this review is the Pacific Legal Foundation’s Todd Gaziano—who helped write the 1996 act—and the Heritage Foundation’s Paul Larkin. Their legal findings, and a growing list of rules that might be subject to CRA, are on www.redtaperollback.com.

The pair argue, first, that the CRA defines “rule” broadly. The law relies on the definition in the Administrative Procedure Act, which includes any “agency statement” that is “designed to implement, interpret, or prescribe law or policy.” This includes major and minor rules as well as “guidance”—letters that spell out an agency’s interpretation of a law.

This matters because President Obama’s regulators often ducked the notice and comment of formal rule-making by issuing “guidance” to act as de facto regulation. Examples include the guidance requiring transgender bathrooms in public schools, which the Trump Administration recently withdrew, or the 2011 guidance dictating how universities must handle sexual assault. The latter is ripe for CRA repeal.

The second discovery is the law’s definition of when the clock starts on Congress’s time to review rules. The CRA’s opening lines require any agency promulgating a rule to present a “report” containing the rule’s text and definition. The CRA explains that Congress’s review period begins either on the date the rule is published in the Federal Register, or the date Congress receives the report—whichever comes later.

Thus any rule for which any Administration (going back to 1996) failed to submit a report is fair game for CRA review and repeal. The Trump Administration can begin the clock merely by submitting a report to Congress.

Our own search suggests past Administrations were fairly diligent about presenting reports for major rules. But a 2014 study by the Administrative Conference of the United States found at least 43 “major” or “significant” rules that had never been reported to Congress.

The study estimated a further 1,000 smaller rules a year that agencies had failed to report. The study focused only on formal rules—not “guidance” that also requires a report to Congress under the CRA. Redtaperollback.com is offering tools so citizens can examine whether past rules have reports.

A third discovery could be the most important. The opening words of the CRA read: “Before a rule can take effect” the federal agency in question must submit a Congressional report. No one has tested the legal limits of this provision, but a fair reading suggests the Trump Administration could declare any rule for which a report has not been submitted to be null and void.

The White House would be wise to start by simply directing federal agencies to catalog which rules have reports—and then devise a strategy with Congress. Some rules might deserve to stay on the books. Some bad rules might get reported to Congress for repeal under the CRA. Others could be declared null and void—which saves the trouble of formally reversing them. This last approach might appeal to Congressional Republicans who are fretting that a CRA crush is diverting them from health-care and tax reform.

Democrats will howl in response to an aggressive use of the CRA, but the law was designed to impose penalties on agencies that failed to keep Congress informed. As Mr. Gaziano says, “the entire point of the CRA was to restore some minimal level of constitutional accountability over agencies that take a broadly worded statute as license to run wild.”

The CRA is the most immediate tool Republicans have to reimpose democratic accountability on a lawless bureaucracy, and they should use it to the fullest.


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Mikhailoh
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If you want trouble, find yourself a redhead
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Copper
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Shortstop
George K
Mar 1 2017, 08:54 AM
Quote:
 
democratic accountability on a lawless bureaucracy


Drain it.
The Confederate soldier was peculiar in that he was ever ready to fight, but never ready to submit to the routine duty and discipline of the camp or the march. The soldiers were determined to be soldiers after their own notions, and do their duty, for the love of it, as they thought best. Carlton McCarthy
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Axtremus
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HOLY CARP!!!
1. In principle, I support Congressional review. We can always argue whether any give set of rules is good or bad and what the outcome of any Congressional review should be. But I think one can reasonably argue for Congressional review much like on can reasonably argue for Judicial review.

2. In practice, I see a couple of issues ...

2A: One issue is Congressional grand-standing. Much like Congress is known to pass laws mandating something and then not fund it (rendering the mandate moot), Congressional review will also allow Congress to pass laws and then when it actually comes time for the Executive branch to write rules to "operationalize" the laws, Congress block implementation in the review process. This becomes another tool for Congress to pander and talk out of both sides of their mouth.

2B: Specific to the opening words of the CRA that reads: “Before a rule can take effect” the federal agency in question must submit a Congressional report ... as agencies write rules to "operationalize" a President's executive orders, presumably those opening words on the CRA would subject those rules to Congressional review too before they can take effect. Not that that's necessarily a bad thing, but I doubt any of the rules/guidelines that follow from Trump's executive order has adhere to those CRA opening words. You want to roll them all back, too?
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jon-nyc
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Cheers
I can see both sides to this. I have real concerns about the growth of the administrative state and its lack of accountability.

Having said that, I've had front row seats to regulatory battles when congress was involved (specifically, between the SEC and the Senate Finance committee, in the 1999-2001 era). Suffice it to say that the swamp critters are usually well represented by congress.
In my defense, I was left unsupervised.
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