Regulatory overreach has met its master
A legacy of the Contract with America is a statute that lets a new Congress disapprove regulations of a departing administration
Last updated 1/28/2018 at 7:33am
Without putting too fine a point on it, federal regulatory initiatives reached a crescendo during the last administration. According to the Office of Information and Regulatory Affairs, since Jan. 1, 2000, the bureaucracy has generated more than 10,000 regulations, of which 1,830 were deemed "Economically Significant". The term, "Economically Significant," in general, means that it is likely to have an annual effect on the economy of the United States of $100 million or more.
Last year alone, the Obama Administration generated 623 new regulations, of which 156 were Economically Significant. For the most part, there is very little that an affected industry can do to fight these regulations. The range of options are limited to public participation in the administrative process, including generating critical comments that characteristically fall on deaf ears, and ultimately in the most egregious cases, litigation.
Litigation is always an unsatisfactory remedy because the courts are limited under the Administrative Procedures Act to reviewing the record below, and the standard for overruling a regulation is very high. In addition, under the U. S. Supreme Court's Chevron decision, the agencies are deemed to be the best arbiters of their own statutory mandates.
In essence, when the agencies are staffed with fedreaucrats with an anti-industry bias, the regulatory work product tends to smother commerce at an ever-increasing rate.
Until Nov. 8, it appeared that in order for industry to staunch the rising tide of regulations, it would have to pile Pelion on Ossa; however, with the election of President Donald Trump, there came a rusty sword that Congress and the White House working together could use to slay the deadly dragon of the Potomac. It turns out that the Congressional Review Act of 1996 has been lying around, essentially unused, waiting for the stars to align.
The CRA, as it is known, affords Congress a process and a limited opportunity to overrule certain regulations adopted by the previous administration. Congress can only reach back to about June 13, 2016 to review final agency rules and even then the statute requires that each House of Congress adopt a resolution of disapproval. Further in the Senate, each resolution of disapproval must be allowed 10 hours of floor debate. The really good news, however, is that if a rule is disapproved by Congress and signed into law by the President, the agency can never, thereafter, promulgate a rule that is "substantially the same."
Since 1996, Congress has successfully disapproved only one agency final rule. That midnight rule which pertained to workplace ergonomic standards was a dying gasp of the Clinton Administration.
Already, the Trump Administration has vacated one extremely burdensome rule that required oil and mining companies to disclose their payments to foreign governments; and another, issued under the authority of the Clean Water Act that would wreak havoc on the coal industry, is pending signature. A third rule purporting to give the Bureau of Land Management broad direction to consider the impacts on the "landscape" of multiple use activities on the public domain is also working its way through the process.
The constraints on the CRA are substantial. For instance, even undeniably oppressive regulations that predate the June 13 deadline are not open to disapproval. In addition, each rule that is to be considered for review must be the subject of a separate resolution. Some of these limitations on the utility of the CRA may be lifted by a new bill under consideration that would allow multiple regulations to be set aside at the same time; however that measure has not passed yet.
Among the criticisms of the CRA is that it is a sword with two blades. It can cut either way. For example, there are those who note that Trump-era regulations also could be set aside, especially if the disapproval process is made significantly easier.
If POTUS follows through with his proposal to require two regulations to be withdrawn for every new regulation that is issued, the world will be a better place. If obstructionists create a barrier to subsequent regulations on a given subject, we can probably live with it.
It can only be hoped that Congress will see fit to undo as many agency actions as possible, while it can. Obnoxious rules that are not disapproved under the CRA can be set aside by the traditional administrative process if the leadership of the relevant agency can be persuaded to do so. That, however, will require compliance with the endless red tape for which our government has become so famous, not to mention the interminable litigation that might ensue.
In brief, the CRA affords industry a fleeting opportunity to slow the devastation that has befallen us, and we sincerely hope that Congress and the President will make the most of it.