Turnabout: Using federal law, Trump can hoist Obama’s regulatory legacy on its own petard

Turnabout: Using federal law, Trump can hoist Obama’s regulatory legacy on its own petard

What a fascinating modern age we live in — to quote the Captain Jack Aubrey line from Peter Weir’s 2003 movie Master and Commander (based on novelist Patrick O’Brian’s 1969 book of the same name).

On 26 January, Kimberley Strassel posted a column at the Wall Street Journal outlining how Congress could undo much of the Obama regulatory legacy with a series of simple votes to reject the new regulations.  In fact, the regulations don’t even have to be that new.  They just have to (mostly) be unreported to Congress as of yet; that is, lacking the official “report to Congress” required for each new rule by the Congressional Review Act (CRA) of 1996.  (Congress can also act on any new rules for which an official report was filed by an agency, but less than 60 legislative days prior to the vote.  As Strassel notes, that will cover some big ones issued at the very end of the Obama presidency.)

Conveniently for the approach outlined by Strassel, it turns out that not “officially reporting” new rules to Congress became epidemic during the Obama administration.

First, however, let’s let Strassel describe the mechanism that ties congressional review — and a potential vote to simply reject a new rule — to the “official report” requirement.

Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano [one of the authors of the CRA] tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.

In other words, Trump can finally submit all the missing reports.  That will start the 60-day clock.  And the Republicans, who own both houses of Congress, can start rejecting the undesirable — costly, unworkable, overreaching, job-killing — new rules added under Obama, one after the other.

How big a reversal of the Obama regulatory steamroller are we talking about?  There isn’t a lot out there on the very arcane topic of “official-report filing for the CRA requirement.”  But a study of the matter was done in 2014, and it found that official-report filing had fallen dramatically under Obama.  The Obama administration was filing far fewer reports with Congress than it was promulgating new rules in the Federal Register.

In fact, in 2011, the Obama administration had the GAO stop keeping comprehensive track of new rules versus official reports on them, as the Accounting Office had been doing since 1997.  The 2014 study summarizes how the numbers plummeted as a consequence of the Obama administration’s practices (p. 2 at PDF link above):

Shortly after the CRA was enacted, GAO voluntarily developed a database of submitted rules, began checking the Federal Register to ensure that all covered rules were being submitted, and periodically notified the Office of Management and Budget (OMB) about missing rules.  From 1997 through 2011, federal agencies submitted an average of about 3,600 rules to GAO each year, which was about 88% of the final rules that were published in the Federal Register in those years.

However, in November 2011, GAO decided to reduce its checks of the Federal Register, and to stop notifying OMB about missing rules.  Shortly thereafter, the number of rules in the GAO database fell sharply.  Federal agencies submitted 2,660 final rules that were published in the Federal Register during 2012, and submitted 2,586 rules that were published in 2013 – only about 71% of the rules that were published during those two years, and 1,242 fewer rules that would have been submitted to GAO at the 88% historical rate of submission.  During the first half of 2014, federal agencies submitted 835 final rules to GAO – less than half of those published during this period, and 647 fewer rules than would have been submitted  at the 88% rate of submission.

From the period 2009 to 2017, the number of new rules for which no official reports were filed is thus in the thousands.

Why did the Obama administration make such a point of cutting back on official-report filing?  The next paragraph of the 2014 study clarifies that for us (emphasis added):

Most of the 43 missing major and significant rules [i.e., those with the biggest projected economic impact, although the total number is in the thousands]…did not appear to have been received by both houses of Congress – thereby preventing a Member of Congress from introducing a resolution of disapproval under the CRA.

Whether or not official reports were withheld out of “spite” (as suggested by Todd Gaziano), we can confidently deduce that most of them were withheld to prevent Congress from disapproving them.

The year 2011 is key:  that was the year Republicans took over the House after the 2010 election, and Obama lost the prospect of having new rules rubber-stamped.  It’s the year the Obama GAO stopped closely tracking the submission of CRA-required official reports — and the year the rate of submission for those reports started to fall through the floor.

By thus gaming the CRA requirement, the Obama administration by its own hand set its regulatory legacy up for a rapid and major reversal.  There aren’t enough emojis on the planet to adequately express the irony.

But wait! —

There’s more [per Strassel]. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

There’s even more good news, which I encourage you to read in Strassel’s op-ed.

Probably the best news of all is that, according to Charlie Hoffmann at the Washington Free Beacon, Republicans on the Hill are enthusiastic and engaged on this.  Assuming the initial read on this is accurate, there’s a real prospect of things getting done.  The Trump agencies will assuredly move with equal or greater alacrity.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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