By James Gattuso
According to a report recently submitted to Congress by the Congressional Research Service over 1,000 regulations written by federal agencies over the past decade may be invalid. The reason: copies of the rules were never given to congressional oversight committees as required by law. As a result, pending enforcement cases and other actions under these rules could be thrown out of court.
The problem stems from the 1995 Congressional Review Act, which provides Congress a chance to review and reject regulations written by agencies. In order to facilitate such review, every federal agency is required to provide Congress, as well as the Government Accountability Office, with copies of any rules they promulgate.
Its a minor requirement, and one that comes at the end of a long rulemaking process. But the CRA is clear: no rule becomes effective until Congress is notified.
As it turns out, however, the requirement has often been ignored. Not once, or twice, but — according to the CRS report by analyst Curtis Copeland — over 1,000 times over the past decade. In 2008, for example, some 101 rules were never transmitted. Of these, , 22 were “significant” (i.e. had over $100 million in economic impact), or about 12 percent of the total. Included among the missing were a DHS rule on safe harbors for employers, USDA’s rules on use of roadless wilderness areas, and a DOT rule on truck safety.
The exact legal consequences of the oversight is unclear, but it is possible that the regulations may be void, at least until the agencies send copies to Congress. That would throw all sorts of actions taken under the rules in the intervening years into a legal cloud.
That may seem extreme for a procedural oversight. But the agencie’ failure to follow the law should have some consequences. The CRA was hailed in 1995 as a landmark step to increase congressional control over unelected regulators. If that goal is still to be taken seriously, the requirements of the CRA should be too.
More generally, the kerfluffle underscores the broader problem of lack of oversight for regulators. OIRA — the White House agency charged with reviewing rules — comes in for some criticism in the CRS report for not ensuring compliance. But OIRA, with only 50 or so staffers, in badly outgunned in battles with regulation writers. Congress is even less equipped. Although the Congressional Budget Office is considered an essential component of the budget process, there is no Congressional Regulation Office to give Congress information on the number, cost or effects of federal regulations.
Beefing up these institutional checks, as well as enforcing current law, is essential to establishing accountability in the regulatory process. Even for a White House and Congress which are, to be kind, less skeptical of governmental mandates as they could be, such accountability should be welcome.