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April 16, 2019 by Bill Funk

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process.

The CRA requires federal agencies to send newly adopted rules to the House and Senate before the rules become effective. This enables both houses the opportunity to adopt a joint resolution disapproving the rule. If both houses adopt such a resolution, it is sent to the President for his signature or veto. Although only one rule was disapproved under the CRA in its first 20 years of existence, in the first year of the Trump administration, some 14 regulations were disapproved under the CRA.

The CRA specifically defines "rule" and "federal agency" to mean the same as the definition of "rule" and "agency" in the Administrative Procedure Act (APA). It then exempts in whole or in part certain types of rules from its requirements, notably all the rules that the APA exempts from notice and comment rulemaking, except interpretive …

Jan. 30, 2018 by Bill Funk
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Progressives have rightfully taken issue with the Trump administration's policy goals, from immigration to the environment, from health care to worker safety. Given the president's decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that the administration has shown for the law, both substantive and procedural. 

For example, President Trump's earlier executive orders on the "Muslim ban" were overturned not just on constitutional grounds, but also on statutory grounds. The most recent ban has also been enjoined on statutory grounds, although the U.S. Supreme Court has just recently decided to review that ruling. 

Trump's executive order on sanctuary jurisdictions met a similar fate.  The order stated that the policy of the executive branch was to "ensure that jurisdictions that fail to comply …

May 22, 2017 by Bill Funk
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Originally published on The Regulatory Review by CPR Member Scholar William Funk.

Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review because the proposed Regulatory Accountability Act (RAA) would require the equivalent of formal rulemaking—or what the bill calls a "public hearing." Barnett may well be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger formal rulemaking under the RAA are among those situations.

As Barnett acknowledges, the U.S. Supreme Court, scholars, policy makers, and other interested parties all have condemned formal rulemaking. Why? Because formal rulemaking utilizes a judicial, trial-like procedure to adopt rules that are legislative, not adjudicative, in …

Feb. 14, 2017 by Bill Funk
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The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional. 

The current REINS Act has three parts. One part essentially reflects the recent Executive Order on Reducing Regulation and Controlling Regulatory Costs, except that the REINS Act only requires repeal of one regulation for each regulation adopted, rather than the E.O.'s two-for-one requirement. Another part of the REINS Act continues the CRA, but only for non-major rules. The final part, the part that is unconstitutional, provides that no "major rule" – defined as a "significant regulatory action" requiring a cost/benefit analysis under Executive Order 12866 – shall take effect until Congress "approves" it by joint …

Oct. 3, 2016 by Bill Funk
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Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice, as part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. Reprinted with permission.

The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily both Chevron, USA, Inc. v. NRDC and Auer v. Robbins (and its forebear Bowles v. Seminole Rock & Sand Co.), but not Skidmore v. Swift & Co. 

The idea is not new. Indeed, beginning in 1975, well before Chevron began its …

June 3, 2015 by Bill Funk
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Senator Rounds (SD-R) has introduced a proposed concurrent resolution to establish a Joint Select Committee on Regulatory Reform to address the alleged “regulatory overreach that is so prevalent in all sectors of the U.S. economy” by, among other things, conducting a “systematic review” of all rules adopted by federal agencies, supposedly in the name of reducing government expenditure and streamlining business procedures.  Ironically, Congress, if it wishes, can spend its otherwise valuable time having a committee engage in this procedure, while at the same time increasing the costs of government by requiring government agencies to appear at hearings and respond to subpoenas to answer once again why they are doing what members of Congress have by statute told them to do, in order to protect the public health, safety and environment of their constituents. This is political theater, no more, no less.

The other provisions in …

Feb. 17, 2014 by Bill Funk
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In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action.  There followed a laundry list of initiatives that he said he would take on his own.  Predictably, Republicans have railed against the President’s proposed actions, accusing him of subverting the rule of law.  It’s all just politics.

First guilty party: President Obama.  For all his touted exercise of executive authority, there is nothing revolutionary there.  Most of the initiatives are simply the use of the bully pulpit to call upon various groups and constituencies to do the right thing.  For example, the White House hosting a Summit on Working Families, asking the Vice President to lead a “full review” (as opposed to a partial review, I guess) of America’s job training …

Oct. 17, 2013 by Bill Funk
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On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA’s rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA’s use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution.

The regulations at issue implement the Clean Air Act’s Prevention of Significant Deterioration (PSD) program, which regulates new major emitting sources in areas meeting the Act’s minimum standards for at least one of the so-called Criteria Pollutants. In these areas, which include almost everywhere in the United States, the Act requires EPA to impose a permit requirement on major emitting facilities, which would include a best available technology requirement, if the facility emits …

Sept. 30, 2013 by Bill Funk
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Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a deliberate bias against regulation by reason of its additional roadblocks to and delays in adopting regulations. This bias was clearly intentional in the origin of the centralized review by President Reagan, who famously said, “government is not the solution to our problem; government is the problem.” However, even when Democrats became President the bias remained. President Clinton’s E.O. 12866 begins with a statement …

July 17, 2013 by Bill Funk
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Environmentalists know about the Environmental Protection Agency’s Water Transfer Rule. See 40 CFR § 122.3(i). It states in essence that discharging polluted water from one body of water to another unpolluted body of water is not a discharge of a pollutant under the Clean Water Act. According to the EPA, this action would not be regulated by the Act, because no pollutant is being “added” to the “waters of the United States.” There may be an addition of a pollutant to a particular body of water, but that is not enough, the EPA says. There must be an addition to the “waters of the United States” as a whole. This is also known as the “unitary waters” approach.   

This issue has arisen in a number of different cases, perhaps most notably in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S …

CPR HOMEPAGE
More on CPR's Work & Scholars.
April 16, 2019

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

Jan. 30, 2018

Breaking the Law: Many Trump Regulatory Rollbacks and Delays Are Unlawful

May 22, 2017

Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation

Feb. 14, 2017

Why the REINS Act Is Unconstitutional

Oct. 3, 2016

Why SOPRA Is Not the Answer

June 3, 2015

An Unconstitutional Attempt to Roll-back Public Health Protections

Feb. 17, 2014

Executive Fiat or Business as Usual? Claims of Presidential Overreach are Just Politics