Republicans on several House and Senate committees are looking for new ways to meet President Trump’s goal of eliminating regulations that he says are holding back the U.S. economy.
Trump has told business leaders that he wants to cut regulations by 75 percent or “maybe more.”
Many see that high of a target as unachievable, since it would involve cutting minor regulations that are uncontroversial.
But the comments have raised the bar for the administration and Congress, which is now looking at novel ways to meet the ambitious goals.
The House has already used the Congressional Review Act (CRA) to cut some Obama-era regulations, including a recent rule requiring the Social Security Administration to report certain people with mental health problems to the FBI’s background check system for gun purchases.
The CRA allows simple majority votes to wipe out a regulation as long as the president agrees, but there are limitations. Congress can only reach back to rules published since June to use the CRA.
That’s where Todd Gaziano, a senior fellow at the Pacific Legal Foundation who helped craft the CRA, comes in.
Gaziano argues that Trump and congressional Republicans can use the CRA to repeal many more regulations.
The law requires federal agencies to submit a report about each rule they issue to both chambers of Congress and the Government Accountability Office (GAO). But Gaziano argues that many rules have been promulgated without such reports. He says that those rules could be repealed with the CRA no matter how long they have been on the books.
“There’s more excitement on the hill about using the Congressional Review Act to review older rules that weren’t sent up to Congress than anything I’ve ever been involved with before,” he told The Hill in an interview.
Agencies also sometimes enforce a rule or guidance document that was published in the Federal Register, even though it was never sent to Congress.
The Senate Homeland Security and Government Affairs Committee and the House Judiciary Committee, along with some other panels, are now looking for regulations that were published without reports to see if they could be repealed with the CRA.
“They always, always, always have to send a report,” Gaziano said. “Period.”
“I know there were thousands and thousands that weren’t sent,” he added. “I’m just trying to guess how many are important.”
Theoretically, Republicans could overturn regulations dating back as far as March 1996, when President Bill ClintonWilliam (Bill) Jefferson ClintonRepublican spin on Biden is off the mark Bill Clinton shares video update after release from hospital Biden, Democrats risk everything unless they follow the Clinton pivot (they won't) MORE signed the Congressional Review Act, if the reports were never submitted.
Skeptics, however, say the rules that would be affected are probably minor.
“My guess is that not a lot of big rules would get caught by this,” said Susan Dudley, a former administrator at the White House’s Office of Information and Regulatory Affairs under President George W. Bush who now runs George Washington University’s Regulatory Studies Center. “In my experience, agencies do notify Congress when issuing major rules.”
“This may not be worth Congress’s time,” she added.
The Administrative Conference of the United States (ACUS) issued a report a few years ago claiming that agency reports were missing for more than 10,000 rules published in the Federal Register. This includes 9,387 rules that were issued without reports between 1997 and 2013, as well as another 849 missing reports up to the point that the report was written in 2014.
The Obama administration was responsible for 3,175 of these missing reports, the ACUS noted.
Out of the more than 10,000 rules the ACUS discovered, it found six major rules and another 37 significant rules that were missing reports, which seems to back up Dudley’s claim that most of these are minor rules. Some agencies have filed the reports for these rules since 2014, but others are still missing.
The reports for two major rules from the Department of Defense that address Tricare, the military’s healthcare system, are still missing, as well as the report for an Education Department rule.
Sam Batkins, director of regulatory policy at the pro-business American Action Forum, noted he could not find a Commodity Futures Trading Commission rule issued in 2012 for incorporate swaps that stems from the Dodd-Frank financial reform law in either the Congressional Record or the GAO’s database.
There may be more, but it is difficult to identify all of the missing reports. While Congress and the GAO keep records of those they receive, they do not cross-reference their lists with rules published in the Federal Register. Depending on how motivated they are to find these missing reports, conservative groups and Republicans would have to individually go through each rule published over the last 20 years.
“We can’t systematically look at every single rule,” a congressional aide told The Hill. “That’s thousands and thousands each year.”
House Majority Leader Kevin McCarthy (R-Calif.) signaled this week that Republicans are more interested in tackling the 214 Obama-era rules that have been published since June 13.
“We don’t have a number yet on how many we will do,” he told reporters.
But pressure is mounting from conservative groups for Republicans to go after the major rules they find, and a congressional aide told The Hill that Republicans may also target certain non-major rules.
This process could also apply to a number of policy-shifting guidance documents that were issued by the Obama administration but never reported to Congress, said Wayne Crews, vice president of policy at the conservative Competitive Enterprise Institute.
This is what Crews calls “regulatory dark matter.”
“It will be interesting to see what the stomach is for this on Capitol Hill,” Crews said.
The issue could raise legal questions for the courts to resolve, suggested Rena Steinzor, a law professor at the University of Maryland and former president of the Center for Progressive Reform.
“This law was intended for the rapid review of rules,” Steinzor said. “Now they’re saying because a piece of paperwork was not filed we can go back decades? Really? We’re going to go back 20 years?”
“I just can’t believe they would reach so far back,” she added.
But Gaziano blames it on “incompetence” at federal agencies.
“No one should complain,” he said, “because it was the agencies’ fault for not following the law. I think it was just incompetence.”