Over the past 21 / 2 years, the Obama administration has published hundreds of rules — on how wheelchairs should be stowed aboard U.S. aircraft, how foreign trade zones should be regulated, how voting assistance should be provided for U.S. citizens overseas and so on.
There’s a problem, however: Technically speaking, these and about 1,800 other regulations shouldn’t be in effect, because they weren’t reported to Congress as required. Yet there is little that lawmakers or the courts can do about it.
The situation illustrates the obscure, byzantine process used to create federal regulations — and how easily it can go awry.
“It’s pretty apparent that the system is broken,” said Curtis Copeland, a retired Congressional Research Service staffer who discovered the issue. “It would seem this is one area where congressional Republicans and Democrats could get together and say: ‘This is crazy. We can fix this.’ ”
Under a 1996 statute, most federal rules are supposed to be reported to the House and Senate in paper form and to the Government Accountability Office electronically. But since the start of 2012, that hasn’t happened for many of the regulations put out by the Obama administration, either because of bureaucratic oversight or because they were considered too minor to be reported.
Failing to report many of the rules is a “technical violation” of the statute, “and the law says they can’t take effect,” according to Robert Cramer, the GAO’s managing associate general counsel.
But there’s another catch: Congress also barred such rules from judicial review. Two federal appeals courts and two district courts have upheld this principle even when the regulation in question was not submitted to Congress as required. Since Congress cannot pass a resolution of disapproval for a rule until it receives it, this means neither lawmakers nor the courts can step in and demand that agencies submit the required paperwork.
The 1996 law at the center of this mess is the Congressional Review Act, or CRA, which added requirements for reporting most administrative rules to Congress. The idea — stemming from the Republican Party’s “Contract With America” — was that lawmakers would have a chance to overturn any pending regulations they didn’t like before they took effect.
But Congress has only set aside one rule in the 18 years since, and bureaucrats and some lawmakers say the law has evolved into a major hassle. In addition to copies of each rule, agencies are supposed to provide a “concise general statement relating to the rule” and the rule’s effective date, all to be distributed to relevant committees. It’s also not entirely clear which rules need to be reported.
In 2009, the House parliamentarian complained that the law had more than doubled the number of committee referrals it had to send out. “This flow of paper poses a significant increment of workload for a range of individuals,” according to a House Judiciary Committee report from that year.
“It’s called the ‘Messenger Relief Act’ because it provided so much business to couriers,” said Jeff Lubbers, a professor at American University’s Washington College of Law.
For years, the GAO tracked all the final regulations it had received. But starting in November 2011, it gave up monitoring all but the biggest rules in the face of staff cuts.
Copeland, the retired research staffer, set out to tally how many rules had fallen by the wayside since: Out of more than 9,000 rules issued since the start of 2012, more than 1,800 were not reported to the GAO, he found.
Most of the missing rules are minor. But 43 have been deemed “significant” by the Office of Management and Budget, and six of those count as major. Three rules published in early 2013 carried out the Pentagon’s sexual-assault prevention and response program; one was estimated to cost nearly $15 billion to implement.
The only measure overturned since the law was passed was an ergonomics rule that the Labor Department adopted just before former president Bill Clinton left office.
“This is a make-work statute,” said Columbia Law School professor Peter L. Strauss, an administrative and regulatory law specialist. “It creates volumes of paperwork for Congress and the GAO that sit on the floor.”
Former senator Don Nickles (R-Okla.), one of the law’s original sponsors, said the statute helps lawmakers hold hearings and use other tactics to influence regulations before they take effect. Major rules are not supposed to go into force until 60 days after they are reported to Congress or published in the Federal Register, whichever is later.
When informed about the hundreds of missing rules, Nickles — who now heads his own consulting and lobbying firm — said: “It sounds like they’re breaking the law.”
The GAO’s Cramer said federal agencies have failed to submit at least five major rules and 31 significant rules between 2012 and 2013. He declined to comment on rules that remain missing this year, because he said GAO officials are still entering some into their database.
Strauss said the failure to report a significant rule could leave an agency open to a legal challenge.
“If a rule has a price tag, and an agency goes after someone to pay the price, my inclination is to think that person would have a defense” for refusing to pay, he said.
Past efforts to revamp the law’s reporting requirements have failed. In 1997, the American Bar Association proposed that the noncontroversial rules should not be submitted for review, to no avail.
The White House views the issue as an agency problem.
Emily Cain, an OMB spokeswoman, wrote in an e-mail that the OMB does not oversee the rules submissions of other agencies. “The Congressional Rules Act states that the responsibility to report to Congress and GAO lies with the rulemaking agency,” she wrote.
Nickles believes the law should be more strictly enforced but acknowledged that lawmakers in the 1990s were primarily focused on the most sweeping regulations.
“We weren’t trying to micromanage every little thing,” he said.