E&E News dicusses the potential extended reach of the Congessional Review Act
Todd Gaziano, a top official at Pacific Legal who was the chief legislative counsel to the CRA’s sponsor, former Rep. David McIntosh (R-Ind.), said over the years agencies have failed to properly report hundreds if not thousands of rules to Congress as mandated by the CRA. This, he argues, renders the rules legally unenforceable.
Gaziano would like agencies to immediately dispense with all enforcement actions. He said since the launch of his website, redtaperollback.com, he has been fielding hundreds of calls from interested lawyers.
Wayne Crews, vice president for policy and director of technology studies at the Competitive Enterprise Institute, said if rules are identified that were not properly submitted to Congress, he expects there will be legal challenges by affected parties.
Gaziano said Pacific Legal is already looking into adding this argument to currently pending cases against enforced rules, and potentially bringing new lawsuits against rules he said are being enforced illegally.
Should agencies choose to send these rules now, the window for congressional disapproval would open, giving lawmakers 60 legislative days to toss rules dating as far back as the law itself.
David Vladeck, Georgetown Law professor and former director of the Federal Trade Commission’s Bureau of Consumer Protection, said the fast-track procedures of the CRA disapprovals are designed for rules before they take effect.
“It could cause a nightmare of problems for Congress to repeal a rule after it’s gone into effect,” he said.
Crews said, however, if substantial unreported rules are identified, he’s sure some members of Congress will test the CRA on them.
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