Over the past two years, the Obama administration has published hundreds and 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 some 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,” saidCurtis 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 General 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, 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 principleeven when the regulation in question was not submitted to Congress as required. That 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 theCongressional 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.
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