Potential for significant red-tape reduction under the Congressional Review Act

A little-known provision in the Congressional Review Act (CRA) could bring about significant red-tape reduction. The Obama administration’s zeal for overregulation could backfire, as I’ve explained here before:

The CRA requires the agency behind a rule to issue a report on it to Congress, which has 60 days to act to block it after its either published or Congress receives that report, whichever happens later.

That’s key because the Obama administration chose not to issue reports on those rules. So the clock on them hasn’t even started yet.

Susan Dudley, director of the George Washington University Regulatory Studies Center, writes about that in Forbes:

According to Curtis Copeland, author of a study prepared for the Administrative Conference of the United States, “federal agencies have not submitted hundreds of final rules to GAO or Congress in recent years, and therefore those rules are technically not in effect.” PLF’s “Red Tape Rollback” project argues that this means “the Trump administration can go back over all the unsubmitted, burdensome rules issued since 1996 and belatedly submit them to Congress for its disapproval.” They are calling this “CRA 2.0.” If the new administration and Congress were to work together in this way, not only would those regulations be overturned, but the issuing agency would be prevented from publishing anything substantially similar.

Dudley goes on to discuss two more uses of the CRA: the Trump administration could (quoting PLF), “in many cases, simply publish notice that a rule not in effect is being abandoned, reevaluated, or potentially modified.” Also, “Attorneys whose clients are facing enforcement actions, permit denials, or other government proceedings could argue in court that the applicable regulation is not effective, since it never went through CRA review.”

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