Wednesday, January 6, 2010
The Congressional Research Service issued a report last week that concluded that agencies failed between 1999 and 2009 to submit over a thousand new substantive final rules to Congress and the Government Accountability Office ("GAO") as required by the Congressional Review Act ("CRA"), 5 U.S.C. Secs. 801 to 808, despite repeated requests by the GAO to the Office of Information and Regulatory Affairs ("OIRA"). OMB Watch reports here.
OIRA directed agencies in November 2009 to contact GAO to update their submissions. Some have done so. But final rules not in compliance with the CRA reporting requirements may be invalid.
The CRA was enacted in 1996 as a measure to allow Congress to assert authority over administrative agencies: It requires agencies to report to Congress on certain final rules, and it allows Congress to pass a "resolution of disapproval" of any covered rule. If passed by both houses and signed by the President, the resolution would overturn any agency rule. (The Supreme Court, of course, foreclosed stronger congressional authority over agencies (in the form of a congressional veto) thirteen years earlier in INS v. Chadha.) In truth, the CRA does very little: Agencies already report their rule-making through the Federal Register, and Congress could already undo agency rules through ordinary legislation.
Congress is on the case. On June 16, 2009, the House passed the Congressional Review Act Improvement Act, H.R. 2247, which would eliminate the reporting requirement to Congress but retain the reporting requirement to the GAO. Under the bill, the GAO would be required to submit to both houses a weekly report containing a list of the rules received, and the Speaker would be required to publish the GAO report in the Congressional Record. The bill is now in the Senate Committee on Homeland Security and Governmental Affairs.