Barack Obama’s administration issued a flurry of new regulations before he vacated the White House, and the Republican-controlled Congress is busily repealing many of them.
Under the rarely used Congressional Review Act, rules can be repealed by simple congressional votes within the first 60 “legislative days” of their issuance, so it can be applied to rules dating back to last June.
Once repealed, no future administration can issue a “substantially similar” rule without congressional approval.
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“For the next 60 days around here, that’s probably the most important legislative activity – moving these … items through the chamber,” Rep. Tom Cole, R-Okla., told Politico, a political website.
Republican Majority Leader Kevin McCarthy of Bakersfield is spearheading the effort to undo regulations dealing with education and a wide variety of business- and environment-related rules. One being targeted could put California’s embryonic “Secure Choice” retirement program, the pet project of state Senate President Pro Tem Kevin de León, in legal jeopardy.
Conflicts over regulations are just as heated in Sacramento as they are in Washington, with the ongoing court battle over the Air Resources Board’s anti-carbon emission rules being a prime example. A lawsuit challenges the ARB’s cap-and-trade system as an illegal tax.
State legislators would have more authority over such rules had it not been for a political deal in 1979, during Jerry Brown’s first governorship.
Brown’s agencies, many headed by liberal environmental, consumer or social welfare advocates, had issued waves of new regulations, and affected interest groups complained they went beyond law.
A powerful coalition sponsored legislation that would have allowed legislative repeal of rules, similar to current federal law, and it was on the verge of passing with a veto-proof supermajority when Assembly Speaker Leo McCarthy interceded.
His compromise enacted an Administrative Procedure Act with an Office of Administrative Law under the governor to review regulations for their compliance with underlying state law.
How has that process worked out?
State agencies now issue about 600 sets of new rules each year, roughly equivalent to the number of enacted legislative bills. In 2011, the first year of Brown’s second governorship, the Administrative Procedure Act was overhauled, requiring “more extensive regulatory analysis” before enacting rules with economic impacts of $50 million or more.
In a new report, the Legislature’s budget analyst, Mac Taylor, concludes that “some of the changes have led to improvements” but the system often falls short of “best practices” and there is “no requirement for retrospective review” to judge whether the regulations, once issued, actually had their intended effect.
Meanwhile, Assemblyman Ken Cooley, D-Rancho Cordova, has introduced Assembly Bill 12, which would require all state agencies to fully review their regulations to see if they are outdated, too costly, or overlap with other rules.
Assemblyman Vince Fong, R-Bakersfield, has proposed Assembly Bill 77, which would require legislative approval for any regulations with an impact of over $50 million.
What is happening in both capitals demonstrates that very often the real-world impact of legislation is determined more by its implementing rules than its presumed intent.
Presidents and governors, being political animals, take expansive views of their rule-making authority, and some oversight is needed to maintain a healthy balance.