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By Cheryl Bolen
The House this week is expected to pass a bill to require Congress to affirmatively approve all major regulations before they could take effect, as well as a bill that would allow Congress to overturn multiple regulations issued in the last half of 2016.
Both bills passed easily in the Republican-controlled House in the last Congress, but the bigger question is whether the Senate will take up either measure. President Barack Obama threatened to veto both bills, and the Senate did not consider either one.
If the Senate does not take up the bill, which would allow Congress to overturn multiple regulations at once, lawmakers still will be able to introduce resolutions of disapproval under the Congressional Review Act to repeal specific regulations issued since June 2016.
Douglas Holtz-Eakin, president of the American Action Forum, wrote in a Jan. 3 blog post that he expects the House to begin by “cleaning up the midnight regulatory onslaught” from the Obama administration.
Historically, this would have required a regulation-by-regulation use of the Congressional Review Act, Holtz-Eakin said. Instead, the House will consider the Midnight Rules Relief Act of 2017, sponsored by Rep. Darrell Issa (R-Calif.), that would allow Congress to repeal multiple regulations en banc.
According to Sam Batkins, director of regulatory policy at the AAF, the Obama administration issued a total of 99 regulations in December, more than double the monthly average of 2016. Still, the average review time was 74 days, so there were no big rushes, he said.
Howard Shelanski, administrator of the Office of Information and Regulatory Affairs, has pledged no surprise, last-minute rushes of regulations in the final weeks of the Obama administration.
“If you look at the number of significant regulations that this administration has done, we are down from previous administrations,” Shelanski said in a Dec. 5 interview with Bloomberg BNA.
The House will turn next to the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017, sponsored by Rep. Doug Collins (R-Ga.).
Under this version of the REINS Act, which has been introduced in each of the last four sessions of Congress, members would have 70 legislative days to approve a major rule with an annual effect on the economy of $100 million or more. Without a positive vote, the regulation could not take effect.
Passage of the REINS Act or other, similar legislation would insert Congress more firmly into the regulatory process, a significant change that is not done lightly, Holtz-Eakin said.
“However, the lesson of the past eight years is that, even without executive overreach, the regulatory process does not correctly balance benefits and costs; a recalibration of the underlying process is overdue,” Holtz-Eakin said.
One concern is that Congress has no office or analytical arm that can look carefully at proposed regulations and project what their effects are going to be, said Jerry Ellig, senior research fellow at the Mercatus Center at George Mason University.
The Congressional Budget Office does that for the budget, but Congress doesn’t have anything similar for regulations, Ellig said. It is unclear now how Congress would get sensible, factual information so that it could make decisions about approving regulations, he said.
Years ago, there was an authorized congressional office of regulatory analysis, but it was never funded, Ellig said.
There is a general sense in Congress that it has delegated too much decision-making authority to agencies, and somehow Congress needs to take more of that authority back, Ellig said.
“And I think the REINS Act is an expression of that kind of general congressional unease with how much power has been delegated to agencies,” he said.
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