The peril of ruling by fiat . . .

. . . is that your fiat can be de-fiat-ed, as the Wall Street Journal points out.

Everyone right now is talking about the [Congressional Review Act], which gives Congress the ability, with simple majorities, to overrule regulations from the executive branch. Republicans are eager to use the law, and House Majority Leader Kevin McCarthy this week unveiled the first five Obama rules that his chamber intends to nix.

. . .

It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.

There’s more. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.

The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations—a far safer approach than if the Mr. Trump simply rescinded them.

There’s more at the link.

I’m sure many of the rules and regulations issued by the Obama administration over the past eight years were not reported to Congress in the proper form.  If so, any and all of them might now be subject to permanent repeal in this fashion.  However, there’s a sting in the tail.  I hope the Trump administration won’t fall into the same trap, and enact all sorts of rules and regulations that can be just as easily repealed in future.  “What’s sauce for the goose is sauce for the gander“, and all that sort of thing – unless one removes the sauce altogether, and passes laws in the Constitutional way, instead of relying on an imperial presidency to rule by diktat.



  1. To me the more interesting question is … Just what " progressive wetdream" dictates can the trump administration present to congress for vote down thus substantially blocking any such actions by future administrations ?

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