Analysis: Hundreds of Obama Administration Regulations Are Illegal

Wednesday, 30 Jul 2014 01:39 PM

By Melanie Batley

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In the last two years, the Obama administration has published hundreds of new regulations that are technically illegal because they were not reported to Congress as required under law, a new analysis has found.

According to The Washington Post, the rules, as well as an estimated 1,800 other regulations, should not be in effect, but there is little lawmakers or the courts can do to change the situation or "the obscure, Byzantine process used to create federal regulations."

"It's pretty apparent that the system is broken," Curtis Copeland, a retired Congressional Research Service staffer, who discovered and analyzed the issue, told the Post. "It would seem this is one area where congressional Republicans and Democrats could get together and say: 'This is crazy. We can fix this.'"

A 1996 statute requires that most federal rules are to be reported to the House and Senate in paper form and also to the General Accountability Office electronically. The original intent of the law was to give lawmakers the power to overturn new regulations they may have objected to before they took effect.

But since then, Congress only objected to one rule and some have said the law and its bureaucratic requirements have become a hassle and confusing, according to the Post.

From 2012, the Obama administration stopped following the procedure altogether, either because of bureaucratic oversight or because some regulations were considered too insignificant to be reported.

However, failing to report many of the rules is a "technical violation" of the statute, "and the law says they can't take effect," Robert Cramer, the GAO's managing associate general counsel, told the Post.

It appears nothing can be done to address the situation because lawmakers and courts cannot step in to demand that agencies submit the required paperwork: Congress barred unreported regulations from judicial review, as did two federal appeals courts, according to the Post.

Meanwhile, by November 2011, the GAO stopped tracking all but the biggest new regulations as a result of staff cuts, though the Office of Management and Budget has said that 43 "significant" rules slipped through the cracks and went unreported, six of which were considered major.

The Defense Department, Coast Guard, and Federal Aviation Administration accounted for more than a third of the rules that were published in the Federal Register in 2012 and 2013 but were never filed with the GAO, Copeland's analysis showed.

Past efforts to revise the law's reporting requirements have failed, the White House views it as an agency responsibility, and the OMB told the Post that it does not oversee the rules submissions of other agencies.

"The Congressional Rules Act states that the responsibility to report to Congress and GAO lies with the rulemaking agency," Emily Cain, a spokeswoman for the OMB, told the Post.

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