by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
The Wall Street Journal reports on a potentially big decision. In response to a query from U.S. Senator Pat Toomey of Pennsylvania, the Government Accountability Office has determined that agency “guidelines” count as “rules” for the purposes of the Congressional Review Act (CRA).
Which means they fall under Congress’ purview, which means Congress can reject them.
Under President Barack Obama, who famously boasted of being able to implement his agenda without Congress with just “a pen … and a phone,” executive agencies issued guidelines to prompt “voluntary compliance” with the agency’s expectations.
Besides not needing Congress, the guidelines didn’t even have to follow established rule-making procedure. They were essentially pronouncements for how the agency secretaries would interpret compliance or noncompliance with established rules. Those subject to the rules knew what that meant, and it wasn’t “voluntary.”
As the WSJ put it, “The Obama Administration made an art of evading public scrutiny by replacing formal rule-making with a stream of ‘guidance,’ ‘bulletins’ and ‘statements of policy.’
In short, they were a too-clever-by-half approach toward governing that the WSJ properly called “diktats.” That word shares the same Latin root as dictator and came into English from German in 1933.
Here’s the WSJ’s example of one:
One example is the 2013 “guidance” that federal financial regulators issued on leveraged lending. This was another example of Obama officials ducking formal rule-making by claiming they were merely issuing “voluntary” suggestions. The banking industry knew better and chose to cut back on leveraged loans, denying a vital source of capital for indebted companies that lack access to public capital markets, and pushing such activity to nonbank lenders that are even less regulated and make riskier bets.
North Carolinians might remember another:
The U.S. Departments of Education and Justice released a joint letter of guidance May 13 to public schools nationwide urging inclusion of transgender students, most notably transgender bathrooms. …
The letter outlines the responsibility of public schools to include transgender students, which includes a “safe and non-discriminatory environment.” Public schools receive millions of dollars from the federal government through Title IX funding. … In order to receive federal funds, schools agree not to exclude or treat students differently regardless of their gender identity. That includes transgender bathrooms. “Transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity,” the letter reads.
3. Could a school lose funding if it doesn’t comply with this new directive?
Maybe. An Education Department spokesperson told ABC15 that this guidance letter is meant for schools to come into “voluntary compliance with federal law.” If public schools and/or local school districts do not comply, there would be a review process before the federal government decided to withhold funds.
The CRA became a powerful tool of deregulation this year because of Obama administration overreach and hubris. Like many others were, they were so convinced that Obama would hand over the presidency to Hillary Clinton that they saw no need to follow proper procedures:
The CRA requires the agency behind a rule to issue a report on it to Congress, which has 60 days to act to block it after its either published or Congress receives that report, whichever happens later.
That’s key because the Obama administration chose not to issue reports on those rules. So the clock on them hasn’t even started yet.
So far 15 Obama-era rules have been nullified under the CRA. And now a host of agency diktats are on the clock (the GAO report counted as the report to Congress).