by Jon Sanders
Director of the Center for Food, Power, and Life, Research Editor | John Locke Foundation
Imagine, if you will, that unelected bureaucrats found a way to impose their own rules like laws, without any congressional oversight or following rulemaking procedure. Imagine a scenario in which people and businesses face huge fines, legal expenses, and other hassles for not following a government agency’s “guidance” to comply with a rule. Imagine if this “guidance” is treated as a law unto itself, even though it was made up by bureaucratic fiat.
What would you say about it? Would you call it “incredibly dangerous”? A “nightmare”? Would you warn of “dire” consequences? Would you call it a threat to “hardworking families” and say it makes it harder for “responsible businesses to follow the law? Would you say it “is really going to open up a Pandora’s box”?
You’d be spot-on accurate if you did.
But those quotes are from “progressive” leftists and Democrats, and they’re upset about federal agencies losing the ability to regulate by fiat. They’re very upset.
The Hill has discovered what Locker Room readers have known about since November 3 of last year: hosts of extra-legal federal agency policy “guidance” documents that have spent years masquerading as official rules now face repeal by Congress.
Even guidance-as-policy going back to the Clinton administration is subject to the Congressional Review Act. Why? Because it was never formally created as a rule under the Administrative Procedures Act, so Congress was never notified.
Why is that is important? Because the CRA gives Congress 60 days to act to block a proposed rule after it is either published or Congress receives a report on it, whichever happens later. And the Government Accountability Office has determined that agency “guidance documents” function as rules for the purposed of CRA.
If Congress hasn’t received a report on agency guidance, the clock hasn’t even started yet on congressional review. What has started the clock on some old guidance documents has been a congressional inquiry to the GAO about certain ones, such as auto-lending guidance from the Consumer Financial Protection Bureau in 2013.
Now The Hill realizes the peril to the bureaucracy:
[Sen. Pat Toomey (R-Pa.)],the former president of the conservative Club for Growth, went on the hunt for ways the GOP could take advantage of its congressional majority to eliminate federal rules.
He found a way to wield the power that the Congressional Review Act gives a majority of the Senate to sidestep obstruction via filibuster when it comes to years-old regulatory actions.
To do so, he asked the Government Accountability Office to determine whether the CFPB auto-lending guidance qualified as a rule for the purposes of the Congressional Review Act. In December, GAO told him that it did in fact satisfy the legal definition of a rule, starting the clock for Republicans to undo it without having to seek any help from Democrats.
“When regulators regulate by guidance rather than through the process they’re supposed to use, which is the Administrative Procedure Act and do a proper rulemaking, they shouldn’t be able to get away with that,” Toomey said. “If we can get a determination that the guidance rises to the significance of being a rule, then from that moment the clock starts on the CRA opportunity.”
One of the extra benefits of blocking a rule or guidance using the CRA is this: the agency is forbidden from instituting anything substantially similar.