the role of congress in the federal regulatory process
TRANSCRIPT
The Role of Congress in the Federal Regulatory Process
Thomas J. Spulak, Esq.October 19, 2012
Overview• Overview of Department and Agency Rulemaking• Role of Executive Branch• Role of Congress
Congressional Committees Congressional Review Act Resolutions of Disapproval Appropriations
• Q & A
Three Branches of Government• Under the U.S. Constitution, the three branches of
government--Legislative, Executive and Judicial--are co-equal.
• Each has a defined role that cannot be usurped by another. There are times when this is not clear for the
Legislative and Executive Branch and the issue must be settled by the Judicial Branch.
Executive Branch versus Legislative Branch• Executive: “The Executive power shall be vested in
a President of the United States.” Art. II, Sec, 1. • Legislative: “All legislative powers herein granted
shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art.1, Sec. 1.
Executive Branch• Each federal agency was created by Congress to
ensure that specific laws were properly implemented.
• The President, as Chief Executive, supervises department and agency work through his appointed cabinet, secretaries and department heads.
Executive Branch Departments• There are 15 major Executive Branch departments
such as the Department of State, the Department of Defense and the Department of Health and Human Services.
• In 2009, the Executive Branch employed over 2.75 million civilians with a payroll of over $15.5 billion. It spent approximately $550 billion on non-defense, discretionary programs.
Agencies Within Departments• Some important agencies are units within the major
executive departments. For example, the Food and Drug Administration is
in the Department of Health and Human Services, and the Occupational Safety and Health Administration is in the Department of Labor. Some other agencies, while not ranked with the major
executive departments, are considered to be Executive Branch agencies such as the General Services Administration or the Central Intelligence Agency.
Independent Regulatory Commissions• Congress also created independent regulatory
commissions which are part of the Executive Branch but are more independent of political control by the President than are other Executive Branch agencies. Examples of independent commissions are the
Interstate Commerce Commission, the Federal Communications Commission, and the Consumer Product Safety Commission.
Hybrids• There are also agencies that combine elements of
both types of agencies. For example, the Environmental Protection Agency
is characterized as an independent agency yet its administrator is appointed by the President with the advice and consent of the Senate and serves at the pleasure of the Senate.
What is the Federal Regulatory Process?• Adjudicatory Approval of mergers and acquisitions Administrative enforcement actions, e.g., EPA or
OSHA violations • Rulemaking Issuance of regulations
Regulations• Regulations, often referred to as “rules” are
enforceable laws created through the federal rulemaking process. The power to issue rules is derived from broad
grants of authority from Congress through enabling statutes.
• Rules can be issued by Executive Branch departments, or an independent agency.
Role of the White House• The White House plays a substantial role in
rulemaking. Much of the White House’s work on regulatory
policy falls to the White House Office of Management and Budget (OMB). OMB plays a role in constructing the President’s budget and setting Administration priorities. OMB’s Office of Information and Regulatory Affairs
plays the most important role in rulemaking by conducting reviews of agency regulatory policy.
The Role of Congress• All departments and agencies obtain their rulemaking
authority from Congress.• Congress “delegates” its Article I authority “to make all
laws” to departments and agencies. This is accomplished through either: Broad grants of authority that are part of the mandate that is
given to the department when it was established or through periodic “reorganizations”; or
Specific statutes that direct departments and agencies to regulate certain areas, such as protecting the air or water, e.g., the Clean Air Act or the Clean Water Act.
The Role of Congress• Through legislation, Congress directs the agencies
to carry out policies. Legislation often gives agencies broad directives
and leaves the details to the agency. In other cases, Congress will set out specific procedures and objectives.
Congress not only uses legislation to creates rules for specific policy issues but it also uses legislation to shape the rulemaking process itself.
Delegation• The so-called “regulatory state” did not exist until
the second half of the 20th century, with much of this delegation beginning during the New Deal. President Franklin Roosevelt greatly expanded the
role of the federal government by championing the creation of a number of new agencies. Congress passed a number of enabling statutes, i.e., a
legal mandate or grant of authority to investigate and create rules under which specific goals could be obtained.
Constitutional Challenges• There were constitutional challenges brought to the
new wave of congressional delegation to the Executive Branch. Could Congress cede its authority to make laws to
the Executive Branch? Recall that under Article II, the role of the Executive
Branch is to execute or enforce laws, not make them.
Constitutional Challenges• The Supreme Court upheld most of these delegations
and has continued to do so over the years.• Today, the role of the Executive Branch to make rules
is undisputed and Congress continues to delegate authority to the Executive Branch. Since April 1996, over 47,540 major and non-major
rules have been reported and become effective.
Administrative Procedures Act• Departments and agencies make rules through a
defined process outlined in the Administrative Procedures Act, 5 U.S.C. 500 et seq. (APA), enacted in 1946. It provides for notice, comment and the promulgation of rules.
The Role of Congress• Congress has a number of tools that allow it to intervene in
the rulemaking process when it is unhappy with an action that a department or agency has taken and often acts to make its opinion known.
• Congress can influence Department or Agency performance-- By approval of presidential appointees; By introducing legislation; By conducting legislative and investigative hearings; Through resolutions of disapproval under the Congressional
Review Act of 1996; and, Through the appropriations process.
Confirmation Hearings• The Constitution gives the Senate the role of “advise and
consent”. The Senate cannot name a secretary but it has the constitutional role to approve him or her. Without Senate approval, the President’s choice is rejected. Confirmation hearings for presidential nominees to high
agency positions often are the occasion for debate about agencies policies and programs. If a nominee is identified with a certain position or issue, Senators scrutinize the nominee on that issue and use the hearing as a means to express their own opinions. Senators also use confirmation hearings to be sure nominees
understand the intentions of Congress regarding agency activities.
Congressional Jurisdiction
• Health and Human Services
• Environmental Protection Agency
• Department of Energy
• Senate Committee on Health, Education, Labor and Pensions/ House Committee on Energy and Commerce
• Senate Committee on Environment and Natural Resources/House Committee on Energy and Commerce
• Senate Committee on Energy & Natural Resources/House Committee on Energy & Commerce
Legislation• Congress may use its general powers to overturn
agency rules by regular legislation; however, for various reasons, Congress may find it difficult to do so. This is especially true when the Congress and the
President are of different parties.
Legislation• Congress can also amend the underlying statute
that gives the Executive Branch department or agency the authority to regulate. For example, if Congress is unhappy with the EPA
regulating greenhouse gases, it could amend the Clean Air Act, from which the EPA gets this authority.
Oversight• Oversight by congressional committees is one of the
most effective tools Congress has to hold the Executive Branch accountable. Oversight enables Congress to examine how agencies
are implementing laws. This process is important because, as the late Chief Justice Charles Evan Hughes observed: “Legislators have little time to follow the trails of expert
inquiry and so we turn the whole business over to a few with broad authority to make actual rules which control our conduct. The exigency is inescapable but the guardians of liberty will ever be watchful lest they are rushed from legislative incapacity into official caprice.”
Hearings• Congress can call a hearing to discuss a pending
rule or the need for a rule. It can summon department and agency heads, as
well as public witnesses. Through this process, it seeks to communicate its
interests. Members of Congress will also send letters, perhaps
with multiple signatories, to department and agency heads expressing their views.
Checks on Congressional Authority• Prior to 1983, Congress would often reserve the
opportunity to overturn a department or agency rule through the use of legislative vetoes. These were struck down in the 1983 case, INS v. Chadha. After Chadha, the only way Congress could weigh-
in on a final rule was by a joint resolution of disapproval which must pass both houses of Congress in the same form and be signed by the President.
Congressional Review Act• The Congressional Review Act of 1996 (CRA), 5 U.S.C. §
801 - 808, enacted in March 1996, was an effort by Congress to reassert control over agency rulemaking.
• The CRA provides Congress with a streamlined process to consider and “disapprove” rules. These procedures apply primarily in the Senate, by providing “expedited procedures” to ensure that the Senate will consider a resolution of disapproval notwithstanding the fact that there may not be 60 votes to consider the resolution. The CRA provides no expedited procedure in the House.
Lacking unanimous consent, the House Rules Committee would be called upon to allow the resolution to be brought to the Floor.
Why Doesn’t Congress Act More Often?• The biggest obstacle to congressional action are the
unique procedural rules that control the legislative process in the House of Representatives and the Senate?― House rules favor the majority.
― Rules Commitee― Senate rules favor the minority, e.g., filibuster.
Congressional Review Act• In essence the CRA requires all final rules,
including rules issued by independent boards and commissions, to be submitted to both houses of Congress and to the Government Accountability Office (GAO) before they can take effect.
• Members of Congress have 60 days of continuous session to introduce a joint resolution of disapproval after a rule has been submitted to Congress. The Senate has 60 session days.
CRA--An effective substitute post-Chadha?• Major problems with Chadha were lack of
presentment to the President and lack of bicameralism. Allowed for a single House to stop an Agency action, such
as a rulemaking In some instances allowed for Committees to thwart Agency
action without a vote of the full House or Senate• The result of requiring presentment to the President
is that a significantly higher vote threshold is needed to block a proposed Agency action.
Congressional Review Act• How it works Requires all agencies promulgating a covered rule to submit a
report to each House and to the Comptroller General (CG) with supporting documentation.
A covered rule cannot take effect if the report is not submitted. CG, Office of Information and Regulatory Affairs (OIRA) and
Office of Management and Budget (OMB) have particular responsibilities with respect to a “major rule” Major rule defined as a rule with an annual effect on the economy
of $100 million or more, increase costs or prices for consumers, industries or state and local governments, or have significant adverse effects of the economy.
Who determines this? OIRA
Congressional Review Act• How it works (cont’d) Timelines for major rules A major rule may become effective on the latest of
the following scenarios: (1) 60 calendar days after Congress receives the report from
the CG; (2) if Congress passes a joint resolution of disapproval and
the President vetoes it, the earlier of when one House votes to fail to override the veto, or 30 calendar days after Congress receives the veto message; or
(3) the date the rule would otherwise have taken effect (unless a joint resolution is adopted).
Congressional Review Act• How it works (cont’d) Timelines In other words, the earliest a major rule can become
effective is 60 days after the submission of the report from the CG or its publication in the Federal Register.
Congressional Review Act• Congressional procedures on a Joint Resolution of
Disapproval A joint resolution of disapproval must follow a certain format to
be eligible for consideration under provisions of the CRA. A joint resolution of disapproval must be introduced within 60
calendar days after the agency reports the rule to the Congress. A joint resolution introduced in a timely manner triggers a 60
legislative day clock for consideration through use of expedited procedures.
If passed, allows for retroactive nullification of an effective rule and a limitation on an agency from promulgating a “substantially similar” rule without subsequent congressional authorization to do so by law.
Congressional Review Act• Expedited Procedures in the House or the lack
thereof The CRA is silent on House procedures The lack of expedited procedures, in effect, leaves
to the House Leadership and the House Rules Committee the responsibility for establishing the procedure to be used in the House.
Congressional Review Act• Senate expedited procedures If the Committee to which a joint resolution is referred hasn’t
reported the joint resolution within 20 calendar days to report, the joint resolution may be discharged from the committee. Takes 30 Members to trigger a discharge from Committee
• After reporting or discharge, the motion to proceed to consideration is in order All points of order against the joint resolution are waived; The motion is not subject to debate, amendment, postponement or
to a motion to proceed to other business Debate time is limited to 10 hours At the conclusion of debate, an up or down vote on the joint
resolution is taken.
Congressional Review Act• Getting the two chambers together If one House passes a joint resolution before the other
House acts, the measure of the other House is not referred to committee.
The procedure in the House receiving the joint resolution “shall be the same as if no joint resolution had been received from the other House, but…the vote on final passage shall be on the joint resolution of the other House.”
Congressional Review Act• Why hasn’t the CRA been more effective? Lack of a screening mechanism to pinpoint rules
that need Congressional review; Lack of an expedited House procedure; The deterrent effect of the of the ultimate need for a
supermajority to veto a rule; The reluctance to disapprove an Omnibus Rule
where only one part of the rule raises objections;
Congressional Review Act• Lack of a screening mechanism to pinpoint rules
that need Congressional Review Statute requires all agencies promulgating a covered rule must
submit a report to each House of Congress and the Comptroller General (CG) and related, required materials
The issue is not identification of rules but in-depth scrutiny and analysis of individual rules by a neutral source Congressional Office of Regulatory Analysis? Require GAO to perform regulatory analysis? Joint Congressional Committee with jurisdiction to analyze regulations
and rules?
Congressional Review Act• Lack of expedited House procedure Under the CRA, expedited procedures only pertain
to the Senate In practice, House procedures left to the House
Rules Committee and House Leadership to develop
Congressional Review Act• Deterrent effect of the ultimate need for a super-
majority to veto a rule Post-Chadha requirements establish a roadmap that
results in the need to override a Presidential veto.• Alternative approaches? Require Joint Resolution of Approval for major rules,
Joint Resolution of Disapproval for other rules.
Congressional Review Act• The reluctance to disapprove an Omnibus Rule
where only one part of the rule raises objections CRA contemplates Congressional action on an
entire rule, not discrete parts of it.
Examples of Resolutions of Disapproval
Examples of Resolutions of Disapproval (cont’d)
Examples of Resolutions of Disapproval (cont’d)
Examples of Resolutions of Disapproval (cont’d)
Examples of Resolutions of Disapproval (cont’d)
Examples of Resolutions of Disapproval (cont’d)
Appropriations• Congress holds the “power of the purse” and uses it
to influence agency and department action.• Article 1, Section 9, Clause 7, of the Constitution
states that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.” Every department and agency must receive funding
from Congress annually. This provides effective leverage for Congress to make its opinions known.
Appropriations• Congress does this in several ways: Questioning department and agency heads when
they appear before Congress to request their annual appropriations.
“Riders” and other provisions in funding bills.
Riders• Appropriations provisions include: Prohibitions on the finalization of particular proposed
rules; Prohibitions on the development of regulations with
regard to particular statutes or issues; Restrictions on implementation or enforcement; and Conditional restrictions on the development or
implementation of particular rules.
Legislative Riders--Prohibitions and Waivers• The rules of the House of Representatives prohibit inclusion of
unauthorized appropriations or legislation in appropriation bill or amendments that contain legislation to those bills. (Clause 2 of Rule XXI)
• In the House, the Rules Committee routinely waives points of order against appropriations bills and often waives points of order against amendments that contain legislative provisions.
• House rules provide that amendments that otherwise comply with the House rules may be blocked on the floor if the House Majority Leader successfully offers a motion to conclude the amendment process (the motion to rise and report).
Prohibiting the Finalization of Particular Proposed Rules
“None of the funds made available by thisact may be used to issue a final rule in furtherance of or otherwise implement the proposed rule on cost sharing for animal and plant health emergency programs or the animal or plant health inspections service published on July 8, 2003.”
Restricting Implementation or Enforcement
“None of the funds made available in effect may be used to pay the salaries or expenses of personnel to (1) inspect horses under § 3 of the federal Meat and Inspection Act; (2) inspect horses under § 903 of the federal Agriculture Improvement and Reform Act of 1996; or (3) implement or enforce § 352.19 of Title 9, Code of Federal Regulations.”
Restricting Certain Types of Regulatory Activity
“None of the funds provided in the Act may be used for salaries and expenses to draft or implement any regulation or rule insofar as it would require recertification of rural status for each electric and telecommunications borrower for the Rural Electrification and Telecommunication Loans program.”
Conditional Restrictions“None of the funds made available to the Indian Health Services in this Act shall be used to implement the final rule published in the Federal Register on September 16, 1987, by the Department of Health and Human Services, relating to the eligibility for the health care services of the Indian Health Services until the Indian Health Services has submitted a budget request reflecting the increased costs associated with the proposed final rule and such request has been included in an appropriations act and enacted into law.”
Questions?
Thomas J. Spulak
(202) 661 7948
Speaker BiographyTom Spulak is the Practice Group Leader of the Government Advocacy and Public Policy Practice Group. Mr. Spulak assists clients in the development and execution of legislative and executive branch strategies for a wide array of issues that include tax, health, energy, aerospace and appropriations.
Mr. Spulak assists clients in complying with federal and state laws that regulate and require the reporting of, the activities of lobbyists, including the Lobbying Disclosure Act of 1995. He advises and represents clients, with respect to federal and state election laws, including assisting corporations in the establishment and administration of federal and state political action committees.
Most recently, Mr. Spulak served as Outside Counsel to the Democratic members of the U.S. House of Representatives Select Committee to Investigate the Voting Irregularities of August 7, 2007.
Prior to entering private practice, Mr. Spulak served as Democratic Staff Director and General Counsel of the House Committee on Rules, as well as General Counsel to the U.S. House of Representatives.