While much has been made of the President’s Executive Order to reduce regulatory burden on business by imposing a 1-in, 2-out regulatory scheme for Federal agencies, it’s also true that the US Congress can get busy repealing regulations at any time, using two major laws: the Congressional Review Act and the Administrative Procedures Act.
Here, we take a look at the two laws that allow Congress to disapprove and ultimately repeal regulations in cases of overdue burden to business or overstepping of authority by a regulatory agency.
What Is the Congressional Review Act?
Enacted in 1996, the Congressional Review Act, or Small Business Regulatory Enforcement Fairness Act of 1996, gives Congress the authority to overrule a reg
ulation within 60 days of the time the rule is submitted to both houses for review as required by 5 U.S.C. §801(a)(1)(A).
If Congress wants to repeal a rule or prevent one from taking effect under the Congressional Review Act, it must pass a joint resolution which then must be signed by the President. If a joint resolution passes and is signed, the rule may not be reissued unless it is in a substantially different form or authorized by a new law.
What Is the Administrative Procedures Act?
A much older law, the Administrative Procedures Act (APA) was enacted in 1946 and lays out uniform standards that Federal agencies must follow when preparing and promulgating new regulations. The goal of the APA is to give the public a voice in the rulemaking process by subjecting each new rule to a process of review and public comments before it becomes final.
If Congress determines that the proper procedure was not followed during the promulgation or public comment period for a new rule, it is authorized to challenge the rule and work to repeal it under the APA.
Creation of New Laws
In addition to using its authority under the Congressional Review and Administrative Procedures Acts, Congress may also use its authority to establish new laws that affect Federal agencies’ ability to enforce regulations on businesses. One example is a bill introduced on February 3 of this year, titled simply “To terminate the Environmental Protection Agency.”
Though the text of this bill is not yet public, its intent is to abolish the US EPA and presumably some or all of US EPA’s Federal environmental regulations.
Congress can pass new laws and use the budget process to create new agencies, abolish existing agencies, and direct agencies' regulatory activity.
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