Article I of the Constitution
Establishes the Senate and House of Representatives and vests all legislative powers in these bodies. Section 8 of Article I lists the powers of Congress, which include the following:
- To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Congress delegates its authority to agencies allowing them to issue regulations or rules that have the force of law. This authority can be assigned narrowly or broadly based on authorizing legislation.
For example, the Clean Air Act and its amendments broadly instruct the Environmental Protection Agency (EPA) to issue regulations that "protect public health" and provide an "adequate margin of safety." With this broadly defined language the EPA then exercises its authority to issue corresponding regulations.
Conversely, the Energy Independence and Security Act of 2007 uses narrower language. Among other provisions, it requires the EPA to set annual renewable fuel volume targets within strict statutory limitations.
The Administrative Procedure Act of 1946 established procedures an agency must follow to promulgate binding rules and regulations within the area delegated to it by statute. As long as an agency acts within the rulemaking authority delegated to it by Congress and follows the procedures in the APA, courts have ruled that an agency is entitled to write and enforce regulations (subject to judicial checks).
The Senate Homeland Security & Government Affairs Regulatory Affairs & Federal Management Subcommittee, and several committees in the House of Representatives (e.g. Judiciary and Small Business) play a central role in creating and passing laws that govern the rulemaking process, and authorize agencies to take regulatory actions.
Congressional Review Act
The Congressional Review Act allows Congress to disapprove regulations issued by agencies and contains a lookback provision that places almost six months of rulemaking in jeopardy of elimination by the next Congress. The window for this period of review opens in 2020, but agencies will have to weigh the tradeoffs of rushing to publish their rules before the window. According to the 2020 House calendar, any rules issued after May 19, 2020 may be subject to review by the 117th Congress. However, historical data suggest the lookback period is more likely to begin sometime in July or early August of 2020.
The final months of an outgoing presidential administration typically generate a significant amount of regulatory activity. This increased regulatory activity during the “midnight” period has been documented as early as the Carter administration’s transition to Reagan, and has accompanied every presidential transition since, regardless of political party. The midnight period is typically defined as the period between the presidential election in November and Inauguration Day on January 20th of the following year.
Listed are key legislative acts related to regulation, with an emphasis on the Administrative Procedure Act which lays out the roadmap for how regulations are created, amended, and removed.
- Administrative Procedure Act (1946)
Established procedures an agency must follow to promulgate binding rules and regulations within the area delegated to it by statute. As long as an agency acts within the rule-making authority delegated to it by Congress and follows the procedures in the APA, courts have ruled that an agency is entitled to write and enforce regulations (subject to judicial checks).
The APA constrains executive rulemaking in three main ways. The agency can only act within the limits set by statute, and actions must meet the following tests:
- Be reasonable (i.e. have sufficient factual support in the record).
- Not be arbitrary or capricious.
- Not be an abuse of discretion.
- Information Quality Act (2000)
Gives Congress the authority to request that the Government Accountability Office (GAO) conduct an independent evaluation of economically significant rules at the proposed or final stages.
- Omnibus Consolidated & Emergency Supplemental Appropriations Act (1999)
Omnibus Consolidated & Emergency Supplemental Appropriations Act
Section 638(a)) requires the Office of Management & Budget to report to Congress yearly on the costs and benefits of regulations and to provide recommendations for reform.
- Congressional Review Act (1996)
Requires rule-issuing agencies to send all mandated documentation that is submitted to OMB to both houses of Congress as well. It also allows Congress to overturn regulations within a specified time with a congressional resolution of disapproval.
The CRA enables Congress to disapprove a final rule issued by a federal agency. A rule disapproved using this mechanism is not only nullified; the agency is also prevented from reissuing a “substantially similar” rule in the future unless Congress authorizes it to do so via subsequent legislation. Congress generally has 60 days to review rules, but there is a provision that also allows an incoming Congress to review the last 60 days of rules issued during the previous Congress.
Congress enacted the Congressional Review Act (CRA) on March 29, 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA) in an effort to increase its oversight of federal agency rulemaking. The CRA includes several parliamentary mechanisms that enable Congress to disapprove a final rule issued by a federal agency.
- Small Business Regulatory Enforcement Fairness Act (1996)
Small Business Regulatory Enforcement Fairness Act
Enforces requirements for small business impact analyses under the Regulatory Flexibility Act.
- Unfunded Mandates Reform Act (1995)
Requires regulatory agencies to consider burdens on state, local, and tribal governments.
- Paperwork Reduction Act (Amended in 1995)
Established the Office of Information & Regulatory Affairs within the Office of Management & Budget to review the paperwork and information-collection burdens imposed by the federal government.
- Negotiated Rulemaking Act (1990)
Authorizes an agency to establish a negotiated rulemaking committee to develop and negotiate a proposed agency rule whenever the head of the agency determines that the use of the negotiated rulemaking procedure is in the public interest.
Authorizes an agency to use the services of a convener to assist the agency in: (1) identifying persons who will be significantly affected by a proposed rule, including residents of rural areas; and (2) conducting discussions with such persons to identify the issues involved and to ascertain the feasibility and appropriateness of establishing such a committee. Requires the convener to: (1) report its findings to the agency; and (2) upon agency request, ascertain the names of persons qualified and willing to represent the significant interests affected by the proposed rule, including residents of rural areas.
Requires the agency to publish in the Federal Register and, as appropriate, in trade or other specialized publications, a notice of its intention to form a negotiated rulemaking committee, including information about the rulemaking and the solicitation of comments about the proposal and membership on the committee. Authorizes persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented to apply for, or nominate another person for, membership on the committee.
Requires the agency to provide a 30-day period for the submission of comments and applications. Authorizes the agency, after the consideration of such comments and applications, to establish a committee as an advisory committee pursuant to the Federal Advisory Committee Act. Requires the agency to publish notice in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for, membership on the negotiating rulemaking committee to represent such interests with respect to the proposed rule, if the agency decides not to establish a committee. Limits such committees to 25 members unless the agency head determines that a greater number is necessary.
Sets forth procedures for the conduct of committees in the consideration of rulemaking proposals. Provides for the selection of a facilitator for committee negotiations. Requires the committee to report to the agency at the conclusion of negotiations, with a proposed rule or a report on the areas of consensus.
- Regulatory Flexibility Act (1979)
Requires agencies to assess the impact of a regulation on small businesses and provides for review by the Small Business Administration.
- National Environmental Policy Act (1969)
National Environmental Policy Act
Established a national policy for the environment and provided for the establishment of a Council on Environmental Quality.
The stated purposes of NEPA are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.