Barack Obama thought he had all his bases covered.
He believed his policy agenda was cemented through regulations.
But Obama could not have been more wrong, thanks to this massive error.
The Congressional Review Act (CRA) allows Congress to override regulations by a simple majority vote.
However, many believe the statute only allows the overriding of regulations that were passed in the last 60 days.
But thanks to a major error by the Obama administration, one legal expert believes every Obama regulation going back as far as 2009 is subject to the CRA.
Todd Gaziano – a senior fellow at the Pacific Legal Foundation and former counsel to then Representative David McIntosh – points out the CRA requires agencies to submit a report on any new regulations.
Many Obama agencies did not.
Gaziano notes that the 60 day CRA clock starts when the rule is either published, or Congress receives the agency report, according to whichever comes later.
The Wall Street Journal reports:
“Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.
“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.
There’s more. It turns out the CRA has a expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.
“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.”
By submitting reports that were otherwise missing, the Trump administration can start the 60 day clock on Obama regulations and congress can vote them into the ash heap of history.
Republicans have often accused Obama of being a lawless President.
Following the law was never a big priority for the Obama administration.
He stretched his power to the maximum limits and was even rebuked by the court for exceeding his authority.
It would be a delicious irony to see his agenda undone because of his lazy disregard for the law.