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Changing regulations is no simple matter

By Keith Leonard, ESQ

Regulations play an integral role in all of our lives. It is impossible to imagine driving a vehicle without regulations governing driving behavior. Without such regulations, every time you drive could, perhaps be, an accident waiting to happen.

In an effort to attract pro-business support for their candidacy, presidential candidates promise to repeal, suspend or otherwise reduce the regulations, which they suggest are burdensome to business, or simply do not like. However, such promises show a lack of understanding of the separation of powers doctrine in the United States Constitution; with an executive, a legislative and a judicial branch of our government. A president does not have unqualified power to either regulate or deregulate.

Executive branch agencies can only issue regulations pursuant to laws passed by Congress. For example, the Americans with Disability Act, 42 U.S.C. 12101, et seq. (the “ADA”) was adopted into law on July 26, 1990. Pursuant to 42 U.S.C. Section 12112, “the Commission [the Equal Employment Opportunity Commission – the “EEOC”] shall issue regulations in an accessible format to carry out this subchapter [of the ADA]”, and the EEOC was to do so within one year. Thus, the EECO was required to propose and adopt regulations carrying out the Congressional purposes identified in the ADA. Federal regulations are therefore not prepared in a vacuum and are not created for the sake of producing more regulations.

While a president can suspend the effective date of some regulations (those which have not yet gone into effect by the time the new president takes the oath of office) in an effort to begin a regulatory process to repeal the regulation, this action impacts only a small number of regulations. For regulations adopted within a distinct time period, the president can ask Congress to invoke its powers under the Congressional Review Act (the “CRA”). Under the CRA, Congress is permitted to bypass filibusters in the Senate to overturn recently issued regulations. The Senate may use the procedure provided for in the CRA for a maximum of sixty days of its session after the agency transmits the rule to Congress. A disapproval resolution must be submitted within 60 days after Congress receives the rule, exclusive of recess periods, in order to qualify for expedited consideration by the Senate (the House of Representatives would consider any disapproval resolution under its own procedures, not the expedited one under the CRA). Thus, in such a situation (seeking disapproval under the CRA), the new president can ask Congress to pass a law overturning potential regulations, but this requires a filibuster-proof majority in the Senate. However, should a disapproval resolution be enacted by Congress, the rule may not take effect and the agency cannot issue a substantially similar rule without subsequent statutory authorization.


The foregoing CRA procedure can even be used to try to disapprove a rule which has already gone into effect, provided the rule is a “major rule”. A “major rule” is “any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in—  (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The term does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.” 5 U.S.C. Section 804(2).

Another option where the new president opposes certain regulations is to instead hope that the regulations will be overturned by the courts, if such regulations are so challenged. A third option is the new president can use the regulatory process to reverse previous regulations, but this will take years and will also be subject to potential legal challenges in the courts.

It is therefore important to consider each candidate’s regulatory priorities. Voters can expect that a Democratic president will issue more regulations with higher costs and more stringent protections of the environment and public health than a Republican president. However, any promises of unqualified deregulation are largely only rhetoric.

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