This certainly appears to bolster the “legislating by regulation” argument. As such perhaps a court can find these numerous proffered regs unlawful in a similar broad spectrum manner:
Confronting A Surge In Costly Federal Rules
Clyde Wayne Crews Jr. Contributor
May 13, 2024
As of Monday, May 13, there have been 1,148 rules and regulations finalized among the 41,830 pages published to date in the 2024 Federal Register.
Page tallies of over 800 per day have suddenly become routine. Last week’s 4,225 pages represented nearly double 2024’s weekly pace so far.
At any given moment several thousand rules and regulations populate the production process. There are several flavors of “significant” rules, the costliest subset of which consists of rules the Biden administration deems “Section 3(f)1 Significant” (S3F1).
The significance of significance: Rooted in a Clinton-era executive order which until recently showcased $100 million “economically significant” rules, the S3F1 designation under Biden now instead refers to rules attaining a threshold of $200 million in annual economic effects. Now, lesser rules costing “only” $100 million or deemed significant due to certain other non-cost characteristics can fly under the radar.
This is a “significant” development to coin a term since, in a January 2024 compilation, I inventoried fully 232 S3F1 work-in-process rules in the pre-rule, proposed and final stages. The implication of Biden’s threshold change is that there are likely more costly rules in the pipeline below $200 million but above the old $100 million threshold that do not get the attention they deserve.
In any event, this is an election year, and the January inventory was intended to remind Congress that many of these high-impact rules would be rushed to completion in the Federal Register in order to outrace a looming summer deadline beyond which they become vulnerable to Congressional Review Act (CRA) “resolutions of disapproval” (RODs) overturning them in 2025, should Biden not secure re-election.
As summarized by George Washington University's Regulatory Studies Center:
"The CRA's lookback provision gives Congress an additional chance to review rules issued in the period starting 60 working days before the end of a session of Congress through the beginning of the subsequent session of Congress.
Rules issued during the lookback period are treated as if they were published in the Federal Register and reported to Congress on the 15th working day of the subsequent session of Congress"
And sure enough, to avoid that prospect, some of the flagged S3F1 rules have landed in rapid succession in recent weeks’ editions of the inflated Federal Register. Some in Congress are introducing resolutions of disapproval anyway, knowing full well these attempts will be vetoed by Biden. Rules garnering media attention as evidence of Biden “Trump-proofing” his agenda include:
The Securities and Exchange Commission’s climate disclosure rule;
The Environmental Protection Agency’s (EPA) "Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles." This is the rule seen as the vehicle, no pun intended, to effectuate Biden’s EV mandates;
EPA’s Reconsideration of the National Ambient Air Quality Standards for Particulate Matter;
The Department of Labor’s “Standard for Determining Joint Employer Status” as well as its “Employee or Independent Contractor Classification Under the Fair Labor Standards Act;
The Federal Communications Commission’s “Prevention and Elimination of Digital Discrimination”’;
The Department of Energy’s “Energy Conservation Standards for Consumer Furnaces”;
Resolutions of disapproval for other rules such as the Federal Trade Commission’s highly controversial rule prohibiting non-compete agreements would surprise no one, but the FTC rule is and those to follow would likewise be safe if the administration issues them quickly. Already during the Biden era the 117th and 118th Congresses each passed several RODs; but other than early ones overturning Trump-era actions, Biden has vetoed these. (Incidentally, the National Conference of State Legislatures, the American Action Forum, and the George Washington University’s Regulatory Studies Center among others track CRA resolutions.)
It’s the weight, not the flow (sometimes): Biden's executive actions in 2024 are notable not for the high numbers of executive orders and memoranda that characterized his first year, nor paradoxically even for an abnormally high number of rules.
Instead, Biden's recent activity is characterized by highly costly and transformative nature of rules fat enough to produce the aforementioned record-level Federal Register page counts. The all-time record was Obama’s 95,894 in 2016; the second highest count was Biden’s own 89,368 in 2023. At the current clip, however, the 2024 Federal Register will top 100,000 pages, taking us closer to the million-pages-per-decade warned of in recent editions of Ten Thousand Commandments.
The Limits of RODs: Clearly things have to align just so to roll back rules using the Congressional Review Act. The CRA has undone fewer than two dozen rules since its enactment in 1996. Most of those occurred under Trump, whose administration overturned too-late Obama rules. Biden’s team, who also overturned late-issued Trump deregulatory actions in precisely that fashion, has clearly learned the game and is ensuring that the largest of rules are landing in the Federal Register now to keep them protected from RODs.
Given the circumstances, one lesson for House and Senate leadership, if they anticipate 119th Congress majorities and a Republican president, would be to minimize legislative days for the remainder of 2024 to maximize backward chronological reach to capture more of these rules on the current Biden glide path. That is, a new Congress would want to stretch that 60-day lookback as far back in time as possible.
Members of Congress ought not despair at the futility of vacating all of Biden’s pet rules recently finalized. There remain, as the January inventory implies, a lot more rules on the 2024 legislative calendar potentially vulnerable to overturn in the 119th Congress in 2025 as they’re not all likely to beat the deadline. And of the rules that remain unfinalized, a new administration can just freeze and withdraw them.
Monitoring the broader “significant” subset: Additional S3F1 major and otherwise significant rules (as well as routine and non-significant ones) naturally have come into play since the January snapshot, likely including ones limbo-ing in just under the cost threshold. While Biden’s $200 million rules garner the most attention, it is important that policymakers not forget that the CRA itself still highlights the larger subset of $100 million rules, defining them in statute as “major” and requiring preparation of a formal albeit brief report on them by the Government Accountability Office.
The subset of the final rules deemed broadly “significant” under E.O. 12,866 during recent years is presented below. Biden had 289 significant final rules in 2023. While that was down from 375 in 2021, the significant rules subset under Biden appears to be tracking upward in both relative and absolute terms, destined to meet and exceed Obama levels.
Projecting the 155 as of today (May 13) implies 422 significant rules by the end of the year. Granted, that could decelerate after summertime, when large rules would be vulnerable to overturn should Biden not secure reelection. On the other hand, there is also a tendency of outgoing presidents to push through a number of midnight rules during their final lame-duck weeks, knowing some of it will stick given the sheer volume.
Standouts in the chart above are Obama’s final year of 486, when the Federal Register cracked its all time page record. Trump’s 2020 tally of 436 is a big one too; but many of those rules were deregulatory in intent—rolling back some of Obama—as part of the one-in, two-out campaign of the era. The Trump low of 199 in 2018 corresponds to the lowest total rule count since the National Archives began presenting rule counts in the 1970s; in 2018 there were fewer than 3,000 rules issued for the first and only time.
Significant rule counts bear close watching by Congress. Recognizing that overlap occurs in transition years, Barack Obama’s eight years brought 3,037 significant rules, for an annual average of 380. Donald Trump’s four years brought 1,121 significant rules, for an annual average of “only” 280 with a chunk of those deregulatory. Joe Biden’s first three years brought 932 significant rules for an average of 311 but that average appears to be ticking upward in 2024 if the chart holds.
Clearly the CRA can’t do it all: The job of Congress now is to pursue regulatory reforms that can have an effect regardless of what transpires with resolutions of disapproval this year. Many CRAs will be exercises in futility if there is no change in administration and if the GOP does not control both houses. But regardless of what happens in that respect, the sheer flow of significant rules requires addressing by more comprehensive means such as regulatory budgeting, sunsetting and a bipartisan commission to chop rules, and most importantly, dialing back on the hefty laws like the CARES Act, the Bipartisan Infrastructure Law, the Inflation Reduction Act and the CHIPS and Science Act that are the engines of much of the fat new rulemaking.
As for the CRA, while it did represent one of the most important affirmations of congressional accountabiltiy for rulemaking, it has never been quite the right tool; that tool will be legislation instead assuring that no major or controversial rule can be effective unless Congress votes to affirm it, as opposed to the current situation requiring Congress to get up on its hind legs to block odious ones. The current version of such a law is called “Regulations from the Executive in Need of Scrutiny,” or REINS Act; but a better moniker was the predecessor Congressional Responsibility Act, and the acronym could stay the same.
For now, and in preparation, Congress needs to keep a close eye on the flow of significant rules.
https://apple.news/AhLFH4p-nTzKutGErTpcPkg
