March 13, 2018


For those interested in keeping abreast of Congressional activity pertaining to the administrative state the Administrative Conference of the United States (ACUS) keeps a running tab of legislation that touches every facet of it.  While some bills, such as the Regulations In Need of Scrutiny (REINS) Act (requiring congressional approval of major regulations) are well known, there are many other proposals on the table of interest to those who follow the development of the administrative state, some which could conceivably be enacted.

This post will highlight some of the more significant pieces of pending legislation pertaining to the general regulatory state (as opposed to narrower pieces touching upon one agency, the civil service, etc.) upon which the 115th Congress has taken at least some legislative action beyond the automatic referral to committee that occurs upon introduction of legislation.

First, House Speaker Paul Ryan’s (R-Wisconsin) “Foundations for Evidence Based Policy Making,” H.R. 4174, passed the House and awaits Senate action.  H.R. 4174 would require agencies to develop and report to Congress and the public the policies, data and analytics to be in its policy making processes.  The post of Chief Data Officer would be established within agencies to oversee them.  A Senate companion introduced by Senator Patty Murray (D-Washington) indicates bi-partisan support exists for this concept.

Next, S. 951, the Regulatory Accountability Act (RAA) was reported favorably by the Committee on Homeland Security and Governmental Affairs in May of 2017.  The RAA seeks to incorporate many of the American Bar Association’s recommendations reforming the Administrative Procedures Act’s rulemaking processes.  These include such topics as disclosing the basis of proposed regulations, establishing minimum times for review and comment, creating special rules for regulations made late in an administration (so-called “Midnight Regulations”) and establishing a petition process to allow for post-enactment reviews among many others.  Chris Walker’s plain English summary can be found here and his more in-depth look at the ABA’s reform efforts and the legislation is here.

S. 1886, the Temporary and Term Appointments Act of 2017, would allow agency heads to make temporary appointments to positions deemed “critical needs” not to last more than 18 months.  It was reported out of the Committee on Homeland Security and Governmental Affairs in December of 2017 and placed on the Senate’s calendar.

H.R. 998, the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act (SCRUB) passed the House in March of 2017.  It establishes a Retrospective Regulatory Review Commission to review rules and determine if a rule should be repealed to reduce the costs of regulation among other things.

Finally, signed into law was S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, which strengthens federal whistleblower protections.

Numerous other bills that have been reported out of committee in the 115th Congress but have not seen additional legislative activity.

Get the latest from the ARTICLE I INITIATIVE and stay in the know.