Sunday, November 30, 2014

1941 AG Committee Report Sheds Light on Congressional Review of Regulations

There have been legislative efforts in the 113th Congress to require that significant federal regulations adopted by the SEC and other agencies be approved by Congress. While Congress has the power to require this, questions about its workability on a practical level have been raised.

In this regard, it may be instructive to look at the 1941 Report of the Attorney General’s Committee on Administrative Procedure. This report was commissioned by President Franklin D. Roosevelt while Frank Murphy was AG and delivered to Congress by AG Robert Jackson. The Committee was chaired by Dean Acheson and contained such luminaries as Arthur Vanderbilt and Walter Gellhorn. Both Frank Murphy and Robert Jackson would serve on the U.S. Supreme Court.

The Committee report notes that the laying of regulations before Congress has not been unknown to the American people. The report cites as an example the Reorganization Act of 1939 relating to Presidential reorganization orders, which had a deferred effectiveness provision that gave Congress the time to nullify any order that it did not wish to become operative. A similar practice with respect to administrative regulations has been employed in the U.K.

But the Committee did not recommend a general requirement that federal regulations be laid before Congress before going into effect. Legislative review of administrative regulations has not been effective where tried. The whole membership of Congress could not be expected to examine the considerable volume of material that would come before them, noted the report, adding that even a joint committee entrusted with the task could not supply an informed check upon the diverse and technical regulations it would be charged with watching.

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