Ilyse Schuman recently reported in the Employment Law Update that the House Appropriations Committee had approved FY2013 funding, and filed a report, for the Equal Employment Opportunity Commission (EEOC). She focused on the catch that “none of the funds made available in this Act” can be used to implement the EEOC’s Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act rules.
A second House Appropriations Committee bill and report would bar using FY2013 funds to “develop, adopt, implement, administer, or enforce a change or supplement to” the Army Corps of Engineers’ rules or guidance on the definition of waters under the jurisdiction of the Federal Water Pollution Control Act. The provision, if enacted, would freeze the regulations and guidance for FY2013 in light of Sackett v. EPA.
Limitations on an agency’s use of appropriation bills to limit rulemaking are more common than most realize and touch upon the delegation doctrine under the U.S. Constitution, so a short review is in order.
This blog previously discussed the Department of Labor (DOL) H-2B Wage Methodology Rule funding bar and litigation. Together, these are all part of a much larger pattern of Congressional intervention and withdrawal of previous constitutional legislative delegations. Often Members of Congress may perceive that an agency has “gone too far” with congressionally delegated authority, but the real issue is whether those Members can force a compromise that includes such a bar.
Congress created a detailed and complex mechanism for disapproving regulations – a joint resolution (also a law by another name) – in the Congressional Review Act (CRA). Congress enacted the CRA in response to the United States Supreme Court decision, in INS v. Chadha, striking down as unconstitutional the “one-House veto” and with it over 200 provisions of various laws. Congress used the CRA only once – to disapprove the Clinton Administration ergonomics rule. Most recently, the Senate failed to approve S.J. Res. 36, a joint “resolution of disapproval” of the National Labor Relations Board (NLRB) Representation – Case Proceedings, a joint resolution that the President had threatened to veto in any event.
The simpler method, however, is to enact a funding prohibition in an appropriation. An appropriation, of course, is a law like any other law – approved by the House and the Senate, and signed by the President. Congress may, unquestionably, withdraw or limit a delegation made by a previous Congress in a previous law. The dynamics of this law-making function are very different because the stakes vested in the ultimate decision are much greater. An appropriation limitation is more viable for disabling a rule than the joint resolution under the CRA because
- appropriations are “must” legislation that “must” be negotiated (it’s self-effecting: if the appropriation is not enacted or is vetoed, the agency withers, not just the rule), and
- appropriations can apply much more broadly than to just CRA major rules or to a specified rule.
The massive Consolidated Appropriations Act, 2012, currently funding the vast majority of the Government for FY2012, illustrates the breadth and depth of regulatory defunding in a dozen such limitations:
- Many words on a regulation of a small program on loaning Executive Branch employees to the Legislative Branch (§ 730, 125 Stat. 936);
- A disappointment for those who prefer to escape reality because there will be no rules lessening penalties under schedule I under the Controlled Substances Act for tetrahydrocannabinols (read: marijuana) (§ 810, p. 942);
- Industry-specific rules on permitting under the Clean Air Act for carbon dioxide, nitrous oxide, water vapor, or methane emissions resulting from biological processes associated with livestock production (§ 426, p. 1046);
- Or more pungently, no rules requiring reporting of greenhouse gas emissions from manure management systems (§ 427, p. 1046);
- No Occupational Safety and Health Administration (OSHA) rules applicable to small farms that do not maintain a temporary labor camp (p. 1059);
- No definition of ‘‘Fiduciary’’ by the DOL Employee Benefits Security Administration (EBSA) (§ 109, p. 1064);
- No (previously mentioned) DOL Wage Methodology for the Temporary Non-Agricultural Employment H–2B Program (§ 110, p. 1064);
- No OSHA Occupational Injury and Illness Recording and Reporting Requirements — Musculoskeletal Disorders (MSD) Column (§ 111, p. 1064);
- And sometimes rambling detail that is perhaps unconstitutionally, no Lowering Miners’ Exposure to Coal Mine Dust until the Government Accountability Office makes certain findings (§ 112, p. 1064);
- Or quite bluntly, no funds may be used to administer or enforce “29 CFR 779.372(c)(4)” (§ 113, p. 1064);
- Or by subject when a discrete regulations can’t be identified, such as no funding to the NLRB to issue any new administrative directive or regulation that would provide employees any means of voting through any electronic means in an election to determine a representative for the purposes of collective bargaining; (§ 405, p. 1107); and
- And, in case you want to apply, no regulation or any action to limit the submission of applications for benefits under the Demonstration Cities and Metropolitan Development Act of 1966 (p. 1141).
This catalogue illustrates a variety of sizes, shapes, and styles of funding limitation. We should expect funding limitations as the Appropriators roll through the 13 bills to fund (hopefully) the United States Government for FY2013. The Congress will never be consistent with how it withdraws delegations by defunding, and often-arcane appropriation language makes the issue daunting.
Congress may defund regulations and regulatory delegations and likely will use that authority even more in the future. Although often limited to a single fiscal year, once adopted, these defunding restrictions also often recur in subsequent appropriations, becoming semi-permanent.