From: Notice & Comment
by Daniel Hemel
My co-blogger Andy Grewal asked in a post on Tuesday: “Why doesn’t the IRS comply with the Congressional Review Act?” My first thought on reading Andy’s post was: “Yeah, why doesn’t it?” My second thought was: “Maybe it does.”
One might ask: If nothing in the CRA requires OIRA to make a finding as to whether a rule is “major,” then doesn’t that mean that the CRA is a nullity in practice? But we knew that already : Congress has blocked only one agency regulation using the CRA procedure since the Act’s passage 20 years ago. Perhaps some readers will conclude that we ought to have a more robust mechanism for congressional review of agency action (and there are perennial proposals to that end). But even so, that’s no reason to blame the IRS for following the letter of the law.