A Powerful Check on the Regulatory State

A Powerful Check on the Regulatory State
AP Photo/J. Scott Applewhite, File

The Congressional Review Act, a seldom-used law created two decades ago under Newt Gingrich’s “Contract with America,” has emerged from the obscurity of the parliamentarian’s office to become among the three most uttered letters — CRA — on Capitol Hill.

The CRA is an oversight tool that allows Congress to overturn a rule issued by a federal agency within a specified period of time. Creators of the CRA understood that there are times when the legislative branch — composed of elected representatives of the people, tasked with writing the laws that guide our nation — need an effective tool to rein in an out-of-control unelected bureaucracy. 

While attempts to use the CRA under President Obama were unsuccessful, the law has been gaining popularity since Republicans took control of both ends of Pennsylvania Avenue. 

President Trump has made regulatory reform a priority, vowing to rescind two rules for every new rule finalized under Obama and last week releasing an executive order requiring individual federal agencies to create task forces to “alleviate unnecessary regulatory burdens placed on the American people.” It remains to be seen whether the two-for-one goal is achievable. But it is clear that the administration believes rolling back costly regulations necessary to create a fertile environment for job creation. President Trump reiterated this commitment to addressing the avalanche of burdensome regulations last night in his joint address to Congress.

Greater oversight of the federal regulatory process is clearly needed, as is broader comprehensive changes to the way new regulations are promulgated in the first place. That’s where the CRA comes in.

The CRA allows Congress to look back 60 “legislative” days when considering rescinding a specific regulation. But that 60-day period does not start until an agency submits the final rule to Congress. If a final rule is never submitted, the clock never starts and the rule never takes effect.

The process of rescinding a regulation requires Congress to pass and the president to sign a resolution of disapproval. If successful, a disapproval resolution simply removes the specific rule from the books. Once a rule is rescinded, an agency may not issue a similar rule without the specific authorization of Congress. A high hurdle, indeed. 

Only one disapproval resolution has been successful in the past 20 years. The reason is that a successful resolution requires a two-thirds majority in the Senate to override a presidential veto. President Obama was able to block five disapproval resolutions with his veto pen during the last Congress. 

With a Republican in the Oval Office, however, Congress no longer needs such a majority. What’s more, many Obama-era rules are still subject to the CRA. The Congressional Research Service estimates that any rule finalized as far back as June 13 is fair game. This includes thousands of regulations that the Obama administration rushed to finalize in its final year, with roughly 100 regulations in December alone. Many of those were major rules estimated to cost the economy $100 million or more annually.

With the CRA, President Trump and Congress have the means to counteract the regulatory overreach that threatens the economic competitiveness of the nation. 

The drafters of the CRA understood the politics behind regulations and wanted to make sure that legislative procedural hurdles, specifically those in the Senate, could not be used to frustrate congressional oversight of the agencies. That is why a disapproval resolution cannot be filibustered and why a simple majority is all that’s required for final passage. Similarly, a disapproval resolution cannot be held up by a reluctant committee chairman, so long as 30 Senators request that the resolution be discharged and placed on the Senate calendar for a floor vote.

Those who consider the filibuster an impediment to a well-functioning government can support the streamlined CRA process. But defenders of the filibuster, who see it as an essential protection of the congressional minority, should keep in mind that the CRA provides a check on the power of federal agencies that have exceeded their congressional authority. Hence the law is something all members of Congress should support. 

While smart regulations and rules are often necessary to carry out legislation, the role of the federal agencies is not to create new policy but, rather, to implement the policies of the legislature using the power delegated to them by Congress. The CRA was created to ensure that federal bureaucrats don’t forget that we live in a country in which laws are created by representatives of the people and enacted through a system with checks and balances. 

The president should keep this tool in mind when advancing his own agenda for regulatory reform. 

Tim Doyle is Vice President of Policy and General Counsel at the American Council for Capital Formation.

Comment
Show commentsHide Comments

Related Articles