It’s the most important federal-government discussion you haven’t heard about. It involves a provision of an obscure federal law that, until last month, had been successfully invoked only once in its 20 years of existence. And it’s reverberating today in part because of a school-accountability policy crafted toward the end of the Obama administration. So on the surface, this story might sound like a case of a minor statute and minor area of interest to Uncle Sam.
But the Senate’s possible application of the Congressional Review Act (CRA) to this policy could prove a positive and portentous event. Ultimately, this story is not about education policy so much as protecting the separation of powers, halting the unfettered growth of the administrative state, and reestablishing Congress as the first branch of government.
About a year ago, Congress passed the bipartisan Every Student Succeeds Act (ESSA), the replacement for the much-maligned No Child Left Behind Act. ESSA was designed to dial back the federal government’s role in schools. But it also slapped the hands of the Obama administration’s Department of Education. The new law explicitly prohibited wayward executive-branch regulations and guidance.
Many Republicans in Washington believe the Obama administration missed the message or willfully flouted it: Late in 2016, Obama’s department issued bold new regulations related to school accountability. So while Congress may have addressed past overreach through the new law, the agency planned a new wave of activism through new regulations. Indeed, as Rick Hess and Max Eden recently noted, Obama’s former Secretary of Education Arne Duncan bragged after the passage of ESSA, “Our lawyers are much smarter than many of the folks who were working on this bill.”
In response, the House passed and now the Senate is deliberating a resolution that would invalidate those regulations. Congress has the authority to do so under provisions of the CRA; it’s the power of the legislative branch to expunge newly created but misguided executive-branch interpretations, clarifications, and amplifications of law.
To most observers, the passage of ESSA and the invocation of the CRA seem to be a direct rebuke of the Obama administration’s incessantly activist approach to education policy. But this is actually just one episode of a much longer and more important story about the growing power and reach of the federal government’s administrative state — and what to do about it. So while education analysts and state-level education policymakers — as a member of a state board of education, that includes me — may debate Congress’s review of these regulations in terms of school policy, we should also see it as an issue of constitutional authority.
Using the CRA may be one important step in the long-term campaign to scale back the power of federal agencies.
For a number of years, the burgeoning clout of executive bodies has concerned many scholars and conservative activists. As smartly described by The Economist, powerful federal agencies led by unelected officials craft regulations and guidance documents that influence broad swaths of public and private activity. The Brookings Institution’s Phillip Wallach writes of “the administrative state’s legitimacy crisis.” The Hudson Institute’s Christopher DeMuth wonders if the administrative state can be “tamed.” And Columbia Law School’s Phillip Hamburger asks whether the sprawling body of administrative law is even lawful. As further evidence of how timely the issue is, President Trump’s chief strategist Steve Bannon recently used a rare public appearance to advocate for the “deconstruction of the administrative state.”
But actionable solutions have been hard to come by. The American Enterprise Institute’s Peter Wallison argues that it is now up to a more active judiciary to restrain the administrative state. And, similarly, George Will writes that future courts must appreciate that as the administrative state expands, a decreasing portion of government activity reflects the will of the majority. Wallach and Kevin Kosar have advocated for the creation of a new Congressional Regulation Office to save the day.
Unlike these long-term efforts, the CRA could arrest the administrative state’s growth right now, while its effects would cascade into the future. If used judiciously, the CRA would make agency officials continuously think twice about going too far, knowing that Congress is willing to overturn their regulations. Congress, meanwhile, knowing it shouldn’t approve expansive, vague statutes giving imaginative agencies capacious room to roam, would be more specific and limited in its legislation. The possible upshot would be a Congress more willing to have substantive, public debates about discrete issues and craft narrower laws. Finally, with executive agencies erring on the side of modesty, states, localities, and civil society — citizens — could recapture some power.
In sum, the CRA has the potential simultaneously to reassert Congress’s authority, clip the wings of the executive branch, and decentralize decision-making. What’s more, this would be an institutional response — not just a political response — to the administrative state. Every new president, has the power to adjust the administrative policies of the previous president. This always happens, and, as The New York Times recently reported, the Trump administration is energetically following that precedent by reviewing many Obama-era regulations. But the CRA is a way for the legislative branch to check the executive branch as a matter of constitutional principle — a way for Congress to decisively clarify, to whomever sits in the Oval Office, what a law was intended to do and not do.
Back in 2001, Congress activated the CRA to overturn regulations related to ergonomics. Then the CRA went dormant for 16 years. However, according to one analysis, nearly 50 resolutions are now pending in Congress to reanimate the law, with a few having just succeeded in recent days. That’s a sign that our national legislators are taking seriously their responsibility to check the executive branch.
In fact, if the school-accountability regulation is overturned, Congress will have demonstrated that it already possesses all of the tools necessary to restrain the ever-expanding administrative state: The legislative branch will have passed a law (ESSA) responding to previous agency overreach and then nullified that agency’s attempt to overreach into the future. Repeat that a few times and Congress will start feeling like the first branch once more.
Andy Smarick is Morgridge Fellow at the American Enterprise Institute.