Stars align for the Con­gres­sional Re­view Act

The Washington Times Daily - - POLITICS - BY DAREN BAKST AND JAMES GATTUSO James L. Gattuso is the se­nior re­search fel­low in reg­u­la­tory pol­icy at The Her­itage Foun­da­tion. Daren Bakst is Her­itage’s re­search fel­low in agri­cul­tural pol­icy.

In the weeks since Don­ald Trump’s elec­tion to the pres­i­dency, there has been much spec­u­la­tion over how the next pres­i­dent plans to cut back the moun­tain of reg­u­la­tions im­posed by Pres­i­dent Obama. But the reg­u­la­tory agenda shouldn’t be writ­ten just at the White House. Congress also should ac­tively pare back rules, and a law writ­ten 20 years ago can help law­mak­ers do just that.

Signed into law by Pres­i­dent Clin­ton, the 1996 “Con­gres­sional Re­view Act” es­tab­lished a process by which Congress could “dis­ap­prove” of new rules without facing fil­i­busters or sim­i­lar pro­ce­dural hur­dles.

The idea was to re­store to Congress its con­sti­tu­tional role to make laws, as op­posed to let­ting un­elected and un­ac­count­able bu­reau­crats dic­tate how so­ci­ety is gov­erned. But de­spite ini­tial hopes, the CRA has been con­sid­ered a fail­ure, the Ed­sel of reg­u­la­tory re­form. Only once has it been suc­cess­fully used to re­scind a reg­u­la­tion.

The pri­mary rea­son for this dis­use is sim­ple: Few pres­i­dents are will­ing to dis­ap­prove of rules im­posed by their own ad­min­is­tra­tions.

In fact, the one in­stance in which the CRA was used suc­cess­fully in­volved an “er­gonomics” rule adopted dur­ing the wan­ing days of the Clin­ton ad­min­is­tra­tion. In early 2001 Pres­i­dent Ge­orge W. Bush signed a CRA res­o­lu­tion passed by a largely Repub­li­can Congress, dis­ap­prov­ing the rule.

In 2017, how­ever, the stars are aligned for the CRA to play a much greater role. Both the House and the Se­nate are in Repub­li­can hands, with a Repub­li­can pres­i­dent to be in­au­gu­rated in Jan­uary. Con­gres­sional lead­ers as well as the pres­i­dent-elect have de­nounced what they agree is mas­sive reg­u­la­tory over­reach by the out­go­ing Obama ad­min­is­tra­tion.

Ad­ding to this align­ment is the sheer num­ber of rules el­i­gi­ble for dis­ap­proval un­der the CRA. The act al­lows Congress to ad­dress rules go­ing back as far as last June. That means many dozens of ma­jor new rules could be sub­ject to a CRA dis­ap­proval res­o­lu­tion. These in­clude: Dodd-Frank fi­nan­cial reg­u­la­tion rules, sick leave man­dates for fed­eral con­trac­tors, off­shore drilling rules, en­ergy man­dates for home ap­pli­ances and many more.

It’s a truly tar­get-rich en­vi­ron­ment and a his­toric op­por­tu­nity for Congress to limit the growth of red tape.

Rules could also be re­scinded by the new ad­min­is­tra­tion on its own au­thor­ity without in­volv­ing Congress. But this would re­quire the agency to com­plete a no­tice-and­com­ment process un­der the Ad­min­is­tra­tive Pro­ce­dure Act, and to iden­tify ju­di­cially de­fen­si­ble rea­sons for re­peal. And the re­sult­ing changes are cer­tain to get bogged down in the courts for years.

Us­ing the CRA to block costly new rules could avoid these ob­sta­cles. Plus, en­act­ing a CRA res­o­lu­tion pro­vides the ad­di­tional bonus of bar­ring a reg­u­la­tory agency from im­pos­ing any rules that are “sub­stan­tially the same” as the dis­ap­proved rule.

The form of a res­o­lu­tion of dis­ap­proval is gen­er­ally straight­for­ward. But there are some ar­eas that need con­sid­er­a­tion. One of these is us­ing “pre­am­bles,” or state­ments that can be in­cluded in the body of the res­o­lu­tion stat­ing the res­o­lu­tion’s pur­pose and the ob­jec­tions Congress has to the rule in ques­tion.

A pre­am­ble could be a cru­cial aid in de­ter­min­ing con­gres­sional in­tent for pur­poses of ap­ply­ing the “sub­stan­tially the same” test to dis­ap­proved rules. It could also ad­dress an am­bi­gu­ity in an ex­ist­ing statute, which might help pro­vide clar­ity to courts on how it should in­ter­pret statu­tory text.

Both Congress and the pres­i­dent will have an op­por­tu­nity in 2017 to roll back costly new rules that have been im­posed on the Amer­i­can peo­ple by the out­go­ing ad­min­is­tra­tion. One pow­er­ful tool they can use to ac­com­plish this task is the Con­gres­sional Re­view Act. This long-ne­glected tool pro­vides Congress with the power to swiftly re­move months of Obama ad­min­is­tra­tion rules from the books, and to help en­sure that they don’t come back. Congress should be ag­gres­sive in em­ploy­ing the au­thor­ity em­bed­ded in this statute.

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