Stars align for the Congressional Review Act
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Rules could also be rescinded by the new administration on its own authority without involving Congress.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.