How Far Could Congress Go With Congressional Review Act?
While there isn’t much for members of Congress to talk about in regards to newly passed legislation this Easter Recess, one area of success they can point is the rolling back of a number of last-minute Obama Administration rules and regulations.
This was done through the use of something known as the Congressional Review Act (CRA). The Congressional Review Act; passed in 1996, allows simple majorities of both houses of Congress to pass joint resolutions which can overturn recently announced rules and regulations from the federal bureaucracy to express their disapproval. Congress has 60 legislative days (days Congress is in session) once they’ve been notified of the new rule in writing. So far, Congressional Republicans have been able to repeal or outright overturn 13 such regulation in the first 11 weeks of the Trump Administration with similar resolutions on other last-minute regulations numbering in the dozens waiting to be voted upon.
Depending on how often and when Congress convenes, that initial 60-day window could close in either late April or early May. Many believe this will mark the end of these regulatory reversals, but will it?
Ever since Republicans secured the White House and both houses of Congress on Election Day 2016, there’s been a not-so-subtle movement by members of the conservative legal and think tank community to push for something now known as “CRA 2.0.” First reported in January by the Wall Street Journal’s Kimberly Strassel, she wrote how Todd Gaziano, a former congressional legal staffer, an original drafter of the CRA, and now a senior fellow on constitutional law at the Pacific Legal Foundation, was advocating for Congress to push the limits of the law.
But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.
Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.
“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.”Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.
According to Gaziano and legal scholars at the Heritage Foundation, this could mean hundreds if not thousands of rules and regulations enacted since 2009 (Numbers vary.) could be subject to repeal. Meaning, this could be just the sort of tool a White House pledging to wreck real havoc on the bloated regulatory state would need to get the job done.
“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.
All that remains is whether either the Trump White House or congressional leadership are willing to take the steps to implement “CRA 2.0” requires. Little indication on what action would be taken was provided by White House Press Secretary Sean Spicer during a press briefing held last Wednesday specifically on the Congressional Review Act.
As for Congress itself, it can only act if it has a White House willing to test the legal limits of the CRA. Given the potentiality of court challenges, it and the Trump Administration may find that passing new legislature which override the existing rules and regulations could be less of a headache.
But it is a fascinating legal theory, one which at least should be explored further in the coming weeks.