Congress can still do more with the Congressional Review Act
A recent story at The New York Times asserted that the window for Congress to undo regulations with the Congressional Review Act is closing. As we have explained here, that simply isn’t the case. While President Trump has rolled back 13 Obama administration regulations thus far, the CRA can do much more.
“The Congressional Review Act requires all agency rules to be submitted to Congress before they may lawfully take effect,” Todd Gaziano, project leader of Red Tape Rollback, said. “Whether the reason was antipathy to congressional review or bureaucratic incompetence, scores of rules were never submitted for Congress to review as the law plainly requires.”
The 60-day review clock in the Congressional Review Act doesn’t start ticking until the later of two events: the date the rule is published (if that is otherwise required) or when Congress and GAO receive a report on it with a copy of the rule. If previously unsubmitted rules are sent to Congress now, Congress will then get a chance to review them using the Congressional Review Act procedures that they should have had at an earlier date. A study from the special counsel to Administrative Conference of the United States indicated the number of vulnerable rules could be in the thousands.
While most of the rules that were not submitted are minor in consequence, others carry major impacts. Cause of Action Institute identified more than 800 significant rules that were not submitted to Congress for review. Another study from the Brookings Institute found that Congress was never given the chance to review hundreds of significant rules that were published in the Federal Register alone.
“The time to review unsubmitted rules hasn’t begun yet,” Gaziano said. “The CRA still requires that they be submitted to Congress, and at that point, Congress can consider what to do with them. So the window to use the CRA to overrule many regulations from the Obama administration hasn’t closed. Indeed, it hasn’t even begun until those rules are sent to Congress.”
The administration should work with Congress to determine which old rules should be sent to Congress to go into effect and which Congress should consider overruling. Only those who prefer unelected bureaucrats to govern America could opposed our democratically elected lawmakers in Congress exercising this important oversight of agency rulemaking.