Federalist Society panel discusses Congressional Review Act
This week, Todd Gaziano, Senior Fellow in Constitutional Law at Pacific Legal Foundation and project leader for Red Tape Rollback, addressed The Federalist’s Society’s Fifth Annual Executive Branch Review Conference. Mr. Gaziano and Georgetown Law professor David Vladeck debated the Congressional Review Act and its use to repeal old rules that were never submitted to Congress.
Professor Vladeck raised an interesting question by asking what limiting principle the Congressional Review Act has, implying that the CRA could be used to go back and review rules from as far back as the passing of the Administrative Procedure Act in 1946. Mr. Gaziano explained that the Congressional Review Act does have a limiting principal — no rule issued before the act’s passing in 1996 is subject to the CRA’s expedited review procedures. He also conceded that there was also a political check that would make it unlikely Congress would overturn rules that had been relied on for many years. Nevertheless, there are hundreds of rules published in the last eight years that were not submitted to Congress and are potentially subject to congressional review under the CRA.
There was also discussion about the types of rules that are subject to review under the Congressional Review Act. As we have explained here though, the CRA intentionally defines “rule” broadly, giving Congress the ability to review most agency guidance documents and informal rules.
You can watch the discussion below. The entire CRA panel discussion is an hour, and begins at minute 35 in the video below (after a speech by Senator Mike Lee) with introductions by Stuart Taylor. The “Founding Father” of the CRA, David McIntosh, begins his remarks at around 37 minutes. Professor Vladeck’s remarks begin at about 47 minutes into the video, and Mr. Gaziano’s remarks begin just after the one hour mark.