Ill-conceived “SCRAP” Act aims to eliminate democratic accountability

Last Tuesday, Senators Cory Booker (D-NJ) and Tom Udall (D-NM) introduced the Sunset the CRA and Restore American Protections (SCRAP) Act. The bill would promote the further insulation of unelected bureaucrats from democratic accountability by repealing the Congressional Review Act and making it virtually effortless for regulations repealed under the CRA to be reinstated. Although the Members of Congress apparently don’t like Congress using fast-track procedures to vote and enact a law overturning a regulation, the SCRAP Act would create a mere republication requirement for regulators to re-issue 14 burdensome regulations disapproved by our democratic representatives.

This is an especially curious move for a rising star in the Democratic Party like Senator Booker, unless he wants to corner the “unelected regulator” vote. The CRA is policy-neutral, offering equal opportunity for Congress to take on illegal or costly regulations promulgated by executive agencies under any outgoing president, as well as those that were never submitted to Congress as mandated by the CRA.

Senators Booker and Udall characterized the Congressional Review Act as unfair. Public Citizen President Robert Weissman (who praised the senators for introducing the bill) described the CRA in a press release as “a crass corporate payback scheme.” Did then Senator Harry Reid and President Bill Clinton think so?

Former Senator Harry Reid (D-NV) was a principle cosponsor of the CRA in the Senate, and President Clinton signed the bill into law. In Senator Reid’s final speech on the Senate floor last December, he defended the law and took credit for its passage as one of his major accomplishments in the Senate. He even called it a “fair” piece of legislation.

Indeed, H.R. 3136, which included the Congressional Review Act, was passed with strong bipartisan support in the House, including almost two-thirds of Democratic House members. In the Senate, the bill had unanimous consent.

President Clinton said that the Congressional Review Act “increases congressional accountability for regulations, providing expedited procedures for Congress to review those regulations.” That accountability would be lost by the passage of the ill-conceived SCRAP Act.

Even those who disagree with the expanded use of the Congressional Review Act (which we have advocated here) concede that the CRA is necessary. Professor David Vladeck, the A.B. Chettle Chair in Civil Procedure at Georgetown University, argued at the Federalist Society’s Fifth Annual Executive Branch Review Conference that repeal of the CRA would be a mistake because “the CRA simply provides a useful set of tools for Congress to exercise a power that it has under the Constitution.”

The Congressional Review Act is an essential tool to bypass congressional gridlock and promote democratic accountability. Undoing the CRA would only embolden unaccountable bureaucrats and further entrench the Administrative State.

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