A ‘Regulatory Game Changer’

The potential uses of the Congressional Review Act to review and eliminate excessively burdensome or unauthorized regulations are not limited to the “midnight” rule situation alone; more powerful ways to use the act are causing great excitement in reform circles and among leaders on Capitol Hill who want to regain control over regulatory agencies run amok. Pacific Legal Foundation’s Senior Fellow in Constitutional Law, Todd Gaziano, was the chief legislative counsel to the CRA’s sponsor, then-Representative David M. McIntosh of Indiana. Mr. Gaziano helped craft many of the provisions that make it work and has testified as a scholar on the CRA. His “new idea” for Congress to more aggressively assert its power under the CRA was first announced in a Wall Street Journal piece by Kimberley Strassel, which headline called the idea a “regulatory game changer.”

Because many agencies failed, for whatever reason, to report many rules to Congress as the CRA requires (especially policy memos and guidance documents, termed “regulatory dark matter” by one scholar), Congress can still use the CRA to disapprove those rules. The CRA requires any federal agency issuing a rule to submit a short “report” on it, with the text of the rule and any cost-benefit analysis, to the House, Senate, and GAO before the rule can go into effect. The 60 legislative day review clock starts on the later of two dates: when the rule is published and when it is sent to Congress. Any rule an agency has failed to submit to Congress is unenforceable under the CRA and remains vulnerable to Congress’s disapproval when it is finally properly reported.

Congress can use the CRA to disapprove any unreported rules going back to 1996.

A simple majority in each House of Congress can kill a rule with the President’s signature

Any rule an agency has failed to submit to Congress is unenforceable under the CRA

cra 2.0

If the Trump administration wants to cut regulations, it should start with burdensome rules that were never sent to Congress for its review under the CRA. Once the administration starts to submit them to Congress and indicates which it wants to go into effect and which it wants Congress to disapprove, Congress would have 60 legislative days to review and vote on such rules. That’s what we call “CRA 2.0.”

The CRA’s streamlined procedures suspend the Senate filibuster. These resolutions can be passed with a simple majority vote and sent to the president. If the president signs a disapproval resolution, the agency is prohibited from issuing any "substantially similar" rule again.

Scholars have counted hundreds of rules from the Obama administration alone that were not sent to Congress as required by the CRA. Some of those are extremely problematic rules with significant negative effects on Americans.

President Trump could direct agencies to belatedly send certain rules to Congress, asking our democratic representatives to not only disallow them but effectively block any substantially similar rule in the future.

LEARN MORE

cra 3.0

What we call “CRA 3.0” is an even more efficient means for the new administration to meet its regulatory reform goals. Rule not sent to Congress as required by CRA are not lawfully in effect, even if they were thought to be. The administration should direct agencies not to enforce such rules while it decides what to do with them.

The administration should direct agencies to consult with OMB before sending old rules to Congress so Congress would not waste time reviewing rules that an agency might modify or withdraw. After consultation, the agency would have several options.

It could publish a notice declaring that a rule is being abandoned, reevaluated, or modified. The next step might vary depending on whether the rule was a guidance document or one that received public comment. Most guidance documents could be modified or withdrawn easily.

The agency might submit many rules to Congress so that they lawfully would go into effect. It could also submit certain rules with a request that Congress review and disapprove them, with a statement that the President would sign such disapproval.

LEARN MORE