E&E News: Conservatives ponder expansion of Congressional Review Act

A story published by E&E News is bringing more attention to the Congressional Review Act. In the article, Pacific Legal Foundation’s Todd Gaziano, Competitive Enterprise Institute’s Wayne Crews, and The Club for Growth’s former Rep. David McIntosh explained how the CRA can kill unlawful regulations.

Reporter Arianna Skibell writes:

The CRA was signed by President Clinton in 1996. It requires federal agencies to submit final rules to both Congress and the Government Accountability Office before they can take effect. Congress then has 60 legislative days to review the rule. During that time, lawmakers can schedule a simple majority, up-or-down vote on rules they want to overturn using fast-track procedures.

Until this year, the CRA had only been used successfully once to toss out a Labor Department rule in 2001. But with a Republican-controlled White House and Congress, lawmakers have wasted no time submitting resolutions of disapproval. President Trump has already signed a handful.

The article also cited law professors who wrongfully say Congressional Review Act cannot be used to target guidance documents.

Georgetown Law’s [David] Vladeck balked at the notion that agencies would be required to send guidance documents to Congress. “Guidance documents are not rules,” he wrote in an email. “The law is clear that guidance documents are not rules because they impose no enforceable obligations.”

The definition of “rule” used in the CRA is taken directly from the Administrative Procedure Act of 1946, which defines a “rule” broadly.

“He’s right,” Richard Pierce, a distinguished law professor at George Washington University, said. “I testified when Congress passed the CRA, and I urged Congress to narrow the definition of rule because I knew it was absurd to expect agencies to submit every guidance to Congress.”

As PLF’s Jonathan Wood recently explained, they are wrong.

You can read the full article from E&E News here.