Neutering the administrative state
President Trump, with a Republican-controlled Congress behind him, has the means to roll back a surprising amount of the red tape and regulations that Washington bureaucrats have smothered the nation with in the past ten years. I'm referring to the use of the Congressional Review Act (CRA).
A traditional and undisputed understanding of this 1996 law allows Congress to override regulations published within 60 legislative days by a simple majority vote in both chambers. In the current session, the Ryan-led House has already voted to repeal 13 of the Obama-era damaging regulations of which President Trump has signed off on three so far.
But this rollback is a pittance compared to the full potential of the CRA. As conservative scholars and analysts at the Pacific Legal Foundation, the Heritage Foundation, the Federalist Society, and RedTapeRollBack.com examine the CRA, they see that the law gives significantly more oversight of bureaucrats than previously realized.
Todd Gaziano, a senior fellow in constitutional law at the Pacific Legal Foundation, says Congress has extraordinary powers to overrule regulations going back to the beginning of the Obama administration if those regulations were not reported to Congress as specified by CRA.
Here's what he means. The first line of the CRA requires any federal agency issuing a rule to submit a report on it to the House and Senate. The 60-day clock for Congress to act starts either when the rule is published in the Federal Register or when Congress receives the report – whichever comes later.
Whether it was through spite, arrogance, or incompetence, many rules have not been duly reported to Congress during the Obama reign.
According to the Wall Street Journal, a 2014 study by the Administrative Conference of the United States found at least 43 "major" or "significant" rules that had never been reported to Congress along with an estimated 1,000 smaller rules issued each year. The study focused on formal rules – not "guidances," which are also covered by the CRA.
Examples of guidances are the Obama administration's notorious instruction to K-12 schools on transgender bathrooms and Title IX and campus sexual assaults for colleges and universities.
The bottom line is that if a rule or a guidance has not been reported to Congress since the inception of the CRA in 1996, it can now be challenged in Congress.
But the CRA goes even farther. The law states, "Before a rule can take effect," the federal agency in question must submit a congressional report on it. The clear implication here is that the Trump administration can simply declare any rule not reported to Congress null and void.
The WSJ suggests a prudent way to approach this opportunity. It is as follows:
The White House would be wise to start by simply directing federal agencies to catalog which rules have reports – and then devise a strategy with Congress. Some rules might deserve to stay on the books. Some bad rules might get reported to Congress for repeal under CRA. Others could be declared null and void – which saves the trouble of formally revising them. This last approach might appeal to Congressional Republicans who are fretting that CRA crush is diverting them from healthcare and tax reform.
And there's one more thing: after analyzing the CRA, Paul Larkin of the Heritage Foundation concludes that once Congress overrides a rule, agencies cannot reissue it in "substantially the same form" unless specifically authorized by future legislation. This means that regulations (rules) that are overridden via the CRA cannot be resurrected by some future agencies in a Democratic administration without new supporting legislation.
As the WSJ puts it, Democrats will howl in response to an aggressive use of the CRA, but the law was designed to impose penalties on agencies that fail to keep Congress informed. As Mr. Gaziano says, "the entire point of CRA was to restore some minimal level of constitutionality accountability over agencies that take a broadly worded statute as a license to run wild."
The CRA is the most immediate means the Republicans have to reimpose democratic accountability on a lawless bureaucracy. Once again, the Republicans have the power in their hands to make meaningful changes in Washington. One can only hope that they will not shy away from using the CRA to its fullest and not worry about the hysterics from the Democrats and their media soulmates.