Leveraging the Congressional Review Act to Shield Rather than Discipline Regulation

While the Congressional Review Act (CRA) was strongly bipartisan when it passed in 1996, supported by then-Sen. Harry Reid (D-NV) and others and enacted overwhelmingly as part of small-business regulatory relief legislation, the modern left hates it.

The legislation was intended to improve disclosure and potentially streamline the administrative enterprise by reasserting congressional accountability for it. The modern left instead appears to prefer the executive pen and phone to get things done without Congress meddling, as Biden’s record number of executive orders and other directives arguably attests. 

The procedural requirements of CRA are now being invoked by policy activists and Democrats in the 117th Congress to preserve pre-Trump regulation, not to monitor the issuance of new regulation as intended. 

But such is the logic of the administrative state’s replacement of Article I lawmaking and the dilemmas presented by that. The field of constitutional law is a specialty preoccupied with loopholes, operating at cross-purposes to original intent. As such, the academic progressives that dominate the field do not eagerly safeguard even explicit limitations on federal power, let alone implied ones or those relegated to grab-on status like the CRA. 

So, any loophole will do when it can be opened to preserve the federal regulatory state. As a pragmatic move, progressive activists such as Public Citizen are holding their noses and urging use of technical requirements of the CRA to facilitate “quick reversal,” which would further the aim of, as Biden seeks, erasing the “former guy.”

Policy groups are not alone in this. For example, Rep. Jerrold Nadler (D-NY) and a handful of other lawmakers wrote the Comptroller General on December 10, 2020, asking that the Government Accountability Office (GAO) specifically identify “midnight rules” so Congress could then employ CRA “resolutions of disapproval” (ROD) to eliminate them. There was no similar embrace of the CRA or concern over midnight rules four years ago from the same Democrats and liberal policy groups during the Obama-to-Trump transition. 

Nadler also wrote to Russell Vought and Paul Ray at the Office of Management and Budget (OMB) on the same topic in November. We shall see the results of the GAO inventory in coming weeks and months. It is alleged and the law says that agencies in the wake of a ROD cannot reissue “substantially” similar rules down the road,” but in today’s advanced administrative state, that’s not a credible risk for the pro-regulation side.  

Of course, both sides must keep context and limitations of the CRA in mind. Since the CRA’s passage, there have been tens of thousands of rules issued, but fewer than 20 actually revoked by it, so neither side can expect miracles nor rely on it to anchor its agenda. The CRA acts on the margins, whereas the amplification of it via the REINS Act’s positive affirmations of rules by Congress would have been more foundational had that been enacted. 

Public Citizen is right in its “Rolling Back the Clock on Trump’s Last-Minute Regulatory Rollbacks” that many rules get issued without proper submission to both houses of Congress and to the GAO. At this transitional time, that circumstance works in their favor, so to speak, when the short-term goal is that of reversing Trump’s late-game actions. 

But in reality I suspect a great deal of the regulatory enterprise is technically illegitimate and illegal. But that more generalized stance would not be countenanced in the same Public Citizen report. So, the enthusiasm at the moment for CRA might be tempered with a bit of “be careful what you wish for.” 

Still, if our friends on the left (CEI founder Fred Smith would occasionally appeal to  Public Citizen founder Ralph Nader on collaboration regarding cronyism) are serious about partially crossing I’s and dotting T’s in a mutually confused effort to work with some of us on the small-l-libertarian side to better carry out the CRA’s aims, we’d welcome the “conspiracy.”

For example, an April 2019 memorandum from then-acting OMB Director Russell Vought to executive agencies on compliance with the CRA described the same illegitimacy concern raised in a different context now by Public Citizen (not just for rules but also for guidance documents or “regulatory dark matter”).

In the spirit of boosting transparency, we might, for example, codify that we regard neither rules nor guidance as valid unless we can clearly see that Congress has had an opportunity to look over a resolution of disapproval. 

This concern may be something left and right can agree on. While we all can easily use GAO’s database on rules to determine rules submitted to that body for CRA purposes and those that fell through the cracks, my reading of the Public Citizen report bolsters my suspicion that it is not so easy to assess or track proper submission for CRA purposes on the House and Senate sides. Sure, submissions can be tracked via Congress.gov, but it could be made more transparent, and Public Citizen might agree. 

What we need perhaps is an overhaul of and improvement of the current inadequate OMB form agencies employ, called “Submission of Federal Rules under the Congressional Review Act” (screenshot below) It dates back to the 2009 Jacob Lew OMB; the Trump executive order on guidance portals should have updated it, but alas, did not.

This form could be bolstered, a portal requirement added, and the resultant transparency package codified in statue by which we can tell for sure that rules and guidance have been submitted properly to all three legs of the CRA stool. As is apparent, the form applies to the submitting of rules for congressional review, but outside observers never really see them land or materialize in a readily trackable way anywhere. 

As bipartisan disclosure measures, something like this contained in legislation rather than as an OMB directive might be feasible. Another example would be passage of the Guidance Out of Darkness Act (GOOD Act which was supported by Kamala Harris she was a senator; it would be especially helpful in the wake of Biden’s deleting Trump’s executive order setting up portals for guidance documents). 

I might appreciate the CRA despite its only marginal effect, while others might dislike it but see its temporary exploitation as advantageous. While some groups on the left wish to abolish the CRA altogether, this Trump-to-Biden inflection point might be a chance for collaboration on making its disclosures more transparent.

We can always argue about the results later.