Mulhall column: A perfect storm to kill overreaching rules
In a recent column l lamented big government because the administrative state marginalizes our legislative vote, creates a ruling class and changes Congress’ function.
I have found a glimmer of hope, however, in a seldom-used law called the Congressional Review Act (CRA).
Prior to the CRA, Congress used a convention called “legislative veto” to cull unwanted agency rules. However, in 1983 the Supreme Court declared the legislative veto unconstitutional in INS v. Chadha. In 1996, troubled by a decade of unrestrained administrative overreach, Congress came up with the CRA.
The CRA was not part of the Contract with America, but it arose from the freshman Republican Congress elected in the contract’s wake. Signed into law by President Bill Clinton as a part of debt ceiling legislation negotiated with then-Speaker Newt Gingrich, the CRA was an attempt to restore some legislative control over administrative rules.
Some claim the CRA was meant to target “midnight rules” — agency rules and guidance documents issued during presidential lame duck sessions that are often overtly partisan. However, nothing in the CRA supports a “midnight rule” limitation.
The first words of the CRA, “Before a rule can take effect …” set the tenor for a simple process. A federal agency has to submit to Congress and the comptroller general a copy of the rule, a statement describing the rule and its proposed effective date. Once an agency submits a rule, Congress has 60 session days to consider it.
If Congress fails to act on the rule, the rule goes into effect.
If an agency doesn’t submit a report to Congress, the 60-day clock never starts — Congress can’t vote on a rule it doesn’t have. Without the report a rule doesn’t go into effect, even if the Federal Register publishes it.
Disapproval is simple, too: A joint resolution passed by a simple majority and a presidential signature kills the regulation. But that’s not the best part.
If Congress passes a resolution of disapproval and the president signs it, a rule isn’t just dead, it’s wooden-stake-through-the-heart dead:
A disapproved rule “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”
Congress has used the CRA less than a dozen times since its inception, and until recently only once successfully: In 2001, Congress used the CRA to repeal a last-minute Clinton Labor Department regulation on ergonomics. Between 2003 and 2012, Congress considered a handful of agency rules, but they went into effect due to House or Senate inactivity. In 2015, President Barack Obama vetoed two resolutions of disapproval, one involving the EPA’s jurisdictional expansion using the Waters of the U.S. definition, a matter President Donald Trump settled just last week.
As a congressional procedure, the CRA is subject to checks and balances. When government branches — executive and legislative, or within the halls of Congress — are polarized along party lines, agency rules submitted to Congress stand a good chance of going into effect due to inactivity or veto. Moreover, recent congresses and executives simply haven’t seen big government as a problem. However, the last election created a perfect storm. This Republican Congress and president could use the CRA to restore, at least in part, the framers’ vision of Congress’ legislative authority.
A host of agency rules have never been submitted for review. Why? Reasons vary from procedural ignorance to agency disdain for congressional oversight. According to one estimate, 230 rules in the past six months could be overturned due to reporting noncompliance. Others have counted thousands of rules from the Obama administration alone that were not submitted for review.
Most of these rules are routine or informational in nature, but at least six are “major” under the CRA — rules with a $100 million annual effect on the U.S. economy. At least 37 others are “significant” under Executive Order 12866, which applies a similar $100 million effect on productivity, competition, jobs and the environment, to name a few.
Economic effects aren’t the only problem. Some agency rules also affect the constitutional rights of U.S. citizens.
Last month, Congress passed resolution of disapproval on a Social Security Administration rule that gave itself carte blanche in removing a disabled person’s ability to purchase or possess a firearm — regardless of the disability, and without due process. President Trump signed it. That rule is now dead. And the SSA cannot make another rule like it.
Congress and the president should marshal the CRA to eliminate noncompliant rules back to 1996. Let routine or informational rules die on the vine or be revived by agencies through CRA reporting. If a rule warrants permanent death, pass a resolution of disapproval.
That way if Elizabeth Warren gets elected president in 2020, agencies can’t regrow government without an act of Congress.
Mitch Mulhall is a longtime valley resident. His column appears on the second Friday of each month.
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