Loathing and Loving the Congressional Review Act

Subtitle: Deconstruct the Administrative State.

Newt Gingrich’s 1996 Congressional Review Act (CRA) is a Constitutional counterthrust to an unconstitutional fact of life. Presented in the form of regulations, the executive branch writes most of the rules we live under, in violation of Article I § 1.

Loathing the CRA. In this inverted reality of legislative power, unelected bureaucrats write the laws for the nation. Agencies do not submit proposed regulations for congressional approval. Instead, in our corrupted system, regulations go into effect unless congress and the president stop them! I loathe the CRA because, without saying, it elevates regulations to the level of Article I law. Like statutory law, regulations are only repealed upon a majority vote of congress, with presidential approval. The difference is that the senate cannot filibuster a CRA bill, AND congress has only sixty legislative days to consider a CRA action from the date of submission of the rule from the issuing agency to congress.

The CRA requires agencies to report their rulemaking activities to Congress, and provides Congress with a special set of procedures under which to consider legislation to overturn those rules. The CRA was intended to assert control over agency rulemaking by establishing a special set of expedited legislative procedures for this purpose, primarily in the Senate.

From 1996 to 2016, of the approximately 72,000 final rules submitted to Congress, only one rule was reversed: the Occupational Safety and Health Administration’s November 2000 final rule on ergonomics.

The reason the CRA overturned only one rule in the 20 years since its enactment is that under most circumstances, it is likely that a President would veto such a resolution in order to protect rules developed under his own administration, and it may also be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. However, under a specific set of circumstances, a turnover in party control of the White House, particularly a turnover in which the incoming President shares party affiliation with a majority in both houses of Congress, the CRA is more likely to be used successfully.

Loving the CRA. In its waning days, the Obama administration cranked out lots of regulations.

As of May 10^th, congress and President Trump overturned fourteen rules, one of which required the states to submit extensive data on the quality and outcomes of their newly credentialed K-12 teachers. At an estimated of cost of ‘only’ hundreds of millions of dollars spread across fifty states, this otherwise unnoticed and typical regulatory burden would be in effect today were it not for the CRA.

In a companion piece, Breitbart provided a summary of the twenty ways President Trump unraveled portions of the Administrative State. Hooray!

As related earlier, congress has sixty legislative days to repeal a regulation. The date of receipt in Congress is the later of the two dates that the rule was received in each chamber. I blame the unhinged hubris of the progressive crew that surrounded President Obama for their failure to submit every regulation to both the House and Senate. Obama’s regulators failed to submit at least seven major rules to the senate. Thus, with a little coordination between congress and President Trump, these regulations may be easily repealed.

Once removed from the Federal Register, the rules may not be reissued in substantially the same form. Of course, unless congress better defines the meaning of this uncertain phrase, the black-robed gods on the scotus are more than happy to substitute their policy preferences and neuter its intent.

Nonetheless, the Trump administration could preemptively introduce liberal regulations for the purpose of immediately repealing them under the CRA, and thereby preventing a future Democratic administration from issuing substantially similar regulations!

Isn’t this the path to neutering the Administrative State? The files of regulatory agencies are loaded with harmful proposals from progressive groups. Coordinate with congress, turn these nut-burger ideas into proposals, submit them to congress and immediately repeal. What could be easier? Oh, and to close the door to progressive Utopia, congress must explicitly define, in the most lawyerly fashion, the meaning of “may not be reissued in substantially the same form.” In addition, congress must use its Article III power to prevent scotus from visiting the term and redefining it to progressive uses.

In a promise to America, the Trump administration vowed to “deconstruct” the administrative state; we must pressure our cautious congressional republicans to get on board.

While the above is all well and good, and if implemented may very well deliver relief from the renewal of progressivism once President Trump exits, a parallel and better solution is to continue our efforts to amend the Constitution through Article V. Repeal the 17^th Amendment, return the states to the senate, and implement the rest of Mark Levin’s Liberty Amendments. As long as power remains concentrated in Washington, DC, we must assume the progressives and go-along-to-get-along Republicans will eventually find a way around the CRA.

We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.