This article was originally published in The Hill on March 4, 2019.
A major accomplishment of the last Congress was to reinvigorate the Congressional Review Act (CRA), by using it aggressively to review burdensome rules issued by regulatory agencies. Most were costly, counterproductive regulations issued in the waning days of the Obama administration, but one was an older Consumer Financial Protection Bureau guidance document that was overturned last summer — proving that the CRA reaches all of the underground regulations agencies impose through guidance and other informal means.
The widespread practice of agencies ignoring their obligation to submit rules to Congress may finally stop, thanks to a decision last week from a federal court in Idaho, which ruled that affected parties can challenge in court agency violations of the submission requirement.
Represented by Pacific Legal Foundation (PLF), Tugaw Ranches, LLC, a family-owned ranch based in Idaho, sued the Departments of the Interior and Agriculture over their failure to submit controversial land use rules concerning the greater sage grouse. Those rules control activity on 70 million acres of federal land in 11 states, drew protests and lawsuits from affected states, and led to congressional hearings. Yet the agencies have never allowed these major rules to be reviewed under the CRA.
In response to the lawsuit, the agencies argued that their clear violations of the law are nonetheless immune to judicial review. That common agency ploy has been repeatedly shot down by the courts, including three unanimous Supreme Court decisions since 2012.
The argument met the same fate in this case. Without judicial review, the Idaho court explained, “an agency would frankly have no reason to comply with the CRA.” Thus, “[R]eading judicial review out of the CRA foils its primary purpose” of restoring democratic accountability over the regulatory state.
The CRA was enacted in 1996 as a bipartisan solution to a clear problem: the lion’s share of lawmaking no longer occurs in Congress, but in regulatory agencies with limited or no democratic accountability. The solution: A requirement that agencies submit every rule they adopt to Congress for review, so they’ll face at least a modicum of democratic scrutiny.
Unfortunately, despite the CRA’s clear commands, too many agencies have treated it as a mere suggestion. A broad coalition PLF organized to promote full compliance with the CRA found that, whether because of indifference or the desire to avoid scrutiny, agencies have withheld thousands of rules from Congress. The Brookings Institution, a center-left think tank, found that more than 300 major, notice-and-comment regulations were not submitted for review.
This problem increases considerably when you include what the Competitive Enterprise Institute’s Clyde Wayne Crews Jr. calls “regulatory dark matter” — those rules imposed through agency guidance documents, proclamations, memoranda or mere letters without any of the public process required to issue regulations. We’ve found that these rules are almost never submitted, even though the law and Congress’ actions clearly indicate they are covered by the CRA.
Congress need not wait for similar lawsuits to challenge the lawfulness of these rules. Instead, it should demand that agencies comply and submit their rules for review as required.
Several congressional committees, the U.S. Government Accountability Office and outside scholars have called for improved compliance with the CRA. The Trump administration should act on its own to issue an order requiring agencies to review past rules to determine which are and are not in compliance with the law. Even if its career lawyers don’t like judicial review, senior administration officials should embrace what the underlying law requires.
Until then, 328 million Americans are free to sue any agency in federal court that tries to enforce a rule that was not sent to Congress as the CRA requires. And that’s exactly how the Constitution’s separation of powers is supposed to work.
Todd Gaziano is the director of PLF’s Center for the Separation of Powers and an expert on the Congressional Review Act.