The Congressional Review Act will rein in the regulatory state

March 17, 2021 | By JONATHAN WOOD
California Cap

The Congressional Review Act is one of the most important reforms Congress has enacted to rein in the regulatory state. It’s a refreshingly short and simple law. Basically, if an agency wants to issue a rule regulating you or me, it must first submit that rule to our elected representatives in Congress for review. If Congress thinks the rule is harmful, ill-conceived, or simply unpopular, the CRA establishes a streamlined process for Congress to disapprove the rule and block it from going into effect. For such a straightforward statute, the CRA is the subject of a surprising amount of confusion, misinformation, and fearmongering. (Who’s afraid of a little democratic accountability?)

This week, E&E News published an article reporting that, due to the siege of the Capitol on January 6, rules issued late during the Trump administration never actually went into effect and President Biden need not undertake the time-consuming and often difficult process to reverse them.

To finalize a rule, agencies must send the regulation to both the Office of the Federal Register and to Congress. Whichever happens later prompts the rule to be deemed ‘received.’ On Jan. 6, EPA sent three regulations to the Senate parliamentarian. . .  After receiving the rules, the parliamentarian had to route them to send them to [sic] the Senate Environment and Public Works Committee — a process that can take several days. But on Jan. 6, the mob ransacked the office. File cabinets were toppled over, and documents were strewn across the floor. And as a result, sources in and outside Capitol Hill say, the rules may have taken longer to make it to committee.

This is a problem, the story asserts, because “a technical provision in the Congressional Review Act requires hard copies of regulations be sent from the Senate parliamentarian’s office to committees before they are formally ‘received by the Congress.’” Big, if true, as they say. But there is not such provision in the CRA.

Under the CRA, there are three tests for when a rule goes into effect. First, a rule can go into effect “after submission to Congress.” Second, a so-called major rule can take effect 60 days after “Congress receives” the rule or it is published in the Federal Register, whichever occurs later. And, finally, if an agency finds there’s good cause to do so, it can make the rule effective whenever it wants. None of these turn on a rule’s post-submission distribution to relevant committees. Instead, the CRA describes this process as Congress’ responsibility after “receipt” of a rule.

This makes intuitive sense. Each of the tests provides a clear answer to when a rule goes into effect based on events within the agency’s control. Committee distribution may be delayed or screwed up for reasons entirely out of the agency’s control. If a rule’s effective date were delayed by the Senate parliamentarian not forwarding a rule or forwarding it to the wrong committee, that would invite conflict and gamesmanship.

The source of the E&E News story’s confusion may be a practice within the Senate to allow introduction of CRA resolutions disapproving rules only after committee distribution or publication in the Federal Register, whichever is later. According to a Congressional Research Service report, that has been the Senate’s practice, but it “is not required by the statute[.]” In fact, it appears to be a clear misreading of the statute, which allows disapproval resolutions to be introduced once “Congress receives” the rule, not committees. But Congress has wide latitude to interpret its internal rules, so the point is essentially academic.

Why does any of this matter? Because once rules go into effect, agencies must follow lawful procedures to modify or revoke them. That can be a costly and time-consuming process for a new administration looking to reverse a significant number of actions by its predecessor. The E&E News story suggests the administration could avoid these procedural obstacles by simply asserting rules are not in effect. But this would undermine the very accountability the CRA is intended to guarantee.