Regulatory oversight with the Congressional Review Act is not enough
If the goal was to restore the constitutional separation of powers, the Congressional Review Act (CRA) has not lived up to expectations. Pacific Legal Foundation research found that for the nearly three decades since it was passed, Congress has used it to overturn just 0.04% of the more than 91,000 rules it’s received from federal agencies.
Meanwhile, the pages of the Code of Federal Regulations (CFR) have grown by 44%, reaching nearly 1.1 million regulatory restrictions as of late October 2023.
Congress recently dusted off the CRA. In fact, besides overturning just one rule between 1996 and 2016, the entirety of Congress’s successful use of the Act has occurred over the past eight years. This includes the noteworthy use of the CRA this year to overturn federal emissions standards for cars and trucks based on California’s air pollution emissions standards.
But this recent activity is the exception that proves the rule. The CRA is a mere bandage on our fractured separation of powers. Over the past century, Congress has delegated significant authority to federal agencies in the form of rulemaking (hence the growth in the CFR). And agencies’ rulemaking often resembles lawmaking.
The CRA was supposed to be a tool by which Congress could reclaim some of its sacrificed power. That hasn’t really panned out.
Despite these intentions, there’s an inherent flaw in the CRA’s design: It intentionally puts the legislative branch in a passive position for regulatory oversight, tasking Congress with introducing resolutions of disapproval when it wants. Congress can pick and choose which regulations to scrutinize and disapprove, and that usually results in it not doing either. Despite being the lawmaker under the Constitution, Congress is not an active participant in what has become a de facto lawmaking process.
And the administrative state still gets to run rampant as a result.
But there is a way to begin undoing this perversion of the separation of powers. Barring some miraculous return to the Constitution’s granting of “all legislative powers” to Congress and Congress alone, the legislative branch could start asserting itself in the regulatory process.
This is the goal of the Regulations from the Executive in Need of Scrutiny (REINS) Act. The REINS Act would require Congress to approve all major rules issued by federal agencies. That’s not every regulation, just those rules which are significant enough that they must first get the okay from the legislative branch before taking effect.
These are the regulations expected to have an annual impact on the economy of at least $100 million, significantly increase costs or prices, or negatively affect competition, employment, investment, productivity, or innovation. And instead of Congress selectively disapproving of one of them once in a blue moon, the REINS Act would force Congress to take the matter up every time an agency creates one of these rules.
With the REINS Act, regulatory actions like the CDC’s illegal eviction moratorium in 2020, the Biden administration’s $15 minimum-wage increase for federal contractors, and President Biden’s student loan cancellations all would’ve had to go through Congress first.
The way the system works now, Congress can take action to stop a rule from going into effect. Under the REINS Act, Congress must take action to allow a major rule to go into effect. With the former, bad rules become effective by default unless Congress chooses to act. And as we’ve shown, that’s not often.
The REINS Act would return responsibility for major regulations to the people’s representatives in Congress, helping restore some accountability and provide meaningful oversight of federal regulators.
The intention behind the CRA was a good one—to exercise oversight and rein in the administrative state. But since its adoption, the regulatory burden on Americans has only grown, and Congress has shown little interest in curbing it with the tools currently available. Having just the option of doing its job isn’t enough; Congress must be made to do its job.
