The first part of a recent article in The Hill began like many others, suggesting that the window was “closing for Congress to roll back Obama-era regulations” under the Congressional Review Act (CRA). It focused on the approaching deadline for Congress to vote on CRA joint resolutions of disapproval that were introduced to kill Obama’s worst “midnight” regulations. In the first three months of the new administration, Congress and President Trump have killed 13 misguided, burdensome, and job-killing regulations that were sent to Congress near the end of Obama’s tenure.
Humorously, those who never met a regulation they didn’t love are conflicted in their criticism of these 13 laws. In one breadth, they decry how terrible it is that these “popular” rules were killed (by representative branches that apparently didn’t know or care how popular they are). In the next, they insist that it is no accomplishment to reduce the self-inflicted wound on our economy and job creation that 13 laws achieved.
The CRA provides expedited procedures that suspend the filibuster, making it easier to enact these laws, but that has nothing to do with their substance. The 13 laws now forbid the respective agencies from ever issuing a “substantially similar” regulation like those disapproved again without subsequent authorization in law. Is Trump derangement syndrome so strong that is suspends ordinary logic? Are these acts substantively insignificant (in which case, they aren’t worth complaining about) or are they impactful (in which case, we can debate their merits)?
Regardless, the article quoted some who were looking forward to when Congress could no longer used the CRA to review agency rules. But the last section of The Hill article noted that “some groups are arguing that Republicans have yet to fully exhaust the CRA.” In particular, a “coalition of groups led by the Pacific Legal Foundation (PLF) claims that Congress can still use the CRA to repeal rules going back to 1996.” Yes, our influential and growing coalition at RedTapeRollback.com claims that. Because it is true.
No older rules have been sent to Congress yet by the Trump Administration, but there are good reasons for that, including reserving valuable House and Senate floor time for Obama’s midnight rules that were sent to Congress last year and early January and because the Administration is still staffing up. But I’m confident our “claim” will soon be tested and that it is unassailable—in part because it has been set forth in popular and scholarly form and no one has been able to refute it.
The first issue that emerged after our theory was explained by Kimberley Strassel in her January 26 WSJ Potomac Watch column is whether there were many significant rules that were never sent to Congress. PLF and our partner organizations at RedTapeRollback.com have already uncovered many hundreds in a few months since we started looking. Brookings Institute scholars recently identified 348 “significant” rules that were not sent to both Houses of Congress and GAO as required under the CRA—but that excludes three larger categories of rules. In particular, the Brookings study only examined significant rules published in the Federal Register and not sent to Congress or GAO, but many more significant rules required to be sent under the CRA were never published in the Federal Register. The Brookings scholars don’t understand why the failure to send significant rules not published in the Federal Register is important, but even 348 “significant” rules is a lot.
The most important remaining question is how the CRA, with its time-limited suspension of certain normal congressional procedures, could apply to rules that were originally published years ago. An examination of the statute, however, confirms that the first sentence of the CRA provides that “Before a rule can take effect” the issuing agency shall formally submit it to each house of Congress and GAO. So even if the rules were thought to be in effect before delivery to Congress, they weren’t lawfully in effect.
Beyond that first sentence, however, there are various carefully calibrated time periods in the CRA that do not commence until the rule is formally delivered to Congress. One critical “clock” is the time period when Members can introduce a joint resolution to disapprove a rule, which doesn’t begin until the agency formally submits it to Congress. Torture the text as you may, it’s impossible to conclude that the time to introduce a joint resolution to disapprove a rule can expire before that time period commences. Moreover, the suspension of certain Senate rules is tied to the later date of publication (if publication is required by some other statute) and submission of the rule to both Houses of Congress and GAO. As a matter of simple logic, the later of two events cannot occur if only one (publication) has taken place.
Paul Larkin was the first to publish a thorough and careful explanation of why the expedited procedures to kill a covered rule under the CRA did not commence until it was formally submitted to Congress. We featured his scholarly paper prominently on our RedTapeRollback.com site. It was also discussed at length at a Heritage Foundation public event that was covered by the press, the video of which remains on Heritage’s event archives. The editorial board of The Wall Street Journal examined it and credited Paul’s and my conclusions in two of its editorials on March 1 and April 17.
And to my knowledge (since January 26 or any other time), no respected legal scholar has published anything anywhere to dispute it, except for a casual statement that it can’t be so, which is more wishful thinking than analysis!
Below is my own summation of the four reasons why the CRA special review procedures cannot run or expire before rules are submitted to Congress. Readers are invited to go on line and print the text of the CRA. Compare the analysis below to the Act’s text and you’ll then know why the agency’s failure to submit rules to Congress as the law requires will have consequences—and why the time to review and kill many hundreds of rules not previously sent to Congress under the CRA has not yet begun.
Four Reasons Why the CRA Special Review Period Cannot Run or Expire Before Rules Are Submitted to Congress
For purposes of this section, the term “submission or publication date” means the later of the date on which—
(A) the Congress receives the report submitted under section 801(a)(1); or
(B) the rule is published in the Federal Register, if so published.
Something can’t be the later of two events if one event has not occurred. Moreover, the joint resolution definition and the provision defining the period of special procedures to consider it have a quite logical connection and consistency in the CRA. In both subsections of 802, the clock cannot commence until the rule is formally submitted to Congress. Conversely, publication alone is never sufficient. Once a rule is sent to Congress, even if it was published years ago, a joint resolution can only then be introduced to disapprove it and special procedures exist for 60 legislative/session days after that submission date.