By ann summers
Sam Bee had a segment on Full Frontal regarding the Congressional Review Act (CRA), another of those GOP annoyances from the Contract on America era, created to obstruct Democratic executive regulatory action. It functions more symbolically but its effect is to raise the level of the “swamp” that some politicians want to drain.
The real problem has always been about the efficiency of government because the Democratic party needs even more leadership and perhaps some stable cleaning necessary to win and reapportion voting districts.
CRA is symptomatic of rule-making not unlike the waging of war without declaring it. An anti-bureaucratic Democratic party will win in 2018 if they can get past the usual sox/rux recriminations for allowing the GOP to win in 2016. For example returning to “vague regulation” can only mean more environmental problems in an age that really cannot afford better regulatory risk differentiation.
The GOP implemented resolution to rescind this law (fully supported by the Trump administration) have provided many news outlets with headlines in the vein of “Trump makes it legal to dump coal mining waste into rivers and streams.” Although the initiative to block the Stream Protection Rule will undoubtedly increase the number of permits issued to dump excess spoil into streams, it is more of a return to a vaguely established condition than an instance of newly enacted legalization.
So much sausage making, yet this is what will proceed as the experiment in democracy tries to correct itself in the coming months, with vaguely established conditions imbued with a strategy of tension. Ultimately, legislation by obstruction and now defederalization will wreak even more havoc, house-demolition by fiat.
Republicans in Congress have dusted off the Congressional Review Act to vote or make plans to vote to overturn nearly half a dozen Obama-era federal regulations, including preventing coal companies from dumping their waste in nearby water and stopping the Social Security Administration from notifying the national gun background check systems of people deemed mentally incapable of managing their affairs…
To state the obvious: The president who approved these regulations probably isn’t going to sign a bill into law that undoes them. President Obama vetoed several repeals Congress sent to him.
Which means the Congressional Review Act is pretty much only helpful in the very short window of time when there’s a transition of power from one party to another — i.e., when Congress and the president are united in opposition to a rule that was implemented just 60 legislative days ago.
The CRA, then, presents several mysteries: Why would the CRA create a new legislative process identical to the one prescribed in Article I of the Constitution? Why would Congress believe the CRA process — involving majority votes in both houses of Congress — would be more efficient than unilateral executive action that could achieve the same end? Ultimately, why does such a thing as the Congressional Review Act exist? …
The fogs that shroud the Congressional Review Act make a search for meaning in it difficult.
The null hypothesis — that the legislation is a purely symbolic bit of chest thumping by congressional Republicans eager to exert control over the President after decades in the wilderness — is appealing. But this Note has shown that there is a bit more to the CRA.
Two facts are most salient.
- First, Congress chose to create the CRA.
- Second, Congress has never used it, except in the case of the ergonomics rule*, which may be sui generis.
That Congress created the CRA indicates that it believed that ossification of administrative rulemaking and minority capture of the legislative and administrative processes were real concerns, providing further evidence that the conventional wisdom of the efficiency of the executive is an antique notion.
The fact that the CRA has been rarely used indicates that the CRA does not represent a background restraint on the administrative process, any more than ordinary legislative overrides do.
The CRA also provides useful evidence in the academic debate over the independence of independent agencies. If they were truly independent of presidential control, one would expect to see the CRA used to overturn independent agency action.
The fact that the President has never used the CRA for this purpose suggests that he has other means to control independent agencies.
On his way out the door in 2001, President Bill Clinton authorized a regulation requiring workplaces to create an ergonomic program for workers to reduce injuries.
It was a program the first Bush administration had considered. But the regulation was vastly unpopular in the business world and, thus, with the Republican Congress. The Senate was split 50-50 at the time, which meant they wouldn’t be able to undo it without a law that bypassed the filibuster.
Under the Congressional Review Act, they undid the law in a day.
“What’s happening is stunning … This rule is 10 years in the making, with 10 weeks of public hearings on it, and now they want to wipe it out with not even one hearing and less than 10 hours of debate. That’s about as undemocratic a process as you can get.”