A 'Regulatory Game Changer'
The potential uses of the CRA to review and eliminate excessively burdensome or unauthorized regulations are not limited to the “midnight” rule situation alone; more powerful ways to use the act are causing great excitement in reform circles and among leaders on Capitol Hill who want to regain control over regulatory agencies run amok. Pacific Legal Foundation’s Senior Fellow in Constitutional Law, Todd Gaziano, was the chief legislative counsel to the CRA’s sponsor, then-Representative David M. McIntosh of Indiana. Mr. Gaziano helped craft many of the provisions that make it work and has testified as a scholar on the CRA. His “new idea” for Congress to more aggressively assert its power under the CRA was first announced in a Wall Street Journal piece by Kimberley Strassel, which headline called the idea a “regulatory game changer.”
Because many agencies failed, for one reason or another, to report rules to Congress (especially policy memoranda and guidance documents, termed “regulatory dark matter” by one scholar), Congress can still use the CRA to disapprove any unreported rules going all the way back to 1996. The CRA requires any federal agency issuing a rule to submit a short “report” on it, with the text of the rule and any cost-benefit analysis, to the House, Senate, and GAO before the rule can go into effect. The 60-day legislative day review clock starts when the rule is published or when Congress receives the report—whichever comes later. Any rule an agency has failed to submit to Congress is unenforceable under the CRA and remains vulnerable to Congress’s disapproval.
CONGRESSIONAL REVIEW ACT 2.0
If the Trump administration wants to achieve its promise to reduce 70% of federal regulations, it should start looking for burdensome rules that were never sent to Congress as required by the CRA. If the administration submits them to Congress now, Congress’s expedited review period would finally start for those rules. That’s what we call “CRA 2.0.” Congress would then have 60 legislative days in the House and 60 session days in the Senate to introduce and vote on resolutions of disapproval under the CRA’s streamlined procedures that forbid a Senate filibuster and take only a simple majority vote before they are sent to the president. No court could interfere with or ever second-guess the House’s and Senate’s interpretation of the law to its respective legislative procedures.
If older or more recent rules are overturned, the CRA provides that they will be deemed to have never gone into effect, even if the agency wrongly thought they were in effect for several years or more. And the agency would also be prohibited from issuing any "substantially similar" rule again without a new law authorizing it.
Scholars have counted many thousands of rules from the Obama administration alone that were not sent to Congress as required by the CRA. (See one recent study from the Administrative Conference of the United States that found approximately 1000 rules per year that were published in the Federal Register and not sent to Congress, and there were hundreds or thousands more per year that were neither published in the Federal Register nor sent to Congress.) Most were inconsequential or create little harm, but we and others empowered by CRA 2.0 are discovering many extremely problematic rules with significant negative effects on Americans that were not sent to Congress. Please join us in finding and compiling a list of the worst rules (including agency guidance documents) that were not sent to Congress by using the GAO database and response form here.
President Trump could direct agencies to send hundreds of these regulations to Congress in an orderly process over the next several years, asking our democratic representatives to not only disallow the rule but effectively block any substantially similar rule in the future. That’s the power of CRA 2.0 to reach even further back and permanently kill harmful and abusive rules so they can never be issued again.
CONGRESSIONAL REVIEW ACT 3.0
And what we call “CRA 3.0” is an even more important and productive means for the new administration to meet its regulatory reform goals. Pursuant to the original CRA statute, its text was codified as chapter 8 of the Administrative Procedure Act (APA). Since the first sentence of that chapter of the APA provides that rules may not go into effect until they are submitted to Congress, thousands of rules thought to be in effect are not and never were. The administration could, in many cases, simply publish notice that a rule not in effect is being abandoned, reevaluated, or potentially modified. Some applications of this CRA 3.0 may be challenged, including instances when another statute or court order required the old-but-never-final rule to be issued by a certain date. But for most discretionary rulemaking, especially for non-notice-and-comment rules, a CRA 3.0 withdraw notice would be easily justified, if not legally required by the CRA, and should be upheld by the courts.
If a final rule issued pursuant to notice-and-comment procedures (which allows the public to send comments to the regulatory agency) goes into effect, the APA normally requires the issuing agency to go through notice-and-comment procedures to repeal or modify it. But if a proposed rule is never finalized (either because it was stopped during the OMB or inter-agency review phase, because it was never published in the Federal Register, or because it was never sent to Congress under the CRA), its abandonment or modification would permit but might not always require notice-and-comment procedures. That implication of CRA 3.0 may seem surprising to some, but if it is upheld, that would be the result of the agency’s failure to follow the law and complete the rulemaking process as the APA required. An alternative (and possibly more legally defensible) approach for a notice-and-comment rule not sent to Congress is for the agency to issue a new “interim final rule” that would announce it is not currently “in effect” or enforceable against third parties, as the CRA’s plain language requires, and that notice-and-comment is being sought as to the rule’s modification, withdrawal or revocation.
Early research on rules not sent to Congress under the CRA suggests that most of the significant (economically and socially) rules were not notice-and-comment rules. The law is clear that such agency documents, which include significant agency policy manuals and other guidance documents, can be modified or withdrawn without elaborate procedures. That is also true without invoking the failure to deliver them to Congress, but the difference is that the administration should drop pending enforcement actions that are based on the rules not sent to Congress because they were not lawfully “in effect.” Any other interpretation of the CRA, including reading the failure to submit rules to Congress as “harmless error” or an unenforceable technicality, would render the CRA unworkable. Thus, the administration would be enforcing the clear text and public meaning of the CRA by treating rules not sent to Congress as not in effect and subject to its determination whether to finalize the rule or not.
FIND UNREPORTED REGULATIONS
The Government Accountability Office maintains a database of rules submitted to it under the CRA, which you can search by keyword, agency, or date. The CRA defines “rule” very broadly to include major regulations and minor regulations, interpretive rules, policy memoranda, and guidance documents, with only a few exceptions. Such broadly-defined rules include those required to be published in the Federal Register and those that are made public by some other means.
If a rule is not in GAO’s database or does not have a “received by” date, that means it was not submitted to GAO and probably not sent to both Houses of Congress as required by law, and it remains vulnerable to congressional disapproval under the CRA in the future. If you find a rule published or made public after March 29, 1996 that does not appear in the GAO website and that you think should be eliminated, please let us know.
Note: a searchable database of unreported rules is being developed and will be published here soon. Check back for more information.