On May 11, Republicans in Congress had a little celebration for the end of more than a dozen Obama-era regulations, with member after member coming to the Senate floor heaping praise on a once-obscure law known as the Congressional Review Act.
Sen. James M. Inhofe of Oklahoma could barely contain himself: “I’m almost speechless when I think about the success. You know, we went 20 years taking up one CRA and then we end up passing 14 of them — all but one. It’s a huge success record.”
It’s a record President Donald Trump and his administration are proud to tout as he and the Republican-led Congress have eliminated rules involving internet privacy, funding of groups like Planned Parenthood, the ability of the mentally impaired to purchase guns and the hunting of animals on national wildlife refuges in Alaska. A rule regulating methane emissions was the only CRA measure targeted by Congress that was allowed to stand.
Now, however, the window to act has closed.
Or has it? “There is a widespread [notion that] the CRA is done until the next administration,” says John Vecchione, president of the Cause of Action Institute, a conservative think tank. “And that is just not true.”
Indeed, a group of conservatives led by a man who had a big hand in writing the law has been arguing that there is now a way to weaponize the CRA, with the potential to wipe out regulations stretching as far back as 1996. Further, they say there are opportunities to extend the reach of the law in such a way that the Trump administration could act without Congress, by halting the enforcement of scores of rules and other directives from previous administrations.
And it’s all because of lousy paperwork.
The man leading the charge, Todd Gaziano, who, as chief counsel for a subcommittee led by then-GOP Rep. David M. McIntosh of Indiana, helped draft the Congressional Review Act, had been waging a mostly lonely fight. He argues that for years, many agencies have neglected to submit reports required by the CRA — a failure that potentially releases Congress and the White House from any time limits on rolling back those particular rules.
“I have been pointing out the failure of administrations to comply with the Congressional Review Act for 21 years,” Gaziano says. “And for the most part, no one’s listened.” Until this year, the CRA has been used just once: In 2001, when an ergonomics rule finalized under the administration of President Bill Clinton was rolled back.
But things have changed in a big way this year for Gaziano, who is now executive director of the DC Center for the Pacific Legal Foundation, a nonprofit that advocates property rights and limited government. He’s launched a website called redtaperollback.com, a crowd-sourcing project in which he encourages people to dig up rules that might be ripe for targeting. He has motivated a handful of conservative groups — including the Heritage Foundation, the Club for Growth (where McIntosh is president) and the Competitive Enterprise Institute — who have begun compiling lists and databases of rules they think could be struck down. Even the left-leaning Brookings Institution has found roughly 350 significant rules that might be targets.
Republicans in Congress are aware of Gaziano’s proselytizing, and some are eager to act. “I think it’s a target-rich environment that will provide a lot of opportunities to potentially roll back harmful regulations,” says Rep. Mark Meadows of North Carolina, who chairs the House Oversight and Government Reform Subcommittee on Government Operations, which has jurisdiction over regulatory matters. He says he intends to have his committee start exploring issues similar to the ones Gaziano has raised on the CRA.
When asked if he was interested in pursuing an expansion of the CRA, Republican Sen. Ron Johnson of Wisconsin, who chairs the Homeland Security and Governmental Affairs Committee, responded with an emphatic: “Absolutely.”
Experts on regulations are closely watching too. Susan Dudley, administrator of the Office of Information and Regulatory Affairs under President George W. Bush and now a professor at George Washington University, says “if they are successful, I think that does mean the CRA does affect more than those last-minute regulations.”
Richard J. Pierce, a law professor specializing in regulations at George Washington, thinks Gaziano has a plausible argument. “Yeah, they’re fair game,” he says of rules that lack reports.
Staffers in both the Senate and the House are diligently looking into the issue, though some say the claims coming from outside conservative groups might be a bit oversold — at least for now.
The Trump administration has not ruled out expanding the scope of the CRA. Andy Koenig, a policy aide, told reporters last month that “there’s some guidance that we need from folks on the Hill, from congressional researchers.”
A regulatory check
At its essence, the Congressional Review Act empowers Congress when it comes to reining in the regulatory state — a power that was stripped away in a 1983 Supreme Court ruling, INS v. Chadha.
It works like this: When an administration finalizes a rule, it starts a clock giving Congress 60 legislative working days to strike that rule down via a resolution. Making it even more attractive, a mere simple majority is needed for a CRA resolution to pass the Senate — it cannot be filibustered. The cherry on top? Once the CRA has been used to overturn a rule, an agency can’t put forward a new rule at a later date that is “substantially the same” to the rule that was struck down — it essentially salts the earth for any new regulations at that agency.
But Gaziano and others say that in many cases, the clock should have never started on certain rules because past administrations have screwed up on a little thing: paperwork. Under the CRA, once a rule has been finalized, agencies are required to send a two-page report to both the Government Accountability Office and Congress “before the rules can take effect.”
But a 2014 report from the Administrative Conference of the United States — an independent federal agency — found that from 1997 to 2014, reports for some 10,000 rules had not been submitted to the GAO. Further, the study’s author, Curtis W. Copeland, found that in 2011, the GAO, for some reason, stopped reminding the Office of Management and Budget to tell agencies to submit reports, leading to a precipitous drop-off in the number filed. From 2012 to 2014, Copeland found six “major” rules (those that had at least a $100 million impact on the economy) and 37 others that are considered “significant” that did not comply with the CRA.
Gaziano and others say this is their opening. They can now simply identify rules that they want eliminated, and have agencies submit the reports to Congress or the GAO. Congress could then disapprove the rule.
Johnson, the Wisconsin senator, says he and his staff are looking into this new opening, but says it isn’t simple. “Unfortunately, the Obama administration were pretty good bureaucrats and it looks like they did properly file reports to the Congress on most of those,” he says. “We’ll still keep digging.”
But Gaziano and others have done digging of their own. Consider the Waters of the United States, a 2015 rule that redefined which streams and wetlands receive protection under the Clean Water Act. While it has not been implemented and is in the process of being withdrawn by the Trump administration (a process that could take months), Congress could act by going after what is being currently enforced: a document called the Rapanos Guidance. The reason?
“It was never sent to Congress. It’s being enforced. It was enforced for years before WOTUS. If WOTUS is removed, they will continue to rely on it,” Gaziano says.
‘A stupid idea’
Some legal scholars think expanding the CRA to include guidance documents, and other directives, is theoretically plausible but practically silly.
“It’s a stupid idea,” says Pierce, the law professor at George Washington University. “Why do you go through this god-awful convoluted process where you tie up the House and Senate in the process of enacting the resolution?” Instead, he points out that guidance documents are easy to withdraw: “All you have to do is spend one hour with pen and paper, saying, ‘Guidance document 34 is stupid. It’s dead.’”
Gaziano counters that he does not want to see scores of guidance documents — or rules, for that matter — sent to Congress for disapproval, just a select few. Indeed, he thinks many of these documents should be sent to Congress with a warning for Congress to take no action on them (there are, after all, some regulations conservatives like).
A less time-consuming way to eliminate rules could be done without involving Congress. The way Gaziano sees it, an agency could place a notice in the Federal Register or on the agency’s website saying that the guidance is no longer in effect. He sees this as possible with regulations that have gone through the notice and comment procedure.
Gaziano imagines what the Trump administration could say: “‘We’re not going to deliver it to Congress because we now have responsibility. And we’re going to simply announce to the world that we’re reconsidering it. And we’re not going to enforce it while we’re reconsidering it.’” He admits such an approach is likely to invite a legal challenge.
Pierce thinks the result will be predictable. “I think the courts are going to string them up by their balls,” he says. “I don’t think that’s going to work.” He suggested a better way for agencies: simply stop enforcing rules they don’t like, but just don’t publicize it, like other Republican administrations have done in the past.
Enthusiasm for expanding the CRA’s reach has hardly waned among think tanks and other conservative groups, but it seems that Congress, for the time being, is content with what it has accomplished.
“It strikes me that the appetite right now is not great” for exploring an expansion of the CRA, says Vecchione of the Cause of Action Institute. His group has compiled about 800 rules that it believes could be targeted for elimination if Congress had the time. “They have a lot on their plate,” he says.
In the meantime, agencies are now on notice to dot their i’s and cross their t’s.