What is the Congressional Review Act? (with Bridget Dooling)
What is the Congressional Review Act? (with Bridget Dooling)  
Podcast: Understanding Congress
Published On: Mon Nov 01 2021
Description: The topic of this episode is, "What is the Congressional Review Act?"My guest is Professor Bridget C. E. Dooling of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice.Kevin Kosar:Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC. It is to Professor Dooling we turn to learn about the Congressional Review Act, a tool for Congress to abolish regulations. Welcome to the show.Bridget Dooling:Thank you so much. I'm glad to be here.Kevin Kosar:Before we get into the Congressional Review Act, or CRA, let's start with something basic. What are regulations, and why do they matter?Bridget Dooling:Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It's because there's a regulatory line there. You can't see it when you're in the drugstore, but it absolutely affects the way you live.Kevin Kosar:Yeah. Regulations really, to a degree, I guess they're specifications of laws, particular applications. Is that a fair characterization?Bridget Dooling:Yep.Kevin Kosar:Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations?Bridget Dooling:Yeah, there's a few ways. One is that you can look at legislation, because that's where Congress tells the agencies what they're allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there's a website called regulations.gov. That's a great place to start, so if you hear that a rulemaking is coming down the pike, that's a great place to go check its status and see if it's open for public comment, for example. So that's regulations.gov. And for rules that are already on the books, you'd want to look at something called the Code of Federal Regulations, which pulls all that regulatory text into one place so you can read it all in one spot.Kevin Kosar:Excellent. Now our listeners know. So let's turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA?Bridget Dooling:The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule's issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can't be filibustered. And if it's enacted, this disapproval resolution effectively wipes the relevant rule from the books and the regulations revert back to whatever existed previously. Now, if an agency was to set about going back and undoing its own rule, that could take years. Congress can move much faster than a regulatory agency can by using the CRA to basically short circuit that rule.To be enacted, however, both chambers of Congress must pass the resolution and the president needs to sign it. And because a president's unlikely, very unlikely to sign a resolution disapproving a rule that was issued during his or her own administration, or that of a president from the same party, the Congressional Review Act is especially salient following a presidential election in which the incumbent or same party nominee loses. If that happens, and if both chambers in Congress are aligned with the incoming president, the potential for enacted resolutions of disapproval increases dramatically.Kevin Kosar:So let's pause for a moment. What we're talking about is a legislature passing a law to wipe out a regulation. The listener might say, Okay, well, why do we need the Congressional Review Act to do that? Couldn't have Congress just done this without creating an act to create an act?Bridget Dooling:Yeah, you're exactly right. Congress could always pass regular legislation to overturn an agency's rule, or another way they could handle it is by placing riders on an agency's appropriation in a way that could prohibit an agency from working on a particular rule. In either case though, that would require a filibuster-proof margin. And that's why the CRA offers an enticing procedural option for lawmakers interested in undoing an agency's rule. And you mentioned earlier that the CRA was enacted in 1996. I really think it's helpful to think about when the CRA was enacted to understand its context, which was part of the Contract with America Act. Around that time, legislators were looking to reclaim some power from the executive branch, and the CRA was just one of the ways that it did so. This was also in the aftermath of INS v. Chadha, which was the decision that struck down the use of legislative vetoes on logic that this violated presidential presentment requirements. So in the CRA you see Congress coming up with a method that allows them to check the executive branch, but only if the president agrees or if they have the votes to overcome a veto.Kevin Kosar:Yes, yes, that's right. In your initial answer, you mentioned that fast track provision, and that's so key. Especially to anybody who's watching Congress in recent years, the struggles to get legislation enacted, the threats of filibusters and holds and other such things — the CRA, therefore, is a quicker way to get done what otherwise might be done through a standard statute. Now I want to drill down for a sec. You referenced an interesting dynamic about when the CRA tends to get used. If you have a new president coming in from a different party, and perhaps if Congress is also different, is that the sort of time when we see the CRA get used?Bridget Dooling:Yeah. So I mentioned before that the CRA is most salient following a presidential election in which the incumbent or same party nominee loses, and when the new president is in alignment with both chambers of Congress. This has happened a few times since the CRA was enacted. One of the times was at the start of the George W. Bush Administration. And at that time, Congress used the Congressional Review Act to disapprove a workplace safety role on ergonomics that had been issued late in the Clinton Administration. The next real opportunity to disapprove regs with the stars aligning in the way we described was at the start of the Obama Administration. The Congress didn't turn to the CRA then. This helped create some speculation that the CRA was a tool that Democrats just weren't interested in using — perhaps because once a rule is disapproved an agency can't go back and do it again until Congress lets them. In the Trump Administration, Congress really leaned into the CRA. They disapproved 16 rules, which was a historic number given the way that the CRA had been used in the past. And then at the start of the Biden Administration, the stars were aligned to use the CRA, but the question was, would Democrats use it? And ultimately they did. They disapproved three rules under the Congressional Review Act, somewhat complicating the earlier narrative that the CRA just wasn't a tool that Democrats like to take advantage of.Kevin Kosar:The CRA was little used for so many years. And then some of us told Congress some years back, “Psst, hey, the Congressional Review Act exists, you should use it.” You've got a long scope look at the history of this act. On the whole, does it strike you as particularly effective?Bridget Dooling:So that's probably going to depend on who you ask, right? Because it depends on what you're trying to achieve with something like the Congressional Review Act. To the extent that its goals were to pull some authority back to Congress, to oversee the executive in a more assertive way, the CRA clearly has allowed legislators to do that. And they have taken advantage of those tools now in three administrations to disapprove rules. I think we've tended to only think about the CRA — to the...