Congressional Review Act
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The Congressional Review Act (CRA) is a federal law passed in 1996 that affords Congress a check on the rulemaking activities of federal agencies. The law creates a review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule and block the issuing agency from creating a similar rule in the future.[1][2][3] As of June 30, 2021, the CRA had been used to repeal 20 rules.[4][5][6]
Background
Passage of the CRA
The Congressional Review Act was passed in 1996 and signed into law by President Bill Clinton (D).[7] It is part of the Small Business Regulatory Enforcement Fairness Act section of the Contract with America Advancement Act of 1996, which was a legislative package designed to implement reforms that Republicans promised to enact during the 1994 election campaign in the Contract With America.[7][8][9] The Contract included promises to reform congressional structure, social security, taxes, budgeting, congressional term limits, and regulatory policy.[10] Republicans claimed that the reforms contained in the Contract would "be the end of government that is too big, too intrusive, and too easy with the public's money."[10]
Purpose of the CRA
With the CRA, Congress intended to establish a review system to address the complaint that "Congress [had] effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much latitude in implementing and interpreting congressional enactments," according to the official legislative history of the law.[8] The same historical record states, "Congressional review gives the public the opportunity to call the attention of politically accountable, elected officials to concerns about new agency rules. If these concerns are sufficiently serious, Congress can stop the rule."[8]
How the CRA works
Übersicht
Under the Congressional Review Act, a new final rule may be invalidated by a joint resolution of disapproval passed by Congress and signed by the president.[11] The resolution also prevents the agency from issuing a similar rule in the future unless authorized by new legislation, and it bars judicial review—meaning that a resolution of disapproval cannot be challenged in federal court.[11] The law requires agencies to submit new and interim final rules to both houses of Congress and the Government Accountability Office (GAO) in order to take effect.[11] The submission should include (1) a copy of the rule; (2) a general description; (3) the proposed effective date; and (4) cost-benefit and other analyses required by the Paperwork Reduction Act and the Administrative Procedure Act.[11][12]
The CRA, according to an overview published by the Congressional Research Service (CRS), "adopts the broadest definition of rule contained in the Administrative Procedure Act (APA)," which includes agency actions such as notices and guidance documents, in addition to final rules.[13]
Joint resolution of disapproval
Members of Congress may introduce a CRA resolution of disapproval within 60 days of a new rule notification by an agency.[11] That time period is counted as 60 continuous days of a single session.[11] The CRA incorporates the definition of “rule” used in the Administrative Procedure Act which, in addition to regulations, includes guidance documents and policy memoranda.[11]
In the Senate, the CRA process circumvents a filibuster if the chamber acts upon the resolution of disapproval within 60 days of the agency notifying Congress of the rule.[11] In the House, the resolution is often considered under a closed special rule reported by the Rules Committee, according to the Congressional Research Service.[9] All votes under a CRA resolution are simple majority votes.[9] As with other legislation, Congress may override a presidential veto of a CRA resolution by a two-thirds vote of members.[9]
If a resolution of disapproval passes, the targeted rule does not take effect.[11] In the event the rule is already in effect, the resolution blocks enforcement and the agency must act as though the rule never took effect.[11]
The CRA does not apply to rules governing agency procedures, management, and personnel.[11] A CRA resolution cannot invalidate parts of a rule or more than one rule at a time.[11]
Review of major rules
- See also: Major rule
The CRA includes two additional provisions for rules that are designated as major—that is, rules expected to cost the private sector at least $100 million annually or that have significant impacts on employment, investment, competition or prices:[12]
- First, the comptroller general at GAO is required to submit an assessment of the rule to the congressional committees of jurisdiction within 15 calendar days of the rule's submission or its publication in the Federal Register.[12]
- Second, Congress may delay a major rule from taking effect in order to have more time to consider the rule beyond the standard 60 days under the CRA.[11]
The law gives the administrator of the Office of Information and Regulatory Affairs (OIRA) the responsibility for determining whether a new rule is major.[11]
Historical usage of the CRA
Before 2017, the only successful use of the CRA was in 2001 when the recently sworn-in Congress and President George W. Bush (R) reversed an ergonomic standards rule issued by the Occupational Safety and Health Administration during the final months of the previous administration. During his presidency, Barack Obama (D) vetoed five CRA resolutions addressing environmental, labor, and financial policy.[3][4]
In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama's (D) presidency.[1][2][3][14] Congress repealed 16 rules using the CRA during the Trump administration.[15]
The following chart, published by the Regulatory Studies Center at The George Washington University, shows each CRA resolution that passed through at least one house during the 116th Congress and what happened to them.[16]
After Donald Trump (R) lost the 2020 presidential election, some activists and scholars called on the incoming Joe Biden (D) administration to work with Democratic majorities in Congress to use the CRA to undo midnight regulations issued by the Trump administration.[17]
Midnight regulations are those informal rules that federal agencies adopt at the end of presidential administrations. Midnight regulations from the Trump administration are those rules made on or after August 21, 2020, and there might be at least 1,354 such rules, according to Daniel Pérez, a senior policy analyst at the George Washington University Regulatory Studies Center.[18][19]
Congress had 60 days from February 3, 2021, to consider using the CRA to block those midnight rules.[20] Since days under the CRA means days where Congress is in continuous session, that meant the estimated deadline to block any Trump administration midnight regulatory activity was April 4, 2021.[20]
On June 30, 2021, Joe Biden (D) signed three CRA resolutions into law, bringing the total number of rules repealed to 20.[6]
New applications of the CRA: Guidance documents
Beyond repealing rules made by agencies following the rulemaking process, the Trump administration took steps to apply the CRA to guidance documents, including guidance issued by independent federal agencies.
May 21, 2018: CFPB guidance repealed
On May 21, 2018, President Trump signed a CRA resolution invalidating a guidance document issued by the CFPB.[15] It was the first time that the CRA was used to overturn a guidance document rather than a rule issued through the rulemaking procedures of the Administrative Procedure Act. The repeal resolution was introduced to Congress in March 2018 by Sen. Jerry Moran (R-Kan.). The U.S. Senate passed the resolution on April 18, 2018. The vote was 51-47, with all present Republicans and West Virginia Democrat Joe Manchin voting in favor. Sens. John McCain (R-Ariz.) and Tammy Duckworth (D-Ill.) were absent.[21] The U.S. House of Representatives passed a corresponding resolution on May 8 by a vote of 234-175. The measure was mainly supported by Republicans, with 11 Democrats also voting for the resolution.[22]
Guidance documents, agency documents created to explain, interpret, or advise interested parties about rules, laws, and procedures, are not typically subject to the CRA. However, on December 5, 2017, the Government Accountability Office (GAO) issued a determination that the CFPB's indirect auto lending bulletin was a rule for the purposes of the CRA. The GAO made this determination in response to a study request from Sen. Pat Toomey (R-Pa.).[23]
April 11, 2019: Memo outlined White House review of independent agencies and guidance documents
An April 11 guidance memo published by the Office of Management and Budget (OMB) established rules for compliance with the CRA.[24] It amended earlier OMB guidance for implementing the CRA published in 1999 to affirm that Office of Information and Regulatory Affairs (OIRA) review procedures apply to historically independent agencies. It also stated that some guidance documents fall within the definition of rules subject to the CRA.[24]
The guidance memo told agencies not to publish any rules in the Federal Register or anywhere else until both OIRA determined whether the rule is major and the agency has complied with the CRA.[24]
The memo affirmed the broad scope of the CRA over rules coming out of the administrative state. Under Clinton-era Executive Order 12866, agencies have to submit any significant regulatory actions to OIRA for review.[24] However, agencies do not submit all CRA-covered actions to OIRA.[25] In addition to notice-and-comment rules, the new OMB memo said that agencies have to submit statements of policy and interpretive rules to OIRA and Congress.[24] That instruction included guidance documents, which agencies often fail to submit for CRA review.[25] The memo required agencies to include a CRA compliance statement in the body of new rules, which gives Congress notice that OIRA determined whether the rule was major.[24]
Guidance documents, memoranda, and other statements by agencies issued outside the requirements of the Administrative Procedure Act (APA) can have practical effects on the public even if they are not always legally binding. Some critics of the administrative state have called those kinds of agency actions regulatory dark matter. The OMB memo included regulatory dark matter within the CRA review process and could result in "more accurate accounting of the economic effects of rules and guidance, with the opportunity for more informed action by Congress and the public," according to professor Bridget C. E. Dooling.[24][25] Others saw the memo as more than a clarification of the existing requirements of the CRA. The memo was "a controversial step that has long been a goal of conservative groups," according to Damien Paletta, writing for the Washington Post.[26] Paletta also wrote that "[t]he step could have the effect of nullifying or blocking a range of new regulatory initiatives."[26]
See also
- Congressional Review Act Learning Journey
- Federal agency rules repealed under the Congressional Review Act
- Uses of the Congressional Review Act under the Trump administration
- Uses of the Congressional Review Act during the Biden administration
- Congress votes to repeal an agency guidance document for the first time
- U.S. Government Accountability Office
- Office of Management and Budget
- Office of Information and Regulatory Affairs
- Related terms and laws:
External links
- Congressional Review Act (5 U.S. Code Chapter 8)
- U.S. Government Accountability Office
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 U.S. News, "Democrats Push to Repeal Congressional Review Act," June 1, 2017
- ↑ 2.0 2.1 The Hill, "The Congressional Review Act and a deregulatory agenda for Trump's second year," March 31, 2017
- ↑ 3.0 3.1 3.2 Smithsonian Magazine, "What Is the Congressional Review Act?" February 10, 2017
- ↑ 4.0 4.1 Quartz, "The obscure law Donald Trump will use to unwind Obama's regulations," December 1, 2016
- ↑ George Washington University Regulatory Studies Center, "Congressional Review Act ," accessed December 18, 2020
- ↑ 6.0 6.1 The White House, "Remarks by President Biden Signing Three Congressional Review Act Bills into Law: S.J.Res.13; S.J.Res.14; and S.J.Res.15," June 30, 2021
- ↑ 7.0 7.1 Congress, "H.R.3136 - Contract with America Advancement Act of 1996," accessed April 23, 2019
- ↑ 8.0 8.1 8.2 Congressional Record, "S3683, Congressional Review Title of H.R. 3136," April 18, 1996
- ↑ 9.0 9.1 9.2 9.3 Congressional Research Service, "In Focus: The Congressional Review Act (CRA)," accessed April 22, 2019
- ↑ 10.0 10.1 U.S. House of Representatives, "Republican Contract With America," accessed May 31, 2019
- ↑ 11.00 11.01 11.02 11.03 11.04 11.05 11.06 11.07 11.08 11.09 11.10 11.11 11.12 11.13 Congressional Research Service, "The Congressional Review Act: Frequently Asked Questions," November 17, 2016
- ↑ 12.0 12.1 12.2 U.S. Government Accountability Office, "Congressional Review Act FAQs," accessed July 15, 2017
- ↑ Congressional Research Service, "The Congressional Review Act (CRA): A Brief Overview," February 27, 2023
- ↑ New York Times, "Which Obama-Era Rules Are Being Reversed in the Trump Era," May 18, 2017
- ↑ 15.0 15.1 Congress.gov, "S.J.Res.57," accessed May 22, 2018
- ↑ Regulatory Studies Center, "Previous CRA Activity Tracker," accessed January 12, 2021
- ↑ The Wall Street Journal, "Democratic Control of Senate Creates Path to Repeal Last-Minute Trump Policies," January 10, 2021
- ↑ Regulatory Studies Center, "Congressional Review Act," accessed January 12, 2021
- ↑ Axios, "Senate majority gives Democrats tool to reverse Trump policies," January 11, 2021
- ↑ 20.0 20.1 Congressional Record, "Vol. 167, No. 20: Proceedings and Debates of the 117th Congress, First Session," February 3, 2021
- ↑ The Hill, "Senate repeals auto-loan guidance in precedent-shattering vote," April 18, 2018
- ↑ The New York Times, "House Votes to Dismantle Bias Rule in Auto Lending," May 8, 2018
- ↑ Government Accountability Office, "Applicability of the Congressional Review Act to Bulletin on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act," December 5, 2017
- ↑ 24.0 24.1 24.2 24.3 24.4 24.5 24.6 Office of Management and Budget, "Memorandum for the Heads of Executive Departments and Agencies," April 11, 2019
- ↑ 25.0 25.1 25.2 The Hill, "How independent are government agencies? OMB's move on 'major' rules may tell us," Bridget C.E. Dooling, April 13, 2019
- ↑ 26.0 26.1 Washington Post, "White House seeks tighter oversight of regulations issued by Fed and other independent agencies," Damian Paletta, April 11, 2019
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