This post was originally published on The Regulatory Review.
Over the last several years, conservative opponents of regulatory safeguards for health, safety, the environment, consumers, and the economy have gradually coalesced around a grand theory for why the supposed balance of policymaking powers between the executive and legislative branches has become so, well, unbalanced. These opponents’ theory goes something like this: Congress faces strong incentives to delegate too much substantive policymaking authority to federal agencies because delegation creates a political “win-win.”
By passing statutes with broad aspirational goals, members of Congress avoid the politically fraught task of actually specifying the changes required to achieve their goals. Nonetheless, legislators still get credit from voters for taking this highly visible, if not particularly bold, action. That is Win Number 1.
Later, it is not Congress, but the federal agencies that end up bearing the brunt of outrage when they begin to translate the legislation into constraints on private behavior through the highly visible act of issuing regulations. Better still, Congress gets to swoop in and publicly wag its disapproving finger at agencies for allegedly impacting the lives of their constituents in negative ways. That is Win Number 2.
It is a neat theory, and it probably helps to explain some of the institutional dynamics between Congress and federal agencies. More intriguing, though, are the policy prescriptions that conservative adherents of this grand theory offer to address the problems it purportedly diagnoses. Invariably, and tellingly, their policies are more effective at stopping federal agencies from taking action than they are at recalibrating inter-branch relations. Given the unprecedented prominence the Congressional Review Act (CRA) has achieved in recent months, it is worth considering in light of conservatives’ grand theory.
First, some background. The CRA enables Congress to pass a special kind of legislation known as a “resolution of disapproval” to repeal recently finalized regulations. Significantly, the CRA does not give Congress any new authority. Regulations are the creatures of legislation, and so Congress can pass new legislation whenever it wants to get rid of them. Instead, the CRA does nothing more than allow Congress to bypass temporarily much of Congress’s deliberative process—such as committee hearings—and suspect key procedural chokepoints—most notably, the Senate filibuster—to make it easier to pass resolutions of disapproval.
Nevertheless, according to the critics of federal regulation, the CRA provides Congress with a vital tool for reasserting its control over policymaking. This claim, however, withers under close scrutiny.
As a preliminary matter, recall that what gives the CRA its operative force is not what it adds, but what it takes away—namely, impediments to action by Congress, otherwise known as the deliberative process. While Congress was never designed to move swiftly, the current era of hyper-partisanship has only made things worse, rendering the body all but irrelevant as a governing institution. Bipartisan legislation on actual issues is the rare exception, not the rule, and even then, legislation is primarily limited to a few “must-pass” actions, such as omnibus spending bills or legislation to raise the debt ceiling. Legislation of any real substantive consequence generally has little chance of becoming law unless one of the political parties controls both chambers of Congress—including a filibuster-proof majority in the Senate—and the presidency.
The defining characteristic of CRA resolutions of disapproval is that they only require a simple majority to pass in both the U.S House of Representatives and the U.S. Senate, which allows these unique legislative vehicles to avoid becoming stuck in the mire of congressional dysfunction. But as recent experience demonstrates, the Republican congressional majorities have not leveraged this feature of the CRA to promote the legislative branch’s institutional prerogatives. Instead, they have deployed the CRA as a means for advancing a distinctly partisan, often industry-driven, agenda. As with everything, so too with the CRA: institutional loyalty plays second fiddle to party loyalty.
As part of an analysis I co-authored for the Center for Progressive Reform, I found that the 14 CRA resolutions of disapproval that Congress successfully advanced this year all passed on very narrow, nearly party-line votes. The average vote margin for these resolutions was just 49 in the House and six in the Senate. (For perspective, Republicans hold a 47-vote majority in the House and a four-vote majority in the Senate.)
Put differently, the CRA helps to clarify that the only thing stopping Congress from participating effectively in policymaking is Congress itself. Gimmicky procedural tricks like the CRA will not help Congress reclaim its policymaking responsibilities. To the contrary, such a nakedly partisan exercise as passage of a CRA resolution of disapproval risks weakening Congress further by reinforcing its paralyzing state of dysfunction. With each resolution that is adopted, the mutual animosity and distrust between the two parties risks growing ever greater, incrementally broadening the existing partisan gap and putting future efforts at reaching across the aisle on bipartisan compromise just a little further out of reach.
More to the point, though, the CRA is ill-suited to address directly the alleged problem of excessive delegation of policymaking responsibilities that is at the heart of the conservative critique of the regulatory system. That is because a CRA resolution of disapproval quite literally does not offer much in the way of substantive guidance in how Congress expects an agency to exercise its policymaking discretion for a particular rulemaking. Instead, a disapproval resolution under the CRA conveys only the message that the particular approach that the agency had attempted is no longer on the table. Beyond that, the agency does not have much more by way of clarification of Congress’s expectations for how its legislative mandates should be carried out than it did before the resolution of disapproval was passed.
In most cases, even the incremental guidance provided by a CRA disapproval would be of little use to agencies since a key provision in the CRA discourages them from making a second attempt at issuing a rule that will pass congressional muster. This provision states that whenever Congress uses a resolution of disapproval to repeal a rule, the agency is prohibited from issuing another rule on the issue in a form that is “substantially the same”—a concept the CRA fails to define. Rather than take the risk of expending significant resources on developing a replacement that might ultimately be rejected for not being “substantially” different, the agency might simply abandon the effort of implementing that part of its authorizing statute, to the extent that it is at all discretionary. The Occupational Safety and Health Administration responded precisely in this manner after Congress used the CRA to strike down its 2001 rule on ergonomics; in the nearly two decades since, the agency has not come anywhere close to tackling this issue, although it remains one of the biggest unaddressed threats to worker safety.
Consistent with the CRA’s overall thrust, the “substantially similar” provision does not encourage or empower Congress to ensure that its policy choices are being faithfully executed through regulation. Rather, it ensures that there will be no regulations at all, even in instances involving pressing threats to public health, safety, the environment, or financial security.
In short, the CRA has no direct impact on the baseline conditions that opponents of regulatory safeguards claim give rise to the “win-win” scenario that supposedly encourages improper delegation of policymaking responsibilities by Congress. If anything, the CRA is more likely to reinforce Congress’s strategic behavior to over-delegate by in effect creating what might be considered a “win-win-win” situation.
After all, when enacting laws that contain broad goals for agencies to implement, legislators know that, should any particular regulation generate sufficient public outcry, Congress potentially has the option of using a CRA resolution of disapproval to repeal it. (To be sure, expectations for using the CRA would be tempered by the fact that the conditions for its successful use rarely exist.) Through the CRA, members of Congress would be able to take credit for acting on behalf of some aggrieved constituents, even though this action does not carry much substantive meaning and imposes little to no political costs. That is Win Number 3.
To the extent legitimate concerns about excessive delegation exist, the federal government needs a better way to address those concerns than the CRA. At a minimum, Congress should accompany any action taken to repeal a rule with meaningful guidance on what it expects the replacement rule to look like. In 2015, the Senate appeared to be heading in this direction when it considered taking legislative action to repeal the Obama Administration’s Waters of the United States (WOTUS) rule. A bill sponsored by U.S. Senator John Barrasso (R-Wyo.) would not have just repealed the rule, but would have also provided the U.S. Environmental Protection Agency (EPA) with detailed guidelines, both procedural and substantive, for how to re-write the rule.
Whether or not you agree with the substantive merits of Congress’s directions to EPA for a replacement WOTUS rule, there is no denying that this approach would have actually enabled Congress to reassert greater control over policymaking in this area. If critics of the regulatory system are really serious about correcting what they see as an imbalance in policymaking responsibilities, then these sorts of actions that offer congressional guidance would seem more worthy of celebration than the mere passage of a blunt and unconstructive CRA resolution of disapproval.