Scope of Congressional Review Act Under Consideration

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By Cheryl Bolen

Hundreds or even thousands of old rules may not have been properly submitted to Congress and could now be repealed using the Congressional Review Act, lawmakers heard Sept. 28.

But the hearing called by the House Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law to review the scope of agency non-compliance with the 1996 law turned into a broader debate about the role of government in issuing regulations.

“We in Congress will always weigh safety [and] security through government action versus the basic freedom of complete laissez-faire,” said Rep. Darrell Issa (R-Calif.), who led the hearing, adding all should agree that a balancing act is needed.

The CRA establishes a fast-track procedure for repealing regulations within 60 legislative days after they are submitted to Congress. The process was used successfully at the start of the Trump administration to overturn 14 rules issued during the Obama administration.

Paperwork Burden

Since 1996, however, agencies have periodically failed to file paper copies of their rules with the Government Accountability Office as required by the CRA, leaving some conservative scholars to question whether those rules could be reconsidered now.

The chief proponent of this theory is Todd Gaziano, executive director of the Pacific Legal Foundation in Washington, who testified at the hearing that non-compliance with the CRA is a significant problem.

In contrast, Rena Steinzor, professor of law at the University of Maryland Francis King Carey School of Law, challenged the idea that thousands of rules may not have been submitted to Congress and proposed the actual number may be closer to 50.

“I think that this idea that there are a lot of these rules lurking around persecuting people that Congress doesn’t know about and should veto is drastically overstated,” Steinzor said.

Industry needs certainty and stability in the regulatory system, Steinzor said. It would be unfair to businesses that have paid to comply with these rules—because of an administrative oversight and in a small number of cases—to overturn them now, she said.

Bill to Overturn CRA

Rep. David Cicilline (D-R.I.), the ranking member of the subcommittee, said he was a co-sponsor of H.R. 2449, the Sunset the CRA and Restore American Protection (SCRAP) Act.

The SCRAP Act, which would repeal the CRA and give agencies a way to reissue previously overturned rules, was introduced May 16 by Democrats in the House and Senate.

The notion that regulations inhibit freedom and liberty, which seems to form the basis for the use of the CRA, should be reversed, Cicilline said. Regulations protect the health, safety, and well-being of the American people, he said.

Under the CRA, in an accelerated fashion, with no hearings and mere minutes of debate, regulations that took months or even years to negotiate and finalize through thoughtful deliberation were instantly repealed, Cicilline said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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