The Congressional Review Act Is No Solution
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 …
Yesterday, ten distinguished law professors, all of them CPR Member Scholars writing in their individual capacities, filed an amicus brief in support of a lawsuit brought by Public Citizen, the Natural Resources Defense Council (NRDC), and the Communication Workers of America challenging as illegal and unconstitutional the Trump administration’s Executive Order 13771. The order requires agencies to identify at least two existing rules to repeal for every new one they seek to issue and to ensure that the money companies would save by not having to comply with the two health, safety, environmental, or other regulations would fully offset the compliance costs associated with the new rule.
The goal of the amicus brief is to further elucidate the “fundamental principles of administrative law and policy” that undergird the legal arguments raised in the lawsuit. To do this, it traces in painstaking detail the history of U …
Today, 27 Member Scholars of the Center for Progressive Reform, leading academics who specialize in administrative law and regulatory policy, submitted a letter to Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Ranking Member Claire McCaskill outlining their serious concerns with the Senate Regulatory Accountability Act. That bill is among several aimed at undermining our system of regulatory safeguards that are set to be marked up by the committee at its business meeting on Wednesday. Others set to be marked up include the Senate REINS Act and the Senate Small Business Regulatory Flexibility Improvement Act.
In the letter, CPR Member Scholars identified seven troubling aspects of the bill:
- A requirement for a trial-like, adversarial hearing for many "major" rules and all "high-impact" rules that will likely lead to inefficient and undemocratic rulemaking;
- A vague and misplaced requirement that agencies choose the most "cost-effective" regulatory …
Today, Center for Progressive Reform Member Scholars and staff are releasing a comprehensive analysis of the Senate Regulatory Accountability of 2017 (S. 951), which Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) introduced last week. Our analysis explains how S. 951 would drastically overhaul the Administrative Procedure Act, which has successfully guided agency enforcement of public safeguards for over 70 years. A summary of the key findings of the analysis is also available.
The bill is the latest legislation to be put forward by conservative members of Congress who want to revamp the process by which the Environmental Protection Agency, the Food and Drug Administration, the Occupational Safety and Health Administration, the Consumer Financial Protection Bureau, and others craft the regulations that protect us from physical and financial harm. So, how does Portman and Heitkamp's bill differ from all the rest? They claim theirs is much …
If Donald Trump has learned anything over the last 100 days, it's that unlike in golf, you can't call a Mulligan on the beginning of your presidency, no matter how much it might improve your score.
These last few months have been long on scandals and failure (Russian probes, the spectacular implosion of Trumpcare, etc.) and short on policy accomplishments, particularly in the legislative realm. This sad state of affairs has left Trump's PR team looking to inject some positive spin into the 100-days news narrative any way it can, and the Congressional Review Act (CRA) seems to be their go-to vehicle for doing just that.
Using the long-dormant law's expedited procedures, and almost entirely along party lines, conservative leaders in Congress have pushed through a raft of CRA "resolutions of disapproval" that target a wide range of Obama administration-era regulations for repeal …
As the clock ticked closer to the end of the work day a few Fridays back, the Trump administration quietly made an announcement certain to put smiles on the faces of many corporate interest lobbyists in and around the DC Beltway: Neomi Rao, a little known but very conservative law professor at George Mason University's Scalia Law School, would be the nominee for Administrator of the White House Office of Information and Regulatory Affairs (OIRA). The announcement probably went unnoticed by most of the working class families and low-income communities that Trump calls his base, but it may just have a huge impact on their health and well-being.
As the next "regulatory czar," as the position is popularly known, Professor Rao is set to play a key role in the Trump administration's efforts to roll back the kind of public safeguards that we count on …
Steve Bannon's crusade to deconstruct the administrative state took two big steps forward last week, concluding with Donald Trump nominating George Mason University Law School professor Neomi Rao as his "regulatory czar." CPR will publish a new report on the role of the Office of Information and Regulatory Affairs (OIRA) Administrator during the Trump administration in the days to come, but for now, I want to focus on the first big development: Acting Administrator Dominic Mancini's new memo providing agencies with guidance on how to comply with Trump's Executive Order 13771.
The unenviable task Mancini and his team faced was trying to rehabilitate the almost cartoonishly absurd executive order by transforming its amateur-hour delusions about how the regulatory system works into a serious policy program. Specifically, the memo addresses several key issues related to Section 2 of the order, which requires agencies (1) to …
The first rule of reading anti-regulatory bills, executive orders, and other policy prescriptions is: Sweat the hyper-technical, anodyne-sounding stuff. And President Donald Trump's February 24 executive order on "Enforcing the Regulatory Reform Agenda" demonstrates why this rule exists.
One of the order's provisions – which no doubt caused glaze to form over many an eye – read: "Each Regulatory Reform Task Force shall attempt to identify regulations that . . . are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note)." I know my eyes glazed over the first time I read it. But it's worth a careful look at what that obscure legal citation refers to and what its inclusion could mean for existing regulatory safeguards.
First things first, though. Trump's February 24 order – in a depressingly hilarious twist of irony – sets out to …
Many Americans would likely be shocked to learn how lax government oversight of the manufacture and design of aircraft, such as airplanes and helicopters, has become. After all, any list of those areas of the economy that would seem to cry out for strict regulation would have to include aircraft production and maintenance, considering that when aircraft are defective or contain defective parts, the consequences are almost inevitably catastrophic and tragic.
Yet, in a 2004 audit, Congress' nonpartisan Government Accountability Office (GAO) found that severe budget constraints had compelled the Federal Aviation Administration (FAA) – the agency charged with overseeing aircraft safety – to outsource to private parties nearly 90 percent of the work it is supposed to do to ensure that aircraft meet applicable safety requirements. In some cases, the private parties taking on these tasks are the manufacturers themselves, raising at least the appearance, if not the …
What does Steve Bannon – who, despite his well-documented racism, anti-Semitism, and misogyny, was appointed as president-elect Trump's senior counselor and White House strategist – have to do with a rarified and wonky policy exercise such as regulatory cost-benefit analysis? Unfortunately, a lot, as it turns out.
From a serious policy perspective, the Trump administration's approach to governance remains terra incognita, and this is especially the case with its approach to implementing laws through regulations. So far, Trump has signaled that he has adopted the establishment Republican Party's line on opposing all regulatory safeguards across the board, putting the narrow interests of politically powerful multinational corporations ahead of working families and struggling communities. If and when he follows through, one of the things we can expect is that his administration will continue to subject new agency safeguards to a highly slanted and anti-regulatory test known as …
