Congressional Control of Regulatory Policy

Question 1

Congressional Review Act - Basics

Answer 1

• enacted in 1996
• Congress can use this to overturn certain agency actions
• requires agencies to report the issuance of “rules” to Congress + provides Congress with special procedures, in form of a joint resolution of disapproval, under which
  to consider legislation to overturn rules
• If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the President, or if Congress
  successfully overrides a presidential veto, the rule at issue cannot go into effect or continue in effect.

Question 2

CRA - Definition of Rule

Answer 2

Basically almost as broad as the APA definition of a rule, with three exceptions:
- rules of particular applicability
- rules relating to agency management or personnel
- rules of agency organization, procedure, or practice that do not substantially affect rights + obs of non-agency parties

• applies to final + interim, major or non-major rules, + also can apply to things that aren’t subject to notice + comment (guidance docs, policy memoranda)
• doesn’t apply to presidential actions or non-rules (i.e. agency orders)

Question 3

CRA - Process

Answer 3

• need to submit rules to Congress (if you gorget, your reg can’t take effect)
• sixty-day period -> Congress can pass joint resolution to invalidate
• regs can’t be filibustered in Senate - only takes majority in Senate to get it past
• presumably, though, Pres will veto any disapproval resolution because its their admin who promulgated the regs -> law not as powerful as you might think

Question 4

CRA - Significance

Answer 4

• mostly makes a difference where Pres has changed + new admin has different policy preferences
• also theoretically if Congress can override veto

Question 5

CRA - Trump

Answer 5

• CRA was rarely used prior to Trump (had only been used once before to invalidate a Clinton standard)
• Trump admin invalidated 16 rules this way

Question 6

CRA - Biden

Answer 6

• only invalidated 3 rules
• lots of Trump rules were falling anyway though as a result of challenges
• pandemic - lot of focus in leg was on passing pandemic leg, trying to avoid hyperpartisan fights at the time

Question 7

Methods for Congressional Control

Answer 7

• Congressional Review Act
• appropriations riders
• oversight process

Question 8

Appropriations Riders

Answer 8

• Congress says agency can’t spend money to finish or implement a reg -> means nobody can work on it b/c staff gets paid through appropriations
• most common way that Congress controls exec use of regs as a policy tool

Question 9

Oversight Process

Answer 9

• Might use this as opp to warn of appropriations rider down the road
• To the extent agency staff has to spend time prepping for hearing, responding to oversight – you’re disrupting their process
  -> Then don’t have time to work on advancing reg agenda (no legal impact, but it does have a resource impact because you don’t have the time to get stuff done)