Politics & Policy

Congress Begins to Reclaim Power from the Administrative State

(Reuters photo: Jonathan Ernst)
Using the previously obscure Congressional Review Act, legislators are restoring Constitutional federalism and correcting overreaching executive-branch regulations.

The Senate voted last week to overturn a Department of Health and Human Services rule regarding state disbursement of Title X funding. In addition to providing a much-needed restoration of federalism, the vote served as the latest example of the 115th Congress’s willingness to use a little-known provision, — the Congressional Review Act (CRA), — to undo overreaching regulations enacted by the Obama administration.

Early in this session, congressional Republicans announced their intention to use the CRA to reverse a number of Obama-era regulations that had been in place since the middle of last year. The CRA grants Congress the authority to disapprove of any executive-branch regulation that affects a third -party, if a simple majority in each chamber passes a resolution within 60 days of the rule’s enactment. It was passed in 1996, but Congress has rarely used it since. In fact, prior to this year, it had only been used successfully only once time: when President George W. Bush signed a bill rejecting an OSHA regulation left over from the Clinton administration. (Congress passed five resolutions of disapproval using the CRA under Obama, all of which he vetoed.)

So far this year, though, Congress has sent bills to President Trump’s desk bills that would undo several regulations enacted in the final months of Obama’s second term. Lawmakers have, for example, abolished a regulation requiring the Social Security Administration to identify individuals whose Second Amendment rights should be restricted, as well as the “resource extraction” rule, imposed by the Securities and Exchange Commission, that conservatives viewed as federal overreach.

Because the CRA has been exercised so infrequently up to this point, there is some disagreement over its interpretation. For instance, the CRA’s text states that federal agencies can’t reissue rules that take “substantially the same form” as rules that Congress has killed. This somewhat ambiguous wording might be difficult to apply if an agency were to refile a regulation it claimed had been altered enough from the original version that Congress overruled.

The purpose of the CRA, too — its conception as a way of reversing overreach rather than enacting new policy — leaves room for distortions of Congress’s intent in rejecting a regulation. After last week’s Senate vote overturning the Obama-administration rule that effectively required states to direct Title X funding to abortion providers, for example, progressives and mainstream media outlets alike were quick to accuse the GOP Congress of “blocking” or even “cutting” funding to Planned Parenthood.

In reality, Congress’s use of the CRA in this instance was not an affirmative action to defund Planned Parenthood or any other abortion provider, but rather a return to the status quo of federalism, in which states have the power to control their own public-health budgets. Similarly, the other resolutions passed by Congress under the CRA since February have served to limit executive-branch power, not to institute new policy on any given issue.

Congress’s newfound desire to utilize the CRA is a victory both for state power and the rights of citizens. Though Congress could surely pass resolutions under this bill undoing federal regulations that conservatives favor, the bill itself is inherently conservative in principle. It allocates authority to the legislative branch in accordance with the Constitution, permitting the representatives of the people to check the power of unelected bureaucrats who all too often impose their will through undemocratic regulation, subverting the electorate’s will and tearing at the fabric of our republic.

— Alexandra DeSanctis is a William F. Buckley Fellow in Political Journalism at the National Review Institute.

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