After decades of Congress delegating its responsibility to pass laws to unelected bureaucrats, legislators in the current session are flexing their oversight powers. To date, 22 rules coming from the executive branch have been directly struck down by the legislative branch. An impressive number, to be sure, but that should just be the opening salvo in rebalancing the separation of powers.
How did a normally gridlocked Congress accomplish this? The Congressional Review Act.
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During the rise of the administrative state, Congress gave away much of its lawmaking authority to the executive branch, but with the caveat of “legislative veto” provisions, allowing Congress to claw back authority when the executive branch went too far.
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But in 1983, the Supreme Court struck down these provisions. In response, Congress unanimously passed the CRA, which requires that all rules be submitted to Congress before they go into effect — a 60-day window to disapprove of rules through fast-tracked legislation that is not subject to the filibuster.
Notwithstanding this requirement, there are thousands of rules, as “rules” are defined in the CRA, that agencies have simply failed to submit to Congress, in violation of the CRA. Lawmakers have woken up to this and have issued CRA disapprovals on Clean Air Act Waivers and Resource Management Plans. Neither were submitted to Congress properly in the past, allowing the 60-day window to open for the first time, and giving Congress the opportunity to disapprove.
In that same vein, Public Land Orders withdraw vast swaths of land from productive use for extensive periods of time. Such as any other rule, PLOs affect anyone who wants to use that land, apply long into the future (up to 20 years), and are not part of an adjudication.
Congress recently sent Rep. Pete Stauber’s (R-MN) CRA resolution of disapproval to the president’s desk. This PLO had prohibited the development of 225,000 acres for mining, even though the area is known to contain vital critical minerals. Under the CRA, any future administration is barred from making a “substantially similar” rule without passing a new law.
The momentum for Congress shouldn’t stop now. To avoid the rulemaking process, agencies often issue “guidance” to expand their power over private parties without scrutiny. Guidance is frequently used to coerce parties into acting by either threatening enforcement or making it unclear whether the guidance is mandatory.
An excellent next target for Congress is former President Joe Biden’s 11th-hour rule on agency guidance. The rule, titled “Processes and Procedures for Issuance and Use of Guidance Documents,” finalized an interim measure to quietly erase some of the most important transparency and accountability reforms of President Donald Trump’s first term.
Among other things, Biden’s Processes and Procedures rule removed policies that required guidance to be issued transparently and prohibited it from being used as the basis for enforcement actions against the public.
However, when the final rule on guidance was issued, it was never submitted to Congress under the CRA. That means that it is still vulnerable to the CRA.
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Under the CRA, Congress has the clear authority and duty to review the actions of the administrative state. The Supreme Court has, from Sackett to Jarkesy to Loper Bright, made clear that judges interpret the law, not unaccountable bureaucrats.
This is a great development for individual liberty. However, Congress now has an opportunity to go even further. It is time for the nation’s legislative branch to affirm that while judges interpret the law, only Congress gets to make it.
Nick Clifford is a federal policy counsel at Pacific Legal Foundation.
