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Tuesday, November 06, 2007

Examining Congress's Role in Rulemaking

Today, the House Judiciary Committee subcommittee on Administrative Law held an oversight hearing on the Congressional Review Act (CRA). The CRA, passed in 1996, requires agencies submit final regulations to Congress at which point lawmakers have an opportunity to disapprove the regulation by joint resolution.

The CRA is theoretically a thoughtful check in government policy-making. Congress passes laws which agencies then enforce through regulations and is in the best position to determine its own intent. If Congress finds an agency has misinterpreted statute or overstepped its bounds, it can nullify the rule. If Congress takes no action, the regulation goes into effect as envisioned by the agency.

But witnesses at today's hearing find the CRA to be underutilized. House Parliamentarian John Sullivan uses statistics to illustrate:

However, of approximately 40,000 submissions to the Congress under the CRA to date, only one has been disapproved. Since the 105th Congress, only 43 joint resolutions of disapproval have been introduced in the House and Senate. None of the 25 House joint resolutions passed the House. Three of the 18 Senate joint resolutions passed the Senate. One of those Senate joint resolutions also passed the House. Thus, the disapproval mechanism established by the Act has invalidated one rule.

Other witnesses opined changes to the CRA may expand the law's viability as a congressional oversight mechanism. Sally Katzen, Clinton-era administrator of the White House Office of Information and Regulatory Affairs, suggested the process be leaner and meaner:

Limiting the scope of the CRA to the more important rules would somewhat reduce Congressional authority, but it would enable Congress to focus on the rules that are likely to have the greatest impact on the public.

Katzen recommended amending the CRA so that only "major" rules are covered. In regulatory policy, "major" has varying definitions. Beyond the definitional dilemma, Congressional Research Service scholar Mort Rosenberg recognized the subjectivity of the term major could lead to political shenanigans: "The difficulty would be designating a determiner that is politically acceptable and constitutionally appropriate."

Nonetheless, this could be a good way to make the CRA more effective and expand our elected representatives' involvement in agency rulemaking.