Three Cheers for the Congressional Review Act

Editor’s Note: See CRE letter to Senate President Biden and Speaker Pelosi discussing EPA’s non-compliance with the CRA here (media coverage, here and here).

From: The National Review

by Jonathan Wood & Todd Gaziano


Gilbert and Narang close with a sideswipe on a use of the CRA that Pacific Legal Foundation and its partners advocate through their Red Tape Rollback project. Agencies have consistently failed to honor their obligation to submit many rules to Congress, wrongfully depriving our elected representatives of their opportunity to review them. For these rules, the window for Congress’s review has not yet begun. Thus, they remain vulnerable under the CRA once they are belatedly submitted.

Any different interpretation would be unworkable. If an agency’s violation of the submission requirement shields its rules from congressional review, why would an agency ever comply? Submission triggers Congress’s ability to propose resolutions of disapproval and starts the clock for the streamlined procedures. As the OMB and GAO warned for years, submission of rules to Congress is not optional. The CRA’s submission requirement is no more a “minor paperwork requirement,” as Gilbert and Narang characterize it, than is the filing of income taxes — or any other filing requirement mandated by regulators. Bureaucrats can’t require Americans to follow their rules until they first follow Congress’s rules and allow Congress a realistic opportunity to pass on their work.

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