When this session of Congress started in January 2017, Republicans rushed to make more use of the Congressional Review Act than at any time since its enactment in 1996. Congress passed numerous resolutions invalidating regulations imposed in the final months of Barack Obama’s presidency, and Donald Trump signed them all. It gave Trump and the GOP bragging rights about their efforts to roll back regulations. Unfortunately, the window on those opportunities — sixty legislative days since implementation of a regulation or rule — quickly passed.
Or has it? Pat Toomey thinks that he has discovered a loophole created by bureaucratic bungling, one that could put rules going back to the creation of the CRA at risk of rollback. And he plans to exploit it, first against the Consumer Financial Protection Bureau:
Toomey, the former president of the conservative Club for Growth, went on the hunt for ways the GOP could take advantage of its congressional majority to eliminate federal rules.
He found a way to wield the power that the Congressional Review Act gives a majority of the Senate to sidestep obstruction via filibuster when it comes to years-old regulatory actions.
To do so, he asked the Government Accountability Office to determine whether the CFPB auto-lending guidance qualified as a rule for the purposes of the Congressional Review Act. In December, GAO told him that it did in fact satisfy the legal definition of a rule, starting the clock for Republicans to undo it without having to seek any help from Democrats.
“When regulators regulate by guidance rather than through the process they’re supposed to use, which is the Administrative Procedure Act and do a proper rulemaking, they shouldn’t be able to get away with that,” Toomey said. “If we can get a determination that the guidance rises to the significance of being a rule, then from that moment the clock starts on the CRA opportunity.”
In other words, if agencies submitted rules through the full and proper process as required by the Administrative Procedure Act (APA), including all of the notice requirements, Congress can’t touch them. That’s the same process that two federal courts are now requiring of the White House to end DACA — posting notices, allowing comments, and specific dates of wind-down — when other temporary injunctions are lifted. That isn’t how some regulation gets created, however. Agencies that want to bypass the APA issue “guidances” instead and pretend that they aren’t making rules, but the “guidances” in most cases have the same weight as rules and regulations.
In other words, it’s a short-cut around the APA. And now that Toomey has figured out a short-circuit for the short-cut, those pushing expansive regulation are hitting the panic button:
Amit Narang, regulatory policy advocate at Public Citizen, said it “is really going to open up a Pandora’s box.” … “Expanding the power of the CRA to overturn guidance from decades ago will threaten protections hardworking families rely on, making it harder for middle class Americans to get ahead and responsible businesses to follow the law,” Sen. Sherrod Brown (D-Ohio) said.
Perhaps those agencies should have followed the rules imposed on them when creating rules to impose on others. Following the law is supposed to work both ways.
Besides, federal agencies get their authority to create rules and regulations from Congress, which delegates it to the executive branch in a power-sharing arrangement. Congress should always have the authority to undo regulation, and it shouldn’t take a filibuster-proof majority to exercise that oversight. The CFPB case is an example of why this authority should exist in particular; without it, agencies can expand their authority beyond what Congress intended, and courts have been reluctant to act as a check on those impulses. Even without the “guidance” shortcut, Congress needs a CRA that is robust enough to ensure that its legislative power remains strictly within the bounds to which it is lent to federal agencies.
Mitch McConnell seems pretty stoked about the idea:
Thanks to @SenToomey and Senator @JerryMoran, we will protect consumers from a brazen attempt by the past director of the @CFPB to stretch his authority and interfere in the auto industry. Now it’s time for the auto industry to come along for the economic tune-up.
— Leader McConnell (@SenateMajLdr) April 17, 2018
If we can’t get fiscal discipline out of this Congress, at least we can get an expansion of liberty and a choke collar on out-of-control regulators.