by John McClaughry
One of the first acts of the new Republican Congress will be – hopefully – to start using the Congressional Review Act of 1996 to put the brakes on extralegal acts of a President, in this case, President Obama.
The CRA establishes a process for Congress to overturn executive rules that in the opinion of Congress go beyond the powers delegated by Congress to the Executive branch. One example is known as WOTUS – waters of the United States – where the Environmental Protection Agency is trying to seize control of every piddling brook and drainage ditch in the country, instead of confining itself to “navigable waterways”. There are many, many more Obama rules that Congress needs to roll back.
Strangely, CRA law has never been tested in the courts. The legislation says that any rule which is rescinded under the CRA “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”
This means that a rule once blocked by Congress is not likely to be even attempted again for many years, until a new rule is constructed that is arguably so different, or based on new legislation, that it can pass muster. This kind of legislative review is essential to constitutional government. It’s too bad we don’t have one in Vermont (which I was unable to sell during my four years in the Senate).
- John McClaughry is vice president of the Ethan Allen Institute.