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good morning to you. >> good morning, john. >> congressional review act is this big that when they were talking about here. you explain first where it came from. and how it works. >> absolutely. and the congressional review act is a statute that allows congress to undo or disapprove regulations that have recently been issued by the executive branch. it was enacted in 1996. and allows congress to overturn rules. i study rules because they are fascinating but i'm the first to admit that they're a little bit invisible. if you think about the air we breathe, thus the food we eat, the water we drink, the safety of our cars. the safety of our workplaces. all of that is covered by federal rules. those rules exist because congress told created agencies and then told them to write rules. sometimes, congress needs to reassert its control on the back and agencies have written

those rules. and one of the ways we can do that is using congressional review act. >> how do they define what a rule is? >> that's a great question. it's controversial. sometimes folks have different interpretations of what it means to be a rule. which you think would be pretty obvious but in fact it isn't. when congress is unsure, they asked the government accountability office to issue a legal opinion to the site simply say one way or the other, sometimes it's a rule. that's the best we got. the definition can be a little bit ambiguous. >> congress doesn't like a rule a federal agency has issued they want to overturn it. what happens on capitol hill? >> any legislator can introduce resolution of disapproval and what's special about the cra is that it has expedited procedures attached to it. so it moves more quickly and easily through congress than ordinary legislation does. ordinary legislation can get

bogged down in committee but resolutions of disapproval have a quicker way at a committee for example. they also can be filibustered in the senate so that means that just a simple majority in the senate is enough to pass a resolution of disapproval and they don't need to get to 60 votes like to do for ordinary legislation. >> viewers might even surprise that there was a vote last week in the democratic-controlled senate on president biden's student loan plan and that vote went against president biden's plan this is a reason why that vote happened. >> that's right and the resolutions allow legislatures to express their views and express their concerns with the rules or actions that federal agencies have taken. they took that vote last week. the president has signaled pretty clearly through different channels that he will veto that resolution. that can be overcome potentially but they would need

to overcome it with two thirds majorities in the house in the senate. it doesn't look like they have those kinds of margins. >> and they were able to get those margins what happens to the federal agency, to the rule, how long does it take for that to be rescinded. what's the process then? >> the rule goes poof if i'm honest. we act as though in the congressional review act tells us to act as though the rule never existed. you have to jump in a time machine and go back to a period before that rule existed. that is what happens. it happens immediately. it has immediate effect. which is a little tricky when the rule has already gone into effect. it's easier, more clean to do that one when a rule has yet to go into effect. which is often the case because congress only has a limited window to disapprove these things. for a rule like the one you mentioned. the student loan forgiveness work. you have people whose loans

have been forgiven. whose interest has been held. who haven't been making payments on their loans for example. it really is an interesting and four key quandary and difficult quandary. particularly for those borrowers who may be wondering how is this going to affect me? as a practical matter, as i say, that one is highly likely to be vetoed. by the president and so i don't think it will come to that. your writer raised a question of how this works in practice. for something like a student debt forgiveness, it would lead to a pretty dramatic consequences. >> the congressional review act as what we're talking about this morning. this vehicle that congress can use to rein in the federal agencies. that's our conversation for the next 20 minutes. you have questions about how it works or the history of it. now would be a great time to call in on. it law professor at ohio state university has been deeply involved in regulatory policy for a long time. the -- she is our guest. a great expert to talk to

about. it her first appearance in the washington journal this morning. very glad to have you. penumbras for viewers to call in. republicans (202) 748-8001, democrats (202) 748-8000 and independents (202) 748-8002. as folks are calling in, brigitte, congress's success rates in using the congressional review act. it doesn't seem like it gets -- successful often. there's been 20 les overturned total since the congressional review act was put into effect. one happened back in the hundred and seven congress in 2001 and two. 16 rules overturned in 20 17 to 18 that hundred and 15 congress. then it just three in the 117th congress. explain why this doesn't seem to be that successful that often. and what was going on in 115 congress. >> just to put those numbers into context.

any given year, federal agencies issue several hundred are rules. when you think about the types of numbers you're talking about. one, three, even 16. it's really a very small portion of the total number of rules that go out the door. the first time it was used was after the end of the clinton administration. there was a label rule related to workplace safety and our gunnar mix that was disapproved by the next administration. that is a trend you'll see in the data. the congressional review act and be used to disapprove rules. right at the beginning of a new administration when the white house has changed control. in terms of the parties that are in the white house. that's because it's very unlikely that a sitting president would disapprove his own rules. because the resolution to disapproval have to go through both the house and the senate. then make their way to the

presidents desk to be signed into law. that creates a dynamic where you are very unlikely to see a regulation disapproved if that regulation was issued by the president. who receives that a resolution disapproval on his desk. but you're right, there was not much activity at all in terms of disapproval's until the trump administration. when the number disapproval in the number of resolutions really spiked. we've seen three in the biden administration as well so far. >> what that story doesn't quite tell you is that all along, it really since 1996. legislators have been easing the congressional review act to introduce these resolutions. even in situations when it's unlikely because of the reasons i just described that the presidents going to sign them into law. why is that. what is the it that legislatures are doing. it looks like it's a useful tool for legislatures. this is building on some work

that i've done with professor steve bala and daniel parish at the george washington university of regulatory study center. that work showed that although it looks like the congressional review act is hardly used at all. as you mentioned, only 20 times in disapproval. it's been used several hundred times to introduce resolutions of disapproval. we see legislatures reaching for it. anthony messaging tool. as a way to signal their constituents that they hear them and hear their concerns. i think we'll continue to see. we have continued to see the tool used in that way. in recent years and going forward. >> viewers might be wondering rather than a resolution of disapproval and a vote in congress and doing this after the fact. why doesn't congress get a vote on the major rules that federal agencies are putting out there. a rule that has an economic impact of 100 million dollars or more. some of these big rules. why not have those go first to congress. to see if they'll approve it or

not. not give them the option of retroactively undoing rules that have already been obligated. >> that proposal has been introduced into congress for many years in a row. it's referred to as the rains act. that is exactly what you're describing. or it gives congress the option to basically puts the ball in congresses court after an agency has written a role. and says do you want the agency to go forward with the. acs are now. the default would be no unless congress acts. there were talking about a much larger number of regulations. potentially that would be affected. now we're talking into the -- it's a good question how many. he certainly less than probably 100 a year. the question with that as a practical matter is how much bandwidth does congress have to act on resolutions like that or

approvals of regulations like that. compared to occasionally taking up a disapproval. it flips the default. and asks congress to take a much more active hand in the regulatory process than they have been taking today it. when folks talk about the rain's act. sometimes they expressed concern that it may really come of the work. on all sorts of non controversial or rules where the legislatures don't have an issue. the weight is right now and congressional review act. it leaves the ball in congress's court to act if they want to disapprove rather than asking them to affirmatively approve the regulations that the agencies are issuing. >> the rains acted stands for regulations from the executive in need of a scrutiny act. as you said that often gets put forward especially recent congress is. we're talking with brigitte dueling this morning. a law professor at ohio state university.

we're talking about the congressional review act this effort by congress they can put forth a try to rein in federal agency. couple callers for you. jason is unaffordable indiana. republican good morning. >> good morning, john. thank you for taking my call. this is a fascinating topic. i spend 35 years working in an industry that essentially was regulated entirely through the code of federal regulations. i know some of it is much more than i ever wanted. my question is this. is there a similar path. let's say for other non statutory situations. let's say the president issues an executive order. and congress feels that he's overstepped into legislation. is there a similar way that they can request a disapproval

or passed the disapproval. >> yeah, that's a great question. what do you reminding me of is a really important point which is that congress always has the ability to act through ordinary legislation. if the president issued an executive order and congress disagrees with it. they always have the opportunity to go through ordinary legislation or conduct oversight or expressed their displeasure through appropriations bills for example and withhold money. congress had a lot has lots of vehicles to express its discontent with the executive branch once. in usual by the congressional review act is that congress has said in this instance they're going to give themselves some procedural shortcuts to make it easier for them to do this kind of oversight. that is limited to rules in this particular context. there is not something savvy would like what you described for executive orders.

but congress could step in and issue a rebuke in the form of legislation or the other means that i've described. >> dave in michigan. independent, good morning. you are next. iran with bridget. >> yes, good morning. brigitte -- when they rule on something. -- for the incentives as far as the way of revenue purposes. do they have -- what is their data proof of the cost. when they're trying to overrule they have amendments according to the new law they want to come in on i don't want them going for the -- i want to show some type of proof of what -- some kind of substantial data.

i don't know if you can speak on that but i like to know how that works. thank you. >> absolutely. that's a great question. when agencies do rules. they're expected to make pretty persuasive explanations for why they're doing that role. that includes looking at things like the benefits of the cost. and other alternatives they consider for example. when congress steps into disapproval rule. they're not required to do any of that. they can exercise their judgment. in fact, when they issue the resolution of disapproval. it has a very strict format to it. there's not a lot of opportunity for members of congress to say much in the bill. in the resolution itself about why they're doing it. of course, they have the opportunity to make four statements and other types of speeches. everything from tweets to fall on a statement so you might get a little glimpses of the rationales. it's quite rare for that to include anything like a complete cost-benefit analysis.

the likes of which an agency would be expected to do when it issues the rule in the first place. >> on a cost-benefit analysis. this comes up occasionally for environmental regulations. it seems like it's easier to calculate the costs. how much a new rule is going to cost a the oil industry or the gas industry than a benefit of how do you calculate the benefit. the financial benefit of an acre of land saved or the incidents of cancer happening last. how do you calculate benefits versus costs. >> it's a great question. it's one of the executive branch has been working on for a long time. because of what he described. it is harder to calculate things on the benefits side to the letter. but the most important thing that i think folks should know about cost-benefit analysis is that it's never -- i did this for over ten years in the federal government.

it's not the case that you write out the cost on one column and right at the benefits on the other column. and then draw a line and see which is bigger. it's a less exact science than that. the goal of cost-benefit analysis is to at least get on paper what we know. sometimes we can quantify what we know and sometimes you can't. when we can't quantify things particularly on the benefits side but also sometimes on the cost side the most important thing about doing at the cost-benefit analysis is the opportunity to express what those benefits and costs might be. so that we can think about them. and we can think about how much they might be. we can put out to the public actually an explanation of what the government thinks the benefits of the cost might be. so the public has an opportunity to weigh in and say i think you understated that or actually you overstated that. that's the best we can do. sometimes particularly when things like human dignity and other things around the line.

that are basically impossible to quantify. the government works pretty hard to try to come up with ways to quantify things that are hard to quantify. as you can understand there certain things that are just a very challenging to put into numbers. that doesn't mean that we don't put them down on paper, write them out in narrative form. just explain what they are and hopefully make a full and transparent accounting to the public of the trade-offs of government action. >> we've done the reins act let's do another strangely named washington d.c. thing. you talk about your previous service what it is -- oh i.r.a.? >> that's where i used to work. is the office of information and regulatory affairs. it's a small office within the executive office of the president it has a few different roles but the one that's perhaps best known for is reviewing regulations. i spent over ten years working in the government. working with agencies like the food and drug administration.

and the department of labor. the department of education to work with them before the regulatory proposals go out the door to the public for consultation. >> is the idea to avoid exactly where we're talking about. congress stepping in and trying to pull back some of these regulations after they go out the door? >> that's definitely part of it. from my perspective if you get into the point of a disapproval it's a failure. agencies work really hard on their rules. it might take them months. it may take them years. it represents hundreds of hours of their effort to try to do the best regulatory proposal that they can. at the end of all of that. to have congress swoop in and disapprove it is really something the agencies want to avoid the review touches a lot of different topics certainly not just avoiding a congressional review act disapproval. but that review is the point of it is to make sure that rules are ready to go out to the public.

that agencies have consider the trade-off so different actions that they're considering. and i they've done their best to explain to the public and to potential future judges down the line all of the things they considered and the different trade-offs associated with the hard policy choices that we ask agencies to make. >> few minutes before the house comes in for the day. it will go there for a gavel to gavel coverage when they do. we're talking about the congressional review act. brigitte dueling is our guest law professor at ohio state university. on twitter at brigitte doing if you want to give her a follow. this is jonathan in a pearl river louisiana. independent. good morning. >> good morning, how are you today? -- my question is on environmental regulatory behavior. sometime ago in undergrad i reviewed an environmental -- act statements. clinton administration -- interior secretary.

it involved several involvements of hydroelectric dams and application of dam or movable in request to travel treaties and various other benefit cost analysis regarding environmental regulatory procedures. it was a really good environmental impact statement came over three parts. for public review and congressional staff review. so that as each state -- by the time it was passed and accepted and ready for implementation. congress congressional staffers and the rules makers can junction with the departments and agencies and populists were so well involved an informed. and every stage of the way that by the time it was ready for implementation, -- every step of the way. the congressional review act.

they came unnecessary because it was a stopgap. unnecessary to be used to stop the implementation of removing the dams and restoring the public parks and the estuaries. >> let me stop you there. just because we're running a little short on time. brigitte doing on the process that he describes. is that the way it's supposed to work? >> yeah, there's been a lot of discussion lately about how much processes is enough. it can be really hard to figure out the balance. for every round of procedure that you add to administrative action. it slows it down. when we're talking about importing protections for example, you want to be careful not to put something through so much process that it really bogs down what can be a good result. on the other hand, it is important to consult the public at. to get the richness of their views before an agency acts. it's a really delicate balance.

it's one that many agencies struggle to find. it's important for you viewers to know that federal agencies welcome the participation of the public in all regulatory proposals. they're required by law to seek public comments on a proposed rules. those are put in the governments newspaper called the federal register. which i'm actually some of your viewers look at every day financially. it's a great place to take a look at regulatory proposals. regulations.gov is another wonderful resource if you're curious about learning more about what the federal agencies are doing at the regulatory space. your comments are not only welcome but there needed to help share information with the government as they make the difficult choices that we have to make. >> i've never heard the federal register be called the governments because we were before. maybe emitted or so before the house comes in. we're waiting to see when the deal. we've talked about negative branch. the agencies that are making the regulations. legislative branch of, the congressional review act. has the judicial branch ever

weighed in on the congressional review act and its use? >> congressional review act has provision in it that limits of what courts can do to review it. there is only certain ways to get into court to look at issues related to congressional review act. for example, if an agency fails to notify congress. which it's required to do under the cra. if it feels to do that, courts have basically said that that's not something that they're going to weigh in on. because of the cra itself limits what courts can do. there is another provision that we haven't talked about called substantially the same. which is that of a regulation is disapproved, that means that an agency is barred from issuing a rule that had substantially the same as the one that was disapproved. that makes sense. you want congress to be able to prove something that had the agency turn around and reissue it. there is questions about how a narrow or broad that hermes. what it actually prevents an

agency from doing. there is the potential that it will get us some more litigation on that now that we have some more disapproval to be working with. we don't have very much just yet. it ends up being a phrase that's pretty darn important when you're an agency trying to figure out what kind of role to issue. >> we'll have to end it there. congress ready to getting -- perhaps more conversation for another day. brigitte law, professor at ohio university. thanks for your time. >> thanks so much. >> security's occurrence at the 2024 presidential election cycle. with testimony from election assistance commissioners. live at 3:30 pm eastern before the senate rules and administration committee. on c-span three. c-span now our free mobile video app. and online at c-span dot org.

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