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>> well the fight over president biden's student loan cancellation has put a spotlight recently on a lesser known vehicle for congress to rein in agency rulemaking. brigitte delaney joins us now to talk about it, she's a law professor at ohio state university. good morning to you. >> good morning, john. >> the congressional review act is this vehicle that we are talking about here. can you explain first where it came from and how it works? >> yeah, absolutely. so 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. now a study rules, because they are fascinating, but i am the first to admit that they are a little bit invisible. but if you think about the air thathehe food that we eat, the water that we drink, the safety of our cars, the safety of our workplaces, all

of that is covered by federal rules. and those rules exist because congress created agencies and then told them to write rules. but sometimes, congress needs to reassert its control on the back after the agencies have written those rules, one of the ways it can do that is using a congressional review act. >> it's a hardly defined what a rule is? >> oh, that's a great question. and it is also a little bit 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 ask the government accountability office to issue a legal opinion to decisively say, one way or another, whether something is a rule. that is the best that we have got, because the definition can be a little bit ambiguous. >> so congress doesn't like a rule a federal agency has issued, they want to overturn it, what happens on capitol hill? >> yeah, so any legislator can introduce a resolution of

disapproval, and what is special about the cra is that it has expedited procedures attached to it. so it moves more quickly and easily through congress then ordinary legislation does. ordinary legislation can get bogged down in committee, but resolutions of disapproval have a quicker way out of committee, for example. they also cannot be filibustered in the senate. that means that just a simple majority in the senate is enough to pass a resolution of disapproval. they don't need to get to 60 votes like they do for ordinary legislation. >> so viewers who then might have been surprised that there is a vote last week and the democratically controlled senate on president biden's student loan plan, and that vote went against president biden's plan, this is the reason why that vote happened? >> that's right. the resolutions allow legislators to express their views and expressed their concerns with rules or actions

that federal agencies have taken. and they did take that vote last week. now the president has signaled pretty clearly through different channels that he will veto that resolution and that can be overcome potentially, but they would need to overcome it with two thirds majority in the house in the senate, and it doesn't look, at the moment, like they have those kinds of margins. >> if they were somehow able to get those kinds of margins, what happens? to the federal agency, to the rule, how long does that take for this role to be rescinded? what is the process then? >> yeah, the rule goes poof, if i'm honest. we act as though, and the congressional direct tells us to act as though the rule never existed. and so you sort of have to jump in a time machine and go back to a period before that rule existed, and that is what happens. it happens immediately, and it has immediate effect. which is a little tricky when the rule has already gone into effect. it is sort of easier and more clean to do that 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. but for a rule like the one that you mentioned, the student loan forgiveness work, there you have people whose loans have been forgiven, whose interest has been held, and who haven't been making payments under loans, for example. and so it really is an interesting and tricky quandary and a 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, but you are right to raise the question of, how will this actually work in practice? because for something like this student debt forgiveness, it would really lead to potentially pretty dramatic consequences. >> the congressional review act as what we are talking about this morning. this vehicle that congress can use to rein in the federal agencies. that is our conversation for the next 20 minutes. questions about how it works

with a history of it, that would be a great time to call in on it, and brigitte dooling, law professor at ohio state university has been deeply involved in regulatory policy for a long time. before that, she's our guest, and a great expert talk to about. her first appearance on the washington journal this morning, and very glad to have you. though numbers for you to call in, republicans, it is 202748 8001, democrats to a 2748 7000 independents to the 02748 8002. as folks are calling, and brigitte dooling, congress's success rate in using the congressional review act, it doesn't seem like it gets successful often. there has been 20 rules overturned total since the congressional review act was put into effect. one happened back in the 107th congress in 2001 and two, and then 16 rules overturned in 20 17 to 18. that one june 15th congress and

then just three in the 117th congress. explain why this doesn't seem to be that successful that often, and what the heck was going on in the 115th congress. >> yeah, and just to put those numbers into context, in any given year, federal agencies issued several hundred rules, and so when you think about the types of numbers that you are talking about, one, three, even 16, it is a very small portion of the total number of rules that go out of the door. so the first time it was used was after the end of the clinton administration, there was a labor rule related to workplace safety and ergonomics that was disapproved by the next administration. and that is a trend that you will see in the data that the congressional review act tends to 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.

and that is because it is very unlikely that a sitting president would disapprove his own rules. so because the resolutions of disapproval have to go through both the house and the senate, and the make their way to the president's desk to be signed into law, it creates a dynamic where you are very unlikely to see regulation disapproved if that regulation was issued by the president who receives that resolution of disapproval on his desk. but you are right. there is not much activity at all in terms of disapproval's until the trump administration, from a number of disapproval's and the number of resolutions really spiked. and we have seen three in the biden administration as well so far. what that story does not quite tell you is that all along, and really since 1996, legislators have been using the congressional review act to introduce these resolutions. even in situations when it is

unlikely because of the reasons i just described the president going to sign into law. so why is that. what is that the legislators are doing? it looks like it is a useful tool for legislators, and this is building on some work that i've done with professor steve bullock and daniel perez at the -- regulatory studies center. that work showed that although it actually looks like the congressional review act, that was hardly used at all, as we mentioned. only 20 times to disapproval. it has been used several hundred times to introduce resolutions of disapproval, and so we see legislators reaching for it as a messaging tool, as a way to signal their constituents, they hear them, and we hear their concerns. i think we will continue to see, and we have continued to see, the tool used in that way in recent years and going forward. >> so our 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

say the major rules that federal agencies are putting out there. a rule that has a economic impact of 100 million dollars or more. some of these big rules. one of those go first to congress to see if they will improve it or not, and not give them the option of retroactively undoing rules that have already been promulgated. >> yeah, that proposal has been introduced into congress for many years in a row. it is referred to as the rains act. our eat i.n.s. act. that is exactly what you are describing, that it basically puts the ball in congress's court after an agency has written a role and says, do you want the agency to go forward with this yes or no. the default would be no, unless congress acts. and so there we are talking about a much larger number of regulations potentially that would be affected, and now we are talking into the, that's a

good question how many, but certainly less than about 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 the disapproval. and so it basically flips the default and ask congress to take on much more active hands on the regulatory process then they have been taking to date. and so when folks talk about the reins act, sometimes they expressed concern that it may really come up the works on all sorts of non controversial or rules with the legislators don't have a issue. the way that it is right now, the congressional review act, it leaves the ball in congress's court to act if they want to disapprove rather than ask them to affirmatively approve the regulations that the agencies are issuing. >> and the reins act act, it stands for regulations from the

executive in need of scrutiny act. and a bill, as you said, that often gets put forward, especially and recent congresses. we are talking with brigitte dooling this morning, law professor at ohio state university. we're also talking about the congressional review act, this effort by congress that they can put forth to try and rain in a federal agency. a couple callers for you. jason is in fort ville, indiana, republican. good morning. go ahead. >> good morning, john, thank you for taking my call. first time caller, and this is a fascinating topic that i spent 35 years working in an industry that essentially was regulated entirely through the federal regulations, and so i know some of it is in much more depth than i ever want to. and my question is this. is there a similar act, let's say for other non statutory

situations. so let's say that the president issued a executive order and congress feels that he has overstepped into legislation, is there a similar way that they can request a disapproval or a passive disapproval? >> that's a great question. and what you are reminding me of is a really important point, which is that congress always has the ability to act through ordinary legislation. so if the president issued executive order and congress disagrees with it, they always have the opportunity to go through ordinary legislation or conduct oversight or express their displeasure through appropriations bills, for example, and withhold money. so congress has lots of vehicles to express its discontent with the executive branch. what is unusual about 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. and that is limited to rules in this particular context. and so there is not something exactly like what you described for executive orders. but of course congress could always step in and issue a rebuke in the form of legislation or the other means that i described. >> dave inhale, michigan. independent. good morning, you're on with brigitte dooling. >> yes, good morning. brigitte, thank you, john, this is kind of confusing to me. when they rule on something, we are in [inaudible] incentives as far as our way of revenue purposes, do they have -- where is their data or proof of what the costs are when they're trying to overrule or have

amendments according to the new law that they want to come in on. because [inaudible] for the party. i want them to show some kind of proof of some kind of good substantial data. i don't know if you can speak on that much, but i'd like to know how that works. thank you. rsuasive >> absolutely, that's a great question. when agencies issue rules, they're expected to make pretty persuasive explanations for why they are doing that rule, and that includes looking for things like the benefits and the costs, and other alternatives that they considered, for example. now when congress steps and to disapprove a rule, they're not required to do any of that. so they can just exercise their judgment, and in fact when they issued the resolution of disapproval, it has a very strict format to it. there is not a lot of opportunity for members of congress to say much in the bill, or in the resolution itself about why they are doing

it. of course they have the opportunity to make four statements and other types of speeches, everything from tweets to full on statements, and so you might get little glimpses of the rationales. >> how do you calculate the financial benefit of an acre of land saved or the incidents of cancer happening less. how do you calculate benefits versus costs. >> that's a great question. it's one of the executive branch has been working on for

a long time. because of what you described. it is harder to calculate things on the benefit side of the ledger. but the most important thing that i think folks should know about cost-benefit analysis is that it is never, i mean i did this for over ten years in the federal government, and it is just not the case that you write out the cost on one call, in the right of the benefits on the other column, and then draw a line and see which is bigger. it just is a less exact science than that. the goal of cost-benefit analysis is to at least get on paper what we now. sometimes we can quantify what we know and then sometimes we cannot. when we can't quantify things, particularly on the benefits side, but also on the cost side, the most important thing about doing the cost-benefit analysis is the opportunity, so that we can think about them and we can think about and we could put out to the public exactly an explanation of what the government thinks what the benefits and the costs might

be. so that the public has an opportunity to weigh in and say actually, i think you understated that or think you overstated that. that is the best that we can do. sometimes, particularly when things like human dignity and other things are on the line. and that are basically impossible to quantify. the government works very hard to try to come up with ways to quantify things that are hard to quantify but as you can understand there certain things that are very challenging to put a number two. that is a mean that we don't sort of put them down and paper, write them out in narrative form, and explain what they are, hopefully make a full and transparent accounting to the public at the trade-offs of government action. >> we have done the reins act, let's do another strangely named washington d.c. thank. you talk about your previous service. what is oh i or a? >> oira as we're used to work. it's the office of information and regulatory affairs. it's a small office within the

executive office of the president, and oira has a few different rules, but the one that is perhaps boasts -- best known for is reviewing regulations. and so i spent ten years working in the government, working with agencies like the food and drug administration and the department of education to -- before the regulatory proposals go out the door to the public for consultation. >> and is the idea to avoid exactly what we are talking about? congress stepping in and trying to hold back some of these regulations after they go out the door? >> yeah, that is definitely part of that. from my perspective, if you get to the point of a disapproval, it is a failure. agencies work really hard on their rules. it might take them, certainly it takes them months, it may take them years, and it represents hundreds of hours of their effort to try to do the best regulatory proposal that they can. and so at the end of all of that, to have congress swoop in and disapprove, it is really

something that the agencies want to avoid. and so oira review touches a lot of different topics, certainly not just avoided a congressional review act disapproval, but that review is the point of it is to make sure that the rules are ready, and -- different actions that you are considering, and they do their best to explain to the public and to potential future judges down the line. all of the things that they considered and the different trade-offs associated with the hard policy choices that we ask agencies to make. >> just a few minutes before the house comes in for the day of course, we will go there for gavel to gavel coverage when they do, but we're talking though about the congressional review act, but -- law for fester at ohio state university, at brigitte dooling. this is jonathan and pearl river, louisiana. and dependent. good morning. >> good morning, how are you today? >> go ahead, which the common question. >> and so my question is on

environmental regulatory behavior. sometime ago in undergrad, i reviewed environmental, a series of environmental statements. and -- was interior secretary and involved several involvements of hydroelectric dams and the operation of dam removal and the request to treaties and various other benefit cost analysis regarding environmental regulatory procedures. there is a really good environmental impact statement came over to parts, further public review, and -- by the time it was passed an accepted, and ready for implementation, congressional staffers and the rule takers can be in conjunction with the various departmental agencies and local populists were

involved and informed. very stage of the way that by the time it was ready for implementation, had everyone been honest at every step that they weigh, their congressional review act. became unnecessary because there was a stopgap. to be used to -- removing the dams and restoring the public parks to the customary. >> jonathan, let me stop you there. we're running short on time. brigitte dueling on the process that he describes. is that the way it's supposed to work? >> i mean so there's been a lot of discussion about how much processes is enough. it can be really hard to figure out the balance. for every around a procedure that you add to an administrative action, it slows down. we're talking about -- you want to be careful not to

put something through so much process that it really bogs down what could be a good result. on the other, hand it is important to consult the public. 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 viewers to know that a federal agencies welcome the participation of the public in all regulatory proposals. they are required by law to seek public comments on proposed rules. those are put in the government's newspaper called the federal register. which i imagine some of your viewers look at every day potentially. 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 in 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 we have to make. >> i have never heard the

federal register recall the government's use of a before. may be imminent or so before the house comes. and we're waiting to see when they do. we talked about the executive branch, the agencies making the regulations. the legislative branch, the congressional review act. has a judicial branch ever weighed in on the congressional review act and its use? >> yeah, the congressional review act has provision in it that limits 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 is required to do under the cra. if it fails to do, that courts have basically said that's not something they're going to weigh in on it because of the cra itself limits what courts can do. there is another provision that we haven't talked about calls essentially the same. which is that if a regulation is disapproved, that means that an agency is barred from

issuing a rule that is substantially the same. as the one that was disapproved. that makes sense because you wouldn't want congress to be able to disapprove something and then have the agency turn around and reissue it. there is questions about how narrow or broad that term is. what it actually prevents an agency from doing. there is the potential of that will get us some more litigation on that now that we have some more disapproval so we working with. we don't have very much jesse at. 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 are congress getting ready to come in for the day perhaps more conversation for another day. brigitte dueling law professor at ohio university. thanks for the time. >> former president donald trump is the first former president in u.s. history to be charged with federal crimes. will be arraigned today in miami. will join florida 24 as live news coverage from the courthouse this afternoon starting at two pm eastern on c-span 3. following his arraignment today

in florida, the former president will fly back to new jersey and deliver remarks from the trump national golf club in bedminster today at 8:15 eastern. watch live coverage on the c-span networks including c-span now, our free mobile video app or online at c-span.org. we'll take your phone calls. >> on august 24th, 1955. 14-year-old emma till visited bryant grocery and meat market in greenwood mississippi. where he was accused of flirting with a white store clerk caroline brian. and the till 16-year-old cousin wheeler parker junior was with him when the incident happened. and also four days later when emma till was abducted. sunday on q&a. reverend parker coauthor of a few days full of trouble. recounts the events that led to emmett till's murder. and his efforts to get justice for his late cousin. >> i left the store, nothing happened when i was in. there are shortly afterwards.

and it was 14 and i was 16. came in with him. nothing happened while they were in the store. they came out of the store. we came out of the store a short time later. his wife comes out of the store. emit -- love to make people laugh. he was a jokester. so he gives a wolf whistle to make us laugh. he had to have understood the atmosphere in 1955. in mississippi. a black man whistling at a white woman. that was death itself. >> reverend wheeler parker junior with his book a few days full of trouble. sunday night at eight eastern on c-span's q&a. you can listen to q&a and all of our podcast on the free c-span now app.

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