Congressional Review Act

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. N. Rodgers: Hey Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm excellent. How are you? J. Aughenbaugh: I'm good. As usual listeners, you need to know this, I've had a half pot of coffee, so am well caffeinated. N. Rodgers: So we're good to go. Excellent because I have decided what I want to be now. J. Aughenbaugh: What do you want to be? N. Rodgers: I wanted to be the head of an agency, and I'm actually going to be discerning and say, I want to be the head of the Space Agency as we all know, the Space Force. J. Aughenbaugh: The Space Force. Yes. N. Rodgers: The reason that I want to do that is because then I can make unfettered space regulations. I will be in charge of all the regulations. To give a little context, I was moving the code of federal regulations the other day, I was moving some volumes around. Yes, it's something we do in libraries occasionally. We squash things to make room for other things. J. Aughenbaugh: Yes. N. Rodgers: I was squashing them up and I was thinking, if I was in charge of an agency, I would just have carte blanche to write regulations, stick them in here, as we have noted in previous episodes, wait out for time that I have to pretend to care whether other people agree or not and then go forward. It's the ultimate power. Like President, you get voted out, Congress, you get voted out, but dude, if you're the head of an agency, I just regulate the snot out of space and nobody can stop me. J. Aughenbaugh: There are a couple of problems with your thinking, Nia. N. Rodgers: About one, I have announced it, so that might be problematic. I'm going have to kill you and all the listeners, but other than that. J. Aughenbaugh: Beyond the potential that you might have to engage in mass murder, so let's move beyond that. N. Rodgers: Okay. Next. J. Aughenbaugh: It's a big subject, it's a big topic, it's a big problem, but there are a couple comparatively minor issues you might have to address. N. Rodgers: Okay. J. Aughenbaugh: One, as we previously have discussed rules for the rulemakers, you might have to at least go through a particular process listed in the Administrative Procedures Act when you are issuing all of these directives. That's one problem. But a second problem actually arises because of a little-known law passed in 1996, Nia. You know what that law is? N. Rodgers: I do not. Do I have to care about this? J. Aughenbaugh: Perhaps you should. N. Rodgers: My future plans may be affected by this law? J. Aughenbaugh: Yes. N. Rodgers: Okay. J. Aughenbaugh: Substantively, probably not. But again, like so much of politics, it's a pain. N. Rodgers: Is it one of those sneaky trip you up things when you're not looking? J. Aughenbaugh: Yes, kind of. The name of the law, Nia, is the Congressional Review Act, which was passed in 1996. This was one of the laws that was passed by the contract with America Republicans. N. Rodgers: Mr. Gingrich. J. Aughenbaugh: Newt Gingrich, who is a member of the House of Representatives from the fine state of Georgia. He was Speaker of the House. He and President Clinton were each other's foils for roughly the entire time Bill Clinton was president. N. Rodgers: They were nemeses. J. Aughenbaugh: Yes. N. Rodgers: Nemisi. I don't know what the plural of nemesis is. J. Aughenbaugh: You see, I have always wondered what the plural is. We'll have to look that up. N. Rodgers: Nemisi, maybe. Anyway. J. Aughenbaugh: Because it's like what's the plural of focus? N. Rodgers: Foci. J. Aughenbaugh: It's foci. But then I've actually been corrected at academic conferences for not necessarily using it correctly. N. Rodgers: Don't take this wrong, but academics need to bite me sometimes because, dude. Sometimes we get down into the weeds of things that don't matter. In the long course of history, does it really matter whether I say foci or focusises? What do you care? But anyway. J. Aughenbaugh: Congressional Review Act. N. Rodgers: What does it do? J. Aughenbaugh: I'm just going to refer to the acronym because, again, we deal with government documents folks and we like our acronyms. N. Rodgers: We do. They give us comfort. J. Aughenbaugh: Yes. N. Rodgers: They're like a warm blanket. J. Aughenbaugh: Yes. N. Rodgers: You can wrap yourself in loving acronyms. J. Aughenbaugh: It's like waking up on a cold morning, in my case, I go out to the kitchen, I brew my first cup of coffee, I sit in the recliner, I pull a blanket down, and I lovingly hold that first mug of coffee. Acronyms are that for those in government. N. Rodgers: That's right. They are the sustenance. J. Aughenbaugh: They warm me to the essence of my soul. N. Rodgers: Except for the ones that are more brutal, ICE, which sounds like what it is. You would be afraid of that. J. Aughenbaugh: You would be afraid of it. N. Rodgers: But FEMA sounds so nice. J. Aughenbaugh: But even with ICE. If you say it correctly, you can have some fun with it, ICE. N. Rodgers: That's true. J. Aughenbaugh: Okay. N. Rodgers: Your Congressional Review Act, what are we going to call that? J. Aughenbaugh: CRA. N. Rodgers: CRA. J. Aughenbaugh: CRA has two requirements. First, all rules promulgated by executive branch agencies have to be reported to the United States Congress. N. Rodgers: Wait, my Space Force rules have to be told to Congress? J. Aughenbaugh: Yes. N. Rodgers: No. I counter with no because all they're going to do is be obstinate and difficult. J. Aughenbaugh: The reporting requirement is the least offensive part of this for you. N. Rodgers: Well, I guess if I just had to tell them and I didn't have to care what they thought. J. Aughenbaugh: But here's the rubbish. N. Rodgers: Except the second part of the rule. J. Aughenbaugh: As Shakespeare would say. N. Rodgers: We can get a Shakespeare reference here. J. Aughenbaugh: Today we're just like all over the map. The second part is Congress then has 60 legislative working days. N. Rodgers: Wait. Legislative working days defined as when they are actually in session. Because their legislative schedule, that could be the better part of a lifetime, 60 legislative working days. Have you looked at their schedule? J. Aughenbaugh: Yes. I am familiar with Congress's working schedule. N. Rodgers: Talk about lackadaisical. If I worked as least often as they worked, my boss would fire me because she would never know who I was or where I was. J. Aughenbaugh: Listeners, what Nia is referencing is something that I discussed with my students with some regularity. Of the three branches of the federal government, I can't believe I'm saying this, the laziest is the Supreme Court. Because let's be very clear, their work really doesn't start in earnest until the last week of September. They don't hear oral arguments until the first Monday of October, and then they have breaks throughout their term so that they can write. N. Rodgers: And read. J. Aughenbaugh: Let's be very clear, many of the justices then fly around the country and give talks. N. Rodgers: From the actual work of the Supreme Court out to their clerks. J. Aughenbaugh: But then the clerks, as we've discussed previously, they tend to get a little cranky if their term doesn't wrap up by the last week of June because the first week of July, they're on vacation. They have their summer furlough. Many of them have cushy teaching gigs at law schools around the world. N. Rodgers: Right. J. Aughenbaugh: A nice little university. N. Rodgers: Trip to Barcelona, nice lovely summer in, well, I was going to say Ukraine, but not right now. J. Aughenbaugh: Ouch. For some serious shade. N. Rodgers: Sorry. N. Rodgers: Your 68 legislative working day is not 60 calendar days, that is not two months and I'm free, whenever they show up for 60 days. J. Aughenbaugh: Because Congress will adjourn for holidays, they adjourn quite a bit during the summertime. N. Rodgers: Aughie, they adjourn for molecules moving in the air. They adjourn when they want to screw the president or when they want to get back at somebody, they will adjourn. I mean, they just adjourn at the drop of a hat. What you're telling me is this could go on forever? J. Aughenbaugh: Well, I mean, 60 days with the calendar year is too much. For Congress, it could be three, four and, four-and-a-half months. N. Rodgers: If I get to the end of that, does my rule stand? J. Aughenbaugh: Well, here's the deal. The CRA basically says that within 60 days, Congress can introduce a special joint resolution of disapproval of the rule. N. Rodgers: They can't stop me, they just disapprove. J. Aughenbaugh: No. It's a special joint resolution. Now, if they pass the resolution, then it goes to the president. Now, more than likely, what's the president going to do to their disapproval resolution? N. Rodgers: Well, if he's in their party, he might okay it. But if he's not in their party, he's unlikely to okay it just on principle of if you don't like it, I probably do like it and therefore go away. J. Aughenbaugh: Yeah, the president is going to veto it. I mean, think about this. N. Rodgers: Because I was hired by the president. I'm probably in cahoots with the president. Cahoot is a strong word. J. Aughenbaugh: No. N. Rodgers: I'm probably in agreement with the president in terms of political aspirations or things I wanted to do with the regular policy. J. Aughenbaugh: I mean because again, that's why we still have patronage for those positions. N. Rodgers: They get to register disapproval in and then the president gets to say, don't care, but chuck, so it slows me down. J. Aughenbaugh: Yeah, there you go. N. Rodgers: That's the point. The point is not to stop me, the point of it is to annoy me, and slow me down under the theory that it might scare me into changing the regulation or it might just slow track it so much that it doesn't and by the time it gets around to it, it doesn't take effect or it doesn't do. J. Aughenbaugh: Yeah, because if we were expecting the executive branch of the federal government to respond quickly, the CRA slows down the executive branch. This was designed to be a tool of congressional oversight of the executive branch. Because this really reflected conservatives being concerned that the executive branch was largely operating without any control. N. Rodgers: That [inaudible] was rewriting the federal government in large documents that he would swamp down on people's desks, called reinventing the government. J. Aughenbaugh: The National Performance Review. N. Rodgers: They were afraid that those young bucks would come in there and start making all crazy changes. Newt Gingrich was like, you know what we could do? We could slow this train down. J. Aughenbaugh: Yes. N. Rodgers: We can stop it, but we can slow it down enough to aggravate people that maybe they'll just go away or stop trying. J. Aughenbaugh: When Clinton signed it into law, you have to believe that Clinton's thinking was, the United States Congress hardly ever achieves consensus on anything. You think that they would be able to achieve consensus, to go ahead and overturn some arcane rule that is issued by some little agency like the Space Force. N. Rodgers: Mine will not be a little agency, we will take over many other agencies. Look out, other agencies, I'm coming for you. J. Aughenbaugh: Nia, your statements is why we have another concept in the study of bureaucracies known as turf wars. N. Rodgers: I'm very sure that DHS will fight back, but Space Force is cooler and more exciting. J. Aughenbaugh: Excuse me. It's not only the Department of Homeland Security, the Department of Defense, which has sunk trillions of federal taxpayer dollars into the Star Wars defense system and satellites. N. Rodgers: They should be mine. I would look great in a uniform. I could get one of those pretend uniforms that all the dictators in history have made, Mussolini, Stallone, and then I could just put ribbons all over it of all different colors and guides. When people say what therefore, I said therefore, because that's what dictators get to do. J. Aughenbaugh: Let's just put it this way. The Boy Scouts and the Girl Scouts, their badges will have nothing on your uniforms. N. Rodgers: My gosh. I will have epaulets with braidy things that hang off, it would be fabulous. It's going to be totally fabulous. J. Aughenbaugh: When you were walking down the street, you and your agents. N. Rodgers: Like I'll ever walk. J. Aughenbaugh: But as you were walking to. N. Rodgers: I will be carried on one of those things like the ancient Egyptians. I can't remember what they're called, but it's not fear but where you are carrying them all. J. Aughenbaugh: Well, in this conversation is we're wildly a wave on the CRA. N. Rodgers: I'll have to pick the right president to get it going. But anyway, so back to the CRA. It slows it down, but it can't actually technically stop something. J. Aughenbaugh: Yes, it could. N. Rodgers: It can. How? J. Aughenbaugh: Remember the second step, the second major part of this law. Let's say Congress passes a joint resolution of disapproval, and let's say the president signs it, then that rule cannot go into effect and moreover, Nia, the agency is prohibited from crafting a similar rule. N. Rodgers: I was going to say, a get around rule. J. Aughenbaugh: In the future. N. Rodgers: Like ever. J. Aughenbaugh: Yes. N. Rodgers: If Congress were able to back the president into a corner where he or she felt like they had to sign it. J. Aughenbaugh: Yes. N. Rodgers: They could kill it. Do you think that Gingrich, when he brought this up with Congress and got it passed and sent it to Clinton's desk, do you think Clinton felt in some ways backed into a corner because they were so oppositional? That it would make him look bad if he didn't sign it? If he didn't say, "You're right, Congress should have." J. Aughenbaugh: Lisa, you've got to recall the Democratic Party in the 1990s led by Bill Clinton was much more moderate than the Democratic Party is today. N. Rodgers: That's a fair point. J. Aughenbaugh: I mean, Bill Clinton was labeled a New Democrat. Bill Clinton once infamously said, "The era of big government is over." Can you imagine AOC, for instance saying the era of big government is over? N. Rodgers: Under no circumstances. She could be on a rack, being tortured by the Spanish Inquisition. No one expects the Spanish Inquisition and she would never. J. Aughenbaugh: Could you imagine Elizabeth Warren saying that? Nancy Pelosi saying that? N. Rodgers: No. J. Aughenbaugh: Bernie Sanders? No, they would never say that. N. Rodgers: No. The progressives in the Democratic Party would not. J. Aughenbaugh: Yeah. They won't go for that. N. Rodgers: Yeah. J. Aughenbaugh: They won't go for that. It was a different Democratic Party. As you mentioned, Nia, this was the presidential administration that had the Vice-President Al Gore do a landmark study, the National Performance Review. They went ahead and said that the executive branch needed to be more entrepreneurial. Well, less red tape encouraged to take risks. This is part and parcel of a series of reform efforts that scholars, many folks for instance, in business schools were arguing, if we wanted to get a more efficient, effective, economical government, we needed to make changes. I don't think the Clinton administration thought it was backed into a corner. What I really do think the Clinton administration thought was the likelihood [LAUGHTER] that the Congress would be able to pass a special joint resolution agreeing to disapprove of rules. Let's face it. N. Rodgers: You're going to have your law because a likelihood of you being able to implement it is nonexistent. J. Aughenbaugh: To that point. Because I know you like to ask this question. As of November 12th of last year. N. Rodgers: You're going to answer the question. I'd love it without me even asking which is. How many times is this even been a thing? J. Aughenbaugh: We're talking about November 12th of 2021. How many years is that? 25, 26 years. About 25 years. Only 20 regulations have been overturned. Only 20. N. Rodgers: In 25 years, they're averaging less than one a year. Is that because they just can't agree to? J. Aughenbaugh: Well, I mean, again, you actually pointed out one of the flaws of the CRA. What if Congress is controlled by the same political party as the president? What's the likelihood, for instance, that the Democrats which control both houses of Congress, at least until November of this year, November of 2022? Both houses of Congress are going to overturn a regulation issued by some agency in the Biden administration? N. Rodgers: Wildly unlikely. J. Aughenbaugh: I mean, wildly unlikely. N. Rodgers: The only way they would do that is if they didn't think it went far enough. J. Aughenbaugh: Far enough. That's right. N. Rodgers: The only time you would overturn in your own administration would be you all didn't go far enough. We want it to be ten times bigger, better, wilder, crazier than it was. J. Aughenbaugh: What you've actually seeing is the first time it was used, it was used when Bush 43 just took office. When he came into office, the Republicans regained control of both houses of Congress. They overturned Clinton administration a regulation about ergonomics in the workplace. The Department of OSHA. N. Rodgers: I'm sorry. I'm not saying that that's not important because ergonomics in the workplace is important. It's important that your desk is at the right height, your chair is at the right height, you don't get carpal tunnel. All of that is important. But really, that was the thing. That's the hill that they had to take. J. Aughenbaugh: Yeah, because the Clinton administration had OSHA, which is part of the Department of Labor. OSHA had passed this new regulation and the business community hated it. They got nowhere with OSHA. OSHA just did notice and comment, rule-making, informal rule-making. They did it at the tail end of the Clinton administration. Bush 43 comes into office, Republicans regained control, and they went ahead and said, Okay, fine, they're done. We're overturning this. The next 19 came. N. Rodgers: 19? J. Aughenbaugh: Yes. 19 of them occurred during the Trump administration, wanting to overturn regulations issued by the Obama administration. N. Rodgers: Wow. J. Aughenbaugh: But again, that's what happens when you get. N. Rodgers: Oppositional party. J. Aughenbaugh: You get a set of elections. N. Rodgers: Did Trump have the entire congress at any point? No. J. Aughenbaugh: No. N. Rodgers: He didn't have the house? J. Aughenbaugh: No, he didn't have the house. Yeah. N. Rodgers: He had the Senate for the first. J. Aughenbaugh: Yes. J. Aughenbaugh: No, he had the Senate for the whole time. J. Aughenbaugh: Yes. Yeah. N. Rodgers: But he didn't have the house. J. Aughenbaugh: Yes. N. Rodgers: I see. That's interesting. Would you expect that after November and the potential/likely slacking that the Biden administration will take that we may see another uptake in CRA stuff because there will oppositional Congress to the president? J. Aughenbaugh: Yeah. If that's the focus of the Republican Party. Because again, that's the other thing. You got to take into account with the CRA. What are the priorities? What's the agenda? N. Rodgers: How much fighting do I want to do about these regulations? J. Aughenbaugh: I mean, because let's face it, Nia. How many Americans get really, really excited about hearing that the Congress wants to overturn regulations, many of which, most of which, most Americans have never even heard of? N. Rodgers: Don't apply to most Americans because the way regulations work for those who are not familiar with regulatory process is, they are by agency and so they're within a limited scope anyway. Because there is no agency that has all the power. Now, when I fix that and change it with the Space Force, that will be different and the laws that I pluck or the regulations that I pluck and change will affect everyone. But until then, generally speaking, even really big regulations don't affect everyone. Because of the way agencies are broken out and the way interests and public interests are broken out. If they make a housing regulation, it's probably geared towards a specific group within the United States and their housing. It's unlikely to be all housing everywhere. J. Aughenbaugh: I mean, because if you're talking about the Department of Housing and Urban Development. Housing and Urban Development has a number of housing programs. When they issue a regulation, it might just be for one of their housing programs. N. Rodgers: Exactly. N. Rodgers: Which may affect three or four million people, but three or four million people in the 336 million of us is a drop in the bucket. It affects deeply those lives and does not affect anyone else. There are deep but they're not wide most of the time. J. Aughenbaugh: When The Small Business Administration, which is an agency within the Commerce Department, changes a loan program. It's a loan program that has deep significance, great importance to small business owners. But for most Americans who don't have their own small business, would you even know of it? N. Rodgers: Unless a friend mentioned it to you, what do you think? J. Aughenbaugh: Yeah. It doesn't impact your life. N. Rodgers: It doesn't stick in your brain. J. Aughenbaugh: Let's face it. Most of these regulations, and we talked about it when we did the podcast episode on rules for the rule-makers. Most regulations don't get reported on by the mainstream press. Unless you're a geek like me, who will occasionally just go online and look at the Federal Register because I like doing that. N. Rodgers: Or you get wind of something in your area, like something you're interested. You're interested in you're like, Oh, wait a minute, let me go check and see what that says. J. Aughenbaugh: Yes. J. Aughenbaugh: You work for an interest group, your boss comes in and says, "I need you to scan the Federal register for the last couple of months to make sure that these agencies aren't trying to do something devious that will hurt our members." There you might find it but again, that's because the interest group has a particular policy focus that benefits their members. N. Rodgers: But unless it's totally sexy and salacious, it's not going to make the news. J. Aughenbaugh: Oh my goodness, no. The federal government is so big and does so much stuff and they break it down like you described it into this department does this and within departments are agencies so it gets even more siloed. Narrower as you go deeper down. N. Rodgers: Exactly. That small business loan that Aughie is talking about affects bakeries with less than 10 employees. J. Aughenbaugh: Employees, right. N. Rodgers: It becomes this tiny scene because that's how that works. That's how you make rules. J. Aughenbaugh: A hairdresser that wants to open up a second store. N. Rodgers: At second location. Exactly. J. Aughenbaugh: A person that owns an auto repair shop, and sees a great opportunity to expand in a different part of town. N. Rodgers: Or we're going to change the definition of stream to be this number of acre-feet of water per J. Aughenbaugh: Per, right? N. Rodgers: month instead of this number of acre-feet, and it changes by 0.001 percent. It's going to affect 200 streams in the entire nation. J. Aughenbaugh: Yes. N. Rodgers: That's the level we're talking about, and your average person does not care. J. Aughenbaugh: Yes. N. Rodgers: The media doesn't care because if you came out breathlessly and said, "Oh, they're affecting 200 streams in the United States," the media would say, "Oh, okay," and that's the end of that because one, it's not going to get eyeballs, and two, it's not going to get clicks, and three, it's not going to sell anything. J. Aughenbaugh: This was one of the alleged advantages of the CRA because much like the media, much like the public. N. Rodgers: Ooh, it can surface things. J. Aughenbaugh: Many members of Congress are generalists. They have some specific policy issues that they pay attention to because it benefits their constituents. But by and large, they're generalists. That's the reason why they delegate a whole bunch of legislative authority to the executive branch because the executive branch is populated by subject matter experts. How do you make sure that Congress is actually aware N. Rodgers: I see. J. Aughenbaugh: of what the bureaucracy is doing? N. Rodgers: Some poor clerk's job in the office of either the majority leader in the Senate or the majority leader in the House. Their job is to look at the CFR when it comes out every day and see if anything will set people on fire, and if it does, they need to bring it up to their boss and say, "This might be a thing we need to be worried about." J. Aughenbaugh: You can even get more specific. N. Rodgers: Oh no, they have to be informed. So somebody who sends them an email saying, "Hey, we're putting in this regulation." J. Aughenbaugh: I've had former students that go to work for members of Congress, Nia, and I've asked them what they've done. They were like first couple of months on the job and I've had easily a half a dozen of them say, "I've had to wade through the CRA" and they're shocked that I know what the CRA is and often they're just like, "Oh, you're talking about the reporting of rules from agencies?" They're like one, "Why do you know that?" Two, "It is so boring." N. Rodgers: The answer to Question 1 is because your policy work and you're an Administrative Law Group. J. Aughenbaugh: Yeah. But the second question is N. Rodgers: But, yeah, it's boring because the actual running of government is boring. It's boring. It's paperwork, it's signed this thing and move it to the next desk, and you know what I mean? I've heard it on film sets that they spend 98 percent of the time sitting around waiting to do two percent acting. That's why you get all kinds of crazy stuff that happens on sets is because people are bored. They pick up guns and shoot them, and they accidentally kill people or their affairs. They get into drug problems, they get into drinking problems, all kinds of stuff. Then some of them do more benign things, I know that some people do need a point. They're like, "This is the pillow I made during Star Wars" or whatever, which is good for you. But the boredom factor, it is so high with the federal government. But wait, getting to a point there though that that's interesting that you bring up that one of the advantages of the CRA is that it does surface regulations to people who might not otherwise be exposed to them. If you had to remember to go read the CFR every day or the Federal Register? Sorry. I keep saying this CFR but it's the Federal Register, I'm sorry. If you had to go read the Federal Register every day, you wouldn't. J. Aughenbaugh: No. N. Rodgers: That's not a thing most people would do every day. You might and I might but normal people would not do that. So being forced to know what's going on, that's a really good advantage to that is to help surface things that maybe people are sneaking around and doing like, oh, I don't know, consolidating agencies behind your back. You're telling me I'm going to have to be more devious than I thought. Okay, note to self. J. Aughenbaugh: You could probably still get away with what you proposed at the beginning of this podcast episode, Nia. N. Rodgers: If I have both sides of Congress and the President. J. Aughenbaugh: But if nothing else, it's going to force you N. Rodgers: To announce it. J. Aughenbaugh: to announce it. Then wait for that other branch of government to work 60 days and hopefully, nobody gets upset and proposes a joint resolution. N. Rodgers: That makes that seem like it's more difficult than I had expected. J. Aughenbaugh: Yes. Again, so much of government and I don't say this to dissuade any listener who's thinking about going to work in government. But as Nia just pointed out a lot of what the government does is not terribly exciting stuff. N. Rodgers: It's boring management and it's megalomaniac management. J. Aughenbaugh: Yeah. N. Rodgers: It really does manage people like me who wanted to take over everything like okay you can do that but it's going to take you six months and you have to get past a joint resolution first. J. Aughenbaugh: Yeah. It's like so many things when you become an adult. N. Rodgers: You have to take your car for inspection, you just have to do those things because that's the society in which we live. J. Aughenbaugh: Yeah. N. Rodgers: You got to pay your taxes. J. Aughenbaugh: Listeners Nia heard me share a tale of something I'm going through right now as we are recording this podcast episode. I have a house. N. Rodgers: You have a plumber in your house this morning. J. Aughenbaugh: I have a plumber in my house this morning. N. Rodgers: Because that's stuff you have to do when you're a homeowner. J. Aughenbaugh: Yeah. When I was a kid and there were a couple of periods, without going into too many details, where I was homeless. Where I was just like man, I would really like to have my own home and now I do and now I'm just like that seemed so much more appealing. N. Rodgers: When I didn't have to do all the stuff that I have to do. When I didn't have to power wash the roof every year. J. Aughenbaugh: I have to create a flowchart to figure out when various parts of my house will need to be replaced. N. Rodgers: Save accordingly. J. Aughenbaugh: Yes. But again, you do that because you like your house. N. Rodgers: You need the shelter, you need it to perform in the way a house performs. If you just don't replace a window, if it gets broken while you're playing baseball with Mark. J. Aughenbaugh: Yes, with Mark. N. Rodgers: You throw it through the window because you're like that. You smash the window and you don't replace it, eventually the integrity of your house will fail, animals will come in, winter will come in. J. Aughenbaugh: Likewise, when you go to work in the executive branch of the federal government. N. Rodgers: You got to maintain the thing. J. Aughenbaugh: You got to maintain the thing. There are forms you got to fill out. There are people who you need to tell because you don't operate in a vacuum. It's like the bureaucratic lament. I would be so much more effective in my job without politics, you work in government. N. Rodgers: What did you expect? J. Aughenbaugh: What did you expect? Part of working in the democratic government in the United States is the legislative branch every once in a while wants to know what the executive branch is doing and the CRA furthers that. N. Rodgers: I'm assuming that as those things come in sometimes if there hasn't been a good enough inter-agency communication that Congress catches something and says, these two things are in opposition to each other. J. Aughenbaugh: Yes. N. Rodgers: You all need to fix that because you going to tell people to go and stop at the same time, which if you've ever done that to a dog, come, stay, come stay and they eventually just lay down because they don't know what to do. J. Aughenbaugh: Yeah, it's sensory overload for your pet. N. Rodgers: You're being mean. I can see where that also is an advantage, which is that Congress can catch a thing and say, these two things are not going to work together and you're going to cause my constituency harm by trying to make them do both of these things at the same time because there isn't a requirement for agencies to check regulations with other agencies. J. Aughenbaugh: No. But that can arise when they were going through the rule making process because people can provide comments. N. Rodgers: This is an exact opposition to this other world, you all need to get yourselves together. J. Aughenbaugh: But one of the positives of the CRA is that because rules have to be reported to Congress and again, Congress has 60 legislative working days. A rule can be referred to a committee that has, if you will, oversight of that agency and that particular policy area and it's the thing that they can reference in a future hearing, particularly a future budget hearing. Even if a joint resolution doesn't get passed, the committee in the future can make reference to it and say, hey, wait a minute per the CRA you reported this regulation and we're not entirely sure this flows from your authorizing statute, would you care to explain it? Now, a good agency head, will view that as an opportunity. A poor agency head- N. Rodgers: Will panic. J. Aughenbaugh: Or matters underneath their breath or to the legal counsel for the agency. I hate these idiots. I don't understand why I have to explain it to them. N. Rodgers: That will be caught on a hot mic and that person would be fired. But you bring up an interesting point there, which I would like to explore just a little bit, which is the CRA is very separate from the budget. J. Aughenbaugh: Yes. N. Rodgers: Like the joint resolution is not about money. You don't say we resolve that this is a terrible idea because it's going to cost a lot of money. J. Aughenbaugh: No. N. Rodgers: That's a whole separate issue. J. Aughenbaugh: That's part of the budgeting process. The CRA focuses on, if you will, substantive rules that are potentially going to affect a whole bunch of people's lives. N. Rodgers: But the congressional joint resolution is not based in money, it's based in harm. J. Aughenbaugh: Yeah. Either approval or disapproval. We did not like this particular regulation. N. Rodgers: They don't have to do anything if they like it though. They just sit back and chill and it goes through. J. Aughenbaugh: Yes. N. Rodgers: It's an opt-out. Not an opt-in. J. Aughenbaugh: Yeah. N. Rodgers: You have to opt-out of the regulation. J. Aughenbaugh: Again, remember Nia, we're talking about 20 joint resolutions in 25 years. N. Rodgers: In 25 years. It's not like it's a common thing that happened. But sample slob has to read it every day. J. Aughenbaugh: Yes. N. Rodgers: Even if it's not being acted on. Now, you also were talking about 20 that were passed. That doesn't mean 20 that came to the floor and didn't get passed because probably way more than that came to the floor and people were like, then nothing happened. J. Aughenbaugh: I got to admit I really loved the audio. N. Rodgers: Sorry. J. Aughenbaugh: I was just like men because we've talked about this in regards to presidential. N. Rodgers: I count sound effects. I can't help it. J. Aughenbaugh: But it made me think about Nia, our discussion of the law-making process, and how the episodes this is not Schoolhouse Rock. We were talking about presidential vetoes and you went ahead and said wouldn't be great when the president vetoed a law there was like an audio that went with the stamp. N. Rodgers: Yeah, I've revised my audio it should be [inaudible] like they do on game shows. J. Aughenbaugh: Or the teacher on the old peanuts. If you could capture this on C-SPAN. N. Rodgers: It would be awesome. N. Rodgers: These fans already fun to watch sometimes, but that would make it even more fun. I think we're not far from cameras being in the White House, like you being able to cam the president occasionally. J. Aughenbaugh: In the Oval Office. N. Rodgers: Right. Which I think would be terrifying with some presidents. But I think we're not that far from that. Joe Biden won't do that. But when we get a younger hipster president, J. Aughenbaugh: Yes. N. Rodgers: Who's used to having their entire life be an open book, J. Aughenbaugh: Yes. N. Rodgers: I think we'll see Facebook posts at 4 am. I think in some ways Donald Trump has opened that door, but that's a separate issue. J. Aughenbaugh: Yeah. N. Rodgers: Here's my other question about, J. Aughenbaugh: The CRA? N. Rodgers: The CRA. Which is, I send you my regulations and you find one that you don't like, J. Aughenbaugh: Yes. N. Rodgers: You go and you get a joint resolution and you actually get one which is nothing short of a miracle at this point, that you can get any number of people to agree on something like that. J. Aughenbaugh: Okay. N. Rodgers: Joint resolution, if I'm recalling correctly, is both the House and the Senate. J. Aughenbaugh: Yes. N. Rodgers: Is it just a simple majority of each? J. Aughenbaugh: Yes. It's just a regular bill. N. Rodgers: Okay. You get 271 people roughly. I don't know if I did the math, they're right or not, but anyway. Simple majority in the House, which is 435 and 100 centers is 535, which would be 250, plus 17, you get 267 people who say, " All right, we don't like it." Goes to the president. The president actually allows it to go through. So the agency, J. Aughenbaugh: Then has to rescind the rule. Which means according to the APA, they have to formally announce in the Federal Register that they're rescinding a rule. Then the agency is prohibited from issuing a substantially similar regulation in the future. N. Rodgers: In the future, meaning forever not, like in the future for 10 years or in the future for 20 years till you get a different Congress or you don't get to keep coming back. J. Aughenbaugh: The CRA is silent about how long, but the interpretation by, of course, members of Congress is forever. N. Rodgers: I'm surprised there's not been a lawsuit about that to try to get clarity on, you want to be because perpetuity is a very long time. J. Aughenbaugh: A long time. N. Rodgers: Like you don't know whether situations on the ground might change that might cause that regulation to actually be a very good idea. J. Aughenbaugh: Yeah. N. Rodgers: I'm surprised, because really what Congress did was they made a rule, we're forever going to get to keep you from doing this. Except that what seemed like a good idea 100 years ago would not seem like a good idea now. J. Aughenbaugh: Well, and then the other conflict that could arise is, what if Congress disapproves of a rule and the president approves of the resolution? But what they disapproved is in conflict with the agency's authorizing legislation. N. Rodgers: They say you can't do that and the agency says, "Yeah, it's written right here in the rule you gave us before this rule that said we could do it." J. Aughenbaugh: For administrative law scholars, that's like one of their dream future cases. N. Rodgers: Yeah, because that would have to go to SCOTUS. Because SCOTUS would have to figure out which one takes precedence. The Congress that authorized the agency or the Congress that is, J. Aughenbaugh: It says nope, we disapprove of the rule. N. Rodgers: I didn't even think about that, that's something to look forward to. I hope I'm the first agency head when that happens too. See, there's good things about putting me in charge of the Space Force. I'm just saying we can test out all kinds of stuff with administrative law. J. Aughenbaugh: Because we're talking about a phenomenon in the federal government. A particular phenomenon might be called, I was Rogered. N. Rodgers: Except, boy, would that have a connotation that I disapprove of? J. Aughenbaugh: It's like when a nominee for a federal judgeship gets rejected by the Senate. The verb is, they got Volked. N. Rodgers: Yeah. I know poor Judge Volk. J. Aughenbaugh: I got Rogered. N. Rodgers: Well, that's already your thing. J. Aughenbaugh: No, it's just like, man, this podcast episode took a decidedly negative. N. Rodgers: Yes, dark turn. J. Aughenbaugh: Turn at the end. N. Rodgers: CRA, can they disapprove of parts of a regulation? J. Aughenbaugh: No, it is, N. Rodgers: Or is it the whole thing or not at all? J. Aughenbaugh: You disapprove of the regulation. N. Rodgers: Like can I disapprove of jelly but leave peanut butter on my sandwich? J. Aughenbaugh: No. N. Rodgers: Okay. I have to disapprove of both. J. Aughenbaugh: Yes. Again, when the CRA was first passed, a number of administrative law scholars thought that what agencies would do is, to issue regulations with a lot of parts and a lot of complexity to make it more difficult for the current. N. Rodgers: That's clever because there'll be stuff in there that everybody will want. J. Aughenbaugh: Will want. Yes. N. Rodgers: Then they'll be stuff in there that anybody who disagrees within what are they going to do, they can't throw out the entire thing because if they do, then they lose the stuff they want. J. Aughenbaugh: Yes. N. Rodgers: That's dashed clever. J. Aughenbaugh: That's politics my friend. That's politics. N. Rodgers: That is really is politics, that would be a great way. Okay, well now that's given me a path forward. J. Aughenbaugh: Yes. See that's why when you become the secretary of the Space Force, N. Rodgers: I need a really good administrative law guy like you to come in, so I can say this is what I want to do and you can make it happen. J. Aughenbaugh: Yeah, and I can come in. Again. Listeners, I apologize for yet another West Wing reference. You would need a Leo McGarrity. N. Rodgers: You need somebody who knows the ins and outs of how to get stuff done. J. Aughenbaugh: Yes. N. Rodgers: And how to word it. Just so? J. Aughenbaugh: Just so, so that when we do submit the regulation to Congress, they're just like one, they're not entirely sure what the regulation is about. N. Rodgers: That will definitely need obscure language. This sounds like she wants to take over these other agencies, but they do not know that can't be what she really wants. J. Aughenbaugh: But it doesn't say that she is acquiring the other agencies. N. Rodgers: Yeah. How is that even up? Yeah. Which is why we have discussed in past episodes and we will wrap up on the concept that the most dangerous presidents in history had been people who understood that. Who understood the concept of how to politic rules and regulations to get what you want. In part, the way you do that is you make it hard for your opponent to say no. I've put things in this regulation, it's like farm bills. Where currently, democrats don't really want to support a lot of farm bills because they go to mega-farms and they go to Monsanto and stuff like that which is why republican presidents or republican senators put in things like aids to mothers with children, WIC. Things like that, J. Aughenbaugh: Yes. N. Rodgers: Into the farm bill, which they know democrats want. Then they are forced to say, if you want this, you also have to give us this, and that's brilliant. If you can do that. If you can make yourself as a president, give up things in order to get things, you get a lot more stuff than if you're one of those presidents who is like, "No, I don't want at all." Well, then you may end up with nothing. J. Aughenbaugh: We called Neo or discussion about how President Lyndon Baines Johnson was able to go ahead and convince. He needed more votes for the Civil Rights Act. N. Rodgers: He got white Southern senators to vote. J. Aughenbaugh: To vote in favor of it by including sex. Because they didn't want to be seen as voting against women. N. Rodgers: Right. N. Rodgers: It's brilliant, and when a President can't do that, they don't get much done. J. Aughenbaugh: Yes. N. Rodgers: Because when they come in with their, "I am forceful and I am the one who will make all the decisions," you're like, it turns out not so much. J. Aughenbaugh: Yeah. N. Rodgers: That's not been just President Trump. President Carter had issues with that as well. J. Aughenbaugh: Yeah. N. Rodgers: That's been on both sides of the political spectrum, it's been with heroes and villains all the way across the presidencies. J. Aughenbaugh: We talked about this with Ronald Reagan. Ronald Reagan came into office and he said he was going to balance the federal government budget and he was going to do it by slashing domestic policy spending. Well, he also wanted to increase defense spending, and the Democrats in Congress said, okay, fine, if you want more defense spending. N. Rodgers: We're going to more social net spending. J. Aughenbaugh: Social net spending. Of course, Reagan's budget people were like, "But Mr. President, you're not going to balance the budget," and Reagan, was just like, "Well, okay, something's got to give." N. Rodgers: Well, and Bush 41, I will not read my lips no new taxes and then approximately year end, somebody said, that's okay, but we don't have any money. What do you want to do about that? He had to eat crow. J. Aughenbaugh: The Democrats went ahead and said, "Okay, Mr. President, you want to balance the budget? Well, we will hold the line on entitlement spending, but you're going to have to increase taxes. He made the deal and he ended up losing the next election. N. Rodgers: But he was right to do it because it was politically right thing to do. J. Aughenbaugh: It was the politically right thing to do for the country at that time, and I know many of our listeners, particularly younger listeners are like there was a period of time where Americans were concerned about the federal government having a balance budget? Yes, there was. N. Rodgers: We've given up on it now but there was a time. J. Aughenbaugh: There was a time and even Bush 41's successor, Bill Clinton, has acknowledged that the surpluses the federal government had the last couple of years he was president was because of that budget deal. N. Rodgers: Yeah. J. Aughenbaugh: Okay. N. Rodgers: Started with President Bush and he's taken hits over the years. People will pull up that clip of him saying, read my lips, which was a mistake. You should never be that emphatic as a presidential candidate. But that was his mistake, not in basically being so emphatic that when he had to walk it back, it made him look weak. J. Aughenbaugh: Yeah. Because he had no room to go. N. Rodgers: Right. I will do my damnedest not to raise taxes. See that is more realistic, but doesn't sound good in a speech. J. Aughenbaugh: Yes. N. Rodgers: That's the problem politicians have is they have to make speeches that get people at rallies all riled up. J. Aughenbaugh: Yeah. N. Rodgers: Read my lips, no new taxes, and people screamed, threw things. They were so happy about that, and it was untenable. J. Aughenbaugh: In that period of our country's history, you had to walk a really fine line about the taxing issue. Because if you were a candidate like Walter Mondale, who when he was running for president in '84, went ahead and said in a debate that he would raise taxes. Well, now you've got a target on you from every fiscally conservative voter out there. N. Rodgers: Exactly, in your own party and in the other party. J. Aughenbaugh: But you can't do what Bush did and said, "Read my lips, no new taxes." Well, what you need to go ahead and say is a little bit more nuanced, so you have some room to maneuver. Again, for listeners who like more principled politicians, what Nia and I are describing could easily be labeled as, well, Nia and Aughie seemed to be all in favor of politicians without principles who always cut deals. But again, if you are the president, and you want to get things done, you have to make deals. N. Rodgers: If you want to do what they say when they say I represent the entire country and not just the party that elected me, then you have to make deals. You have to reach across the aisle. J. Aughenbaugh: Yes. N. Rodgers: That's not bad politics. That's not being a bad politician. J. Aughenbaugh: Going Nia back to your example about the farm bill. In addition to including programs that perhaps the other party wants, you may also create or you also put into farm bills, subsidies for farm products that are important to members of the opposition party. I will give subsidies for the growing of pistachio nuts. Well, that's particularly important to certain members of the California delegation. N. Rodgers: Which is almost all Democrats. So if you're a Republican putting that in shows that you're reaching across the aisle and trying to be. Even if you yourself hate pistachios and think pistachios should be destroyed from the Earth, you are recognizing that. J. Aughenbaugh: You got to do that. N. Rodgers: Because those people have to answer to their constituents and you come up with something where it kills pistachio farms in California. They have to go home and tell somebody that you've made an enemy unnecessarily. Why do that? Which is our final point, which is why all bills that come out of the Congress are more than a reasonable amount that you could read in an evening. They're long and the reason they're long is because they have all stuff like that in them. J. Aughenbaugh: Yes. N. Rodgers: No bill says this bill is super simple. It has one thing, it's written on one page, and we're done. There's not a bill that comes out like that. J. Aughenbaugh: Nia you just brought this up. One of the shortest pieces of legislation that I've ever read from the United States Congress is Title IX to the 1972 amendments to the Civil Rights Act. Now, we work in higher education. If you ever work in education in the United States, you're familiar with Title IX. It only has 27 words. But even those 27 words have spawned multiple decades of federal government regulations. N. Rodgers: Anger, discussion, court cases, legislation, media attention. Holy cow. J. Aughenbaugh: That was a piece of legislation with only 27 words. Most legislation is far larger, more complex, and government regulations are that way. It's not just because of the lawyers got their hands on it, and they want to make the government liability immuned or proofed. N. Rodgers: It's because of nuance. J. Aughenbaugh: It's nuance. N. Rodgers: We want to cover as many people as we can. J. Aughenbaugh: Yes, right. N. Rodgers: We want to reach across differences in geography, socioeconomic, education, all of that. J. Aughenbaugh: But you also got to put caps on those regulations and programs because you know you only got so much money. Try to thread that needle. That's why regulations are really, really complex. Of course, if you want to avoid scrutiny per the CRA, you make them really really complex. N. Rodgers: Exactly. Nobody's going to read that. That's 1,000 pages long. J. Aughenbaugh: All right Nia. I enjoyed the heck out of this conversation. N. Rodgers: Consider yourself hired for when I'm the agency head of the Space Force, slash everything else we eventually get to take over. J. Aughenbaugh: Well, I would appreciate that. I truly would. N. Rodgers: You'd be my attack dog. J. Aughenbaugh: Yes. As you well know, I don't like to be the public face of anything. Yes. N. Rodgers: You're going to be my Machiavelli behind the scenes. I'll go out and make grand pronouncements and they'll be like she's so brilliant, then I'll be like no, it's Aughie. J. Aughenbaugh: You'll come back to the office and say, Aughie, today I promised X and I'll be like, you did what? N. Rodgers: That is not what I told you to promise. J. Aughenbaugh: Anyways Nia, I really enjoyed this conversation. Listeners, truth be told, today's topic, the Congressional Review Act was something that I proposed. I think Nia's initial reaction was, you want to talk about what? I really appreciate Nia, you humoring me for the past hour to talk about one of my favorite laws of recent vintage, at least one of my favorite laws. Thank you very much. I appreciate that. Announcer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.