'Fake': Republicans slammed for using 'superficial' tool to placate voters over Trump acts

Republicans in Congress are facing intense pressure from constituents to use their legislative and investigative powers to check the excesses of the new Donald Trump administration — but instead, they are relying on an obscure and "fake" power to go after pro-consumer rulemaking undertaken by former President Joe Biden, wrote Center for Progressive Reform director James Goodwin in a scathing analysis for MSNBC.

"Some Republican members of Congress, facing growing public outcry over their inactivity, are eager to demonstrate that they take seriously their responsibilities to check the executive branch and, to paraphrase Federalist 51, counteract ambition with ambition," wrote Goodwin. "One way they will attempt to do that is by turning to a fairly obscure law called the Congressional Review Act."

The Congressional Review Act, passed in the 1990s amid the "Republican Revolution" as part of a deregulatory push, allows the House and Senate to issue a resolution "disapproving" of a recently passed executive branch regulation, bypassing a Senate filibuster and, if the president signs that resolution, permanently prohibiting a future administration from reissuing the rule.

Republicans used this obscure procedure over a dozen times to repeal various environmental and labor protections from the Obama administration. The Biden administration, sensing this risk if Trump was re-elected, took care to time his regulations so that most of them were passed by early last year, running out the clock for CRA review by the next Congress.

But a few regulations got passed recently enough to risk the axe. Most notably, congressional Republicans are seeking to use the CRA to repeal a rule that prohibits banks from charging more than $5 in overdraft fees.

"It’s tempting to interpret the aggressive use of the CRA as Congress asserting its position as the main policymaking body within our constitutional framework. This perspective would also mean that congressional Democrats’ criticisms of the CRA put party politics ahead of checks and balances," wrote Goodwin.

"That interpretation would be mistaken. The CRA is a fake expression of congressional power; even worse, it hobbles legitimate efforts at leveraging the powers the Constitution already gives the legislature to check the executive branch."

The big problem, he wrote, is that all the CRA does is let Congress skip its own regular order and debate to nullify agency expertise rulemaking, without any action to tackle those issues themselves.

"By design, CRA resolutions offer the executive branch no substantive guidance on what the vetoed regulation should have looked like instead. Only by offering such guidance can Congress reassert its primacy in policymaking, as our Constitution envisions. Yet, because the CRA offers lawmakers a way to score easy — albeit superficial — wins, it disincentivizes them from taking just these kinds of steps."

"An effective Congress is possible. But its members need the right legislative tools," Goodwin concluded. "The CRA is not one of these."