NCLA's Mark Chenoweth on the State of Injunctive Relief

Th- during that entire, uh, that entire tale, that sordid tale as it were-

[chuckles]

... um, I kept thinking maybe we're trying to MacGyver a solution through the wrong venue because there's already, you already have the Congressional Review Act as a means by which if Congress wanted to, could provide relatively quick resolution to s- to a lot of these, um, a lot of the issues that have to do with administrative initiative.

So do you think that maybe in response to this problem it shouldn't, we shouldn't be looking to the courts to try and resolve these issues and do the nationwide injunctions, but actually just using the methods that are already on the books to thwart agency action that doesn't have, um, the support of Congress?

So not exactly.

I, um, I, I do think that there's a role for the Congressional Review Act to play, but you have to remember that the scarcest commodity in the nation's capital is floor time at the US Senate.

And if you are going to req- if you're gonna say that what agencies do is fine unless and until a CRA resolution is passed, first of all, you'd have to have both houses of Congress in control of, uh, controlled by the same party and it would have to be the party opposite to the administration, right? Otherwise, the CRA is basically useless.

Um, and so in that rare circumstance, you'd, then you'd still have to find rare floor time to overturn the unconstitutional or unlawful thing, uh, that the agency did.

So the CRA is really a very limited tool, has its place, but no it doesn't, the, the administrative state can outrun the CRA just the way that it can outrun, uh, district courts, um, b- by, by sort of, uh, you know, doing so much that there just isn't enough time, uh, to, for the legislative branch to, to kind of r- to, to, uh, rein it in.

There is a different solution though, uh, speaking of, of reining in.

[chuckles]

There is, there's the REINS Act, uh, and there are different versions of the REINS Act.

I think that most of them are overly complicated.

I think what you really need is you need a rule that says that federal agency regulations don't go into effect until there's been an up or down vote by Congress.

If you can do that, and you might say, "Hey, that's unconstitutional," or, you know, "That, that's, that's too much like, uh," you know, after Chadha, "That's too much like a one-house legislative veto." I actually don't think so.

I think it, I think it can be justified under current legal doctrine.

Uh, certainly if Congress passed a law saying that, um, that, that federal regulations can't go into effect until, until, uh, there's been an up or down vote in Congress.

We already have these sort of up or down votes on things like, uh, the US sentencing guidelines.

Uh, those don't go into effect until an up or down, you know, vote of Congress.

Or sort of base closure commissions is another kind of model that I can think of that, that operates a little bit like this.

And you just, you know, maybe you can't say this for every regulation for the same, you know, kind of, uh, scarcity of floor time reason.

But certainly any rule or regulation that's gonna have, say, a hundred million dollar impact on the economy can't go into effect until there's an up or down vote.

And by the way, if that were the rule, think about the, the, the positive effect that that would have on the agency rulemaking process.

Agencies wouldn't any longer be trying to stretch the, the Nth degree of the statutory authority that they're claiming that Congress gave them, uh, in order to, uh, do things that they really haven't been authorized to do because they know that they're gonna lose in Congress if, if that gets up there for an up or down vote.

If, if members of Congress have to be held accountable for voting for or against something like getting rid of everybody's gas stoves, the agency isn't even gonna think about proposing getting rid of gas stoves because they know Congress is never gonna go for that.