This piece originally appeared on the Federalist Society blog.
In July, the House Committee on Administration held a hearing examining whether Congress was prepared for the post-Chevron world, following the Supreme Court’s landmark decision ending the 40-year doctrine of broad deference to federal agencies to issue regulations. One of the main takeaways from the hearing was that all of the witnesses agreed that Congress was “not currently structured to review rules coming out of the administrative state.”
In September, Congress took a small but important step toward strengthening the legislative branch’s ability to oversee the federal regulatory process: the House of Representatives passed the GAO Database Modernization Act. This bipartisan bill, which previously passed the Senate, requires federal agencies to submit reports to Congress’s watchdog detailing federal “rules that are revoked, suspended, replaced, amended or otherwise made ineffective.” On Tuesday, President Biden signed the bill into law.
Here is why this is significant. The Congressional Review Act (CRA) requires federal agencies to submit new rules to Congress and the Government Accountability Office. This process allows Congress to review and potentially disapprove of new rules. GAO supports this congressional oversight of federal regulations by maintaining a database of submitted rules, and by submitting reports to Congress on whether major rules followed the appropriate process required by law.
The GAO Database Modernization Act expands the congressional watchdog agency’s responsibilities under the CRA to require federal agencies to update GAO when rules that already exist are changed or eliminated. Increasing transparency about changes to federal regulations is a small but important step toward strengthening congressional oversight of the administrative state.
Once federal agencies begin complying with the new law, a next step for the legislative branch should be to engage in oversight of existing federal regulations that have not been rescinded or changed. This new transparency should also encourage Congress to consider whether additional changes are needed.
For example, one area of potential bipartisan agreement on regulatory reform could be to use artificial intelligence to identify opportunities to streamline the federal code by making non-substantive changes. Since 2020, the Department of Health and Human Services has had a Regulatory Clean Up Initiative, which involves the use of AI to review and identify errors or outdated information in the code—a task that if done manually would take too many staffing resources to accomplish. The Biden administration continued the project, which has since identified outdated language and resulted in dozens of changes to clean up the code.
Looking forward, Congress and the next administration could require similar government-wide or agency-specific regulatory clean up initiatives. Such a project, which could focus on simply reducing errors or outdated information in the federal code or on federal agency websites, warrants bipartisan support as a simple but useful starting point for federal regulatory streamlining.
It will take time for Congress to adapt to its post-Chevron role and renewed responsibilities. It will need to write detailed laws that do not defer broadly to either the executive or judicial branches, and it will be responsible to effectively oversee the administrative state. Passing the bipartisan GAO Database Modernization Act is a good first step. Requiring broader application of AI to review, clean up, streamline, and modernize outdated information in the federal code should be next.
