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Congress must reassert its authority as a check on agencies' actions

Sign above an entrance to the Federal Trade Commission

The Founders had no idea lawmakers would create agencies like the Federal Trade Commission that could set nationwide rules with significant economic, political and social effects.

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Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.

The Congressional Review Act deserves your attention. Despite being on the books for decades, it’s only been used on a few occasions. That’s a shame. Though not among the original checks and balances, the CRA reinforces Congress’s role as the primary lawmaker by giving the House and Senate a chance to reject major agency rules.

If used more frequently, concerns about too many regulations, and flawed regulations, might diminish. Yet, Congress has largely treated this power like a power drill in the back of the garage — capable of solving a lot of problems but left unused.


The Founders assumed that each branch of government would vigorously assert its powers. That assumption is baked into the design of the Constitution. Omitted from that design is what’s become known as the fourth branch of government: agencies. Though the Founders expected the president to rely on executive branch staff to help execute the law, they had no idea subsequent lawmakers would create agencies like the Federal Trade Commission that could set nationwide rules with significant economic, political and social effects.

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That’s precisely what the FTC did with its recent rule banning noncompete agreements across the country. The commission estimates that the rule will affect 30 million contracts. Though the rule includes some exceptions, it will have wide-ranging impacts on key sectors of the economy. In defense of the FTC, the rule did not emerge out of thin air. Thousands of Americans submitted comments on a draft version. Commissioners sorted through that feedback. They also consulted a range of studies. Still, there’s a meaningful and stark difference between the processes behind a rule and those behind a law.

The most important difference is that the American people cannot vote out FTC commissioners. There’s no direct means of accountability. Even if the FTC set forth a series of questionable rules, commissioners can only be removed by the pPresident for specific, limited reasons.

In contrast, if and when a member of Congress supports a bill that does not align with the interests of their constituents that member will have no means of evading voter scrutiny. This substantial difference in accountability mechanisms can have a substantial impact on the decisions made by officials. Put differently, there are certain rules that Congress might never be able to write into law because any attempt to do so would trigger popular awareness and popular backlash. That’s why Congress enacted the CRA.

Under the CRA, every agency rule must go before Congress. If majorities (even bare ones) of the House and Senate disapprove of a rule, the president then has the chance to concur with Congress or to veto its decision. On paper, this procedural safeguard should make agencies think twice before trying to sneak a major regulation by the public. Reality has played out much differently. The rare use of the CRA by Congress has made the law a show horse — nice to look at but not functional.

The noncompete ban set forth by the FTC marks an opportunity for Congress to find its ambition. Congress, not agencies, is tasked with passing monumental legislation. Though the legislative process is arduous and unpredictable, that's exactly the way the Founders planned it. The constitutionally proper step would be for Congress to use the CRA to disapprove of the noncompete ban and initiate its own processes for legislating such a rule.

Our Constitution is intentionally set up like a Rube Goldberg machine. When things occur too simply, it’s a big red flag that the machine is actually malfunctioning. Substantial legislation should be the product of robust discourse among our representatives, not five unelected commissioners.

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The clean energy sector has grown rapidly in the United States since President Joe Biden signed the Inflation Reduction Act in 2022. Congress appropriated $370 billion under the IRA, and White House officials at the time touted it as the country’s largest investment in clean energy.

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Climate Power has tracked clean energy projects across the country totaling $56.3 billion in projected funding and over 50,000 potential jobs that have been stalled or canceled since Trump was elected in November. Michigan accounts for seven of those projects, including Nel Hydrogen’s plans to build an electrolyzer manufacturing facility in Plymouth.

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“America is losing nearly a thousand jobs a day because of Trump’s war against cheaper, faster, and cleaner energy. Congressional Republicans have a choice: get in line with Trump’s job-killing energy agenda or take a stand to protect jobs and lower costs for American families,” Climate Power executive director Lori Lodes said in a March statement.

Opposition groups make misleading claims about the benefits of renewable energy, such as the reliability of wind or solar energy and the land used for clean energy projects, in order to stir up public distrust, Johnson said.

In support of its clean energy goals, the state fronted some of its own taxpayer dollars for several projects to complement the federal IRA money. Johnson said the strategy was initially successful, but with sudden shifts in federal policies, it’s potentially become a risk, because the state would be unable to foot the bill entirely on its own.

The state still has its self-imposed clean energy goals to reach in 25 years, but whether it will meet that deadline is hard to predict, Johnson said. Michigan’s clean energy laws are still in place and, despite Trump’s efforts, the IRA remains intact for now.

“Thanks to the combination — I like to call it a one-two punch of the state-passed Clean Energy and Jobs Act … and the Inflation Reduction Act, with the two of those intact — as long as we don’t weaken it — and then the combination of the private sector and technological advancement, we can absolutely still make it,” Johnson said. “It is still going to be tough, even if there wasn’t a single rollback.”

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