The new 115th Congress that will be sworn in on January 3 is dusting off a little-used law, called the Congressional Review Act, that offers Congress the opportunity to expeditiously repeal many of the Federal regulations issued by the Obama Administration in 2016. If successful, the Congress will be reclaiming some of the authority it has delegated to the Executive Branch.
Executive departments and agencies, like the Department of Labor or the Environmental Protection Agency, along with independent regulatory agencies like the Federal Communications Commission, have the power to issue regulations that affect every American. The Federal government regulates everything from the light bulbs in your home to the fuel efficiency of 18-wheeler trucks. Regulations can impose many obligations—some quite costly—upon individuals, organizations, businesses and the like. Regulations are one of the most potent ways the Executive Branch can shape policy.
The Constitution only grants the right to legislate to Congress, but it has often delegated enormous power to the administration to actually interpret and implement the laws it passes.
In 1946, Congress passed the Administrative Procedures Act (APA) that set up rules for the way the Federal Government could propose and establish regulations. The law was a matter of self-defense: Congress was trying contain President Franklin D. Roosevelt’s rapid expansion of Federal powers. To implement the New Deal, President Roosevelt had simply been creating agencies, a practice which many of his fellow Democrats in Congress resented as an incursion upon their prerogatives. The APA allowed Congress to pass general statements of law and direct the agency required to enforce the law to propose regulations necessary to do so. Those regulations must be developed through hearings, published in the Federal Register, opened for public comment, and then finalized. Some laws, like the Patient Protection and Affordable Health Care Act (also known as Obamacare), are so massive that it takes dozens of agencies and thousands of pages of published regulations before the law can actually be carried out.
How much wiggle room the Administration has to write the regulations, depends on how tightly the Congress writes the law. But the important point is that the liberties an administration takes with legislation is the responsibility of Congress delegating its constitutional powers to the Executive (something that would have caused extreme heartburn for James Madison). As Supreme Court Justice William Rehnquist wrote: “When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress.”
The problem is that undoing a regulation Congress does not like is a more politically difficult action than giving the Administration permission to create the regulation in the first place. Congress could attempt to pass a normal law overturning a regulation, but that bill faces two critical challenges. First, it would face all the normal difficulties of the legislative process, including the Senate filibuster. It is very likely that the Senators who are of the same party as the President who issued the regulation would filibuster the bill. Second, the President would have to sign the law, but it’s very likely that he would veto a law overturning a regulation that his own Administration produced. So unless Congress could override the veto – something that has happened on only four percent of the more than two thousand presidential vetoes – it is unlikely that Congress would succeed.
Since it is so difficult to overturn a regulation, Congress tried to restore some balance when it passed the Congressional Review Act of 1996 (CRA). The CRA made the process to repeal a new regulation easier by establishing expedited procedures to consider a joint resolution of disapproval. The law provides that an agency must notify Congress whenever it issues a regulation, and a Member has 60 days to introduce a joint resolution of disapproval. (Excluded from this period are days when either the House or Senate is adjourned for more than three days.) In the Senate, such a resolution is not amendable, debate is limited to 10 hours, and it cannot be filibustered.
Aside from the expedited procedures, the CRA tips the balance in Congress’ favor because of its calendar. As noted above, a Member has 60 days to introduce a joint resolution of disapproval. At the end of a Congress, all legislation that has been introduced but not passed dies and must be reintroduced. However, the CRA gives Congress another opportunity to disapprove a regulation. If the Executive Branch issues a rule within a certain period before a sine die adjournment (the official end of a Congress), in the next session, Members have an additional 60 day period to submit a disapproval resolution. This sine-die-based period in is different for the House and Senate. For the House, it is 60 “legislative days”, and for the Senate, it is 60 “session days”. A “legislative day” begins when Congress opens for business but does not end until it adjourns – even if it spills over into one or more additional calendar days. A “session day” follows the calendar much more closely. Each calendar day that the Chamber meets is a “session day”. So, one legislative day could theoretically encompass multiple session days.
The CRA theoretically provides the House and Senate two different periods for regulations to qualify, but today, practically speaking, the House’s 60 “legislative day” period is more important, because, practically speaking, it starts earlier than the Senate’s 60 “session day” period. In recent years, it has become standard to the Senate meet in pro forma sessions, when in the past it would adjourn. Pro forma sessions are where either the House or Senate officially technically open for business, but transact little or no business. A pro forma session might seem like a sham, but they are quite important legally, since a lot of statutory and procedural timetables are based on the congressional calendar. One of the most important reasons Congress holds pro forma sessions is so the President does not make recess appointments to Executive and Judicial Branch posts while the Senate is not meeting. The House, however, does not have to worry about recess appointments, so it may adjourn. Since the Senate regularly meets in pro forma sessions, but the House does not, the Senate burns it 60 days more quickly than the House does.
If you are confused by the foregoing, you are not alone. The upshot of all this is that Members elected to the 115th Congress, which begins on January 3, 2017, will have the opportunity to roll back regulations issued in 2016. In fact the only time Congress has successfully overturned a regulation was in 2001 when President George W. Bush signed a disapproval resolution repealing a regulation on workplace ergonomics issued by the Clinton Administration.
Whenever a joint resolution of disapproval is introduced, like any other joint resolution or bill, both houses of Congress must pass it, and then the President must sign it. Since the regulation would have come from his own administration, the President is likely to veto any joint resolution that comes to him. So, even though the CRA makes the process of overturning a regulation easier, it is still, in fact, quite difficult.
When the President vetoes a joint resolution of disapproval, there is little Congress can do. It can, of course, attempt to override the veto, but rounding up 2/3 majorities in both Chambers is difficult. For instance, in the 8 years of the Obama Presidency, there has only been one successful override of a veto for any kind of bill, not just disapproval resolutions. During the 114th Congress, when Republicans controlled both House and Senate, Congress passed five different resolutions disapproving regulations generated by the Obama Administration, and President Obama vetoed them all.
Although it was impossible to think that President Obama would not veto the CRA disapproval resolutions, the special calendar the CRA establishes for introducing joint resolutions of disapproval provides Congress another option. Recall that, if the 60-day period to introduce a disapproval resolution has not expired before the end of a Congress, Members have a new 60-day period in the subsequent Congress. This is true even in years when there is a new President. There is precedent for this. As mentioned earlier, the only time that a regulation was overturned was when the newly inaugurated George W. Bush signed a disapproval regulation passed by Congress during the last days of the Clinton Administration.
Come January 2017, there will be unified government in Washington again. As a result, incoming President Trump will be able to sign disapproval motions passed by Congress, covering new regulations that go back 60 of the House’s legislative days into the expired 114th Congress. Essentially, President Donald Trump and the Republican Congress could easily work to roll back regulations issued under President Obama.
The exact number of regulations that are subject to the CRA all depend on Congress’ actual adjournment date. Congress was originally supposed to adjourn in mid-December. Based on that, in November, the Congressional Research Service (CRS) initially estimated that rules issued after May 30, 2016, would be eligible. However, rather than adjourning outright, both Chambers are meeting in pro forma sessions, thus burning more session and legislative days, so CRS reportedly revised its calculation and now estimates June 13 to be the cutoff. (It also helpfully notes that the “House and Senate Parliamentarians are the sole definitive arbiters of the operation of the CRA mechanism and should be consulted” for a “formal opinion”. The Parliamentarians are the Chambers’ official, non-partisan guardians and experts on the rules. Members and staff should come to know them very well—they provide confidential consultations to offices and are some of the most important resources on Capitol Hill.)
Throughout the Obama Administration, congressional Republicans have frequently criticized regulations, and, in 2016 alone, at least 8 joint resolutions were introduced to disapprove regulations. Perhaps the best known of these dealt with a Department of Labor definition of “fiduciary”; it got as far as the President, but was vetoed, without an override. Another was a regulation dealing with local limits on carbon emissions, aimed at forcing communities to close coal-burning power plants.
Starting in January, the new Congress is going to take this opportunity to reverse a number of Obama Administration regulations. Indeed, since CRS prepared a memo in November listing regulations eligible for the CRA processes, it is fair to infer that Members of Congress are actively thinking of the most efficient way to use the law to repeal the maximum number of regulations they oppose. Representative Darrell Issa of California said he was “sure there will be a dirty dozen” regulations targeted in the new Congress, USA Today reported. A couple potential regulations that might be overturned include one that governs emissions from commercial trucks and another concerning changes in overtime pay. A lot will depend on the agenda Congress faces, the incoming President’s priorities, and what a majority of congressional Republicans would like to see prioritized.
Since Republicans will enjoy unified government for the first time in a decade, chances are good that they will overturn numerous regulations (including “midnight regulations” issued in the dying days of the Obama Administration) pursuant to the Congressional Review Act. And even if there are some regulations that congressional Republicans are divided on, or if there are some that are not eligible for CRA procedures, the Trump Administration could work to reverse them without Congress. But that is still a difficult process, since it means the Administration would need to issue new regulations superseding the previous ones. According to The Wall Street Journal, “that could take nearly two years and might not withstand legal scrutiny, given the body of legal and scientific work that typically goes into writing a rule in the first place”. In other words, it is much more arduous than rescinding an Executive order—those are easily made and reversed.
Aside from the administration issuing new regulations or Congress disapproving a regulation through the processes of the CRA, Congress can effectively undo regulations by passing legislation to the contrary at any time. However, legislation not covered by the CRA would not benefit from its fast-track procedures that prevent Senators from filibustering the disapproval resolutions. So, unless the legislation benefits from some other kind of expedited procedures, it would be subject to the procedural and political dynamics generally in play today. Attempting to repeal regulations passed before the 60-day review period will likely be filibustered by Senate Democrats or otherwise delayed. However, the political dynamics that result from the Democrats needing to defend 25 of the 33 Senators up for reelection in 2018, including 14 seats in states won by Donald Trump, might create some opportunities for Congress to get the 60-votes necessary to end a filibuster – but that is far less certain than using the Congressional Review Act to its full potential.
The CRA will once again be used as intended, and will likely give the Republicans some quick wins in the new Congress. But a longer term solution is needed where Congress takes back some of the authority it has delegated to the Executive Branch by imposing new restrictions and limitations on future regulations. One option is the REINS Act, a bill introduced in the House by now Senator Todd Young (R-IN) that would require any Executive Branch rule or regulation with an annual economic impact of $100 million or more to come before Congress for an up-or-down vote before being enacted.
That would be a more permanent fix that would restore some of Congress’ prerogatives under Article One of the Constitution.
Maeve P. Carey, Alissa M. Dolan, Christopher M. Davis. The Congressional Review Act: Frequently Asked Questions. (Washington: Congressional Research Service, 2016)