CONGRESSIONAL REVIEW ACT 101
Under certain circumstances, Congress may overturn a final rule issued by a federal agency by using the Congressional Review Act (CRA). While only one rule has ever been overturned under the CRA (in 2001, the outgoing Clinton Administration’s ergonomics rule was overturned), congressional Republicans will likely use the CRA to reverse a number of rules finalized last year by the Obama Administration.
Set out below is background on how the CRA works, a list of Obama Administration rules that will likely be targeted, and a summary of pending proposals that would give Congress even greater regulatory oversight.
HOW CRA WORKS:
- Before any rule can take effect, an agency must provide notice to Congress. Upon receipt of the final rule, the House and Senate have 60 calendar days to introduce a resolution of disapproval (includes weekends and holidays but excludes periods where at least one chamber is gone for more than three days pursuant to an adjournment resolution).
- The CRA provides “fast track” procedures for the Senate to consider a resolution of disapproval. After a Senator introduces a resolution of disapproval, it is referred to the appropriate committee of jurisdiction. The resolution can be discharged from committee after 20 calendar days if at least 30 Senators sign a petition. Once discharged from (or approved by) the committee, any Senator can make a non-debatable motion to proceed to consideration of the resolution, and the resolution only needs a majority vote to pass.
- In order for a CRA challenge to be eligible for fast track procedures in the Senate, it must be considered within 60 Senate session days after the rule is received by Congress and published in the Federal Register. After the 60-day period, the measure would be considered under normal Senate rules, meaning it could be subject to a filibuster.
- The House does not have a fast track process; Republicans can bring a disapproval resolution to the floor under regular order. Like the Senate, the House must consider a resolution of disapproval within 60 days of receiving the final rule, and only a majority is required to pass.
- Once both chambers pass a resolution of disapproval and it is signed by the President, the regulation is struck down.
- The CRA only applies to final rules. The Trump Administration can withdraw any proposed rule on its own accord (including draft final rules that are still under Office of Management and Budget (OMB) review on January 20, 2017). See below on “Executive Actions.”
- A resolution of disapproval can only be used to strike down an entire rule, not parts of a rule.
- A resolution of disapproval can only be used to target one rule to maintain privileged status in the Senate. Multiple resolutions cannot be bundled together.
- Although the Senate has an expedited process, time may be a limiting factor in considering rules promulgated by the Obama Administration. Each disapproval resolution must be considered on its own with 10 hours of floor debate. Republican leadership will have to prioritize CRA votes with an ambitious legislative agenda, the confirmation of President-elect Trump’s political appointees, and the budget process.
- If the resolution of disapproval is enacted and signed by the President, it strikes down the rule and prevents the agency from ever promulgating “substantially the same” rule without explicit authorization from Congress. The CRA does not define “substantially the same” or who would make such determination (e., Congress, White House, or courts). There is an ongoing debate within the Obama Administration about which rules should be pushed forward in the remaining 16 days given the looming threat of the CRA and the possibility that a successful disapproval resolution would prevent a future administration from advancing a similar rule. But in an interesting twist, it would be technically possible for a Trump Administration to promulgate a rule started under Obama with the express intent of teeing it up for congressional disapproval and therefore taking it off the table for good.
- The CRA only applies to final rules. President-elect Trump can unilaterally withdraw or suspend any proposed rule that the Obama Administration did not finalize. President-elect Trump can also revoke, modify, or supersede any of the more than 230 Executive Orders (EOs) issued by President Obama. It is likely Trump will revoke a number of significant EOs on his first day in office. Likely candidates include those dealing with immigration, gun control, labor, and the environment.
RULES ELIGIBLE FOR CRA:
- Under the CRA, the period to submit CRA challenges (60 calendar days) and act on a disproval resolution (60 session days) will reset on the 15th day of session of the new Congress. Based on the announced legislative calendar, since the 114th Congress adjourned sine die on January 3, 2017, the Senate has until mid-May to consider CRA challenges under fast-track procedures.
- The Congressional Research Service estimates any rule finalized after June 13, 2016, (recently revised based on length of lame duck session), can be subject to the CRA.
- More than 2,300 rules fall within the CRA window (including 650 rules finalized since Election Day). Most are minor, but nearly 200 significant rules were finalized since June 13.
- Senate Republicans have already identified 11 rules for potential CRA challenges:
- Overtime Rule (finalized May 18 and may not be eligible for CRA)
- Blacklisting Rule
- IRS Recharacterizing Debt as Equity
- Teacher Preparation
- State and Local Education Accountability
- Regulation Supporting Planned Parenthood
- Energy Valuation Rule
- Energy Efficiency Rules
- Public Land Planning 2.0 Rule
- Methane Emissions Rules for Oil and Gas Sources
- Endangerment Finding for Aircraft Emissions
PROPOSALS TO EXPAND CONGRESSIONAL REGULATORY OVERSIGHT:
The House is also expected to consider proposals to expand congressional regulatory oversight authority.
- On January 4, the House passed H.R. 21 (Midnight Rules Relief Act) to amend the CRA to allow multiple rules to be overturned with a single vote. The House passed a similar bill last year, but it failed to advance in the Senate. Senator Ron Johnson (R-WI) plans to introduce companion legislation, but it is unlikely to pass the Senate due to strong Democratic opposition (Republicans would need at least eight Democrats to break an expected 60-vote filibuster).
- The House also will likely take up legislation (Regulations from the Executive in Need of Scrutiny Act or REINS Act) to require congressional approval for any rule that has an estimated annual economic impact in excess of $100 million. Under the proposal, a proposed rule would be deemed rejected if Congress was in session for 70 days and took no affirmative action. The bill cleared the House in August 2016 but was never considered by the Senate, and like the Midnight Rules Relief Act, passage in the Senate in 2017 is unlikely due to strong opposition from Democrats.
- Finally, House Republicans are expected to advance the Regulatory Accountability Act, legislation that combines a number of provisions the House tried to advance last year to provide for greater regulatory oversight. The legislation would, among other things, require agencies to choose the lowest cost option when considering regulatory alternatives and would eliminate deference given to agencies when rules are challenged in court. Like the other measures, the Regulatory Accountability Act is unlikely to advance in the Senate.