Congressional Review Act

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The Congressional Review Act (CRA),[1] is a law that was enacted by the United States Congress as section 251 of the Contract with America Advancement Act of 1996 (Pub. L.Tooltip Public Law (United States) 104–121 (text) (PDF)) and signed into law by President Bill Clinton on March 29, 1996.[2][3] The law empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation.[4] Once a rule is thus repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same, "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule" (5 U.S. Code § 801(b)(2)). Congress has a window of time lasting 60 legislative days (i.e., days that the U.S. Congress is actually in session, rather than calendar days) to disapprove of any given rule; otherwise the rule will go into effect at the end of this period.[5]

Prior to 2017, the CRA had only been successfully invoked once to overturn a rule (in 2001; see below).[6] In January 2017, however, with a new Republican president, the Republican-controlled 115th Congress began passing a series of disapproval resolutions to overturn a variety of rules issued under the Obama administration. By April 3, 2017, eleven of these had already been signed into law by President Trump. Because of the shortness of legislative sessions during the 114th Congress, the 115th Congress can target rules passed by the Obama administration (at least) as far back as May 2016.[7]

Procedure

The law requires that, as a condition precedent, an agency promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General that contains a copy of the rule, a concise general statement describing the rule (including whether it is a major rule), and the proposed effective date of the rule. A covered rule cannot take effect if the report is not submitted.[8]

The law provides a procedure for expedited consideration in the Senate. If the committee to which a joint resolution is referred has not reported it out within 20 calendar days after referral, it may be discharged from further consideration by a written petition of 30 Members of the Senate, at which point the measure is placed on the calendar, and it is in order at any time for a Senator to move to proceed to the joint resolution.[8] If the Senate agrees to the motion to proceed, debate on the floor is limited to 10 hours and no amendments to the resolution or motions to proceed to other business are in order, and so the Senate may pass the joint resolution with a simple majority.[8] A joint resolution of disapproval meeting certain criteria cannot be filibustered.[9]

For a regulation to be invalidated under the CRA, the Congressional resolution of disapproval either must be signed by the President, or must be passed over the President's veto by two-thirds of both Houses of Congress.[9][10]

Expanded Possibilities

Due to an increase in partisan voting in the United States Senate, the CRA has emerged as an attractive tool in the 115th Congress because it provides one of the few avenues for Senate action that avoids the ordinary 60-vote cloture requirement. As a result, several new theories about how to expand the reach and power of the CRA have been developed.

With regard to previously unsubmitted regulations

One previously under-appreciated provision of the CRA is its stipulation that rules do not go into effect until after they have been submitted to Congress. Since many rules over the last 20 years have never been submitted to Congress, some legal scholars have proposed that these rules are not actually in effect and may still be eligible to be overturned, even if they were passed many years ago. According to the Pacific Legal Foundation (PLF), this could come about in one of three different ways: (1) a rule could be submitted to Congress now by the Trump administration and then repealed by a joint resolution under the CRA, (2) the Trump administration could publish notice that a rule not in effect is being withdrawn or abandoned, or (3) a rule could be thrown out by a court on the grounds that it was never in effect.[6][11]

With regard to preemptive regulations

Another possible avenue for expanding the power of the CRA concerns its prohibition against any regulation being passed if it is "substantially similar" to one already repealed under the CRA without explicit Congressional approval. Some Republicans have therefore suggested that the Trump administration could preemptively introduce liberal regulations with the intention of having them immediately repealed under the CRA and thereby preventing a future Democratic administration from issuing substantially similar regulations.[12]

Use

Despite its passage in 1996, the Congressional Review Act was not used to send any resolutions of disapproval to the President's desk during the remainder of Bill Clinton's presidency. President George W. Bush signed the only resolution of disapproval sent to him by Congress. Congress passed five resolutions of disapproval during the presidency of Barack Obama, but he vetoed all of them. So far, President Trump has signed eleven resolutions of disapproval into law.

Complete List of Successful Uses of the CRA

The following is a complete list of successful uses of the CRA, as of April 3, 2017 (ordered according to when they became law):

Pending CRA Legislation

Awaiting Action by the Senate

The following bills have been passed by the House of Representatives in the 115th Congress and are awaiting consideration by the Senate.

  • H.J.Res. 36, 115th Congress (2017), providing for congressional disapproval of the final rule of the Bureau of Land Management relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation” (passed House 221-191 on February 3, 2017)
  • H.J.Res. 66, 115th Congress (2017), disapproving the rule submitted by the Department of Labor relating to savings arrangements established by States for non-governmental employees (passed House 231-193 on February 15, 2017)

Unsuccessful Attempts to Use the CRA

Vetoed by President

The following is a complete list of joint resolutions under the Congressional Review Act which were vetoed by the President after having been passed by both houses of Congress. All five instances came under President Obama, and represented nearly half of the 12 regular vetoes he issued during his eight years in office.

  • S.J.Res. 8, 114th Congress (2015), providing for congressional disapproval of the rule submitted by the National Labor Relations Board relating to representation case procedures (passed Senate 53-46 on March 4, 2015; passed House 232-186 on March 19, 2015; vetoed by Obama on March 31, 2015)[13]
  • S.J.Res. 22, 114th Congress (2015), providing for congressional disapproval of the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of "waters of the United States" under the Federal Water Pollution Control Act (passed Senate 53-44 on November 4, 2015; passed House 253-166 on January 13, 2016; vetoed by Obama on January 20, 2016; motion to proceed on veto override not agreed to in Senate 52-40 on January 21, 2016)[14]
  • S.J.Res. 23, 114th Congress (2015), providing for congressional disapproval of a rule submitted by the Environmental Protection Agency relating to “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units” (passed Senate 52-46 on November 17, 2015; passed House 235-188 on December 1, 2015; vetoed by Obama on December 18, 2015)
  • S.J.Res. 24, 114th Congress (2015), providing for congressional disapproval of a rule submitted by the Environmental Protection Agency relating to “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (passed Senate 52-46 on November 17, 2015; passed House 242-180 on December 1, 2015; vetoed by Obama on December 18, 2015)
  • H.J.Res. 88, 114th Congress (2016), disapproving the rule submitted by the Department of Labor relating to the definition of the term “Fiduciary” (passed House 234-183 on April 28, 2016; passed Senate 56-41 on May 24, 2016; vetoed by Obama on June 8, 2016; override vote in House failed 239-180 on June 22, 2016)

Only Passed by One House

  • S.J.Res. 17, 108th Congress (2003), disapproving the rule submitted by the Federal Communications Commission with respect to broadcast media ownership (passed Senate 55-40 on September 16, 2003; not acted on by House)
  • S.J.Res. 4, 109th Congress (2005), providing for congressional disapproval of the rule submitted by the Department of Agriculture relating to risk zones for introduction of bovine spongiform encephalopathy (passed Senate 52-46 on March 3, 2005; not acted on by House)
  • S.J.Res. 28, 114th Congress (2016), providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Secretary of Agriculture relating to inspection of fish of the order Siluriformes. (passed Senate 55-43 on May 23, 2016; not acted on by House)

Did Not Pass Either House

  • S.J.Res. 20, 109th Congress (2005), disapproving a rule promulgated by the Administrator of the Environmental Protection Agency to delist coal and oil-direct utility units from the source category list under the Clean Air Act (failed in Senate 47-51 on September 13, 2005)
  • S.J.Res. 30, 111th Congress (2010), providing for congressional disapproval of the rule submitted by the National Mediation Board relating to representation election procedures (motion to proceed not agreed to in Senate 43-56 on September 23, 2010)
  • S.J.Res. 39, 111th Congress (2010), providing for congressional disapproval of the rule relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act (motion to proceed not agreed to in Senate 40-59 on September 29, 2010)
  • S.J.Res. 36, 112th Congress (2012), providing for congressional disapproval of the rule submitted by the National Labor Relations Board relating to representation election procedures (motion to proceed not agreed to in Senate 45-54 on April 24, 2012)

References

  1. ^ "5 U.S. Code Chapter 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING". Legal Information Institute. Retrieved 2017-02-12.
  2. ^ Section 251 appeared within Title II of the Contract with America Advancement Act of 1996, and Title II may be cited as the Small Business Regulatory Enforcement Fairness Act of 1996. Pub. L.Tooltip Public Law (United States) 104–121 (text) (PDF), Sec. 201.
  3. ^ http://www.thecre.com/pdf/congress-review-act-1996.pdf
  4. ^ Morton Rosenberg. Congressional Review of Agency Rulemaking: An Update and Assessment of The Congressional Review Act after a Decade. Washington, D.C.: Congressional Research Service, 2008.
  5. ^ Walter J. Oleszek. Congressional Procedures and the Policy Process, 9th ed. Thousand Oaks, CA: SAGE/CQ Press, 2014.
  6. ^ a b Dudley, Cama (March 7, 2017). "CRAzy After All These Years: Extending the Reach of the Congressional Review Act". Forbes. Retrieved March 7, 2017. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  7. ^ Jason Bellini (February 18, 2017). Trump’s Tool for Undoing Obama-Era Regulations (Online Video). The Wall Street Journal. Event occurs at 1:26. Retrieved February 27, 2017. But, if the legislative session ends before lawmakers have had sixty days, the [60-legislative-day] clock resets. So in reality, Congress is able to target over 180 Obama administration regulations issued since May [2016]. {{cite AV media}}: Italic or bold markup not allowed in: |publisher= (help)
  8. ^ a b c "5 U.S. Code § 801 - Congressional review". Legal Information Institute. March 29, 1996. Retrieved April 5, 2017.
  9. ^ a b Carey, Maeve P.; Dolan, Alissa M.; Davis, Christopher M. (November 17, 2016). "The Congressional Review Act: Frequently Asked Questions" (PDF). Congressional Research Service. p. 24. Retrieved February 12, 2017. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)
  10. ^ The Mysteries of the Congressional Review Act. 122 Harvard Law Review 2162 (2009).
  11. ^ "A 'Regulatory Game Changer'." Pacific Legal Foundation 2017
  12. ^ Lewis, Matt (April 7, 2017). "Don't Get Fooled, Trump Is Winning". The Daily Beast. Retrieved April 8, 2017. {{cite news}}: Italic or bold markup not allowed in: |publisher= (help)
  13. ^ Baker, Peter (March 31, 2015). "Obama Rejects Republican Bid to Overturn New Union Rules". The New York Times. Retrieved April 1, 2017.
  14. ^ Cama, Timothy (January 21, 2016). "Senate fails to override Obama veto". The Hill. Retrieved December 14, 2016.

Further reading

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