Congressional Review Act

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The Congressional Review Act (CRA)[1] is a law that was enacted by the United States Congress under House Speaker Newt Gingrich as Subtitle E of the Contract with America Advancement Act of 1996 (Pub.L. 104–121) 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issued by government agencies and, by passage of a joint resolution, to overrule a regulation.[4] Once a rule is thus repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same "unless the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 Congress is actually in session, rather than simple calendar days) to disapprove of any given rule by simple majority vote; otherwise, the rule will go into effect at the end of this period.[5][6]

Prior to 2017, the CRA had only been successfully invoked once to overturn a rule (in 2001; see below).[7] In January 2017, however, with a new Republican president (Donald Trump), the Republican-controlled 115th Congress began passing a series of disapproval resolutions to overturn a variety of rules issued under the Obama administration. Ultimately, fourteen such resolutions repealing Obama administration rules were passed and signed into law; a fifteenth resolution was passed by the House but failed in the Senate. Because of the shortness of legislative sessions during the 114th Congress, the 115th Congress was able to target rules issued by the Obama administration as far back as May 2016.[8]

On May 16, 2017, Senators Cory Booker and Tom Udall introduced S. 1140, a bill to repeal the Congressional Review Act.[9]

Procedure[edit]

The law states 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.[10]

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 within 20 calendar days after the rule is received by Congress and published in the Federal Register, the committee may be discharged from further consideration by a written petition of 30 Senators, 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.[10] If the Senate agrees to the non-debatable motion to proceed, debate on the floor is limited to up to 10 hours and no amendments to the resolution or motions to proceed to other business are in order. The Senate may then pass the joint resolution with a simple majority.[10] A joint resolution of disapproval meeting certain criteria cannot be filibustered.[11] For a regulation to be invalidated under the CRA, the Congressional resolution of disapproval must be either signed by the President or passed over the President's veto by two thirds of both Houses of Congress.[11][12]

Expanded possibilities[edit]

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[edit]

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 be accomplished 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.[7][13]

A variation on this idea was pursued later in the 115th Congress by Senator Pat Toomey (R-PA), who was looking for additional deregulatory pathways. Toomey has criticized government regulators for "regulat[ing] by guidance rather than through the process they're supposed to use, which is the Administrative Procedure Act" and has argued that an official determination that a particular piece of guidance "rises to the significance of being a rule" would mean that "from that moment the clock starts on the CRA opportunity".[14] Thus, in response to a request from Senator Toomey for a determination on whether a 2013 auto-lending guidance rule issued by the CFPB qualified as a "rule" under the terms of the CRA, the GAO issued an opinion on December 5, 2017, saying that it did, thus launching the 60-day CRA window according to the opinion of the Senate parliamentarian.[14][15] Subsequently, S.J. Res. 57 was introduced on March 22, 2018, to repeal this CFPB rule, an effort which has been described as a "trial balloon" and which, if successful, would open the door to a greatly expanded application of the CRA to various "rules" issued over the last few decades.[14][16] Other possible applications are already being explored, including a 2016 plan from the Bureau of Land Management, which the GAO confirmed was a rule for CRA purposes in response to a request from Senator Lisa Murkowski (R-AK).[14] On the other hand, the success of S.J. Res. 57 could prove to be a Pandora's box, setting a dangerous precedent and calling into question the legitimacy of many other rules in a way could create a climate of uncertainty and jeopardy for those who have been following or relying on them.[14][15] S.J. Res. 57 was signed into law on May 21, 2018.[17]

With regard to preemptive regulations[edit]

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.[18]

Use[edit]

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 the presidency of Bill Clinton. President George W. Bush signed the only resolution of disapproval sent to him by Congress.[19] Congress passed five resolutions of disapproval during the presidency of Barack Obama, but he vetoed all of them. In the first four months of his term, President Donald Trump signed fourteen resolutions of disapproval into law.[20] At the White House, Andrew Bremberg, Marc Short, and Rick Dearborn coordinated with aides of Senator Mitch McConnell to use the CRA, creating an Excel spreadsheet of target regulations, eventually being able to eliminate over twice as many as they had anticipated.[21] The later enactment, in November 2017, of H.J. Res. 111 was notable for being the first time that a president signed a CRA resolution against a regulation issued during his own administration.[15]

Successful uses[edit]

The following is a complete list of successful uses of the CRA, as of May 21, 2018 (ordered according to when they became law):

Public Law Date Enacted Resolution Description
Pub.L. 107–5 March 20, 2001 S.J.Res. 6 Providing for congressional disapproval of the rule submitted by the Department of Labor relating to ergonomics
Pub.L. 115–4 February 14, 2017 H.J.Res. 41 Providing for congressional disapproval of a rule submitted by the Securities and Exchange Commission relating to "Disclosure of Payments by Resource Extraction Issuers"
Pub.L. 115–5 February 16, 2017 H.J.Res. 38 Disapproving the rule submitted by the Department of the Interior known as the "Stream Protection Rule"
Pub.L. 115–8 February 28, 2017 H.J.Res. 40 Providing for congressional disapproval of the rule submitted by the Social Security Administration relating to Implementation of the NICS Improvement Amendments Act of 2007
Pub.L. 115–11 March 27, 2017 H.J.Res. 37 Disapproving the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation
Pub.L. 115–12 March 27, 2017 H.J.Res. 44 Disapproving the rule submitted by the Department of the Interior relating to Bureau of Land Management regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976
Pub.L. 115–13 March 27, 2017 H.J.Res. 57 Providing for congressional disapproval of the rule submitted by the Department of Education relating to accountability and State plans under the Elementary and Secondary Education Act of 1965
Pub.L. 115–14 March 27, 2017 H.J.Res. 58 Providing for congressional disapproval of the rule submitted by the Department of Education relating to teacher preparation issues
Pub.L. 115–17 March 31, 2017 H.J.Res. 42 Disapproving the rule submitted by the Department of Labor relating to drug testing of unemployment compensation applicants
Pub.L. 115–20 April 3, 2017 H.J.Res. 69 Providing for congressional disapproval of the final rule of the Department of the Interior relating to “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska”
Pub.L. 115–21 April 3, 2017 H.J.Res. 83 Disapproving the rule submitted by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”
Pub.L. 115–22 April 3, 2017 S.J.Res. 34 Providing for congressional disapproval of the rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”
Pub.L. 115–23 April 13, 2017 H.J.Res. 43 Providing for congressional disapproval of the final rule submitted by Secretary of Health and Human Services relating to compliance with Title X requirements by project recipients in selecting subrecipients
Pub.L. 115–24 April 13, 2017 H.J.Res. 67 Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by qualified State political subdivisions for non-governmental employees
Pub.L. 115–35 May 17, 2017 H.J.Res. 66 Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by States for non-governmental employees
Pub.L. 115–74 November 1, 2017 H.J.Res. 111 Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Arbitration Agreements"
Pub.L. 115–172 May 21, 2018 S.J.Res. 57 Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act"

Pending[edit]

There are no pending CRA resolutions at this time which have been passed by either House of Congress.

Unsuccessful attempts[edit]

Vetoed by President[edit]

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.

Resolution Congress Year Description Fate
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[22]
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[23]
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[edit]

Resolution Congress Year Description Fate
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
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
motion to proceed not agreed to in Senate 49–51 on May 10, 2017
S.J.Res. 52 115th Congress 2018 Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to "Restoring Internet Freedom". passed Senate 52–47 on May 16, 2018
not acted on by House

Did not pass either house[edit]

Resolution Congress Year Description Fate
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[edit]

  1. ^ "5 U.S. Code Chapter 8 - CONGRESSIONAL REVIEW OF AGENCY RULEMAKING". Legal Information Institute. Retrieved February 12, 2017. 
  2. ^ Subtitle E 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. 104–121, Section 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. ^ Phillips, Amber (April 25, 2017). "Analysis | Why Republicans' 100-day war on Obama is about to end". Washington Post. Retrieved April 25, 2017. 
  7. ^ 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. 
  8. ^ 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]. 
  9. ^ Lambert, Lisa (May 16, 2017). "Democrats in U.S. Senate try to slow Republican deregulation". Reuters. Retrieved May 17, 2017. 
  10. ^ a b c "5 U.S. Code § 801 - Congressional review". Legal Information Institute. March 29, 1996. Retrieved April 5, 2017. 
  11. ^ 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. 
  12. ^ The Mysteries of the Congressional Review Act. 122 Harvard Law Review 2162 (2009).
  13. ^ "A 'Regulatory Game Changer'." Pacific Legal Foundation 2017
  14. ^ a b c d e Warmbrodt, Zachary (April 17, 2018). "GOP maneuver could roll back decades of regulation". Politico. Retrieved April 18, 2018. 
  15. ^ a b c Dudley, Susan E. (November 7, 2017). "Don't Write Off the Congressional Review Act Yet". Notice & Comment: A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice. Retrieved April 18, 2018. 
  16. ^ Stewart, Emily (April 17, 2018). "The GOP is about to scrap safeguards that stop auto lenders from discriminating based on race". Vox. Retrieved April 18, 2018. 
  17. ^ https://www.congress.gov/bill/115th-congress/senate-joint-resolution/57/actions
  18. ^ Lewis, Matt (April 7, 2017). "Don't Get Fooled, Trump Is Winning". The Daily Beast. Retrieved April 8, 2017. 
  19. ^ Steven Greenhouse (March 8, 2001). "House Joins Senate in Repealing Rules on Workplace Injuries". The New York Times. Retrieved May 3, 2017. 
  20. ^ Eric Lipton; Jasmine C. Lee (May 2, 2017). "Which Obama-Era Rules Are Being Reversed in the Trump Era". The New York Times. Retrieved May 3, 2017. 
  21. ^ Michael Shear (May 2, 2017). "Trump Discards Obama Legacy, One Rule at a Time". The New York Times. p. A1. Retrieved May 3, 2017. 
  22. ^ Baker, Peter (March 31, 2015). "Obama Rejects Republican Bid to Overturn New Union Rules". The New York Times. Retrieved April 1, 2017. 
  23. ^ Cama, Timothy (January 21, 2016). "Senate fails to override Obama veto". The Hill. Retrieved December 14, 2016. 

Further reading[edit]