A little-known law has suddenly been getting a lot of attention in our nation’s Capital. The Congressional Review Act (CRA) – put into law in 1996 as part of Newt Gingrich’s Contract with America – is an oversight tool that Congress may use to overturn a rule issued by a federal agency.
The CRA was put into law as a means for Congress to oversee and control regulations issued by agencies, yet it has only been successfully used one time – during the start of the Bush Administration. The reason for this is simple. The law requires a Presidential signature for final approval – or a veto. A sitting president is unlikely to sign a resolution overturning regulations issued by his own agency and would therefore veto any CRA resolution passed by Congress.
The CRA applies to rules implemented in the last sixty legislative working days.
The Obama Administration issued literally tens of thousands of regulations (see: Trump’s Deregulation Gift). The 2016 Federal Register (the daily depository of rules and regulations) contains 97,110 pages, the highest page count in its history – dwarfing the previous record set in 2010 (also Obama) of 81,405. The Federal Register page count stood at 81,640 at the start of December 2016 when I wrote the Trump deregulation article – 15,470 pages were added in the last month of 2016 alone. There has never been a time more primed for the revival of the Congressional Review Act.
The CRA process is fairly direct but there are some powerful implications under certain circumstances. According to the CRA, before a rule can take effect, the issuing agency must submit the rule to both Congress and the Government Accountability Office (GAO). Congress then has sixty days (defined as “days-of-continuous-session”) to put forth a resolution disapproving the rule. The resolution of disapproval must pass both houses. If the resolution successfully passes, it is then sent to the President for a signature approving the resolution or a veto. A presidential veto may be overridden by Congress with a supermajority vote.
There are several important provisions.
- The CRA contains “Fast Track Provisions” or “Expedited Parliamentary Procedures” for Senate Committee and Senate Floor consideration. The simple explanation is that a CRA resolution cannot be filibustered and can be passed by a simple majority of Congress. The details on how this happens are contained below:
Senate Committee consideration can be discharged by a petition signed by a minimum of 30 Senators. Once a CRA resolution is discharged from Senate Committee, any Senator may make a non-debatable motion to “proceed to consider the disapproval resolution” which opens the resolution to 10 hours of debate. However, a non-debatable motion to limit debate may also be made. No Amendments to the resolution are allowed. A simple Senate majority is then required for passage of the resolution. The House does not allow filibustering. The CRA can also be considered in the House under terms of a Special Rule reported by the Rule Committee and adopted by the House.
This process sounds more complicated than it really is. All the procedural issues I have described would be handled almost simultaneously by designated Senators. The resolution would then immediately be put to a simple majority vote with no debate allowed.
- The “Same Form” clause – The CRA contains language that once a resolution of disapproval is enacted, not only is that rule invalidated – any agency is prohibited from issuing another rule in “substantially the same form” unless authorized by a subsequent law. This is a significant clause and makes the CRA far more powerful than overturning rules by executive orders. Once rescinded using the CRA, the rule cannot come back – even under future administrations – unless specifically authorized by law.
- “Days-of-Continuous-Session” – The CRA counts legislative days or days Congress is in session. If Congress adjourns within these sixty days, a “reset” occurs. This reset was put in place to allow for an examination of midnight rules issued by an outgoing administration just before a Congressional Break. Based on Congress’ Year-end adjournment or “gavel out” date, the CRA applies to any rules passed since June 3, 2016.
- What is considered a “Rule” under the CRA – The CRA adopts the broadest definition of the term “rule” contained in the Administrative Procedure Act. Some agency actions are not subject to Notice and Comment rulemaking – and therefore may not be published in the Federal Register or officially reported to Congress – but may still be considered to be a rule under the CRA. Agency Guidance is considered to be a rule under the CRA definitions. An example lies in Obama’s “guidance” on transgender bathrooms in schools.
- Start of the “Sixty-Day Clock – Before a rule can take effect, “an agency must submit a report to each house of Congress and the Comptroller General containing a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; and the proposed effective date of the rule”. A rule is considered to have been “received by Congress” on the later date of its receipt in the Office of the Speaker of the House or its referral to Senate committee. If an agency has not submitted a full report for a given rule to both the House and Senate then the 60-day clock for that rule (as defined by the CRA) has not started.
- If Congress has not officially “received” a report on a rule it would be subject to a resolution overturning it – for rules generated all the way back to 1996 – when the CRA was passed. People who worked on drafting the original CRA legislation have said they believe there may be thousands of regulations that have not fulfilled the obligations and therefore would be susceptible to overturning under the CRA.
Regulatory burdens have become more costly than taxes. And no President abused the regulatory landscape more than Obama. The Congressional Review Act explicitly gives Congress the power to remove – for good – many of the most recent regulations. The wording of the Congressional Review Act permits Congress to go much further than anyone had anticipated – in some cases all the way back to 1996.
Congress is already beginning work to remove regulations using the powerful tools of the CRA. The House will be voting on eliminating five regulations this week alone. The Senate is ready to review these measures once passed by the House.
Let’s hope Congress aggressively continues this work and remove as many regulations as they can. Let’s hope Congress has the courage, conviction and will to press forward in Trump’s commitment to reducing the regulatory burden hanging over our nation. There has never been an opportunity such as this.
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