The Nickel Report

With Republican control of the executive and legislative branches of government after the November 8 election, attention has turned to the Congressional Review Act and its powers to “get rid of the regulations that are just destroying us,” in the words of President-elect Trump.

The Congressional Review Act (CRA or the Act) was enacted in 1996. It is a tool for Congress to exercise authority over executive and independent agencies, allowing Congress to override an agency’s final action by passing a joint resolution of disapproval.

The CRA is rarely used, partly due to the supermajority needed to enact the joint resolution. This supermajority requires either margins large enough in Congress to override a presidential veto, or a president willing to overrule an agency. Since agencies’ priorities are often directed from the executive branch, it is not surprising that the act has only once been successful in overriding an agency’s final rule, nullifying the Clinton administration’s workplace ergonomics rule.^[1] In this instance, a change in political power at the executive level coupled with a Republican House of Representatives and an unpopular regulation led to the successful use of the CRA. As in 2001, the United States is faced with a change in political power at the executive level, and the Congress is of the same party. This could open use of the CRA in overturning regulations finalized as far back as May 2016.

Using the CRA to curb agency action has advantages over ordinary legislative powers, such as enactment of a law repealing a regulation. One advantage is the so-called “fast track” rules that bypass the Senate filibuster. Once a joint resolution is successfully reported out of committee, it requires only one senator to make a motion to proceed. The Senate must vote on the resolution bypassing the possibility of filibuster.

The CRA gives Congress 60 calendar days of continuous session (“excluding days either House of Congress is adjourned for more than 3 days during a session of Congress”) to file a CRA resolution of disapproval.^[2] But it has special rules in place for regulations finalized close to the end of a congressional session. In this instance, all rules, major and minor, are subject to a 60-legislative-day review.^[3] Since the special rules use legislative days, instead of calendar days, the exact date Congress can reach back in time will not be determined until the House and Senate adjourn sine die in December. But it is clear that the 115th Congress and the Trump administration have the opportunity to review agency regulations issued as far back, potentially, as May 2016. This could include many big ticket regulations across multiple issue areas.

[1] See S.J.Res. 6 (Mar. 6, 2001) and P.L. 107-5 (Mar. 20, 2001).

[2] 5 U.S.C. § 802 (a).

[3] 5 U.S.C. § 801 (d)(1).