What is the Congressional Review Act?
In the first month of the new single party control of the federal executive and legislative branches, a little known 1996 law called the Congressional Review Act has become one of the most discussed issues.
In the first month of the new single party control of the federal executive and legislative branches, a little known 1996 law is become one of the most discussed issues. The Congressional Review Act (PL 104-121) is a legal mechanism for Congress to overturn regulations issued by a federal agency by passing a joint resolution. Upon approval by the President the regulation is not just repealed, but retroactively repealed. The Congressional Review Act, or CRA, has almost never been used due to timing issues and constraints its use places on the executive branch’s regulatory power in the future.
One of the most powerful and lasting impacts of using the CRA is that, if successful, the process prohibits the executive branch from releasing regulations on the issue again that are “substantially the same.” The law does not define this term and due to the lack of precedent its impacts are little understood. In the future, a regulation that is “substantially the same” would have to be explicitly authorized by Congress. Furthermore, the CRA limits the ability of the judicial branch to review or adjudicate disagreements on new rules covered by the CRA disapproval.
The significant constraints in future executive actions, questions on interpretation and judicial impacts have contributed to the CRA only being successfully used once. In 2001, the CRA was successfully used in repealing a Department of Labor regulation on ergonomic based workplace injuries. As a result, no regulations have since been introduced addressing ergonomic injuries in the workplace. President Obama chose early in his presidency not to throw his weight behind efforts to use the law and vetoed two resolutions passed in 2015 by Republican majorities in congress.
While the repeal of regulations through the CRA could help alleviate administrative burdens on states or unfunded mandates, it is difficult to predict if there will be unintended consequences if the executive branch is unable to regulate issues in the future.
President Trump has signed the following disapprovals, enacting them into law:
Stream Protection Rule, H.J. Res. 38, signed February 16, 2017
The stream protection rule, also known as the stream buffer rule, was finalized in December 2016 following a seven year process. The 2016 rule, now nullified, regulated the disposal of waste from coal mines in or near water resources with the intention of protecting drinking water.
Disclosure of Payments by Resource Extraction Issuers, H.J. Res. 41, signed February 14, 2017
This rule, now nullified, required the disclosure of foreign payments made by companies to require commercial oil, natural gas, and mineral rights abroad.
Both Chambers have approved the following rule and it is pending the President’s signature or veto:
Implementation of the NICS Improvement Amendments Act of 2007, H.J. Res. 40, sent to the President on 2/16/2016
This rule prohibits individuals who are receiving disability payments from the Social Security Administration due to severe mental impairment and, as a result of the severity of their condition, require a trustee to manage their finances from purchasing firearms.
The House has sent 15 disapproval resolutions to the Senate, including:
H.J. Res. 42 on a Department of Labor rule that restricted states from conducting drug tests as a condition of receiving unemployment insurance benefits in most cases. The disapproval aims to allow states greater flexibility to implement drug testing programs.
H.J. Res. 43 on a Health and Human Services rule that would prohibit states from denying federal funds under Title X family planning programs to Planned Parenthood for non-abortion services.
H.J. Res. 44 on the Bureau of Land Management’s Resource Management Planning regulation. This disapproval is aimed at increasing state and local influence over the planning process for federal lands over regional and national interests.
H.J. Res 57 to disapprove of Department of Education rules related to accountability and state plans under the Elementary and Secondary Education Act of 1965. The disapproval is targeted at allowing greater state and local control of school performance metrics currently mandated by the federal government.
H.J. Res. 66 and 67 which disapprove of rules allowing state and local government to create retirement plan marketplace, specifically for employees of small businesses which might not otherwise have access to retirement plans. See CSG’s blog on the issue here.