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Midnight Mulligan – The Congressional Review Act Rides Again!

Might the administrative state have expired quietly, six months ago?  Arguably it did, if what we mean by the administrative state is the array of regulatory agencies, not only executing the law, but also creating binding new law without legislative consent.  Bear with me.

The Congressional Review Act (CRA) provides a special fast-track mechanism that allows Congress to overturn an agency regulation within 60 session days of its issuance.  Amendment and debate are limited on such resolutions of disapproval, so a simple majority of both houses will suffice to present it to the President for signature.

Ah, but therein lies the Catch-22.  The President will naturally veto a resolution that disapproves of an action taken by his own agency.  President Obama has done so five times.  So, as a practical matter, Congress will always need a veto-proof 2/3 majority to overturn an administrative rule.  The administrative agencies are well aware of this, and act accordingly.

The calculus changes, though, during a presidential transition.  If a rule has not been exposed to the CRA for 60 session days when Congress adjourns, the clock will start over with the new Congress in January.  At that point, the new Congress can submit a resolution of disapproval to the new President, who may well be inclined to sign it.  Of course, Congress and a cooperative president can overturn any rule, of whatever vintage, by passing a statute.  The difference is that it can do so with simple majorities, no risk of a filibuster, and less risk of a veto, by using the CRA mechanism across the span of a presidential transition.

Counting legislative session days is an arcane art, but the Congressional Research Service estimates that any rules issued by the Obama administration later than May 30, 2016, will be subject to a CRA veto in 2017.  That covers quite a few rules, including some aggressively progressive ones, that will be evaluated by President Trump and the 115th Congress.  This is the first time since the CRA was enacted that a new Republican President has taken office with a new Republican-controlled House and Senate.  Actually, in 2001 the Republicans initially had 50 Senate seats, so they had control if Vice President Cheney cast a tie-breaking vote.  That year marked the only time the CRA has been successfully used, overturning an unpopular ergonomics rule issued by the President Clinton’s OSHA.  But Cheney did not need to weigh in; six Democratic Senators voted against the rule along with the Republicans.

This time around there may be many more opportunities to exercise the CRA veto, which will keep Congress rather busy in the opening months of 2017.  President-elect Trump has pledged dramatic reductions in the amount of federal regulation, and he will have few tools that work as decisively as the CRA.  This will be an early test of President Trump’s ability to work with the congressional leadership, and of Speaker Ryan and Majority Leader McConnell’s ability to manage their chambers.  After 60 session days of the new Congress, the CRA will lose its force, and things will go back to more-or-less normal.

Note that the CRA mechanism is distinct from the proposed REINS Act mechanism.  Under REINS, Congress would need to approve of major regulations before they become effective; under the CRA rules become effective if Congress refrains from disapproving.

Still, this will be an interesting experiment to watch.  For the six-months or so that the CRA window remains open, the constitutional state (you know, the one that holds elections, and has a bicameral legislature) will get its hands dirty wrestling with the complex matters that it customarily delegates to the administrative state.  Will they enjoy it?  Stay tuned.

The May 30 cutoff date for rules in CRA jeopardy is only an estimate, based on the House and Senate calendars for the current lame-duck session.  If Congress decides to adjourn earlier, that date could move up.  The Labor Department’s controversial overtime rule was published May 23, for example, and will soon acquire CRA immunity if the lame duck session continues.  Which raises the question, what business are the House and Senate conducting that keeps them in town?  Surely not to confirm President Obama’s nomination to the Supreme Court.  If the 114th Congress is inclined to empower their successors, they might decide the best course is simply to wrap up early and adjourn.  Thanksgiving is nigh, and we thank you for your service.  Go!  Fly away home!

Reader Discussion

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on November 17, 2016 at 10:54:46 am

This is extremely interesting to me, and it raises a few questions in my mind. I hope the author and/or post-masters might indulge my limited legal education by kindly elevating my understanding with the answers:

1) Aside from CRA, and new/repealing statute, and I presume, an adjudication of an agency regulation to be unconstitutional, does the (new) president possess the power to direct the head of the offending agency to re-interpret the originating statute and revise the regulation accordingly?

2) I anticipate the repeal of Obamacare will be among the first orders of business for Congress and President Trump. As such, the most egregious of its elements (in my view: i.e. the HHS contraception mandate) would/should be eradicated.

If so: a) what does this mean for the pending cases challenging the mandate?

b) would (in the case of the mandate) it be a more permanent result if a "Trump era" Supreme Court would be given an opportunity to rule on the constitutionality of the mandate (as it regards religious liberty) prior to repealing Obamacare?

c) would the Supreme Court likely punt on the issue and let the Administration and Congress do the dirty work?

Thank you in advance!

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Paul Binotto
on November 17, 2016 at 16:12:19 pm

Good questions:

As to "1) Aside from CRA, and new/repealing statute, and I presume, an adjudication of an agency regulation to be unconstitutional, does the (new) president possess the power to direct the head of the offending agency to re-interpret the originating statute and revise the regulation accordingly? - All I can say is that whether they have the Power or not, Presidents sure do act as if they do. Look at what the Big O agency minions have recently done.
Then again, this being the age the FAS, the bureaucrats will, in pursuit of a particular policy preference, reinterpret both the underlying statute AND their own regulations to fit their needs.

Let us hope that the Trumpster's team makes heavy use of the CRA - and does so quickly.

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gabe
on November 17, 2016 at 16:35:21 pm

Thanks. Mr. Gabe,

"(T)he bureaucrats will, in pursuit of a particular policy preference, reinterpret both the underlying statute AND their own regulations to fit their needs" - might we even consider this to be a means of "FAS-Tracking" policy preferences?

The use of the various acronyms here makes me recall a NHTSA training module I had to take around thirty years ago designed to acquaint non-government contract employees with some of the more common agency acronyms in use at the time. I wonder if Mr. Trump will also be required to enroll in a similar acronym module to bring him up to speed on Federal acronyms since he will also be new to government..

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on November 17, 2016 at 16:47:50 pm

"“FAS-Tracking” policy "

Luvv'd it!

Perhaps, Mr Trump will decide to simply "AM-Trump" on the regulations on an express track out of DC.

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gabe
on November 17, 2016 at 19:13:04 pm

Ha - yes!

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Paul Binotto
on November 18, 2016 at 11:14:26 am

[…] This essay by Brian Mannix is wonderful.  (HT David Henderson) […]

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Some Links - Cafe Hayek
on November 18, 2016 at 18:13:17 pm

One reason for the Senate to REMAIN in session is to prevent a recess appointment (which would be for two years) to the SCOTUS, which Obama could do if the Senate is not in session.

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R Richard Schweitzer
on November 19, 2016 at 14:41:56 pm

In advising Congress to go fly away home, don't forget about the President's recess appointment power and the presumptive 10-day period for a recess under the Noel Canning v. NLRB decision. Letting a few bad regulations through, which the Trump Administration can either undo or refuse to enforce, seems a very small price to pay for preventing Obama from using the recess appointment power to flip the Supreme Court to a liberal majority, even if only for one term. I would HATE to see Congress recess early in order to pull the Labor Department's overtime rule into the CRA 60-day window, only to be punished by a recess appointment of Merrick Garland to the Supreme Court!

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Daniel J. Artz
on November 19, 2016 at 16:52:22 pm

This is indeed an excellent reason to remain in session, but there is another option available to the majority. Congress is not limited to one session per year. If President Obama were to make a recess appointment to the Court (Justice Clinton? Either one?), it would last only until the end of the next session. Congress could convene a 1-week session, and then adjourn and reconvene immediately, thus terminating any midnight recess appointees.

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BMannix
on November 24, 2016 at 05:24:25 am

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Willis
on December 28, 2016 at 04:10:01 am

Yes Congress can submit a resolution of disapproval to the new President, but Congress need a valid reason and file via courts.

https://goo.gl/0iz0Ux

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theInstantsolution

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.