In the wake of Department of Commerce v. New York, administrative law may now be permanently changed.
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!