Passed in 1996 as part of the so-called Contract with America, the Congressional Review Act (CRA) provides Congress with an expedited legislative process to overrule "major" regulations (those with an annual effect on the economy of more than $100 million) that have been finalized by the Administration no more than 60 "session days" beforehand. This clock was paused at the end of the last Congress and was reset on the 15th day of the 115th Congress that began earlier this year. Essentially, what this means is that between now and sometime this summer, Congress can overrule any major regulation submitted on or after June 13, 2016. Since its adoption, the CRA has only been successfully used once, in March 2001, to invalidate an Occupational Safety and Health Administration rule related to workplace ergonomics.
This year, however, is expected to be different, as House Republicans identified roughly 50 major rules that they will seek to quash. So far, President Trump and Congress have come together to overrule two Obama-era regulations: a Securities and Exchange Commission rule requiring the reporting of payments made to governments for the commercial development of oil, natural gas or minerals, and a Department of the Interior stream protection rule. Cognizant of the summer deadline, Congress has already begun the process to invalidate a number of additional rules, including:
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a rule implementing President Barack Obama's executive order on fair pay and safe workplaces;
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a Social Security Administration rule requiring federal agencies to provide records for the National Instant Criminal Background Check system; and
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a Bureau of Land Management rule to reduce waste of natural gas during oil and natural gas production activities on tribal lands.
Other rules that congressional Republicans are reportedly considering include the Overtime Rule, Affordable Care Act implementation rules, the Fiduciary Rule, the Deferred Action for Childhood Arrivals (DACA) rule and rules coming from independent agencies such as the Consumer Financial Protection Bureau.
It is also important to note that any rule or regulation successfully invalidated by CRA action cannot be reissued and that at no point in the future can any rule or regulation be issued if it is "substantially similar" to the invalidated rule. An agency could still come back and issue another rule that is not substantially similar, but would have to comply with the Administrative Procedure Act, meaning the time-consuming rulemaking process would have to begin once again.
Congress is also taking a number of actions to rein in Administration rulemaking. Already this year the House has passed the Regulations from the Executive in Need of Security (REINS) Act, which would act as a preemptive CRA, forcing congressional approval of major rules before they become final; the Regulatory Accountability Act, a bill that would increase the amount of scrutiny and analysis in the regulatory process; and the Midnight Rules Relief Act, which amends the CRA to allow for Congress to consider multiple rules under a single resolution of disapproval. The Senate has yet to consider these measures.
Takeaway: For the first time in 16 years, Congress is making a serious attempt at overturning a number of regulations and rules promulgated by the executive branch, including rules related to health care, environmental protection and financial regulation, among others. House Republicans are also looking to rein in the Administration's rulemaking authority through a number of bills that expand congressional authority to preempt or cancel Administration actions. The proposals are being met with resistance in the Senate and face an uncertain fate.
