Congressional Review Act

Targeting Government Regulations

By | Updated Dec 5, 2016 9:48 AM UTC

President Barack Obama fought with Congress almost since he took office in 2009 — even when his own Democratic Party was in charge. Faced with recalcitrant lawmakers, Obama acted largely through a combination of executive orders and agency regulations on the environmentpower-plant emissionsnet neutralityimmigration and infrastructure. He’s now racing to finalize new rules before he leaves office in January. In response, Republicans are threatening to wield a little-used power, the Congressional Review Act, to rein in what they see as more overreach by the man they’ve called “Emperor Obama.”

The Situation

The next U.S. president, Republican Donald Trump, has promised to get rid of oodles of government regulations. Before he takes office Jan. 20, federal agencies are scurrying to issue new rules on everything from air pollution to workplace safety. Republicans, who will hold majorities in both the House and Senate in the next Congress, have already warned that these may be short-lived. While Congress doesn’t typically bother with the thousands of bureaucratic rules created each year, when lawmakers want to put a stop to one, they can use the Congressional Review Act. It gives them 60 official legislative working days after a regulation is finalized to call a vote to invalidate it. The act applies only to regulations expected to have an annual effect on the economy of $100 million or more. Earlier in Obama’s term, Republicans used the measure to challenge rules on birth controlcarbon emissions, the health-care program known as Obamacare and more, but lost the votes or Obama vetoed the resolutions. Congress has tried and failed several times to take the review act a step further by mandating that all regulations reaching the $100 million threshold be approved by lawmakers.

The Background

Facing a hostile Congress, President Bill Clinton used executive actions and regulatory agency rules in the 1990s to promote his policies on issues like welfare, tobacco, gun control and health care. To counter this, Congress created the Congressional Review Act in 1996. It was part of a broader law, the Contract with America Advancement Act, that sought to push Republican goals for a smaller federal government. Since then, the review act has been invoked dozens of times, but has been used successfully only once. This was in 2001, when ergonomics regulations put in place by Clinton were overturned by Congress at the start of the presidency of his successor, George W. Bush. Like all congressional bills, these measures can be vetoed by the president. Since a president isn’t likely to sign measures that negate his administration’s rules, the act is most likely to be used successfully against a previous president’s orders.

The Argument

Republicans are confident Trump will sign any action they can pass to nix Obama’s federal regulations. Because lawmakers have 60 legislative days to invoke the Congressional Review Act and they have been in session relatively few days in 2016, it’s not just last-minute regulations that could be voted down. A Congressional Research Service memorandum said that all regulations finalized since late May could be negated. Proponents of the act like that its use forces lawmakers to go on the record about controversial subjects. It also increases government transparency, since it’s prompted the U.S. Government Accountability Office to now post all federal rules on a searchable databasePotential pitfalls of using the act include the fact that agency regulations have to be rejected in their entirety — Congress can’t keep parts it might like. And if a review act vote doesn’t pass, the regulation goes into effect immediately, often putting it in force sooner than would otherwise be the case. Even if a vote fails, Congress has other tools to battle rules it doesn’t like. Proposals for new regulations give Congress the opportunity to drag agency heads into hearings, which can be unpleasant enough to curb the impulses of the more ambitious agencies. Congress also has the authority to cut funding for an agency until regulators fall in line.

The Reference Shelf

  • The Congressional Research Service memo detailing major Obama administration rules that could be overturned by the Congressional Review Act.
  • And the Congressional Research Service answers some frequently asked questions on the Congressional Review Act.
  • Inside Climate News lists Obama environmental regulations “in Trump’s crosshairs.”
  • Steven S. Smith, a professor and congressional expert at Washington University in St. Louis, warns that a congressional act requiring approval of major rules could backfire. 
  • A Harvard Law Review article, by Elena Kagan, on Bill Clinton’s use of executive branch agencies to extend his political agendas.
  • For the 20th anniversary of the Contract With America, the Ripon Forum published a series of essays on its legacy.

First published Feb. 4, 2015

To contact the writer of this QuickTake:
Susan Decker in Washington at sdecker1@bloomberg.net

To contact the editor responsible for this QuickTake:
Anne Cronin at acronin14@bloomberg.net