Congressional Review Act
President Barack Obama fought with Congress almost since the day he took office in 2009 — even when his own Democratic Party was in charge. Faced with recalcitrant Republicans, Obama acted frequently through a combination of executive orders and agency regulations on the environment, power-plant emissions, net neutrality, immigration and infrastructure. He raced to finalize new rules before he left office in January. In response, Republicans have turned to a little-known law, the Congressional Review Act, to rein in what they saw as overreach by the man they called “Emperor Obama.”
On Feb. 14, President Donald Trump signed a resolution that overturned an Obama-era rule that would have forced oil, gas and mining companies to disclose payments to foreign governments. It was the first time a president had signed a Congressional Review Act resolution in almost 16 years. Through March 27, he’s signed seven. Trump has promised to get rid of oodles of government regulations. Right before he took office, federal agencies scurried to issue rules on everything from air pollution to workplace safety. Republicans, who now hold congressional majorities in both the U.S. House of Representatives and Senate, have begun voting to get rid of regulations, including ones on coal mining and gun sales. While Congress doesn’t typically bother with the thousands of bureaucratic rules created each year, when lawmakers want to stop one, they can use the Congressional Review Act. It applies to regulations expected to have an annual effect on the economy of $100 million or more, and allows up to 60 working days to call a vote to invalidate a new rule. Because Congress was 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.
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. Though the law was invoked dozens of times, it was used successfully only once before Trump’s election. 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. Earlier in Obama’s term, Republicans used the measure to challenge rules on birth control, carbon emissions, the health-care program known as Obamacare and more, but lost the votes or Obama vetoed the moves. Republicans in Congress tried and failed several times to take the review law a step further by mandating that all regulations reaching the $100 million threshold be approved by lawmakers.
Proponents of the act say 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 post all federal rules on a searchable database. Potential pitfalls of the law 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. The proposal of 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.
- 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 (later a justice on the Supreme Court) on Bill Clinton’s use of executive branch agencies to extend his political agendas.
- For the 20th anniversary of the 1994 Contract With America, the Ripon Forum published a series of essays on its legacy.
First published Feb. 4, 2015
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