A provision that was passed as part of the Small Business Regulatory Enforcement Fairness Act in 1996 could help Republicans in Congress and the White House keep at least some of their campaign promises to reduce federal regulations in 2017.
The Congressional Review Act (CRA) gives Congress 60 working days after a final rule is issued to review it and send a joint resolution of disapproval to the White House. The law has been used successfully only once. Presidents usually have not been inclined to overturn their agencies' actions; Barack Obama vetoed CRAs that reached his desk five times. Donald J. Trump may have other ideas.
The law has some obvious appeal for Republicans eager to ease what they consider federal regulatory overreach because it differs from normal legislative processes in two primary ways, according to a Nov. 17 Congressional Research Service (CRS) report.
First, when a joint resolution of disapproval meets certain criteria, it can't be filibustered in the Senate, it said. "Specifically, once 20 calendar days have passed after the receipt and publication of the final rule, the Senate committee to which a joint resolution disapproving the rule has been referred can be discharged of further consideration if 30 senators sign and file a petition," CRS indicated.
"Once the committee is discharged, any Senator can make a nondebatable motion to proceed to consider the disapproval resolution. Should the Senate choose to [do so], debate on it is limited and a final vote would be all but guaranteed," it said.
Second, if a joint resolution of disapproval is enacted, it not only invalidates the rule in question, but also bars the agency involved from issuing another rule "in substantially the same form" as the disapproved rule unless a subsequent law gives it that authority, the CRS report indicated.
There are limits
There apparently are time limits. The CRA does not give an incoming Congress a mechanism to overturn all of a previous administration's regulations. It apparently does provide it a way to act during a transition period following a new president's inauguration if the regulations became final in the last administration's final weeks, however.
It's not certain whether this would apply to actions under an existing process, such as the Interior Department's Nov. 18 cancellation of lease sales in the Beaufort and Chukchi seas offshore Alaska when it announced a final proposed 2017-22 Outer Continental Shelf management program on Nov. 18. The OCS Lands Act, which established the 5-year plans, does not let an incoming administration restore previously deleted sales.
But Republican congressional staffs probably are looking at some regulations, including some involving oil and gas, which could be fair game.