Expect Major Fights to Repeal Regulations in Jan.-Feb.

November 23, 2016

The 115th Congress will be sworn in on Wednesday, January 4, 2017. President Trump will not be sworn in until Friday, January 20. Traditionally, the House of Representatives doesn’t do that much during the first two-and-a-half weeks of a new Congress while awaiting a new President (though the Senate is often in session holding hearings on the Cabinet-level nominations that the President-elect has announced and will send to Congress on Inauguration Day).

But next year will be different. House Majority Leader Kevin McCarthy (R-CA) has prepared a draft schedule calling for the House to be in session and holding votes five days a week from Opening Day through February 17 (with the exception of the Martin Luther King, Jr. federal holiday on January 16).

The biggest reason is the Congressional Review Act of 1996 (CRA for short).

This legislation (chapter 8 of title 5, U.S.C.), enacted as part of the Republican “Contract With America,” allows Congress to overturn regulations issued by federal agencies via a “resolution of disapproval” that must be passed by both Houses of Congress and then either signed by the President or enacted over his veto.

Since a President will never let Congress overrule a regulation promulgated by his Administration on his watch, the effectiveness of the CRA is limited to times when the House, the Senate and the White House are controlled by the same party (or when the particular rule is so broadly unpopular that both chambers of Congress can muster a two-thirds margin to override the President’s veto). (Resolutions of disapproval are exempt from filibuster in the Senate, so their threshold for passage is 51 votes, not 60, but a veto override is always two-thirds of those present and voting.)

There is a unique opportunity at the start of a new Congress to “reach back” via the CRA at regulations submitted to Congress for review in the prior Congress. 5 U.S.C. §801(d) defines this time period as 60 legislative days (House) or 60 session days (Senate) prior to the sine die adjournment of the old Congress. That is going to be January 3, but because Congress took such a long recess in July-August and then again in October-November, the reachback period for the CRA is unusually long this year. A November 9 estimate from the Congressional Research Service determined that if the current Congress stayed in session until its scheduled departure date of December 15, this would leave a CRA reachback period for the next Congress to overturn regulations transmitted to Congress on or after May 30, 2016.

Since Donald Trump’s election, Republican leaders in Congress have decided to cut this session short and adjourn by December 8 or 9 in hopes of pushing the CRA reachback window to a few days before May 30 – specifically, to be able to reach back and kill the Department of Labor’s sweeping overtime pay rule that was transmitted to Congress on May 23. (It is unclear if yesterday’s injunction from a federal judge blocking the overtime rule from moving forward will affect Congress’s timetable.)

And the scope of the reachback may be extended even further. Last week, the House passed a very short bill (just 29 lines of legislative text) that would allow the House and Senate to use a single CRA resolution to disapprove multiple regulations. (As the las stands now, it’s one resolution of disapproval per regulation, and even though the resolutions are exempt from filibuster in the Senate, each one gets up to ten hours of debate, which will add up quickly if the GOP tries to overturn more than a handful of regulations next year.) This would save a lot of time in the Senate that could otherwise be used to debate nominations or a quickie FY 2017 budget resolution to tee up a reconciliation bill repealing Obamacare.

But while the GOP entitled last week’s bill the “Midnight Rules Relief Act,” the bill goes farther than that. The legislation also expands the scope of the CRA’s reach-back from 60 days prior to adjournment to all rules that were “submitted during the final year of a President’s term.”

In other words, the legislation would not only allow Congress to overturn an unlimited number of rulemakings in a single, filibuster-proof resolution, it would also expand the scope of the CRA from rules issued since late May 2016 to rules issued since January 20, 2016.

President Obama has vowed to veto the House-passed CRA expansion bill, and the Senate may not even try to take it up this year. But you can expect the House to pass it again next year, perhaps as early as January 4 or 5. One of the first tests of Senate Democratic solidarity next year against the GOP/Trump agenda will be whether or not 41 Democratic Senators hold together and successfully filibuster CRA expansion next January or February to prevent President Trump from signing it into law after he takes office.

What will the effect on transportation be? Obviously, any controversial regulations that the Obama Administration might issue in their final form between now and January 20 will be subject to repeal by the Republican Congress and President Trump via the CRA. These include DOT’s proposed metropolitan planning organization (MPO) consolidation rule, the proposed highway performance measures rule (with its controversial greenhouse gas measurement a possibility), the Federal Railroad Administration’s rule requiring two live human beings in the cab of trains at all times, and several proposed rules relating to the economic regulation of transportation that are under consideration from the Surface Transportation Board. If the Administration issues any final rules in those rulemakings, they will be subject to simple majority-vote repeal in the next Congress.

Rules already issued in final form that could be overturned under the current wording of the CRA include the sweeping increases in the mandatory fuel efficiency standards for heavy trucks (the final rule was issued on October 25) and the Federal Aviation Administration’s final rule on drones, issued June 28 (though there is no indication that the drone rule is on the chopping block with the GOP).

And if the reachback period is extended back to January 20, DOT’s rule banning e-cigarettes on airplanes could be overturned as well.

The CRA charges the Government Accountability Office with keeping track of rules subject to the CRA and evaluating the impact of the “major rules.” Their searchable database is here.

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