Midnight Rules May Face Rude Awakening Under the Congressional Review Act in the 115th Congress

President-elect Donald Trump has promised to make rolling back certain aspects of the Obama Administration’s domestic policy, including environmental and other rules and regulations issued by federal agencies, a first order of business after taking office in January 2017.  This blog post will explore some ways President-elect Trump and Congress may seek to make good on that promise, starting with the Congressional Review Act, 5 U.S.C. §§ 801-808 (CRA).

The Toolkit for Rescinding Executive Actions

The Trump Administration and the Republican majorities in both houses of Congress have several tools at their disposal to rescind or prevent implementation of the Obama Administration’s final rules and other executive actions.  President-elect Trump’s tools include issuing executive orders, exercising enforcement discretion, withdrawing interpretive rules and other informal agency directives, repealing formal rules issued pursuant to notice and comment procedures, delaying effective dates of regulations, and, to some degree, settling or refusing to defend lawsuits challenging executive actions.  Tools at Congress’s disposal include passing laws, pressuring agency officials through oversight hearings and other meetings, using appropriation riders to defund a rule’s implementation, and the streamlined legislative disapproval process provided by the CRA.

Which tool is the appropriate fit for rescinding an executive action depends on the type of action in question, which generally may be categorized as: executive orders issued by the President, informal agency rules such as policy statements and enforcement guidance, and formal agency rules issued pursuant to rulemaking procedures that have the force and effect of law.  The applicability and likelihood of success of each tool also depends on timing considerations, the composition of Congress, and the existence of any statutorily or judicially imposed restraints.

The Congressional Review Act

While the CRA has only been used successfully once since its enactment in 1996, given the election of a Republican President combined with a Republican-controlled Congress, the law presents a powerful way to rescind so-called “midnight rules” issued near the end of the Obama Administration.

The CRA empowers Congress to review new federal rules issued by federal agencies and to overrule those rules through an expedited legislative process.  The law provides Congress with 60 legislative days (or days in which Congress is in a particular session) to overturn a rule by submitting a “joint resolution of disapproval,” which only requires approval by a simple majority in both chambers.  See 5 U.S.C. § 802(a).  Importantly, the CRA establishes a special set of “fast track” legislative procedures that effectively makes a joint resolution of disapproval filibuster-proof in the Senate.  If the resolution is signed by the President, the CRA provides that the rule at issue cannot take effect and may not be issued in “substantially the same form” again unless Congress approves the rule with a new law.

Currently, Congress must pass a separate joint resolution for each rule it wants to rescind.  Notably, on November 17, 2016. the House passed H.R. 5982, the Midnight Rules Relief Act, which would amend the CRA to allow a single joint resolution to be used to disapprove more than one rule.  However, unlike approval of particular joint resolutions of disapproval under the CRA, approval of the Midnight Rules Relief Act may be unlikely because it is subject to filibuster in the Senate.

The CRA is not typically an effective means of overturning an agency rule because Presidents are likely veto a joint resolution disapproving rules that their own Administrations issued.  However, where both the White House and Congress are controlled by the same party, the CRA is a formidable tool.  This will become the case on January 20, 2017 at noon ET.

The Congressional Research Service (CRS) has issued a series of memos estimating, based on expected legislative calendars, the cutoff date of final rules subject to disapproval by the new Congress pursuant to the CRA.  The most recent memo estimates that final rules submitted to Congress after June 13, 2016, will be subject to such disapproval by the 115th Congress.  For more information, see CRS, Agency Final Rules Submitted on or After June 13, 2016, May Be Subject to Disapproval by the 115th Congress, Insight IN10437 (December 15, 2016), available at https://fas.org/sgp/crs/misc/IN10437.pdf.