More Historic “Firsts” for Regulatory Disapprovals under the Congressional Review Act
The 115th Congress continues to make history by exercising its powers under the Congressional Review Act (CRA) to eliminate rules issued at the end of the Obama administration. To date, 13 resolutions of disapproval have passed both chambers of Congress; two additional bills have passed the House. President Trump has signed eight of these into law with three additional resolutions currently awaiting his signature. The Senate passed two more resolutions on March 30th which should be sent to the president soon. Prior to 2017, Congress had only successfully struck down a single rule using the CRA.
As we’ve previously discussed, the CRA includes procedures that allow Congress to nullify a regulation with only a simple majority in both houses of Congress and with “fast track” provisions that prevent resolutions from being filibustered in the Senate. Disapproval under the CRA also prohibits agencies from issuing future rules that are “substantially the same” as the disapproved rule unless specifically authorized to do so by Congress in the future. The George Washington University Regulatory Studies Center tracks the status of Congressional disapprovals under the CRA here.
First Tie-Breaking Vote on a Resolution of Disapproval by a Vice President
On March 30, 2017, the Senate voted on a motion to proceed with House Joint Resolution 43 (H.J.Res. 43)—a resolution to disapprove a rule by the Department of Health and Human Services related to sub-recipients of family planning grants. Vice President Mike Pence ended up casting votes that broke a 50-50 tie on both the motion to proceed and the vote on the bill. The Senate vote on this resolution was similar to other disapprovals under this Congress in that they are, 1) generally close votes that, 2) largely break along party lines.
Bills Awaiting the President’s Signature
Among the five bills headed to the president, three of them are currently “on his desk,” awaiting his signature. The first bill (H.J. Res. 69) would nullify a rule issued by the Fish and Wildlife Service (FWS) “related to non-subsistence takings of wildlife” on National Wildlife Refuges in Alaska. The second bill (H.J. Res. 83) would nullify a rule issued by the Occupational Safety and Health Administration (OSHA) that requires employers to maintain certain records of work-related injuries and illnesses. The final bill (S.J. Res. 34) would nullify a rule issued by the Federal Communications Commission (FCC) related to internet providers and other companies offering telecommunications services with respect to customer privacy issues. The GW Regulatory Studies Center previously filed a public comment on the FCC’s rule during its notice and comment period.
Additional Disapprovals on the Horizon
Depending on changes in the legislative schedule, the deadline for Congress to use the CRA to nullify regulations issued during the last 60 legislative days of the Obama administration falls sometime in May. Reports indicate that the president plans to sign any disapproval that lands on his desk. This means that the president still has time to take advantage of the CRA to make progress toward his stated goal of cutting regulations.