Agency Final Rules Submitted After May 30, 2016, May Be Subject to Disapproval in 2017 Under Congressional Review Act

Source: Christopher M. Davis, Richard S. Beth, Congressional Reserach Service, CRS Insight, IN10437, November 9, 2016

With a change of presidential administrations taking place in January, some in Congress are paying renewed attention to a parliamentary mechanism that might enable the new Congress and the new President to overturn agency final rules of the Obama Administration issued after late-May 2016. The Congressional Review Act (5 U.S.C. §§801-808), enacted as part of the 104th Congress’s (1995-1996) “Contract with America,” established a special parliamentary mechanism whereby Congress can disapprove a final rule promulgated by a federal agency. While Congress has considered several CRA joint resolutions of disapproval since 1996, the CRA mechanism has successfully overturned only one agency final rule: a 2000 Occupational Safety and Health Administration (OSHA) rule related to workplace ergonomics standards. Perhaps the most widely cited reason why the CRA has overturned only one agency rule in 20 years is the de facto supermajority vote required to enact a CRA resolution of disapproval. While all of the congressional votes related to a CRA disapproval resolution are simple majority votes, the way the mechanism is structured all but assures that a veto override—requiring a two-thirds majority of both houses of Congress—will be necessary to enact the disapproval resolution. This is because a President is most likely to veto a joint resolution that attempts to strike down a rule proposed by his own Administration. For example, in the 114th Congress (2015-2016), President Barack Obama has vetoed five CRA disapproval resolutions presented to him by Congress.