The Congressional Review Act of 1996 is a “sleeper statute” (aka, a secret weapon) in that its practical application took 20 years to enter the realm of viable possibility. The CRA allows Congress to overturn executive regulations by a simple majority—and this is the moment it’s been waiting for.
Before this year, all but one executive agency regulation repeal effort under the CRA have failed. In order for a CRA action to be worth the trouble, one party needs control of both Congress and the White House—and a foundational respect for congressional authority.
The Republican-controlled House and Senate want to reclaim theirs from the ghost of the Obama era. So far, 13 deregulatory resolutions have passed the House, three through both chambers of Congress, and two received President Trump’s signature. The activity could spook regulators and Democrats in the coming years, who appear to have little recourse to combat a successful CRA measure.
For example, the Federal Communications Commission’s recent rule tightening oversight of broadband Internet providers—a controversial power grab by the FCC—could fall to the CRA. A flurry of 29 deregulatory resolutions and counting has come from the House in a matter of weeks, but not a one targets FCC rules. The stakes are high for supporters of the rule’s strict oversight: A similar rule would be barred from replacing it. The Congressional Review Act prohibits the subsequent issue of any regulation “substantially the same” as a rule it’s overturned.
The only way to oppose a deregulatory CRA action against an FCC policy that guards user data from monetization, and makes your Internet bill higher? “We will rally millions of Americans to this cause,” said Massachusetts senator Ed Markey on a call with reporters Monday afternoon. “If the Republicans think they’re going to be able to roll back all these protections without a huge fight, they are sadly mistaken.” But, grassroots protests notwithstanding, Republicans have the means to roll them back. The sleeper statute is awake, and regulators are right to be on guard.
Republicans’ eagerness to dismantle the previous administration’s overreaching agency rules cannot be overstated. “The GOP is really going after this full throttle,” observed Meghan Claire Hammond, an associate at Pillsbury Law, a firm in D.C. that has been tracking the CRA.Several resolutions taking on the same unpopular regulations have come from different House members, she said, eager to overturn burdensome rules.
Practical time constraints force Congress to limit its focus to high-priority regulations. Every CRA action requires 10 hours of debate in the Senate. “There’s an academic debate back and forth about how the statute should be interpreted, but in the practical world they’re going to run out of time,” said Sheila Harvey, partner and chair of the regulatory department at Pillsbury. By one estimate, Harvey said, a dozen high-priority regulations might meet their end. That’s out of the 180 rules that fall within the CRA’s time-frame.
And that doesn’t mean there aren’t dreams of an even more aggressive CRA campaign. According to the law, any rule finalized within 60 legislative days is subject to CRA review. But in one interpretation, if agency rules that take effect without the proper process are never truly “final,” the time limit should have no bearing. By this reading, all executive regulations since 1996 could be subject to being overturned by simple majority, Harvey said.
The Wall Street Journal‘s Kim Strassel floated this theory, noting that if the CRA were applied in its boldest possible capacity, none of the last eight years’ overreaching rules need remain, nor ever come back.
In other words, if Republicans took the long-view interpretation of the CRA, they could theoretically remove every bit of the Obama-era regulatory regime—permanently. Kentucky senator and majority leader Mitch McConnell, who heralded the overturn of the Stream Protection Rule that affected coal mining in his home state, laid out a more conservative plan for its use: He said in a radio interview in early February that Congress would stick to the 60-legislative-day limit.
Democrats and regulators should be relieved. There is, after all, no legislative avenue to oppose a CRA action. Absent a theoretical legal challenge to the statute itself, the only counter-weapons are fighting words and passing time.
