What’s to be done when a federal agency issues a rule for which the majority in Congress disapproves? The answer is to engage the 1996 Congressional Review Act (the Act). The Act was designed to enable Congress to step in and vote down a federal agency (e.g. EPA, OSHA, etc.) rule that it deems to be a bad regulation. The first significant use of the Act was in 2001, when Congress voted OSHA’s newly minted ergonomics standard off the rule books and out of existence.
The process for engaging the Act is not relatively difficult. Within 60 days of the rule’s introduction to Congress (a requirement of the Act), Congress can simply pass a law to kill the rule or, where there is risk of a Senate filibuster, issue a resolution of disapproval, which essentially overrides any Senate filibuster. In either case, however, the law to kill the rule, or the resolution of disapproval, can be vetoed by the President, which would require a 2/3rds vote from the Senate to overturn.
The veto power of the President is why the Act has been so rarely used. Rarely would a President allow Congress to kill a rule that his own federal agencies have issued. Attempts to kill rules issued by a President’s federal agencies would very likely be vetoed by that President. This is certainly true when the President and Congress are represented by 0pposed political parties. Where the Act really comes into play, however, is during times of political realignment, like what the United States is experiencing right now – the winter of 2017.
When the Act was successfully used in 2001, OSHA had issued its ergonomics standard before President Clinton left office. However, the 60-day review clock carried into the Bush presidency. President Bush, a Republican, enjoyed a Republican Congress, so whereas President Clinton surely would have vetoed an attempt by Congress to kill the ergonomics standard, President Bush did not, and the resolution was allowed to kill OSHA’s ergonomics standard.
The United States is currently in a similar federal rule review sweet spot. Federal rules enacted under President Obama’s federal agencies are in the review period under a Republican Congress, and a newly inaugurated Republican President – President Donald Trump. Although certainly possible, it’s unlikely that President Trump will veto forthcoming Congressional resolutions of disapprovals of federal rules by the Republican Congress.
The Act, in fact, has already been employed by Congress. OSHA’s December, 2016 final rule requiring employers to keep records of each recordable injury and illness for a minimum of five years is at risk of being killed. On February 23, 2017, Representative Bradley Byrne of Alabama sponsored H.J. Res 83, a resolution to effectively kill OSHA’s new recordkeeping rule, and it’s reasonable to expect this resolution will succeed, without the threat of a Presidential veto.
Of course, although the Congressional Review Act has already been engaged by Congress, there’s still much more time for more federal rules to come under review. This is especially true considering President’s Trump’s Inauguration Day Executive Order freezing new federal regulations. When the clock starts ticking for these frozen regulations, they will be prime for 60-day Congressional Review.