Obama may need to send former Congressman Bill Archer a Christmas card this year – it should read “thanks to you and yours for helping me reverse Bush’s last-minute regulations.” Archer, you see, sponsored a little known 1996 law that could soon become Obama’s new best friend.
As you probably know, the Bush administration is implementing a series of “midnight rules” before they leave town. And as Hilzoy noted earlier, the incoming Obama administration is examining ways to reverse these and other Bush rules. Interestingly enough, an obscure Gingrich-era law called the “Congressional Review Act of 1996” (CRA) could help the Dems prevent these rules from taking effect. It’s been used just once – by the Bush administration to overturn last-minute Clinton ergonomics regulations. But maybe it’s time to dust it off and take it for a spin.
By coincidence, I was doing some administrative law research, and came upon this law in a treatise – I had never heard of it. And I suspect I’m not alone. (Though when I got home, I googled and noticed that Professor Peter Shane had beat me to the punch. He has a good backgrounder there.)
Long story short – the CRA potentially helps Obama repeal last-minute regulations in two ways: (1) it extends the “effective date” of Bush’s “major” regulations; and (2) it gives Congress a limited window to veto any newly-enacted regulation, regardless of whether it’s already become effective. I’ll expand on both below.
To back up, the CRA requires that agencies submit copies of new regulations to Congress before they can go into effect. With respect to #1 above, the CRA requires that “major” rules cannot go into effect until 60 days after this submission. As Professor Shane notes, if “Congress adjourns for a new session within 60 days,” then the review period restarts on the 15th day of the next session. In short, it’s as if the rules had been submitted to Congress for the first time around Day 1 of the Obama presidency. That means any last-minute “major” rules won’t be “effective” when Obama takes office. Thus, he can postpone (and presumably kill) them immediately.
However, #2 is arguably more important because it covers rules that have already gone into effect. For any new rule (major or not), Congress has a limited 60-day window to repeal it via joint resolution (which must be signed by the president). Here too, if Congress adjourns within 60 days of receiving the rule submission, the whole thing starts again on Day 15 of the next congressional session.
In short, Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours. I presume the legal eagles working for Obama know all this – but it can’t hurt to remind them.
The backstory here, of course, is that the GOP Congress was trying to limit Clinton’s authority (perhaps thinking they would win the 1996 election). Clinton ultimately signed the CRA though – presumably because it was a small part of a larger omnibus bill that included the line item veto.
In any event, it doesn’t really work when the government is divided. For instance, the Democrats couldn’t really use it last term because Bush would veto it. Similarly, Congressional Republicans couldn’t use it because Clinton would veto any rule repeal. But with all-Democratic government, it's obviously much easier to repeal any last-minute Bush regulation.
And that, my friends, is change you can believe in.
(One note of caution, however, is that Senate holds could impede the repeal -- I don't really know how these work though. Anyone?)