Congressional Regulatory Override — The Rulebook

January 10, 2017

TipSheet: Congressional Regulatory Override — The Rulebook

The first inning of the Trump administration is likely to see multiple moves by Congress to overrule “midnight regulations” issued during the closing months of the Obama administration. What allows this is a rarely used 1996 law known as the Congressional Review Act.

In its last months, the Obama administration’s environmental and energy agencies took many executive actions opposed by Republicans. Some, but hardly all, will be vulnerable to Congressional reversal. Since it’s likely to be a recurring story, journalists will want to know the rules.

One reason the Congressional Review Act has rarely been used is that it generally applies only when the White House is controlled by one party and both chambers of Congress are controlled by the other party. Importantly, the President can veto an override resolution (a veto override requires a two-thirds majority in both chambers). As Donald Trump assumes the presidency, he can accept overrides that President Barack Obama would have vetoed.

Republicans in Congress have voiced strong disapproval of many last-minute Obama actions. They include regulations on toxic air pollution from oil refineries, methane emissions from oil and gas production on federal lands and protection of streams from mountaintop removal mining.

The act only applies to regulations, or rulemaking, in the classic sense defined in the Administrative Procedure ActExecutive orders issued by one president are not regulations, and can be rescinded or revised by a later president.

Oil refinery
Regulations about toxic air pollution from oil refineries are among many Obama administration actions that may be targetted for reversal by Republicans in Congress. Image: © Clipart.com

Several controversial late-2016 executive actions by President Obama are probably not subject to the Act because they are not rulemakings. Furthermore, they may not be reversible by Trump because they are not executive orders. There are two important examples.

One is the Antiquities Act, passed by Congress and signed by President Theodore Roosevelt back in 1906. It authorizes the president to set aside tracts of land for conservation as national monuments. And President Obama has done so — big time — especially in the past year.

But the Antiquities Act makes no mention of reversing presidential actions. It would be hard. In theory, Congress might be able to do this, but it has never really been done. Getting any such action through the Senate would probably require a filibuster-proof majority of 60 votes, which the Republicans do not have.

The other is the Outer Continental Shelf Lands Act of 1953, which governs oil and gas leasing on the federal portion of U.S. offshore waters. Under this law, President Obama on Dec. 20, 2016, withdrew vast tracts of Alaskan Arctic and Atlantic waters from leasing and drilling. The Act provides for such withdrawals by the president, but does not mention any means for undoing such withdrawals. Trump would probably need to win in court to overturn Obama’s Dec. 20 withdrawal.

While the Congressional Review Act does allow presidential veto, it has written into it exemptions blocking the power of a Senate filibuster. This would make it easier to get resolutions of disapproval through the narrowly divided (effectively 52-48) Senate now seated. But only two or three Senate GOP defections could stop any particular regulatory override.

Another important limit on the Congressional Review Act is the calendar. The law gives Congress only 60 legislative days to act. The definition of that period can be argued. But the Congressional Research Service says rules issued before June 13, 2016, are safe from override. The question of how long the current (115th) Congress has to act is murkier, but it is not much more than 60 legislative days.

Fuller accounts of the rulebook for the Congressional Review Act are here, here and here.

TipSheet will watch for and report on specific regulations facing override as they emerge in the coming days. Let us know if you want to suggest any particular focus by emailing TipSheet editor Joseph Davis at sejournaleditor@sej.org.


* From the weekly news magazine SEJournal Online, Vol. 2, No. 2. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main pageSubscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.