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By Cheryl Bolen
May 26 — Use of the Congressional Review Act to “disapprove” executive branch regulations is on the rise, including twice during the week of May 23, but the effect has been more political than substantive, panelists on an American Bar Association teleconference said.
William Levi, chief counsel for Sen. Mike Lee (R-Utah), said this has been a particularly busy Congress for resolutions of disapproval, with 18 proposed so far. Levi spoke on a panel hosted by the ABA Section of Administrative Law and Regulatory Practice Rulemaking Committee.
“It's certainly not because the CRA actually accomplishes anything of real consequence,” Levi said. “By contrast, CRA resolutions are instead quite solidly in the political realm,” he said.
President Barack Obama has vetoed four joint resolutions of disapproval over the last year: three targeting Environmental Protection Agency rules and one targeting a rule by the National Labor Relations Board.
On May 24, the Senate passed a resolution (H.J.Res. 88) to disapprove the Department of Labor's fiduciary rule, and on May 25, the Senate passed a resolution (S.J.Res. 28) disapproving a Department of Agriculture rule on catfish inspections.
Jeffrey Rosen, partner at Kirkland and Ellis, said the CRA is an oversight tool to let Congress reject an agency regulation using an expedited procedure in the Senate.
The complicated part is the timing, Rosen said. There is a 60-day window after receipt of the rule by Congress in which to introduce a resolution of disapproval, he said.
There is also a “reach-back” provision in the act, so that if 60 legislative days have not expired by the end of the session, the clock starts over on Jan. 15 of the next year, Rosen said.
“So, in a year like this, there's a lot of attention to, can the new Congress next year do resolutions of disapproval of rules from this year, and when does that start,” Rosen said.
That depends on the number of legislative days remaining in 2016, which depends on the number of days in the lame-duck session. Still, Rosen said that the Congressional Research Service has estimated the “reach-back clock” comes to approximately this week or next.
“It becomes a calculable date in hindsight, but in terms of estimating it, the estimates are it's around now, that rules issued after now would be subject to resolutions of disapproval . . . in the next Congress as well as in this one,” Rosen said.
Emily Hammond, professor at the George Washington University Law School, outlined some of the drawbacks of using the CRA, beyond the obvious presidential veto.
The CRA is “a very blunt instrument” as compared to the review that courts exercise over agency rules, Hammond said.
Where courts can invoke severability and invalidate one controversial provision in an agency rule, or remand a rule and send it back for agency reconsideration, the CRA simply voids the entire rule and does not allow the agency to issue a “substantially similar” rule in its place, Hammond said.
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