CRA Update: What’s Been Overturned, What’s Still Standing?
Congress and Trump have done some major harm with this tool, but so far, not as much as feared.
We’re getting close to the deadline for Congress final chance to use its override authority under the Congressional Review Act to eliminate Obama Administrations regulations. The deadline for introducing new resolutions has already passed, and the deadline for voting ends around May 10. It’s not clear whether the Senate in particular will have time for many additional votes given the need to pass a continuing resolution to keep the government open in the last week of April. So this seems like a good time to summarize the state of play, before we get to this final round.
Congress has not let the opportunity pass by for it to do mischief, helping to put guns in the hands of the mentally ill, limit internet privacy, and generally to favor special interests at the expense of public health and welfare. There were roughly fifty regulations at risk. So far, about a quarter have been overridden. In the environment and energy area, only 3 out of 18 have been overridden so far. Maybe there’ll be a last-minute rush before the deadline, as there often seems to be for Congress.
It actually wasn’t easy to find a listing of overrides that are active consideration in Congress, but I did find one April 1 update. [I later found a more up to date list, but it’s not as well-organized and doesn’t include summary statistics.] As of the first of the month, 29 resolutions had been introduced in the House, of which 15 had passed. On the Senate side, only 17 had been introduced, but 13 had passed. (The counts don’t include duplicates of resolutions already submitted to the other House.) Eight resolutions had been signed into law.
I’ve appended a table of the various pending resolutions regarding environmental/energy matters and their status as of April 1 (Resolution number, House or Senate vote, Presidential action). If you’re an email subscriber, this list may have gotten jumbled, but it should be readable on the Legal Planet website). Trump has signed an additional six disapproval resolutions since then, bringing the total to fourteen.
I was surprised at the number of resolutions that were introduced in the House but haven’t actually come to the floor for to be rubber-stamped. So far as I can tell, it takes about as time and effort for the House to pass a piece of legislation supported by House Republicans as it takes Paul Ryan to sneeze. They only run into trouble if the Freedom Caucus rebels, but that’s not likely to be a problem when the issue is repealing Obama’s regulations. So why have so many CRA resolutions languished in the House? Maybe the schedule just got delayed a bit because of the Obamacare-repeal fiasco, and we’ll see a bunch of votes taking place between April 24 and May 10. I’ll do a final wrap-up when it’s all over.
If you want to voice a view about any of them pending resolutions to your representatives, here’s a handy link. In particular, industry badly wants to overturn a review on methane releases from drilling operations on public lands, and a number of Republican Senators are said to be possible no votes, while a couple of Democrats may end up supporting the bill. So putting in a word about this particular resolution might be especially worthwhile.
At this point, the CRA has proved itself a potent weapon against an out-going Administration. But so far, it hasn’t been as devastating as some had feared and others had hoped. As of now, it looks like at least half of the major regulations adopted by the Obama Administration in its final months will survive.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more