Employing its authority under the resolution of disapproval process set forth in the Congressional Review Act (“CRA”) (PL 104-921) a process that has only been used successfully once in 2001 until now, House Republicans have passed and sent to the Senate, since the start of this Congress on January 3, 2017, eight separate resolutions of disapproval as part of a concerted campaign with the Trump Administration to invalidate many of the regulations that were issued late in President Barack Obama’s final term. (All of these resolutions of disapproval have been considered in the House under closed rules that prohibit the offering of amendments.) To date, the Senate has passed and sent to the new Republican president two of the House-passed disapproval resolutions.
This authority enables the Congress to consider disapproval resolutions for many rules issued last year by the Obama Administration. The regulations thus far affected include:
- The Department of Interior’s (DOI) Stream Buffer Rule
- The Securities and Exchange Commission’s (SEC) resource extraction disclosure rule
- The Social Security Administration NICS rule for firearm purchases by people who may be psychologically or emotionally impaired and who have a designated payee for their social security benefits.
- A federal contracts rule that targets businesses accused of violating labor laws
- The Bureau of Land Management (BLM) methane venting and flaring rule
- The Bureau of Land Management Planning 2.0 rule; and
- Two education rules: The Department of Education’s teacher preparation and accountability rules.
In the last Congress, President Obama vetoed five CRA disapproval resolutions passed by the Republican Congress, including resolutions that sought to block EPA rules that reduce greenhouse gas emissions from new and existing coal-fired power plants. Thus, the shift in the political landscape resulting from this year’s presidential election is critical to the CRA process as, unlike former President Obama, President Trump is expected to approve whatever resolutions of disapproval the Republican Congress sends him.
This week, the House will consider, and is expected to pass, five additional resolutions of disapproval, including a resolution that if it becomes law would invalidate the Obama Administration’s controversial December 19, 2016 HHS rule preventing states awarding Title X family planning funds from prohibiting health care providers from participating in the Title X program for reasons other than a particular provider’s ability to provide Title X services. (This rule is designed to withhold Title X money from states that restrict participation by Planned Parenthood in the Title X program because of Planned Parenthood’s offering of abortion services using non-federal funds.)
The other rules that are subject to House disapproval resolutions this week are:
- A Department of Labor rule that limits the scope of when drug testing can be required of applicants for unemployment benefits;
- Two Labor Department rules that exempt from certain ERISA requirements certain state-administered and local government-administered retirement plans for workers at private sector businesses and non-profit firms that don’t offer retirement plans; and
- An Interior Department rule that prohibits certain predator control practices in national wildlife areas in Alaska.
Under the CRA, if a resolution of disapproval is introduced within 60 calendar days of when an agency issues a final rule and submits it to Congress (exclusive of adjournment periods of more than three days), the disapproval resolution is considered under expedited procedures that prohibit filibusters in the Senate, thereby allowing adoption of the resolution by a simple majority vote. As CRA resolutions of disapproval are limited to 10 hours of debate in the Senate, once Senate Majority Leader Mitch McConnell (R-KY) finds time on the Senate calendar to schedule debate on the House-passed CRA resolutions of disapproval beyond the two disapproval resolutions it has already passed on the stream buffer rule and the SEC resource extraction disclosure rule, the Senate is expected to start approving these additional disapproval resolutions and send them on to President Trump for his consideration and anticipated signing. Thus, even given the Senate’s current focus on nominations, it’s possible that the Senate could begin passing these additional resolutions of disapproval as soon as this week, or, if not, then certainly starting during the week of February 27 after the Senate returns from its President’s Day recess.
