Nov 14, 2018

By Wayne Simpson, CFCM, CSCM

In 2017 when the new administration entered office, and with both houses of Congress controlled by the same party in the 115th Congress, the Congressional Review Act of 1996 was used dozens of times in the first session of the 115th Congress to rescind Executive Orders, regulations, rules and policies issued by the previous administration.  As of June 2018, 17 public laws were enacted using this authority.

Fast forward to the 116th Congress convening at Noon Eastern Time January 3, 2019.  With both houses of Congress being controlled by different parties in the new Congress, and the Senate controlled by the same party as the Executive Branch, will the newly elected Congress seek to use the Congressional Review Act to attempt to undo changes made during the first two years of President Trump’s Administration?  More importantly, will they be successful?  Probably not, but it will be interesting to watch.  Any attempts will certainly show the opposition’s displeasure with targeted Executive Orders and regulations.

Since this law took effect long after many of us had completed seventh grade Civics Class, here’s a quick primer.  The Congressional Review Act of 1996 was passed as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA), signed by President Clinton on March 12, 1996.  SBREFA provides additional avenues for small businesses to participate in and have access to the Federal regulatory arena. SBREFA gives small businesses more influence over the development of regulations; additional compliance assistance for Federal rules; and new mechanisms for addressing enforcement actions by agencies.

The Congressional Review Act is an oversight tool used by Congress to overturn rules issued by an executive agency or executive orders issued by the President.  It is most commonly used to address actions of a previous administration.  Federal agencies must submit a report to each house of Congress and the Government Accountability Office (GAO) containing a copy of rules issued.  The submission to Congress and GAO must include a concise statement of the rule, whether the rule is a “Major Rule” and the rule’s proposed effective date.

Members of Congress then have specified time periods to submit/take corrective action using a joint resolution of disapproval.  The joint resolution must be approved by both houses of Congress.  The joint resolution is then sent to the President for signature.  If the President vetoes the joint resolution, Congress can override the President’s veto. 

If signed by the President, the Congressional Review Act states the “Rule shall not take effect or continue.”  The rule may not be reissued in “substantially the same form” as the disapproved rule.  Also, provisions that had become effective would be retroactively negated.

The Congressional Review Act also prohibits judicial review of any “determination, finding, action or omission” thereunder.  The act does not define what would constitute a rule that is “substantially the same” as the nullified rule.  But one very recent and excellent example of the Act’s effect on government procurement is the case of E.O. 13673 “Fair Pay and Safe Workplaces” which is no more.

Perhaps this is why it is often said “Live by the Executive Order/Die by the Executive Order—Here today/gone tomorrow.”  It may also be why the late German author Otto von Bismarck once said:  Laws are like sausages, it is better not to see them being made.  President Kennedy later communicated this to Americans as well.

America has survived 115 Congresses—it will undoubtedly survive the next.

 

About the Author:

Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.

 

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