How COVID-19 Extends the Congressional Regulatory Review Period
Starting in February 2017, Congress passed resolutions to nullify 16 different federal regulations, including the “stream protection rule,” a drug testing rule for unemployment applicants, a rule requiring federal contractors to disclose labor law violations, and an internet privacy protection rule.
These regulations were reversed under the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.), which allows Congress to pass a “resolution of disapproval” that is signed by the President. In the Senate, such a resolution can be passed by a simple majority vote (i.e., no filibusters) if passed within “60 session days” after receiving notice of a regulation (5 U.S.C. 802(e)).
For major regulations issued within the final 60 days of a Congressional session (sometimes called “midnight rules”), the clock is reset and the succeeding Congress may disapprove of a midnight rule within the first 75 days of its new session under expedited procedures (5 U.S.C. 801(d)). Four years ago, the key date was June 13, 2016. Any regulation finalized on or after that date was subject to Congressional review in the early months of 2017.
Based on the Congressional calendars published at the beginning of the year, the House currently has 66 more days of legislative session planned for 2020 before sine die adjournment, including 13 days planned after the election during a “lame duck” session. (The Senate has 94 more days planned, but under the CRA the earlier date for meeting the 60-day threshold is used.) This means that under the original Congressional calendars, the date on which the CRA “carryover period” would begin is after six more days of House session, or on May 20th.
However, that was before the coronavirus pandemic. Since mid-March, both the House and Senate have cancelled several days of planned legislative session. Even counting pro forma sessions, the House met only 10 times in April, and only three days so far in May. To the extent that the House cancels additional days of session going forward, the 60-day “carryover period” will continue to move back to an earlier date. It is quite possible that at the end of the year when this lookback calculation is made, we will find that the official start of the carryover period will be much earlier than May 20th.
It probably means that we are in that period right now. In other words, any regulation issued by the Trump Administration between now and the end of the year will likely be subject to expedited Congressional review in the early months of 2021.
Of course, this is largely academic if the status quo continues, with President Trump being reelected and the Senate majority staying in Republican hands. But if those two things do not occur, then we may again see a large number of CRA resolutions being debated in 2021 to nullify regulatory actions taken from this point forward in 2020.