Bush & Obama: On the Same Page?

Blair Tinkle, General Counsel to the Association and Congressional Liaison

Blair Tinkle, General Counsel to the Association and Congressional Liaison

What might President George W. Bush and President-elect Barack Obama have in common? They could be the only two Presidents to use the Congressional Review Act (CRA), a little known federal statute put into law by former Chairman of House Ways and Means Committee Bill Archer (R-TX) and former Speaker Newt Gingrich (R-GA) as part of the “Contract with America.” The CRA created a congressional review process for administrative rules, including the expected flurry of regulations that come at the end of a president’s term.

It is not unprecedented that an outgoing president would make a large series of administrative rules on the way out. President Clinton signed off on many administrative regulations toward the end of his term and it is widely reported that the current Bush administration is doing the same. Administrative rule-making in the last days of an administration has been coined “midnight rulemaking.”

Some of the “midnight rules” being considered at this time include new rules governing employees who take family-related or medical-related leaves, new standards for preventing or containing oil spills, a simplified process for settling real estate transactions and a rule that would effectively ban gambling on the Internet. It is rumored that as many as 90 of these regulations are being discussed and some believe that the Obama administration might seek to reverse some of these rules by beginning the oftentimes long and cumbersome process of opening up rules for comment. Or, they might look to the CRA.

Passed by Congress and signed into law in 1996, the CRA created a “fast track” procedure whereby Congress, in conjunction with a cooperative president willing to sign a joint resolution, can overturn or effectively veto administrative regulations. Under the CRA, the Office of Management and Budget provides notice to Congress of all regulations promulgated as “final rules.” Final rules cannot actually go into effect until Congress has sixty (60) days to review them. If Congress adjourns for a new, two-year session within that 60 day window, as is the case with the current 110th Congress, then the commencement of the 60 day period is stayed until 15 days after the swearing in of the new Congress, in this case, starting in January when Obama will be sworn in as well.

In a situation where the Executive and Legislative branches of federal government are divided politically, the CRA cannot practically be used. For example, in the last several years Democrats in Congress could not really use the CRA as President Bush could have simply vetoed in support of his administration’s rules. However, with a larger Democrat majority in both chambers of Congress coming in ’09 and an incoming Democrat president, the atmosphere is ripe for use of the CRA.

Moreover, to move a joint resolution under the CRA, a simple majority suffices for passage in both houses. And, to the astonishment of beltway pundits, Senate debate is limited to 10 hours and there is no filibuster permitted under the CRA. President Bush and a Republican Congress used this process in 2001 to overturn the Clinton administration’s workplace ergonomics rule written near the end of Clinton’s second term. With the current political situation facing the 111th Congress, many are anticipating the possibility that the new Congress and new president might make ample use of the CRA.

Interestingly, if the Obama administration makes use of the CRA to overturn Bush administration regulations, it is notable that former Congressman Archer was the sponsor of the bill containing the CRA when it passed in 1996. Congressman Archer, after switching parties from Democrat to Republican in 1969, successfully served the citizens of Texas for 30 years, from 1971 to 2001, in the 7th District: the District vacated by Congressman George Herbert Walker Bush.

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