Regulatory roulette: The Congressional Review Act comes around again

By Willa B. Perlmutter

So, this column is going to be a little different from my usual observations about what MSHA is doing these days. Given the super-charged political climate and the fact that my Washington D.C. roots go very deep, I’ve been thinking a lot about what’s going to happen in November – and what it could mean for the mining industry in general and my clients in particular.

I’m talking about the upcoming presidential election, sure, but remember, too, that the elections in the House and Senate (to say nothing of many down-ballot elections) could significantly alter the balance of power in the capital and affect federal policy for many years to come.

The presidential election could go either way, of course. And nobody knows which political party is going to control Congress when it reconvenes in January. One certainty, though, is that whatever the outcome of the elections, there’s a realistic chance that regulations issued late in the Biden administration could be invalidated when the new Congress gets sworn in.

Let’s take a minute and revisit what you remember from Schoolhouse Rock. (Remember Schoolhouse Rock?)

There’s a law out there, the Congressional Review Act, by which Congress has the ability to invalidate regulations promulgated by presidents in the waning days of an administration. Here’s how it works. When a new regulation issued by a federal agency like MSHA (or the EPA, or OSHA, or any of the other gazillion agencies that make up the federal government) becomes final, the agency has to submit it to Congress and to the General Accounting Office for review. The submission has to lay out specific details about the new rule like what it says, why it was issued, and when its effective date will be. Once Congress gets that report, a window opens during which both chambers have a chance to review the new rule and decide whether to let it take effect or try to invalidate it.

The review period is 60 legislative days. (Not 60 actual days, mind you. 60 legislative days, which is a concept that might make sense only to politicians.) The definition of a “legislative day” is tied to the procedural rules within each chamber, but in its simplest form, a legislative day is any day on which Congress convenes for business. That can include days when Congress convenes but does not carry out any substantive legislative work. (I’ll give you a minute here so you can smirk about me using “Congress” and “substantive work” in the same sentence.)

During the review period, any representative or senator can introduce what’s called a joint resolution of disapproval to challenge the rule. If both chambers approve, the joint resolution goes to the president, who can either sign or veto it. If he goes with the veto, his decision can be overridden by a two-third vote of each chamber.

Here’s why all that is important. If a joint resolution of disapproval is enacted, the new regulation is void. It simply dies on the vine. Nobody is required to follow the nullified rule, and the agency can’t take any action to enforce it. What’s more, the Congressional Review Act explicitly bars the agency from issuing a new regulation that is “substantially similar” to the dead one, unless Congress explicitly says otherwise. For all practical purposes, the old rule pretty much just evaporates. Equally importantly, the Congressional Review Act prevents courts from reviewing either the Congressional resolution or the regulatory action itself. Once the president signs the disapproval resolution, or Congress overrides the president’s veto, the rule just goes away. That’s it.

The 60-legislative-day window is quite significant. If Congress adjourns before 60 legislative days have passed, the review period is paused until Congress reconvenes. Then, when Congress reconvenes, any days that remain in the 60-day period are simply added to the time for review to ensure Congress has a full 60 legislative days for review. What this means is that any rule published so close to the end of the legislative session that Congress would not get the whole 60 days would continue to be subject to review when Congress reconvenes, this time by the incoming Congress.

Knowing when that 60-day cut-off happens is tricky, since there’s always a chance that Congress will convene for fewer, or more, days as the end of the session approaches. Legislative days can be added or canceled as the election season heats up. Ultimately, it is up to the House and Senate parliamentarians to say when the review period starts and stops. This year, best guess is that May 22 started the clock on the publication of rules that could be pulled back if the administration changes.

In other words, any regulation published after May 22 would be subject to review – and potentially vulnerable – when the new session of Congress begins. That explains why the Biden administration has been trying so hard this spring to push regulations out the door. (On the MSHA side, think about the mobile equipment rule and the silica rule. For OSHA, think the rule on worker walkaround representatives.)

The rush to publish thing is not unique to President Biden by any means. All presidents have taken that approach since the Congressional Review Act became law in 1996. (Remember the fun and games that surrounded the publication of the new workplace exam rule? On the first day of the Trump administration, his incoming chief of staff ordered the withdrawal of all of Obama’s regulations that had not yet been published, but the order came too late to stop the new workplace exam rule from being printed in the Federal Register. There was a while there when nobody – not the White House, and certainly not the mining community – knew what was happening. That wasn’t strictly a Congressional Review Act issue, but it was an example of how politicians can effectively throw a wrench into the lives, and livelihoods, of the rest of us.)

But I digress. How, you ask, will the Congressional Review Act come into play after the elections? Well, if Biden is reelected and Democrats either (a) control both chambers of Congress or (b) neither party has a comfortable margin of control, then rules issued during Biden’s first term will most likely be safe.

If, on the other hand, Republicans end up with a majority of both congressional chambers, then rules published by the Biden administration after the 60-day cut-off would be subject to review and very likely nullification. In that case, if Biden remains in office, he would most likely veto any disapproval resolution that’s sent to his desk. If one or both chambers of Congress are under marginal Republican control, Congress most likely could not override the president’s veto. On the other hand, if Trump returns to office, the fate of any late Biden rules would depend on who controls Congress. If Congress flips red and tries to pull back any of the previous administration’s rules, Trump would be unlikely to veto Congressional disapproval resolution.

Complicated? You bet it is. What conclusions can we draw about the political fate of Biden’s regulatory initiatives at this point? Not very many. But let’s revisit this after the election, since whatever happens, it’s sure to be interesting. But maybe that’s just me.

Willa Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected].

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