Welcome to 2016. By now, you should have noticed that it’s a presidential election year. (Either that, or political punditry from average citizens of Iowa is at an all-time high.) That means you’ve heard plenty about President Barack Obama’s executive overreach on everything from immigration to carbon emissions to, most recently, guns.
Unfortunately, most voters care more about issues than process. The legislative process may be boring, but it remains a fundamental part of preserving our freedoms. We rejected a monarch way back in the 18th century in favor of a model of divided power. To preserve that system, Congress needs to start thinking about playing hardball with the tools at its disposal.
The Congressional Review Act (CRA) and creative use of the legislative calendar might just be enough to run out the clock on a lame duck president looking to jam through the rest of his agenda via regulation in 2016. Under the CRA, Congress has the power to reject major federal rules within roughly 60 legislative days—not to be confused with calendar days—of receiving such rules from a federal agency or the date of their publication in the Federal Register. Such measures may not be filibustered in the Senate, but they do ultimately require the president’s signature.
That’s why the CRA is usually toothless.
No president is going to veto a rule his or her administration has just crafted. The CRA has only been used once successfully, to overturn a Clinton-era ergonomics rule. In that situation, Congress rejected a rule put forth by the Clinton administration with time left on the clock. President George H. W. Bush signed the resolution and the rule vanished, with the added bonus that the CRA prohibits the executive branch from creating a substantially similar rule without new enabling legislation from Congress.
Right now, the House of Representatives is slated to meet for 111 legislative days in 2016. That means that, using the current House calendar and adding a couple of days in January 2017, the Republican Congress could possibly send the next president a rule-killing resolution reaching all the way back to the end of May 2016, if they play their procedural and scheduling cards carefully.
If Congress contracted its legislative calendar, it could address regulations crafted even earlier in 2016. Members of Congress don’t really want to take tough votes in an election year, and Senate Democrats intend to lock down the upper chamber with the filibuster on all but the most innocuous measures.
What would congressional Republicans rather do? Pass “messaging” legislation during the next year or cut the calendar to deal solely with essential functions, thus teeing up a Republican president who could literally shut down the current administration’s regulatory reign.
Obviously, there’s no assurance that a Republican will win the White House. There’s a further risk that Republicans will be labeled “do nothings” in an ultimately futile effort if a Democrat sympathetic to Obama’s priorities wins the presidency. Democrats taking back the Senate in 2016 could complicate the calculus even further.
On the other hand, the payoff from this tactical move could be huge. A Republican president could erase much of Obama’s regulatory agenda and prevent agencies from crafting substantially similar rules under existing regulatory authority. While it’s certainly a long-shot and a political risk, members of Congress need to decide whether they’re as serious about checking the president’s overreach as he is about pushing his agenda.