I’ve chronicled the GOP’s early hints of dismantling the Affordable Care Act by challenging the law’s regulations, but Senate Minority Leader Mitch McConnell’s reference to the tactic in today’s address solidifies this as a serious GOP repeal strategy, and as such it deserves some additional consideration.
As far as I can tell, Congressional oversight of rule-making began with the Congressional Review Act of 1996, which allows Congress to review and reject both past and present federal regulations. Before a rule can take effect as a final rule, the law stipulates that the Federal agency issuing the regulation must submit to each House of Congress and the Comptroller General a report containing a copy of the rule and a proposed effective date. The specific details of this strategy are below (courtesy of the Congressional Research Service) but the gist is that if both houses pass the disapproval resolution and the President does not veto it, the resolution becomes law, and the rule becomes “of no force and effect”:
For initial floor consideration, the Act provides an expedited procedure only in the Senate. (The House would likely consider the measure pursuant to a special rule.) The Senate may use the procedure for 60 days of session after the agency transmits the rule to Congress. In both houses, however, to qualify for expedited consideration, a disapproval resolution must be submitted within 60 days after Congress receives the rule, exclusive of recess periods. Pending action on a disapproval resolution, the rule may go into effect, unless it is a “major rule” on which the President or issuing agency does not waive a delay period of 60 calendar days.
If a disapproval resolution is enacted, the rule may not take effect and the agency may issue no substantially similar rule without subsequent statutory authorization. If a rule is disapproved after going into effect, it is “treated as though [it] had never taken effect.” If either house rejects a disapproval resolution, the rule may take effect at once. If the President vetoes the resolution, the rule may not take effect for 30 days of session thereafter, unless the House or Senate votes to sustain the veto. If a session of Congress adjourns sine die less than 60 days of session after receiving a rule, the full 60-day periods for action begin anew on the 15th day of session after the next session convenes.
Congress has only invoked this prerogative only once, in 2001 when President Bush signed into law “a repeal of Clinton administration regulations that set new workplace ergonomic rules to combat repetitive stress injuries.” Democrats considered using the technique to reverse President Bush’s environmental regulations once Obama came to power, but never did.
For Republicans, this too will be an uphill climb, but many Tea Party conservatives seem energized at the possibility of taking down unpopular regulations. As incoming Senator Rand Paul (R-KY) told CNN several days ago, “I think we should sunset all regulations unless they’re approved by Congress. That doesn’t mean we won’t have regulations, it just means that Congress should be approving the regulations and you shouldn’t have unelected bureaucrats making regulations.”