The coronavirus pandemic might give opponents of the Trump administration more opportunities to fight agency actions taken in the remaining months of 2020. Under the Congressional Review Act (CRA), a new Congress has 75 legislative days to overturn agency rules issued in the last 60 days of a prior session of Congress.
COVID-19 led congressional leaders to cancel business on several days when Congress would have been in session. Since the 117th Congress will begin in January, “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,” according to a National Law Review article by lawyer Robert Mangas. Mangas reported that the start date of the final 60 days of the 116th Congress would have been May 20 but with so many canceled work days, the beginning of the final 60 days might have already passed.
The president must sign CRA resolutions for them to go into effect. If Donald Trump wins re-election, opponents of agency actions taken this year would have to gather enough votes to override his veto. However, if another candidate becomes president in 2021, then rules made by agencies through most of 2020 might be vulnerable.
Administrative law scholars refer to rules adopted at the end of presidential administrations as “midnight rules.” The ticking clock of a pending leadership change, reminiscent of Cinderella’s magic disappearing at midnight, encourages executive agencies to accomplish as much of their regulatory agendas as possible before time runs out, according to Boston University School of Law professor Jack Beermann. Since 1948, agencies have made rules at a higher rate in the time between election day in November and inauguration day the following January compared with other periods.
The CRA gives Congress a chance to review midnight rules and serve as a check on the rulemaking activities of federal agencies. In the first four months of his administration, President Donald Trump signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s presidency.
Additional reading:
- Congressional Review Act
- Midnight rulemaking
- Joint resolution of disapproval (administrative state)
- Executive agency
- Documenting America’s Path to Recovery
- Administrative State Project
- Text of the Congressional Review Act
- The National Law Review article