Midnight Regulations In Jeopardy

Erika Lovley and I reported today that Bush administration regulations finalized after early August are susceptible to a quick reversal by Congress if it employs the powers given it by the Congressional Review Act. That’s true, but the date actually goes back much further. We had been counting back 60 days from the time Congress recessed, October 3rd. But the law, as a very well informed congressional birdie tells us, uses “legislative days” and refers to the day of "sine die adjournment," which is likely to be January 3rd.

This source, who isn’t allowed to speak on the record, counted backwards 60 legislative days for us from January 3rd and determined that any Bush regulation finalized after May 15, 2008 would be susceptible to being overturned under the CRA. If the sine die adjournment comes after Janury 3rd, then the May 15th date would need to be adjusted forward.

Under the act, any such regulation finalized after May 15th would be presumed to have been presented to Congress not on January 15th, as we reported, but on the 15th legislative day of the session – which would likely be sometime in February. From that day on, any member of Congress has 60 days to introduce a joint resolution disapproving the regulation. It can’t be filibustered and if it passes then the regulation is rejected.

But the 60 days aren’t calendar days, but rather “60 days of continuous session.” What’s a day of continuous session? Glad you asked. Any day is a day of continuous session except calendar days where both chambers are out of session for more than three days in a row.

The short of it: Any Bush regulation finalized after May 15 of this year can be overturned using the CRA and Congress has a lot of time to do it.

Also, in our report, Jerry Brito, an expert on the relationship between Congress and the regulatory arm of government, said he would advise Democrats to bundle the regs they don’t like together and vote on them at once. A strict reading of the law, however, says that they can’t do that under the CRA. Each regulation would need to be taken up individually.

And please note: the errors were mine, not Erika's.

Still confused? This CRS report lays it out in crystal clarity.