According to Shakespeare, “What’s done cannot be undone.” This may not be true with respect to many of the regulations implementing President Obama’s Executive Orders.
Let’s look at the fate of the rules implementing Executive Order 13673 (July 2014), formally called “Fair Pay and Safe Workplaces.” The DOL guidance and the FAR provisions implementing this Order were commonly referred to as “the blacklisting rules.”
The final blacklisting rules were published on August 25, 2016. Industry moved quickly to challenge them. An October 24, 2016 preliminary injunction issued by United States District Judge Marcia Crone stopped most of them from going into effect. Judge Crone’s order cites two constitutional problems with the blacklisting rules. First, they likely violate contractors’ due process rights because they require contractors to report mere allegations of labor law violations without the benefit of judicial or quasi-judicial safeguards to contest them. Second, they likely violate contractors’ First Amendment rights because they require contractors to “to report that they have violated one or more labor laws and to identify publicly the ‘labor law violated’ along with the case number and agency that has allegedly so found” even when there had been no adjudication.
Congress is also taking action to undo the blacklisting rules. On February 2, 2017, the House of Representatives passed House Joint Resolution 37 in a roll call vote. This is the first step in a formal process set out in the Congressional Review Act of 1996. The process begins when Congress is notified by the applicable agency that a new regulation has been promulgated. This notification starts a 60-day clock within which Congress can pass a “resolution of disapproval” regarding the regulation. The resolution can pass with a simple majority vote and can apply to any discretionary rules promulgated within the last 60 days. The President must sign the disapproval resolution in order for the rules to be repealed.
The 60-day clock specified in the Congressional Review Act is not measured in calendar days. Under the CRA, the term “days” means 60 days of session in the Senate and 60 legislative days in the House. Days on which the Senate and the House are in recess are not counted as session days or legislative days.
Under these definitions, a November 2016 memo prepared by the Congressional Research Service indicates that Congress would be able to pass a resolution of disapproval for any regulation published after May 30, 2016. The final blacklisting rules fall well within the 60-day review period.
Given the roll-call vote that has already occurred, the Republican majority in the Senate, and President Trump’s plan to rescind two regulations for every new one, there is little reason to believe he would not sign it.
Why Congress can’t have a one-House veto (Feb. 6, 2017)
The Congressional Review Act: Frequently Asked Questions (CRS Nov. 17, 2016)
The final rules implementing Executive Order 13673 (Sept. 5, 2016)
What to expect from “Fair Pay and Safe Workplaces” (Aug. 5. 2014)