New Congresses Undoing the Legislation of Previous Administrations: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

People talk about Congress “rolling back” or “reversing” various legislation from the Obama administration. People who didn’t like that original legislation are relieved, and people who did like it feel cheated. So can they really do that so easily? What’s on the chopping block? And is this different from previous changes in Congressional or Executive power? Subject to my “source documents behind the news” caveats,* here’s what I’ve been able to gather on the topic.

Can they do that?

Yes. Since March 29, 1996, Congress can “disapprove” of previous legislation under Chapter 8 of 5 U.S.C. §802 as long as the Join Resolution is received by Congress within 60 legislative days (which in no way resemble calendar days) and then passes both the House and the Senate, plus any relevant committees, and is then approved by the President.

§802. Congressional disapproval procedure

(a) For purposes of this section, the term “joint resolution” means only a joint resolution introduced in the period beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: “That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect.” (The blank spaces being appropriately filled in).

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction.
(2) For purposes of this section, the term “submission or publication date” means the later of the date on which—

(A) the Congress receives the report submitted under section 801(a)(1); or
(B) the rule is published in the Federal Register, if so published.

What’s on the chopping block?

A record number (see below) of Joint Resolutions had been submitted in accordance with Chapter 8 of 5 U.S.C. Here is a complete list to date.

  • You can use the “Status of Legislation” filter on the left-hand navigation of the full list of these joint resolutions to explore these joint resolutions according to how far they’ve made it through the three major steps process of passing first one Chamber of Congress, then the second Chamber, and then the President. (These joint resolutions also have to go through any relevant committees, but those aren’t filterable in the same way.)
  • You can also use the “Subject – Policy Area” filter the full list of these joint resolutions by general topic (Energy, Environmental Protection, Financial Regulation, Eduction, etc).

And here are the remaining rules for which new disapprovals could still be introduced (as far as I am able to tell, as of 3/20/2017).

How long until this window of time closes?

It’s hard to say, since a legislative day can span or skip several calendar days and since there are several scenarios under which congress can introduce the joint resolution. The Congressional Research Service created an entire report out of it for this year. It all depends on how many times the chambers of Congress adjourn. The Congressional Record‘s Daily Digest is essentially the meeting minutes of Congress and lists when the chambers adjourn in the proceedings of each day. So far, as of 3/20/2017, there have been 43 legislative days in the House and 40 in the Senate since the start of this Congress (I’m pretty sure), leaving 17 and 20 days respectively (I’m pretty sure)

Here is the congressional calendar archive, where the 2016 calendars are available.

Is this rate of Congressional disapproval different from previous times when the balance of party power changed?

Using the History, Art & Archives of the House of Representatives and the Senate History, here are the times since 1996 (when the law being called upon was enacted) when power shifted between Republicans and Democrats, and how many times Congress employed Chapter 8 of 5 U.S.C. in each instance.

No shifts of party majority happened between 1996 and 2001.

2001 was complicated. The President changed from Democratic to Republican. The House remained Republican, as it had since 1995. The Senate was so evenly matched that it switched back and forth a few times (when the vice president changed party and then a couple senators switched affiliations). By November 2002 the Senate had settled back into being Republican majority, as it had been in since 1995.

  • Joint Resolutions Introduced: 12
  • Passed one chamber: 1
  • Successful Joint Resolutions: 1

2007 (midterm) – House and Senate both changed from Republican to Democratic. 

  • Joint Resolutions Introduced: 10
  • Passed one chamber: 1
  • Sent to the President: 0
  • Successful Joint Resolutions: 0

2009 – The President changed Republican to Democratic. The House and Senate remained Democratic.

  • Joint Resolutions Introduced: 13
  • Passed one chamber: 0
  • Successful Joint Resolutions: 0

2011 (midterm) – The House changed from Democratic to Republican. The Senate remained Democratic.

  • Joint Resolutions Introduced: 20
  • Passed one chamber: 2
  • Sent to the President: 0
  • Successful Joint Resolutions: 0

2015 (midterm) – The Senate changed from Democratic to Republican. The House remained Republican.

  • Joint Resolutions Introduced: 27
  • Passed one chamber: 6
  • Sent to the President: 5
  • Successful Joint Resolutions: 0 (all were vetoed)

2017 – The President changed from Democratic to Republican. The House and Senate remained Republican. (This section will be updated as needed – last updated 3/20/2017)

  • Joint Resolutions Introduced: 56
  • Passed one chamber: 14
  • Passed both chambers: 8
  • Sent to the President: 3
  • Successful Joint Resolutions: 3

Rules that have been “disapproved” and are therefore no longer in effect and cannot have similar rules reenacted later

This section was last updated on 3/15/2017.

* Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.

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