Using CRA to preserve DACA program

The Congressional Review Act (CRA) is a tool that empowers Congress to monitor agency regulations and cut back on the rules it finds most burdensome. Most often, it is used to disapprove of agency rules — and in some cases mere guidance — in the service of a smaller administrative state. Indeed, originated under Newt Gingrich’s opposition to Bill Clinton, gained frequency under the Trump administration, and is often criticized by liberals.

But it could be used to preserve the Deferred Action for Childhood Arrivals program that is threatened by a Texas court decision from Judge Hanen (the same judge who sought to end the closely related Deferred Action for Parental Accountability program before it was ever implemented, on groduns that President Obama exceeded his authority in creating the program without following the noticd and comment procedure for binding regulations).

Administrative law experts Jody Freeman and Matthew Stephenson propose a novel use of the CRA (with similarities to a more general strategy proposed here and used here). The procedure would begin with the Department of Homeland Security seeking to end the implementation of DACA in keeping with the Texas judicial opinion and submitting its rule to Congress for review. Congress would then use the CRA’s fast-track procedures — which are not subject to a filibuster and circumvent the need for 60 votes — to pass a resolution of disapproval. If the president signed the resolution of disapproval, the permission to continue DACA would continue as legislation with the same force as any other statute.

Though non-traditional, the procedures seems to be legal. It is an alternative to the other alternative being discussed in Congress to avoid the 60-person threshold to defeat a filibuster: the use of the budget reconlition process to effectively pass new legislation.

MHC