The administration’s contraception rule, and subsequent “accommodation,” has been a case study in how to violate the Constitution not with stealth, but with cynicism. But there’s more we can do than simply express outrage. Congress can — and should — kill the rule.
The Congressional Review Act (CRA), which I authored while serving in Congress, gives legislators 60 days to introduce Resolutions of Disapproval to nullify a rule after it has been published. The Resolutions of Disapproval enjoy expedited procedures and therefore serve as the perfect tool for Congress to move expeditiously to make Team Obama’s unconstitutional rule history. The law allows 30 senators to discharge any committee action and bring it to the Senate floor, where it can be passed with a majority vote after no more than five hours of debate.
So far, however, congressional leaders have not used the CRA as a way to confront the rule, which is unfortunate. The debate the Obama administration has started with the rule has now moved into the presidential race, and the media is doing its best to focus on the whole thing as the latest installment of culture war they love to cover — and caricature. Meanwhile, Congress has largely avoided making direct contact with what many perceive as a toxic issue that will make achieving other priorities more challenging.
It’s not toxic, though. And we’re not actors in the cartoonish culture war the media wants to talk about. We are rather individuals directly affected by an unconstitutional act by the executive of the United States. That’s what the debate should be about. Congress is in the best position — because of the authority the Constitution gives it, after all — to refocus the debate, and to conduct it swiftly.