A law that’s been successfully used only once until now is the conduit for a whole lot of action on Capitol Hill.
Republicans in Congress are expected to send a stream of bills — most of which require a single sentence — to President Donald Trump’s desk, using a process known as the Congressional Review Act to repeal agency rules. The act was tucked into 1996 legislation tied to former House Speaker Newt Gingrich’s famous “Contract with America.”
Senate Majority Leader Mitch McConnell, at a press conference last week, joined a group of Republican leaders who have trumpeted using the CRA to roll back regulations put in place under President Barack Obama. The law allows Congress to repeal certain rules of the previous administration under a fast-track process that requires only a simple majority in the Senate. Congress generally has 60 days to begin repeal of those rules.
“We’re directly attacking the over-regulation issue, thanks to the Congressional Review Act, and plan to take as many of these job-killing regulations off the books as possible,” McConnell said. Earlier this month, the Kentucky Republican pointed to “nearly 40” major rules put out by the Obama administration “on its way out the door” that he said Congress could work with Trump to undo.
“This is probably the most underreported story in Washington today,” Pennsylvania GOP Rep. Glenn Thompson said at a press conference on Feb. 16, referring to the Republicans’ use of the CRA.
Until now, Congress has rarely had the power structure in place to make the CRA a viable legislative option for getting rules off the books.
Congressional Republicans sent several CRA bills to Obama, knowing they would be vetoed. Prior to Trump, the only CRA-repealed rule in history was signed by President George W. Bush in 2001. That rule had applied ergonomics standards through the Department of Labor’s Occupational Safety and Health Administration under President Bill Clinton. It was aimed at preventing injuries among some workers, including repetitive-motion injuries. OSHA hasn’t attempted the rule since.
The first repeal to get Trump’s signature, on Valentine’s Day, rolled back a rule Congress had previously demanded from the Securities and Exchange Commission that forced disclosure of payments made to the U.S. or foreign governments by oil, natural gas, and mining companies.
Congress placed the mandate in the 2010 Dodd-Frank financial overhaul after Sen. Richard G. Lugar, a Republican from Indiana, produced a report in the Senate Foreign Relations Committee in 2008. The report concluded that more transparency in extractors’ payments could curb foreign government corruption involving oil-rich countries whose leaders might otherwise secretly line their pockets with natural resources revenue.
The regulation was fiercely opposed by some oil companies, including Exxon Mobil, then led by Rex Tillerson, who was confirmed as secretary of State earlier this month. Tillerson personally voiced opposition to the rule in 2010, according to a PolitiFact report.
With a stroke of Trump’s pen, the rule was gone. And the CRA’s process for rule repeals provides a legislative backstop that potentially prevents the Securities and Exchange Commission from ever coming up with a similar rule. The law states that a rule “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”
What that means is 51 votes in the Senate can repeal a rule, but 60 may be needed for the repealed rule to go into effect again, since legislation containing the second version would be subject to a filibuster.
Lawmakers also heralded repeal of the so-called stream protection rule in a public signing with Trump two weeks ago. Many Republicans, as well as West Virginia Democratic Sen. Joe Manchin III, saw the stream rule as an attack on the coal industry.
‘Stupid way to do it’
Most Democrats are voting against the Republican-sponsored rule repeals, and some believe the majority party’s use of the law is reckless, including Rep. Jim McGovern of Massachusetts, a member of the House Rules Committee.
“By doing it this way, there’s an argument that can be made that it precludes the agency from even revisiting the subject. … I don’t know if that would stand up in court,” McGovern said in an interview on the same day the House passed three rule rollback measures.
“There’s a right way to review regulation and there’s a stupid way to do it, and we have decided to do it the stupid way,” he said. McGovern said he was referring to “bringing things up without any review by committee of jurisdiction, under closed rules, and in a way that may have some unintended consequences.”
But Utah GOP Rep. Rob Bishop said he has no problem with the repeal process, or the political hurdle that process potentially puts in place for any new version of a repealed rule. In his view, that’s the way things should be.
“It was sloppiness for the last eight decades that caused the CRA concept … an overindulgence by the executive branch in making rules and regulations,” Bishop said.
“Congress establishes the rules and regulations, not the executive branch agencies. They follow through with it,” he said.
Sheila Harvey, who heads the regulatory practices division at the law firm Pillsbury Winthrop Shaw Pittman LLP, said the Congressional Review Act has generated significant interest among clients.
“It’s one of the sleeper statutes, and legally, it’s extremely interesting,” said Harvey, whose division includes more than 100 regulatory lawyers.
The firm has begun tracking CRA action using the @EyeonCRA Twitter handle, which associate Meghan Claire Hammond maintains to keep a log of all congressional actions.
Hammond said that until now, courts have examined only a small portion of the act, given that the repeal process hasn’t been an option for many years. Now, the firm is tracking more than two dozen CRA bills making their way through Congress.
Regulatory actions consistently encounter legal challenges. Harvey said she wouldn’t be surprised to see the same thing happen to the CRA because of certain provisions — including one that blocks judicial review of repeals under the act, as well as the so-called substantially similar provision blocking future rules.
The law hasn’t had much testing in court, she explained.
“Also, some scholars might opine it would not be constitutional, that it is not subject to judicial review,” Harvey said, noting that she wasn’t making a legal assessment, one way or another.
“Clearly, it’s going to be a pretty massive effort to roll back rules,” she added.