Republicans could have a regulatory ‘game changer’ on their hands

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Last week, the House and Senate voted to repeal one of the last regulations the Obama administration enacted on its way out the door. The regulation, known as the Stream Protection Rule, required coal companies to more aggressively test and monitor waterways. President Donald Trump is expected to finalize the repeal soon once the legislation reaches his desk. The device used to overturn the Stream Protection Rule is an under-utilized law called the Congressional Review Act, which could be on the brink of becoming a really big deal.

The Congressional Review Act, originally enacted in 1996, allows Congress to repeal and overturn regulations and rules within a few months of being issued by federal agencies. The CRA grants Congress the power to pass joint resolutions of disapproval of particular agency regulations on an expedited and streamlined basis. Specifically, it gives Congress 60 days to pass a resolution of disapproval for a regulation, which cannot be filibustered in the Senate (meaning it merely needs to receive a bare majority in each house of Congress).

Historically, the CRA has proven a relatively ineffective way to repeal regulations. For one, even if Congress passes a joint resolution of disapproval, the president can choose simply to veto it. Because most presidents agree with the regulations produced by their own agencies, the only time the act has been used successfully was when a Republican-controlled Congress overturned a Clinton-era regulation at the beginning of the George W. Bush administration.

Given the recent swing in administrations from President Barack Obama to President Trump, many right-of-center pundits are calling on the 115th Congress to use the CRA to send resolutions of disapproval targeting recent Obama-era regulations to Trump’s desk for repeal. And Republican politicians have been listening. So far, 30-some resolutions targeting different Obama rules have already been filed in this Congress so far—and there is likely to be many more to come.

If the CRA’s potential as a powerful de-regulatory tool wasn’t already obvious, a new interpretation of the law could make it even more so. As traditionally understood, the CRA can be used only to target regulations of a more recent vintage given that the Act’s text allows Congress to repeal regulations that were enacted within the past 60 “legislative” days. Because Congress does not meet every day, 60 legislative days stretches back to mid-June of last year.

While this nearly 6-month retrospective timeline is significant, Wall Street Journal columnist Kim Strassel recently broke news about a new interpretation of the act—a potential “regulatory game changer”—that could expand this timeline. As Strassel recounts, during a recent meeting of right-leaning legal and policy wonks, attorney Todd Gaziano (one of the key legislative staffers responsible for drafting the CRA at the time of its passage) highlighted overlooked statutory language in the CRA that suggests the law could be used to target regulations enacted well before the last 60 legislative days.

Gazziano pointed out that, according to the CRA’s text, the 60-day timeline for targeting regulations starts either when an agency’s regulation is published or when Congress receives a statutorily-required report from the agency that promulgated the regulation. The clock doesn’t start ticking until the later of these events occurs, which means that prior regulations that were not accompanied by reports to Congress (of which Gazziano suggests there are many) could still be within the CRA’s reach. This means that regulations stretching far back into time—to the beginning of the Obama administration and even beyond—could be placed on the CRA chopping block.

In addition to a lengthier timeline to repeal old regulations, Gaziano also claims the CRA was intended to allow Congress to overturn even informal agency actions like guidance documents, memoranda and policy statements (so-called “regulatory dark matter“), rather than only the more formal regulations that appear in the Federal Register.

This expansive reading of the CRA has sparked excitement in conservative legal circles, with many right-of-center commentators viewing Gaziano’s revelation as a proverbial tidal wave in the fight to combat burdensome Obama-era regulations. Despite this excitement, it remains unclear whether Republican Party lawmakers will endorse this interpretation. In a recent interview, Senate Majority Leader Mitch McConnell, R-Ky., suggested his staff did not agree with Gaziano’s view of the act.

Regardless of which interpretation prevails, Republicans in Congress appear to be primed to give the long-overlooked CRA a much more aggressive workout.


Image by Chris Parypa Photography

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