Obscure Law Greases the Deregulation Skids

Since taking office in January, President Trump has cancelled 13 regulations issued by Obama administration agencies thanks to a hitherto rarely used law Congress passed over 20 years ago. Congress and the president could potentially cancel thousands of other rules the same way.

The Congressional Review Act gives Congress and the president a streamlined process for eliminating regulations decreed by executive agencies. Agency power to, in effect, legislate and in some cases enforce, interpret, judge, and punish has concerned those who favor strict separation of government powers. Newly confirmed Supreme Court Justice Neil Gorsuch made a name for himself as an appellate judge by refusing to defer automatically to regulatory agencies. In one case Gorsuch expressed concern that “executive bureaucracies [have been permitted] to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

So expediting the reversal of executive-branch law making is a good thing. Too much legislation, Dodd-Frank and the Affordable Care Act most notoriously, consists of little more than a license to unaccountable executive agencies to make rules for the rest of us.

Before now, the CRA was used only once, but USA Today pointed out in late March that “half of all bills Trump has signed so far have been these regulation-killing resolutions.” It was passed by Congress and signed by President Bill Clinton in 1996 as part of the Contract with America Advancement Act. By simple majorities in each chamber, Congress can undo new regulations emanating from executive agencies by a joint resolution subject to presidential signature. Congress may override a presidential veto of a joint resolution by a two-thirds vote in each chamber. An agency may not reissue a rule even in revised form without specific congressional permission.

The unfortunate supermajority requirement for overriding a veto makes undoing regulations difficult “because a President is most likely to veto a joint resolution that attempts to strike down a rule proposed by his own Administration,” Christopher M. Davis and Richard S. Beth write.

The CRA can be applied only to regulations issued in the previous 60 legislative (not calendar) days, so its use against Obama-era regulations would seem to be highly limited. But Susan E. Dudley writes that “the 60-day review clock is triggered by a rule’s final publication in the Federal Register or when a report on the rule is sent to Congress, whichever comes later.” “Thus,” adds Todd Gaziano, “for all the many rules that agencies failed to submit, the time for Congress to disapprove them has not yet begun to run.” That means many thousands of rules, broadly defined, could be vulnerable.

According to Wikipedia, 13 regulations, some of them rather esoteric, have been killed under the CRA since Trump took office. These were rules submitted by

  • the Securities and Exchange Commission relating to “Disclosure of Payments by Resource Extraction Issuers”;
  • the Department of the Interior, a rule known as the “Stream Protection Rule”;
  • the Social Security Administration relating to implementing the NICS Improvement Amendments Act of 2007, which banned gun sales to people receiving disability payments and considered “mentally ill”;
  • the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation;
  • the Department of the Interior relating to Bureau of Land Management regulations that establish the procedures used to prepare, revise, or amend land-use plans under the Federal Land Policy and Management Act of 1976;
  • the Department of Education relating to accountability and state plans under the Elementary and Secondary Education Act of 1965;
  • the Department of Education relating to teacher-preparation issues;
  • the Department of Labor relating to drug testing of unemployment-compensation applicants;
  • the Department of the Interior relating to “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska”;
  • the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”;
  • the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”;
  • the Secretary of Health and Human Services relating to compliance with Title X Family Planning Program requirements by grant recipients in selecting secondary recipients; and
  • the Department of Labor relating to savings arrangements established by qualified state political subdivisions for nongovernmental employees.

Two more rejections are pending: a rule of the Bureau of Land Management relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation”; and a rule submitted by the Department of Labor relating to savings arrangements established by states for nongovernmental employees.

The only other time the CRA was used successfully was in 2001, during the George W. Bush administration, for a Department of Labor / OSHA rule regarding ergonomics. President Barack Obama successfully vetoed five attempts by Congress to cancel regulations under the CRA. Seven other times a CRA resolution failed to gain the approval of one or both chambers of Congress.

The CRA represents a golden opportunity roll back the regulatory state.

Sheldon Richman

Sheldon Richman is the executive editor of The Libertarian Institute, senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at Antiwar.com. He is the former senior editor at the Cato Institute and Institute for Humane Studies, former editor of The Freeman, published by the Foundation for Economic Education, and former vice president at the Future of Freedom Foundation. His latest book is America's Counter-Revolution: The Constitution Revisited.