Friday, January 27, 2017

Congressional Review Act Can Effectively End The Obama Carter's Second Term

Newly inaugurated 45th President of the United States signs his first executive order in the Oval Office of the White House. Image Credit: Getty Images (2017) 

Congressional Review Act Can Effectively End The Obama Carter's Second Term

The Congressional Review Act (CRA) is an oversight tool that Congress may use to repeal or prevent a regulation issued by a federal agency from taking effect. The CRA was included in the “Contract With America Advancement Act of 1996” and allows Congress to review, and to cancel by majority rule, new federal regulations issued by federal agencies.

The Bitter Clingers - Cartoon by Ben Garrison

This excerpted and edited from Bloomberg Government -

How to use the Congressional Review Act to undo regulatory actions
Arnold & Porter Kaye Scholer LLP - Kevin O'Neill, Dana Weekes, Sara Garofalo Linder & Roxana Boyd - January 26, 2017

With a Republican sweep of Congress and the executive branch, there will be a concerted effort this year to reform and restrain the current regulatory state. The Trump Administration and Republican Congress have a number of options to repeal regulations issued by the Obama Administration, with the Congressional Review Act (CRA) being one vehicle for affirmatively undoing some of the regulatory actions of the last six months.

The CRA is an oversight tool that Congress may use to repeal or prevent a regulation issued by a federal agency from taking effect. The 1996 law grants Congress: (1) proper notification of new agency regulations; and (2) the authority to use a joint resolution of disapproval to overturn a rule that may not meet the congressional intent. Under the CRA, a joint resolution of disapproval can only repeal an interim final rule or final rule in its entirety, as it does not necessarily apply to draft regulations, and Congress cannot use it to reform parts of a rule.

Congress has only successfully overturned one rule under the CRA since its enactment in 1996, the final rule on ergonomics standards issued by the Occupational Safety and Health Administration (OSHA) under the Clinton Administration.
5 things you need to know about the CRA:

1. As Congress has only repealed a rule under the CRA once before, more than 15 years ago, there are many unknown questions, including procedural questions and how a federal agency can engage on the issue following a repeal of the rule.

2. For rules issued by the Obama Administration on or after January 3, 2017, Congress has 60 legislative days from when the agency publishes each rule in the Federal Register or when Congress receives the rule report, whichever date is later, to use the CRA to repeal the regulation.

3. For a rule issued by the Obama Administration from June 13, 2016 (the parliamentarian in each chamber will set the actual date) through January 2, 2017, Congress has 60 legislative days starting from January 31 in the House and January 24 in the Senate to use the CRA to repeal the regulation.

4. Any use of the CRA cannot be filibustered in the Senate, which disadvantages those Democrats looking to challenge Republican efforts to restrain the current regulatory state.

5. Repealing a rule under the CRA likely foreclosures opportunities for a federal agency to reengage on the matter through a rulemaking for at least the next four years.
[Reference Here]

Interestingly, during President Obama's first two years in office, Congress did not use the CRA to repeal any Bush Administration final rules, despite the Democratic control of Congress.

President Donald J. Trump give his inauguration address with House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell looking on. Image Credit Getty Images (2017)

This excerpted and edited from Washington Examiner -

Obscure rule about to take center stage in regulation rollbacks

Republicans this month will invoke the rarely used Congressional Review Act to extinguish some of the Obama administration's more recent regulations they believe will damage the economy.
The GOP controls the majorities in both chambers and President Trump is eager to sign the legislation undoing the regulations, which affect the environment, education and jobs.
"There is only a rare set of circumstances in which you can use it," Rutgers University professor Stuart Shapiro, a public policy expert, told the Washington Examiner.

Republicans have for years talked of undoing Obama administration regulations through legislation, but the CRA gives them an easier route in the Senate by allowing Republicans to avert the 60-vote filibuster. The CRA can be applied only to regulations issued within 60 legislative days.

"We are going to do that very quickly," House Speaker Paul Ryan, R-Wis., said of using the CRA during a recent interview on the Hugh Hewitt show.

House Republicans announced that beginning on Jan. 30, they will move to reverse four recently announced regulations using the CRA and will target other regulations in the weeks ahead.

At the top of the GOP's list is the Stream Protection Rule announced by the Obama administration in December. The rule is aimed at curbing environmental damage from coal mines. It boosts requirements for mining companies to monitor streams and more strictly defines "material damage" to waterways located beyond the mining footprint.

Critics, including Sen. Joe Manchin, D-W.Va., said the rule constitutes regulatory overreach and will hurt the coal industry.

"This costly regulation, along with others that are already having a devastating impact, are part of the administration's plan to demolish these coal communities right now and long after the president has left office," Senate Majority Leader Mitch McConnell, R-Ky., said.
The House will also take on long-unpopular federal interference in education with a vote to eradicate a bevy of new federal rules that GOP lawmakers believe interfere and in some cases bypass the recently passed bipartisan law overhauling the unpopular No Child Left Behind Act.

Finally, the House will vote under the CRA to undo the Federal Acquisition Regulatory Council's final rule, which critics call the "blacklisting order." The rule was finalized in August and establishes a long list of new record-keeping, reporting and compliance requirements that could be used to bar contractors from winning federal contracts. The rule was temporarily blocked in a Texas federal court.

"You're going to see in February, the first two weeks, a lot of those regulations that were in the last 60 legislative days start moving to be repealed," Majority Leader Kevin McCarthy, R-Calif., said on the Hugh Hewitt show. "Because people don't quite realize, since the November election to Jan. 5, this administration, Obama's, has authored 145 new regulations, they've enacted more than $16 billion on us just since the election."
[Reference Here]

Then candidate Donald Trump in an info-graphic from Facebook posting in 2016 before the November 8th election.

This excerpted and edited from Powerline -


Kim Strassel delivers today’s good news in her Wall Street Journal column “A GOP regulatory game changer” (accessible here via Google). She introduces the Pacific Legal Foundation’s Todd Gaziano to explain the mechanics of the rarely used (and almost always unsuccessful) Congressional Review Act of 1996 to undo executive agency regulations. (The text of the Congressional Review Act is accessible here.)

As a staffer to Rep> David McIntosh at the time, Gaziano was “intimately involved” in drafting the law. According to Strassel, “No one knows the law better.” Here’s the beauty part:

The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule.

But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.

How does it work? Kim alludes here to 5 U.S.C. § 801(a)(1)(A) & § 802(b)(2)(A) & (B). With a little help from Gaziano, she explicates the text:

It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.

Let me pause here to ask Steve Hayward to tune in:

There’s more. It turns out the CRA has a[n] expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.

The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations—a far safer approach than if the Mr. Trump simply rescinded them.

It sounds too good to be true. Nevertheless, to quote Lyndon Johnson as he undertook the vast expansion of the edifice of the administrative state: “Let us begin.” Roll away the administrative stone!
[Reference Here]

Key point on what can actually be placed on the chopping block of the Congressional Review Act ... ANY RULE/REGULATION that has not been reported to Congress within the prescribed 60 days can be challenged in this procedure going back to when the CRA was put in place ... 1996!

TAGS: Hugh Hewitt, Congressional Review Act, CRA, 1996, House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, Kim Strassel, Wall Street Journal, Powerline, Washington Examiner, The Fourth Way, Donald J. Trump, Carter's Second Term

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