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By Cheryl Bolen
June 1 — Presumptive Republican presidential nominee Donald Trump has pledged to scrap major laws and “job-destroying” regulations from the Obama administration, but will probably find fulfilling that pledge not nearly as easy as rescinding a few executive orders.
One tool for overturning regulations, the Congressional Review Act (CRA) of 1996, has seen a resurgence in the past year. But to date, every resolution of disapproval has been vetoed and there remains only one successful use of the CRA in its 20-year history.
Then, assuming the stars align and Trump wins the White House and Republicans retain their majorities in the House and Senate next year, there will be few rules even eligible for disapproval under the CRA, Amit Narang, regulatory policy advocate at Public Citizen, told Bloomberg BNA.
“I think most of Obama’s regulatory agenda has been more or less accomplished at this point,” Narang said.
Whatever rules come out from this point on will have the potential for a CRA challenge, Narang said. But few are likely to be so controversial that they will draw the attention and ire of the next Congress, he said.
There is the possibility next year that Congress will want to reverse some of the rules finalized at the end of the Obama administration, Narang said. But that’s not really what Trump has been talking about, he said.
“He’s talking about reversing the kind of bread-and-butter major regulations that [President Barack] Obama has enacted over the course of his administration,” Narang said, pointing to the Affordable Care Act and Dodd-Frank financial industry overhaul.
But the regulations implementing those laws—because they have been finalized—are not eligible to be reversed under the CRA, Narang said.
Instead, they would have to be repealed either by Congress or through the same federal notice-and-comment rulemaking process used to implement the regulations in the first place, he said.
“And so, I think you’re starting to see a dawning realization among conservatives that whatever the campaign promises may be about repealing the major legislation and regulations from Obama, that they’re divorced from the reality on the ground,” Narang said.
Unlike rescinding an executive order, overturning a regulation requires going through the rulemaking process, which is a long process, Narang said. “It's going to take going through that process, and it may not be one that results in the kinds of rule repeals that the conservatives want,” he added.
Similarly, the regulatory process does not always result in the regulations that consumers and the public interest community want, even if those are mandated by Congress, Narang said.
Critics have pointed to the increase in regulatory activity in the first five months of this year as evidence that the Obama administration is concerned about the CRA.
And while the numbers have increased in 2016 compared with the same period in 2015, with 218 rules having been reviewed compared with 157 rules, this paints an incomplete picture.
Looking at the eight years of the Obama administration, some years have higher numbers than others. In 2011, for example, 288 rules had been reviewed in the first five months of the year, and in 2010, 266 rules had been reviewed in the same time period.
The administration's regulatory plans are updated and published twice each year in the unified regulatory agenda, which provides a timetable for regulations that are expected to be acted on in the next 12 months (See previous story, 05/19/16).
Last December, Howard Shelanski, administrator of the Office of Information and Regulatory Affairs, cautioned agencies against issuing any surprise regulations in the final months of the Obama administration.
Shelanski told agencies to “strive to complete their highest priority rulemakings by the summer of 2016” and submit them for review. Otherwise there was no guarantee that their rules could be reviewed and finalized before the president leaves office.
In his public speeches, Trump has offered a few glimpses into his thinking about regulation. Requests by Bloomberg BNA for comment from the Trump campaign on the issue of regulation were declined.
In an interview May 5 on CNBC, Trump declared that he wanted to “get rid of regulations.” Less clear is whether he meant all regulations or just some.
In that interview, Trump said that businesses were talking to him more about regulations than lowering taxes.
“And it's incredible when I listen to the stories where people can't even open up small businesses,” Trump said. “They have to go through all sorts of rules, regulations, 90 percent of which have no bearing on what they do,” he said.
Trump gave his most expansive comments to date on regulation in a May 26 speech in Bismarck, N.D. He said his first 100-day action plan would start with rescinding “job-destroying” executive actions by Obama, including the Environmental Protection Agency Clean Water Rule, also known as the waters of the U.S. rule (See previous story, 05/18/16).
Trump said he would ask Trans-Canada to renew its permit application for the Keystone XL pipeline, lift the moratorium on energy production in federal areas and revoke restrictions on new drilling technology. In addition, Trump said he would halt the Paris climate change agreement and stop all payments of U.S. tax dollars to UN global warming programs.
“Any regulation that's outdated, unnecessary, bad for workers or contrary to the national interest will be scrapped and scrapped completely," Trump said. “We will also eliminate duplication, provide regulatory certainty, which is very important, and trust local officials and local residents,” he said.
“Any future regulation will go through a simple test: is this regulation good for the American worker? If it doesn’t pass this test, this rule will not be, under any circumstances, approved,” Trump said.
There has been a recent increase in the use of the CRA to signal to the White House lawmakers' dislike of this administration's regulations (See previous story, 05/27/16).
The CRA was established following the 1994 elections in which Republicans won a majority in the House for the first time in 40 years. At the time, House Speaker Newt Gingrich (R-Ga.) was seeking to check the executive branch and growing administrative state.
But the CRA, which was designed as an oversight tool to let Congress reject an agency regulation using an expedited procedure in the Senate, is difficult, time-consuming and rarely successful.
The complicated part is the timing, said Jeffrey Rosen, a partner at Kirkland and Ellis, who spoke May 26 on a teleconference hosted by the American Bar Association's Section of Administrative Law and Regulatory Practice Rulemaking Committee.
There is a 60-day window after receipt of the rule by Congress in which to introduce a resolution of disapproval, he said.
There is also a “reach back” provision in the act, so that if 60 legislative days have not expired by the end of the session, the clock starts over on Jan. 15 of the next year, Rosen said.
“So, in a year like this, there's a lot of attention to, can the new Congress next year do resolutions of disapproval of rules from this year, and when does that start,” Rosen said.
That depends on the number of legislative days remaining in 2016, which depends on the number of days in the lame-duck session. Still, Rosen said that the Congressional Research Service has estimated the “reach-back clock” comes to approximately mid- to late May.
“It becomes a calculable date in hindsight, but in terms of estimating it, the estimates are it's around now, that rules issued after now would be subject to resolutions of disapproval … in the next Congress as well as in this one,” Rosen said.
Emily Hammond, professor at the George Washington University Law School, outlined some of the drawbacks of using the CRA, beyond the obvious presidential veto.
The CRA is “a very blunt instrument” compared to the review that courts exercise over agency rules, Hammond said.
Where courts can invoke severability and invalidate one controversial provision in an agency rule, or remand a rule and send it back for agency reconsideration, the CRA simply voids the entire rule and does not allow the agency to issue a “substantially similar” rule in its place, Hammond said.
Agencies have the prerogative to withdraw their rules, but when they do, they have “reason-giving obligations” that go with that, Hammond said. “We're just not going to see that same kind of rigor associated with congressional review,” she said.
William Levi, chief of staff to Sen. Mike Lee (R-Utah), said the CRA is being used more frequently now, not because it accomplishes anything of real consequence, but because it gives Congress a vote on the regulatory decisions being made.
“At the same time, there is no illusion that the CRA is functioning as a substantive check on agency action,” Levi said.
CRA resolutions are “quite solidly in the political realm,” Levi said. Which is not to say they do not serve a purpose, he added.
“As an example, they force representatives to take public positions on matters and to actually go on the record,” Levi said.
Democrats from West Virginia may not want to vote on the president's Clean Power Plan, but because the practical implications of a CRA resolution are so minimal, it is good to have this expedited procedure with a simple majority vote, Levi said.
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