Jan. 4, 2017, 8 p.m.
Republican leaders and lawmakers are getting closer to making decisions about which specific Obama administration regulations they will use precious floor time to unwind.
Republicans in both chambers and President-elect Donald Trump are champing at the bit to roll back scores of executive policies on environmental protection, financial rules, and more. Sen. John Hoeven said the topic was a focus at Wednesday’s meeting between GOP leadership and committee chairs.
But as they get closer to action, GOP lawmakers must make tough decisions about which specific regulations will rise to the top of the list. While President Obama has made expansive use of his regulatory authorities to howls of protest from business groups and conservatives, lawmakers will be able to quickly dissolve only a small subset of his initiatives.
Lawmakers’ best chance is to use the Congressional Review Act, a rarely employed mid-1990s law that enables Congress—with a willing president—to kill certain rules with resolutions that are immune from filibuster.
But the complicated structure of that law, which was part of Newt Gingrich’s Contract with America, means that in practice they will be able to outright nullify a fairly limited number.
The power to kill rules with resolutions immune from Senate filibuster applies only to rules completed within the prior 60 legislative days, which means measures dating back to June, according to a Congressional Research Service analysis.
That still leaves hundreds of potential candidates. But with the clock ticking and each measure consuming up to 10 hours of Senate floor time, multiple analysts have estimated that only perhaps six to 12 rules will ultimately be unwound using the law.
“I think Republicans are still trimming the list, and the final product will be a mix of environmental and financial rules that they don’t want to return,” said Sam Batkins, director of regulatory policy at the American Action Forum, a conservative think tank.
It’s also a blunt instrument.
Killing a rule using the CRA prevents the federal government from issuing another rule that is substantially the same, so it’s not a tool for tweaking regulatory protections but rather one for thwarting them.
In the House, Majority Leader Kevin McCarthy said this week that the effort to nullify specific rules is expected to begin in late January.
On Wednesday, he said two of the measures that will be targeted are Interior Department rules that regulate coal-mining wastes and methane emissions from oil-and-gas development on federal lands.
“The president continues to unilaterally impose regulations on his way out of the door. So while we haven’t yet determined what needs to be repealed first, I expect to start with swift action on at least the stream-protection rule and methane-emissions standards, both of which are limits to our energy production,” McCarthy said on the House floor.
The stream-protection rule is a likely candidate for the Senate effort, too.
Also, the House plans to attack a set of Education Department rules that “some state officials have complained erodes local decision-making,” according to the Associated Press.
On the other side of Capitol Hill, Hoeven told National Journal that lawmakers are placing rules and policies they oppose in different categories.
In essence, he said lawmakers do not want to use the CRA for rules that the Trump administration can unwind on its own, including in court. For instance, one way for a new administration to undercut a final rule is to walk away from its legal defense.
“It’s a function of, what can be repealed through executive order? Also, is it a regulation we want to make sure can never be brought back? Then we want to do it statutorily. Also, what’s the universe based on how far we can reach back, which depending on the regulation goes back to June or July? And then the other element is, will the courts take care of it themselves and knock it down?” Hoeven said in the Capitol.
“We are working right now to kind of figure out how we use all of those different methods to do as much as we can as expeditiously as possible,” he said.
The CRA has been used successfully just once before, when a late-Clinton-era ergonomics rule was nullified in 2001 under George W. Bush. But that number is slated to grow. Batkins called the law the “easiest path to removing controversial rules.”
“It can’t be filibustered, and any court challenge is unlikely to succeed. In 2001, the lone successful CRA resolution took a week from introduction to passage. In D.C., that’s light speed. Undoing regulation through administrative actions could take years, not weeks,” Batkins said.
Aides to Senate Majority Leader Mitch McConnell did not provide information on specific rules that could be targeted, saying only that discussions are ongoing.
Last month, however, the Senate Republican Policy Committee laid out a number of candidates. They include the Interior Department mining and oil-and-gas rules that McCarthy is vowing to unwind in the House.
Others include an EPA measure designed to pave the way to regulate greenhouse-gas emissions from aircraft; Energy Department efficiency standards for ceiling fans and other equipment; Education Department accountability standards under the Every Student Succeeds Act; and Treasury Department rules aimed at preventing U.S.-based multinational companies that relocate from avoiding U.S. taxes.
