A GOP Regulatory Game Changer (Z: WAIT till you read this! The red gives highlights enough to understand it!…compliments of ME!)
Legal experts say that Congress can overrule Obama regulations going back to 2009.
By Kimberley A. Strassel
Todd Gaziano on Wednesday stepped into a meeting of free-market attorneys, think tankers and Republican congressional staff to unveil a big idea. By the time he stepped out, he had reset Washington’s regulatory battle lines.
These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep. David McIntosh. He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better.
Everyone right now is talking about the CRA, which gives Congress the ability, with simple majorities, to overrule regulations from the executive branch. Republicans are eager to use the law, and House Majority Leader Kevin McCarthy this week unveiled the first five Obama rules that his chamber intends to nix.
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.
Here’s how it works: 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.
There’s more. It turns out the CRA has a 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.
Republicans in both chambers—particularly in the Senate—worry that a great use of the CRA could eat up valuable floor time, as Democrats drag out the review process. But Mr. Gaziano points out another hidden gem: The law allows a simple majority to limit debate time. Republicans could easily whip through a regulation an hour.
Imagine this scenario: The Trump administration orders its agencies to make a list of any regulations or guidance issued without a report. Those agencies coordinate with Congress about when to finally submit reports and start the clock. The GOP puts aside one day a month to hold CRA votes. Mr. Obama’s regulatory legacy is systematically dismantled—for good.
This is aggressive, sure, and would take intestinal fortitude. Some Republicans briefed on the plan are already fretting that Democrats will howl. They will. But the law is the law, and failing to use its full power would be utterly irresponsible. Democrats certainly would show no such restraint were the situation reversed. Witness their treatment of Mr. Trump’s cabinet nominees.
The entire point of the CRA was to help legislators rein in administrations that ignored statutes and the will of Congress. Few White House occupants ever showed more contempt for the law and lawmakers than Mr. Obama. Republicans if anything should take pride in using a duly passed statue to dispose of his wayward regulatory regime. It’d be a fitting and just end to Mr. Obama’s abuse of authority—and one of the better investments of time this Congress could ever make.
We’ll see if The Donald can herd these shiftless cats on the right side of the aisle. The GOP congress that I know has no back bone. These invertebrates will let this opportunity go just like they let their landslide wins in 2010 and 2014 slip by with no spine exhibited by any Republican in either the House or Senate.
If the CRA is deployed, the Dems’ meltdown will reach permanent-hearing-damage levels.
It’ll probably be so bad that I’ll have to block my liberal friends and family members from my FB page. I won’t have problems with former students, though. They, even if Leftwing or Left-leaning, are more of the live-and-let-live type. Most of them, anyway.
I fear that you may be right. 😡
So let me get this straight. Under: 5U.S. Code 801-Congressional review
(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—
(i) a copy of the rule;
(ii) a concise general statement relating to the rule, including whether it is a major rule; and
(iii) the proposed effective date of the rule.
If this “report” was not made and therefore doesn’t exist wouldn’t that render the “rule” null and void? If that’s the case what’s the big deal? Such regulations simply don’t exist as a matter of law and therefore getting them off of the ‘books’ should be nothing more than a [housekeeping] matter. I’m just asking. I’d like to see this issue go viral!
John…VERY good point…Anybody want to weigh in to John? I think he’s right!!! NO??
AOW, deafening noise will happen….are your past students who are libs in their ‘live and let live’ apathetic or too busy?
fredd….we’ll see! I don’t have high hopes!
I just heard Trump’s signing some executive action saying , re regulations, that “any new one has to see two erased from the books”. as much as I think our regulations are stifling a LOT in our country’s businesses, isn’t this a bit nebulous? I mean, it seems a silly way to do this.
GOP, Please erase obama ASAP. Thank you.
This is beautiful.
Z, Well, Trump has said 75% or more of regulations will be eliminated.
Kid: Yes ERASE!
Am substitute teaching this morning…see y’all later 🙂
Reblogged this on PUMABydesign001's Blog and commented:
Karma may be on the verge of biting Barack Obama, Progressives of both Houses and those who oversaw federal agencies under Obama in the rear.
Great news! Now we know it will take the Harry Reid rule, the ‘nuclear option’, to get a good judge on the supreme court.
Sounds good to me. I pray that the Republicans will finally find a pair and do the right thing(s) for our Country. Thanks for sharing this. Hope the substitute teaching was enjoyable. Those lucky kids!
Well, the first thing that came to my mind is Gitmo and the released prisoners by Obama. We can’t reverse that, can we.
This is a good thing. The devil is, as they say, in the details; but generally speaking, I support any attempt at deregulation.
Sparky, I swear, if I could LIVE at that Christian high school, I would 🙂 My password for the Parent Site (my Chinese student who lives here goes there) is LOVETOBETHERE!
I ADORE those kids…..honestly, I’d take a bullet for most of them! So much fun.
bydesign, thanks for the mention and welcome to GeeeZ.
For a good understanding of the CRA listen to this. I’ve been wanting to post tis all day.
Hugh Hewitt was all over this last week.
Validates what JonBerg said.
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