Trump and Congress Use Congressional Review Act to Roll Back 14 ‘Midnight’ Rules; More to Follow?

[Editor: Four democrat Attorneys-General have sued the Trump administration for rolling back the mining ban.  They are from NY, NM, CA and WA.  Only NM actually mines coal and the case is based on a situation in Montana.  Overreach? Politics? How many of these people are up for re-election? Suing Trump has become a blood sport for democrats. Read more here [LINK] ]

This week has started with much storm und drang as Trump closes in on the 100 day milestone — the benchmark for presidential achievement set by Franklin Delano Roosevelt (FDR) in 1933.

It’s worth recapping what FDR achieved in those first 100 days after his March 4, 1933 inaugural address– actually 105, but that tidbit has been left out of the story. Major legislation included: the Agricultural Adjustment Act,  the Glass-Steagall Act,  the National Industrial Recovery Act, and the Securities Act, as well as the creation of the Civilian Conservation Crops, the Federal Emergency Relief Administration, the Tennessee Valley Authority, and the Works Progress Administration, a record summarized in this Time magazine account, The First 100 Days. Some of these measures were later tweaked or modified, while some initiatives were subsequently overturned by the courts.

The purpose of this post, however, is not to discuss FDR’s legacy– formidable as it remains and one that’s especially vivid if you ever have the chance to stroll around Hyde Park, site of his home and the first US presidential library.

Instead, I wish to discuss how congressional Republicans and Trump are using the Congressional Review Act (CRA)– enacted as part of Newt Gingrich’s Contract with America Advancement Act of 1996– to roll back regulations drafted in the waning days of the his predecessor’s administration. As I wrote in my first post on this issue, Republicans to Use CRA to Roll Back ‘Midnight’ Rules and Benefit Oil Companies, the CRA allows rules finalized during the past 60 session days to be overturned, by a simple majority vote in both houses on a CRA resolution of disapproval, using expedited procedures, followed by a presidential signature. If the president vetoes the CRA resolution, the regulation could still be rescinded if a 2/3 majority in each house votes to override the presidential veto. Crucially and importantly, once the regulation has been successfully voided, the regulatory agency is barred from reviving the rule in “substantially the same form”– forever–in the absence of new legislative authority.

Rollback of Fourteen Midnight Regulations

Now, as I pointed out in that earlier post, the 1996 legislation had only been used once before to roll back a regulation– an Occupational Safety and Health Administration (OSHA) ergonomic rule squelched early in George W. Bush’s administration. Yet just because CRA authority hadn’t so far been extensively used, doesn’t mean it wasn’t there to be used. If agencies had paid more attention to CRA’s deadlines during the electoral cycle and completed their necessary rule-makings more quickly in 2016, the CRA may not have come into play at all (more on this below). As just one example– discussed at greater length in my January post, as well as other posts linked within– the Securities and Exchange Commission (SEC) had tarried in its Dodd-Frank rule-making efforts, and its resource extraction issuers rule– forcing disclosure of payouts (ahem, bribes) made to secure benefits– was one of first measures to end up on the CRA chopping block.

So far, 14 rules have been rolled back, covering a variety of issue, including abortion funding, drug testing, education performance, environmental protection, government procurement, gun control, internet privacy, land use, retirement plans, and teacher preparation. And just last week, Press Secretary Sean Spicer took the administration’s latest victory lap for its ’s CRA record, in his April 19 press briefing:

As I’ve mentioned here, we’re now at a dozen Congressional Review Act pieces of legislation that have been signed that have had, I think, a very positive impact and will have a very positive impact on job creation. When you — and I’ve noted before to you that only one had ever been signed in history before — that’s a pretty significant achievement for this President.

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My reading of history convinces me that most bad government results from too much government.
Thomas Jefferson



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