Democrats are expecting a landslide in the midterm elections, and it’s lulled them to sleep on Capitol Hill. A case in point: Republicans have been using the Congressional Review Act (CRA) to wipe out Obama-era regulations since the Trump presidency began. And Democrats, responding groggily, have just gotten around to doing something about it.
What they’re doing doesn’t amount to much. In mid-May, senators Cory Booker (D-N.J.) and Tom Udall (D-N.M.) introduced a bill to kill the CRA. There was no fanfare or excitement, and no angry vows of resistance.
As important as it is, the CRA doesn’t command media attention, much less public acclaim. It was enacted in 1996 when Newt Gingrich was House speaker. And until January 2017, when Republicans achieved a Washington trifecta—control of the White House, Senate, and House—it had been invoked successfully only once. That was in 2001 when it ended the life of the Labor Department’s oppressive ergonomics policy.
But the CRA hasn’t been forgotten. Republicans tried five times to eliminate Obama regulations, including the Environmental Protection Agency’s “Waters of the United States” policy extending federal regulation of wetlands to vast new chunks of America. President Obama vetoed all five.
As the 2016 election approached, Republicans had no plans for reviving the CRA. They were expecting Hillary Clinton to win. That would have entrenched the massive regulatory machinery imposed by Obama. The swamp would be bigger than ever.
The day after Trump won, House and Senate Republicans, mainly aides of Senate majority leader Mitch McConnell and House speaker Paul Ryan, began conspiring with Trump aides. The CRA was now on the agenda, right near the top. And there were plenty of regulations to target.
How does it work? The CRA allows Congress to look back at regulations adopted in the dying days of a president’s tenure and, if it so chooses, vote them down. In effect, this requires one party to be in control. And they better be Republicans. Democrats adore regulation.
There are limits on CRA power. The act applies only to rules and regulations put into effect in the prior 60 legislative days.
But it has significant advantages. To kill a regulation, only a simple majority is needed. So filibusters are of no use. And a CRA vote is an official act of Congress, though the regulation under review is not. Reversing a CRA vote would take congressional action. A presidential order—Obama’s favorite way to govern—wouldn’t do the job.
Republicans moved fast when Trump arrived. The “stream protection rule”—regulations affecting issuance of permits for mining operations—had been rewritten after a judge struck it down. The replacement was adopted by the Interior Department on Obama’s last day in office. Death came quickly. Trump revoked the rule on February 16, 2017.
Since the Trump-McConnell-Ryan axis took charge, 16 regulations have suffered death-by-CRA. Last week, the Consumer Financial Protection Bureau (CFPB) was stripped of its ability to look into discrimination in auto loans. An amendment to Dodd-Frank had flatly barred the bureau from investigating the auto business, but it went ahead anyway. In the end, Republicans and the CRA prevailed.
One GOP clash with Obama involved a drug-testing requirement for those seeking unemployment benefits. In 2016, Obama’s Labor Department limited the right of states to force recipients of jobless pay to be tested. Now states are free to ignore that directive.
Gingrich, who created the CRA, then watched it win only once in two decades, is thrilled with its current success. But not surprised. “It’s a practical way,” he insists, to rein in the bureaucratic monster. Trump, McConnell, and Ryan have been “just brilliant,” Newt says.
Democrats will never use the CRA. “They like all the regulations the system creates,” Gingrich says. The CRA represents “a real transfer of power.” Republicans have found it a powerful weapon to challenge the administrate state, curb the bureaucrats who run it, and thwart the Democrats who support them.
The clock may have expired on many egregious Obama regulations. But the CRA appears to have a longer lifespan than the 60-day timetable might suggest.
Senators Pat Toomey (R-Pa.) and Jerry Moran (R-Kan.) discovered this in taking on the CFPB’s auto-lending probe. The bureau had issued a document with guidance on auto loans that was finalized in 2013. That’s way outside the bounds.
But the folks at CFPB didn’t abide by the proper procedures and failed to submit the document to Congress, which is what starts the CRA consideration clock. Toomey asked the Government Accountability Office if this allowed the CRA to be invoked despite the late date. The GAO ruled that it did. Republicans then used the CRA to keep the CFPB from pursuing auto lenders for discrimination.
There may be more victories. There are many more regulations out there that agencies have failed to file officially with Congress. They’ve been enforced till now because no one stepped in to challenge their legitimacy. The CRA gives Congress the incentive to find those regulations. They’re ripe for liquidation.
It’s a task Republicans have shown they’re quite good at.
