Today, the Senate voted to repeal a late Obama administration directive to the Social Security Administration, to flag and block certain people receiving disability insurance benefits from purchasing guns. A few minutes from now, the House will vote to repeal a rule created by the Department of Labor in August, barring states from requiring drug tests as a condition for receiving unemployment benefits, along with another rule on retirement savings plans.
The House and Senate have been occupied lately with repealing late Obama-era regulations on coal mining, fracking, land management and teacher training. Expect more of this in the coming days. Believe it or not, this is one of the most productive and lasting things Congress can do without 60 Democratic votes in the Senate.
Congress passed and President Bill Clinton signed the Congressional Review Act in 1996. It gave Congress the power, with a simple majority vote and a president’s signature, to repeal new executive branch regulations that lawmakers oppose or feel are not true to the spirit of the laws they or previous Congresses have passed.
It’s been 20 years since CRA became law, so you would think lawmakers would have become accustomed by now to its presence and power on the legislative chess board. But we’re seeing now, in Democrats’ frustrations during these debates, that they failed to appreciate the threats in the position and were unprepared for what’s happening now. By making midnight rules both shortly before and after Trump’s victory, the Obama administration actually only helped Congress prevent those very rules, or anything like them from ever being issued at all.
Prior to this year, the CRA had only been used once — in 2001, to repeal a late Clinton administration Labor Department regulation on ergonomics. The obscurity and rare use of the CRA may be why no one saw this coming. CRA doesn’t just let Congress repeal regulations issued in the last 60 legislative days, so that some future president can reissue them, it pulls rules and regulations up by their roots so they cannot be reissued at all. As the CRA puts it, a rule or regulation disapproved by Congress in this fashion …
“…may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”
So if Elizabeth Warren becomes president in 2020, she cannot issue anything similar to the regulations that Congress is striking down right now. A CRA disapproval doesn’t require the same supermajority process as a law, yet it is just as permanent and binding in limiting the rules and regulations that future presidential administrations can issue. This is why you can find Democrats on the House floor today, complaining fruitlessly that the Trump administration should be rewriting these rules, instead of repealing them through the CRA.
The CRA’s new prominence will surely cast the perennial problem of “midnight regulation” in a whole new light. It could change the way regulators behave in the future near the end of presidential terms.
Under normal circumstances, presidents have massive power to regulate. The courts typically (although not always) defer to the agencies’ regulators by default. Also, a sitting president, at any point in his term, can always veto attempts by Congress to override his own new rules. President Obama did this twice when he vetoed two Republican CRA resolutions in 2015 and 2016.
But this month, it has become clear that whenever an administration creates new rules and regulations on its way out the door, they will be not only moot, but possibly counterproductive. Everyone now has fair notice that each midnight rule potentially becomes their own death sentence.
