President Trump and his team have touted their extensive use of the Congressional Review Act to roll back Obama-era regulations as a major accomplishment of the president's first 100 days in office. But their window for using this legislative tool is set to close, and Republicans must find new ways to erase rules put in place by Trump's predecessor.
The Congressional Review Act gives lawmakers 60 legislative days to undo regulations enacted by the executive branch. Congress had used the obscure law just once before Trump's tenure. Lawmakers succeeded in putting 13 bills on Trump's desk to overrule Obama administration rules this year.
"I think they were all significant," Rep. Glenn Thompson, R-Penn., told the Washington Examiner of the regulations undone by Republicans this year.
"Some of these were done in the 12th hour as the previous previous administration was leaving," Thompson said. "I think that's bad form no matter what the party is."
The Congressional Review Act resolutions tackled Obama-era rules on the environment, education and labor, among other issues. Then-President Barack Obama implemented those rules in the latter half of 2016.
But Paul Larkin, a senior legal research fellow at the right-leaning Heritage Foundation, noted the Congressional Review Act's clock starts once the federal agency enforcing the rule submits its report on that regulation to Congress, not necessarily when the regulation is approved.
"The time period that Congress has to start the whole process going doesn't begin until an agency submits a report to Congress with the rule," Larkin said. "If they had adopted a rule and didn't send it to Congress, it's supposed to be invalid."
The nonpartisan Cause of Action Institute has identified hundreds of rules that agencies never properly submitted to Congress; those rules could be vulnerable to repeal under the Congressional Review Act.
The administration has acknowledged, however, that its best opportunity to pursue deregulation quickly has come and gone now that Obama-era rules are mostly beyond the reach of the Congressional Review Act.
Still, there are ways Congress can help Trump gut rules he sees as burdensome to the economy or local communities.
Thompson said Congress can lessen the impact of regulations during the appropriations process, when lawmakers can introduce language that directs funds away from an issue or find other ways to circumvent it. The Pennsylvania Republican pointed to a provision in the omnibus spending bill Republicans passed last week that would grant schools exemptions to rules limiting what foods they can serve to students in cafeterias.
One such rule, Thompson noted, was a requirement that all milk sold in schools be fat-free.
"Certainly, what happened was kids were not consuming milk," Thompson said, adding that the regulation effectively banned flavored milk from the lunch line.
Larkin said there are several ways Republicans on Capitol Hill and the administration can continue stripping away regulations.
"Beyond the CRA, you have what you would think of as the standard option. They can repeal or revise statutes," Larkin said. "That's one scenario: where Congress and the president work together to repeal a statute."
Another, Larkin noted, was to attack regulations during the appropriations process.
"A third one is for the president to direct the agency to reconsider the rules," Larkin said.
He cited as an example Trump's decision to review the Waters of the United States rule, an Obama regulation that allowed the Environmental Protection Agency to extend its authority over small bodies of water, including streams and wetlands.
In February, Trump directed EPA Administrator Scott Pruitt to examine the rule in what would be the first step toward removing it altogether. Critics of the Clean Water Act interpretation argued it could give the federal government too much power over bodies of water as small and inconsequential as puddles.
Trump has focused heavily on deregulation during the first few months of his presidency. One of his first executive actions required his administration to repeal two old regulations for every new one it enacted.
The regulatory process can be long and complicated, requiring months or even years of review, revision and responding to potential court challenges. Trump's deregulation push is about to face new challenges of its own.