The Congressional Review Act is not glamorous, exciting, or sexy. But it represents the most consequential legislative action of President Trump’s first 100 days, an easily overlooked but significant accomplishment, a step toward keeping Trump’s and the congressional GOP’s promises to reduce regulations from Washington.
The CRA allows Congress to review and repeal any government regulation within 60 congressional working days of its issuance. Due to recesses, weekends, and holidays, 60 working days generally translates into six calendar months or more. For rules issued with less than 60 working days left in the current Congress, the 60-day review clock starts over in the next Congress. Moreover, once a regulation is repealed, the agency cannot enact any “substantially similar” rule without approval from Congress. In the closing months of the Obama administration, federal agencies enacted a slew of red tape before the new cabinet secretaries arrived. The GOP Congress and Trump are now going through those rules and weeding out ones they find unacceptable.
Fans of the Obama administration are irked by this turn of events. The New York Times calls the CRA “an obscure law,” as if that delegitimizes what is being done; the validity of a law is not determined by whether Times readers are familiar with it or not. Esquire calls it “an obscure, decades-old law,” as if the law isn’t youthful enough to be legitimate.
So far, Trump has signed 13 pieces of legislation repealing regulations. Among the most notable . . .
Last fall the Federal Acquisition Regulatory Council enacted a new rule that requires any federal contractor bidding on jobs costing $500,000 or more to report all company labor-law violations—past, present, and even future. This includes ongoing complaints and allegations that may or may not be true. House Republicans contended that the “rule undermines basic due process rights by potentially blacklisting employers from federal contracts before they’ve had a chance to defend themselves in court.” The General Services Administration calculated that compliance with the law would cost American businesses $454 million in the first year and $260 million every subsequent year.
Perhaps the highest-profile battle over a repealed regulation amounted to a proxy fight for Planned Parenthood funding. In December 2016, the Department of Health and Human Services issued a new regulation designed to make sure that abortion providers, such as Planned Parenthood, could continue to receive grants for family planning under Title X of the 1970 Public Health Service Act. The new HHS rule prohibited states from preventing money from going to certain organizations for any reason other than their ability to provide “Title X services”—a backdoor way of ensuring that state governments had to keep letting abortion clinics get this money. The Senate came to a 50–50 split on repeal of this regulation in late March, with two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, joining all 48 Democrats. Vice President Mike Pence broke the tie, and the HHS rule was repealed.
The Obama administration created a rule that anyone who had a designated payee for his Social Security benefits would be added to the National Instant Criminal Background Check System, or NICS, which is used to prevent gun sales to felons — even though most people in this group have not been convicted of a crime. The American Civil Liberties Union, as well as gun-rights organizations, opposed the move. “The thousands of Americans whose disability benefits are managed by someone else range from young people with depression and financial inexperience to older adults with Down syndrome needing help with a limited budget,” the ACLU wrote. “But no data — none — show that these individuals have a propensity for violence in general or gun violence in particular. To the contrary, studies show that people with mental disabilities are less likely to commit firearm crimes than to be victims of violence by others.”
In October, the U.S. Department of Education issued a new rule requiring states to collect, analyze, and publish more-detailed information about the effectiveness of school teacher-preparation programs. House majority leader Kevin McCarthy contended that even though the concept sounded benign, it represented an expansion of the federal government’s role in public schools.
The fight over the accountability rule represented one of the rare times the GOP and teachers’ unions were on the same side of an education issue.
“The accountability rule constitutes an unfunded mandate and is an unprecedented move by the federal government to take state power,” McCarthy wrote. “Though the original law allows for states to decide how to assess schools, this rule dictates a Washington standard that undermines state and local control over education and further strains state and local budgets.”
The fight over the rule represented one of the rare times the GOP and teachers’ unions were on the same side of an education issue. The National Education Association objected to the use of student-test data to measure whether a teacher-preparation program is working well enough, and complained that the rule didn’t account for differences in school resources, technology, and other factors.
The Bureau of Land Management’s “Planning 2.0” regulation aimed to give sportsmen, local governments, landowners, and residents more input early on in the planning process for oil and gas development and multiple uses of tracts of land. But some local officials, farm bureaus, livestock-industry officials, and energy groups contended this was a backdoor way to make it easier for environmentalists to block development projects.
Representative Liz Cheney (R., Wyo.) sponsored the legislation to repeal “Planning 2.0,” contending that the BLM proposal “would have given the federal government and radical environmental groups control over land use and resource planning in our state, at the expense of local officials and stakeholders.”
In Alaska, the U.S. Fish and Wildlife Service enacted rules in September 2016 that barred hunters from shooting or trapping wolves that are at their dens with cubs, using airplanes to scout for potential grizzly-bear targets, trapping bears with wire snares, and luring bears with food to get a point-blank kill. The rule was opposed by Alaska’s entire congressional delegation. “Not only was it a massive jurisdictional power grab, it clearly undermined the laws passed by Congress to protect Alaska’s authority to manage fish and wildlife upon all our lands,” Representative Don Young declared in a statement after the House voted to repeal the rule.
These aren’t giant legacy items, and they pale in comparison with the consequences that would follow from repealing and replacing Obamacare, enacting a sweeping tax reform, or passing Trump’s envisioned trillion-dollar infrastructure bill. Still, “reduce regulations” is a perennial Republican campaign promise, and Trump and the GOP Congress deserve credit from conservatives for chipping away at the worst of them.