Window closing for Congress to roll back Obama-era regulations

“The president will continue to work with Congress and the rest of the federal government until every unnecessary regulation that stands in the way of success for American business and American people is taken off the books,” press secretary Sean Spicer said before Trump signed off on several CRA-passed rollbacks. 

The CRA gives Congress 60 legislative days to repeal a rule after it’s been finalized. Under the legislative calendar, that means Congress has until approximately May 9 to vote on resolutions overturning rules – but the deadline to actually introduce resolutions was up on March 30.

The time frame for introducing resolutions is tighter, running on a 60 “days of continuous session” window.

According to a November 2016 report from Congressional Research Service, every calendar day is counted in that 60-day window, including weekends and holidays, unless the House, Senate or both have been out for more than three days.

Health, safety and consumer advocates are now breathing a sigh of relief.

“We are through this process … and we can move on from this unpleasant era,” said Lisa Gilbert, director of Public Citizen’s Congress Watch Division.

But there are still about two dozen resolutions that have been introduced that are awaiting a vote.

Among them are measures to do away with the Consumer Financial Protection Bureau rules for prepaid cards and Environmental Protection Agency updates to Risk Management Program regulations aimed at reducing the likelihood of explosions at chemical facilities and improving emergency response times when accidents occur. 

Gilbert said Republicans may have the next month and a half to repeal that batch of rules, but after that they are going to have to find another mechanism to dismantle Obama’s regulations.

She expects to see agencies start proposing changes or rollbacks to existing rules through the traditional rulemaking process, which would be subject to public notice and comment. Agencies, she said, could also decide to lighten their enforcement of rules, especially if President Trump’s proposed budget cuts become a reality.

“It’s a back-end way of hurting the regulatory process,” she said.

But some groups are arguing that Republicans have yet to fully exhaust the CRA.

A coalition of groups led by The Pacific Legal Foundation (PLF) claims Congress can still use the CRA to repeal rules going back to 1996.

Under the law, Todd Gaziano, a senior fellow in constitutional law at PLF, said the 60-day clock doesn’t start ticking until a rule is published in the Federal Register or reported to Congress — whichever comes later. He helped draft the law as a senior congressional aide in the 1990s.

Knowing agencies were trying to evade the normal rulemaking process, Gaziano said the authors of the law chose to broadly define what constitutes a rule so policy manuals and agency guidance would be included.

While those types of documents aren’t always published in the Federal Register, Gaziano said the CRA requires agencies to send a short report with the text of the rule and any cost-benefit analysis to the House, Senate, and Government Accountability Office before the rule can go into effect.

“Some rules have been mistakenly enforced, but are not lawful rules,” he said. “They were never in effect.”

Some of the rules PLF and its partner groups, which include The Heritage Foundation, say could be overturned include 2012 guidance from the Equal Employment Opportunity Commission on employers’ use of criminal records in hiring and EPA guidance that served as the basis for the controversial Waters of the United States rule. 

But lawmakers are not showing signs of trying to stretch the CRA as it’s commonly understood.

“When the deadlines to use the CRA pass, Congress will use every other tool at its disposal to repair the damage done by unjustifiable regulatory restrictions and mandates,” reads a post from the Senate Republican Policy Committee.