The 60 day legislative window for Congress to use the Congressional Review Act (CRA) to eliminate regulations issued at the end of the Obama administration is coming to a close. So far, the most visible results of President Trump’s deregulatory agenda have been his signing of legislative actions passed under the CRA. Regulatory reform efforts going forward will require considerably less expeditious legislative and executive branch action.
To date, 14 resolutions of disapproval have passed both chambers of Congress; notably, the Senate voted against a motion to proceed on one additional resolution which was passed by the House on February 3rd. This marks the first down vote by the 115th Congress of a resolution of disapproval under the CRA. President Trump has signed 13 of these into law with one additional resolution currently awaiting his signature. Prior to 2017, Congress had only successfully struck down a single rule 16 years ago using the CRA.
As we’ve previously discussed, the CRA includes procedures that allow Congress to nullify a regulation: 1) with only a simple majority in both houses of Congress and, 2) with “fast track” provisions that prevent resolutions from being filibustered in the Senate. Disapproval under the CRA also prohibits agencies from issuing future rules that are “substantially the same” as the disapproved rule unless specifically authorized to do so by Congress in the future. The George Washington University Regulatory Studies Center tracks the status of Congressional disapprovals under the CRA here.
The resolution currently awaiting the president’s signature (H.J. Res. 66) would nullify a Department of Labor rule that provides guidelines for states in designing retirement savings programs for non-governmental employees. Another bill (H.J. Res. 36) —which passed the House but failed on Wednesday to pass the Senate —would have nullified a rule addressing methane generated during oil and gas production. If the president signs H.J. Res. 66 into law it will bring the total number of disapprovals under the CRA to 14.
Regulatory Reform Going Forward
Several executive orders (EO) signed by President Trump indicate the administration’s commitment to regulatory reform, but these efforts are likely to proceed slowly relative to the quick results under the CRA. For example, we’ve written about Trump’s EO 13771 “Reducing Regulation and Controlling Regulatory Costs,” which compels agencies to eliminate two regulations for every new significant regulation issued. This requirement substantially reforms the current regulatory process, but its long-term success depends on several important details regarding its implementation.
It is worth noting that deregulatory actions must undergo the same rulemaking process that other regulatory actions require and the rulemaking process can often take several years. Similarly, regulatory reform via legislative action outside the CRA will be difficult namely because there are no “fast track” provisions that allow a simple majority to pass bills; legislative reforms will unavoidably require bipartisan action.
The White House has repeatedly touted President Trump signing resolutions of disapproval into law as evidence that his administration is serious about regulatory reform. Now that the window is closing on his ability to make use of the CRA, regulatory reform is likely to be substantially more difficult—particularly to achieve lasting reform. Executive orders can be undone by subsequent administrations. This means that current requirements, such as Trump’s 2-for-1 EO, could be eliminated more easily than President Obama’s nullified regulations.