WSJ column features a “regulatory game changer”
In a recent column in The Wall Street Journal, Kimberley Strassel described this new interpretation of the Congressional Review Act as “a Regulatory Game Changer” that would allow Congress to “overrule Obama regulations going back to 2009.”
Strassel opens the column by detailing a discussion that Pacific Legal Foundation’s Todd Gaziano recently had with a group of attorneys in Washington.
Todd Gaziano on Wednesday stepped into a meeting of free-market attorneys, think tankers and Republican congressional staff to unveil a big idea. By the time he stepped out, he had reset Washington’s regulatory battle lines.
These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep. David McIntosh. He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better.
The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule.
But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.
Strassel breaks down the legalese of this new interpretation, writing:
Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.
“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.
Strassel went on to discuss how the act can further remove regulations. The CRA can also be used to roll back guidance documents that were never submitted to Congress, including the controversial guidance document on transgender bathrooms in schools that was adopted by the Obama administration.
What’s more, she tells readers, once a regulation is repealed it can never be submitted in a substantially similar way. That means that these burdensome regulations can effectively be killed for good. In the column Strassel also cited another legal scholar who agreed with this new interpretation of the Congressional Review Act.
Strassel concludes:
This is aggressive, sure, and would take intestinal fortitude. Some Republicans briefed on the plan are already fretting that Democrats will howl. They will. But the law is the law, and failing to use its full power would be utterly irresponsible. Democrats certainly would show no such restraint were the situation reversed. Witness their treatment of Mr. Trump’s cabinet nominees.
The entire point of the CRA was to help legislators rein in administrations that ignored statutes and the will of Congress. Few White House occupants ever showed more contempt for the law and lawmakers than Mr. Obama. Republicans if anything should take pride in using a duly passed statue to dispose of his wayward regulatory regime. It’d be a fitting and just end to Mr. Obama’s abuse of authority—and one of the better investments of time this Congress could ever make.
Read the full column at The Wall Street Journal.
