President Donald Trump and the Republican Congress have squandered their first few months of unified control, bungling a repeal of the Affordable Care Act and finding it difficult to even keep the government funded by the end of April. But they’ve had a lonely area of success: methodically taking down Obama-era regulations.
An obscure law (only used once before in history) called the Congressional Review Act (CRA) empowers Congress to pass resolutions of disapproval for any regulation passed in the last 60 legislative days of the last session. The resolutions require only a majority vote, avoiding the Senate filibuster. And Republicans have leaned heavily on the CRA in 2017, passing 13 resolutions through the House and Senate.
Trump has signed nine of them into law thus far, out of only 18 public laws signed. The latest, signed just yesterday, kills a rule that would have blocked Internet providers from selling their customers' personal information. Another four await his signature, and 20 more could pass Congress before a mid-May deadline.
Senator Pat Toomey (R-PA) wants to extend CRA’s reach into routine agency guidance on how they will interpret existing rules. Toomey wants to eliminate banking regulators’ warnings to banks to reduce issuance of risky “leveraged loans,” and the Consumer Financial Protection Bureau’s bulletin to indirect auto lenders about complying with anti-discrimination laws.
Once Trump signs a resolution, the regulation is nullified, and federal agencies cannot create a “substantially similar” rule without Congressional approval. So the Fair Play and Safe Workplaces rule, which would have forced federal contractors to disclose violations of labor law, or the stream protection rule barring waste disposal from surface coal mining into waterways, will be sidelined potentially forever.
Because I like drinking water untainted by coal waste, and oppose my tax dollars going to companies that continually harm their workers, I’m saddened by the rampant use of CRA. But I’m also wondering why so many rules weren’t finalized by the Obama administration earlier in his presidency, when they wouldn’t be vulnerable to Congressional nullification. The CRA makes “midnight rules” enacted as far back as June 2016 eligible for disapproval. But that’s seven and a half years into Obama’s tenure. Why did so many important rules wait so long?
There’s no one answer to this question. But part can be found in the byzantine rulemaking process, which creates unnecessary bottlenecks and mountains of delays. In fact, contrary to Republican claims about dark-of-night scheming to usher in regulations before leaving the White House, some of these “midnight” rules were proposed as long as three years ago.
Under the current process, governed by the Administrative Procedure Act and over a dozen other statutes, agencies must publish proposed rules openly, give the public ample time to comment, and take those comments into account in the final regulation. Agencies must study the impact of their rule on the environment and small businesses. They have to analyze costs to state, local and tribal governments. They have to review whether the rule would collect undue information on Americans. Combine that with having to work through comments, which historically come overwhelmingly from the industry subject to the rule, and the gauntlet can take years to complete.
There’s another hurdle at every step, a subsidiary of the Office of Management and Budget called the Office of Information and Regulatory Affairs (OIRA). Established in 1980, OIRA adds another layer of review of all proposed and final rules, performing cost-benefit analyses and ensuring that a rule fits with presidential priorities. Rules can bounce back and forth between an agency and OIRA for years, constraining agency manpower and running out the clock. Most of the groups meeting with OIRA on rules have industry affiliations.
Technically, OIRA has 90 days from receiving a submission from a federal agency to issue a response. But “those deadlines are basically not honored,” says Lisa Heinzerling, a Georgetown law professor who worked at the Environmental Protection Agency under President Obama. “So the rules can sit for a long time.”
Agencies can grant a 30-day extension of the OIRA deadline, and Heinzerling explained that what usually happens is that OIRA calls the agency and tells them they’d better ask for another 30 days because that’s how much time they need. “The bottlenecks were huge,” Heinzerling said, regarding her time at EPA.
While Heinzerling added these OIRA bottlenecks became less prominent in Obama’s second term, it still had an impact on late rulemaking, which is a defined trend. A study by the right-leaning think tank R Street looked at 1,400 rules between 1996 and 2014, finding that more than 50 percent of them missed statutory deadlines set by Congress for implementation.
Any delay gives industry more days of non-compliance. So all the burdens placed on agencies in finalizing rules are deliberate, to drown them in bureaucracy. It has a chilling effect too, making it seem insurmountable just to initiate a rulemaking effort. And the OIRA bottleneck shows that Congress isn’t the only entity meddling in the process. As part of OMB, the agency is directly under control of the president, and can be used to delay or kill rules that the president doesn’t favor.
The newfound love for the CRA adds a further complication. If endless delays in rules get too close to the CRA deadline, Congress can just wipe them out with a majority vote.
Here’s one case study: a Department of Education rule on teacher preparation, designed to measure the effectiveness of classroom certification programs serving half a million would-be teachers, and help them improve. The final regulation got published last Oct. 31. But it began with a notice of proposed rulemaking back in December 2014. OIRA got a hold of it in September 2015, held onto it well beyond the 90-day deadline and got it withdrawn in February 2016, approving a new version in March. After another comment period, the final rule went to OIRA in July, and they took another three months to finalize it.
Unfortunately, this was months after the CRA deadline, and last week Trump signed the resolution killing the regulation. Teacher prep programs will not be scrutinized as rigorously because OIRA dragged out the rulemaking.
Fixing most of the broken rulemaking process will require Congressional action. But presidents can change the OIRA component of it as they see fit. They can trust the experts they install at the regulatory agencies to properly balance economic effects of regulations with the public interest. In other words, as president, Obama could have done something to rein in the delays to his rules. He didn’t, and Trump is picking them off one by one as a result.