By Jenna Lewinstein (SC ’19)
President Donald Trump emphasizes that in his first months in office, he signed more bills than any other president. At this point in Trump’s presidency, he has fallen far behind on legislation passed. Regardless, the claim made concerning his first months is misleading, as the plurality of his bills from his first 6 months in office were passed thanks to the Congressional Review Act of 1996 (CRA). By using the CRA, Trump circumvented conventional legislation processes in order to quickly undo Obama era regulations. Because the CRA is taking on a new life, its reach is still unclear and may act as an unchecked executive power.
The CRA is a Gingrich-era mechanism, which was passed as part of the Contract with America Advancement Act of 1996, to streamline the deregulatory process by which Congress can nullify regulations on Federal agencies made by previous administrations. In theory, the CRA was meant to create a “legislative veto,” replacing something Congress had in its arsenal until the Supreme Court deemed it impermissible in INS v. Chadha (1983). Though CRA measures are passed by of Congress with a simple majority, the CRA is not solely a work of the legislative branch. Any joint resolutions passing under CRA must be signed by the President to become law. Additionally, the provisions under the CRA must be passed within 60 legislative working days of the report of the regulatory rules to Congress. Utilizing this tool leaves a strong veto threat from the President, especially under circumstances of a divided government, where the party holding the Presidency is different than the party that enjoys a bicameral majority, or during transitions between Executive administrations of different parties.
In the first 20 years since the creation of the CRA, it was only used once to reverse a rule in 2001. At that time, a joint resolution created a Bush rollback to a Clinton ergonomics rule for the Department of Labor. In 2017, a similar political climate emerged as a result of a Republican administration following a Democratic President set the stage for the CRA to be used again. Last year, President Trump used the CRA to rollback 15 Obama-era protections. Instead of working with lawmakers to create their own, new legislation, Republicans opted to use this shortcut to achieve their goal of quickly overturning Obama’s success. Because of the 60-day time constraint of the CRA, Republicans in Congress and President Trump had to make quick work of deregulations. Andrew Bremberg, the current Director of Trump’s Domestic Policy Council, even admitted that Republican efforts surpassed the architects of the CRA’s expectations. Bremberg called the CRA “a strong and very potent and powerful tool.” Bremberg believed they would be able to use the CRA to reverse 5 or 6 regulation bills, but no one thought its power could extend this far.
Critics say Trump’s aggressive use of the CRA is detrimental to the American people who have benefited from Obama policies including increased public safety, secured personal information, defended federal land, and adjusted rankings of schools based on a myriad of factors instead of solely standardized tests. Trump’s rollbacks serve only the lip service of undoing Obama’s s achievements, and lack the pragmatism needed to help the American people. One deregulation policy Trump passed through the CRA upends an Obama era regulation that prevented mountaintop coal mining companies from polluting local water. Because of this action, there now will be no measures mandated to prevent contaminated drinking water. Another measure Trump signed counteracted the prior requirement of the Social Security Administration to disclose information about mentally incapacitated people to government agencies conducting background checks to buy guns. Without this, about 75,000 mentally unstable people may forego Justice Department waivers and buy guns without a proper background check. A further resolution under the CRA signed by Trump allows states to deny appropriating Title X funding to women’s health clinics that provide abortion, contraception, cancer screening, disease treatments, and family planning services. Another allows employers to get rid of work related injury and illness reports after six months instead of five years, undermining workplace safety and health. An Obama rule nullified through the CRA releases federal land managers from considering the effects of climate change and proposed development to 245 million acres of public lands. Ten other successful rollbacks address education, labor laws, net neutrality, environmental provisions, and more.
Though all of these repeals occurred rapidly in 2017 because of the 60-day limitation beginning at Trump’s inauguration, interpretations of 5 U.S.C. §801 may broaden the scope of the CRA. Codified into the Congressional Review Act is the requirement that agency rules must be reported to each House of Congress and the Government Accountability Office. A rule that has not been reported to all three is vulnerable to rollbacks via the CRA, which may extend the power of the CRA to approximately 10% of significant rules, or rules with costs and benefits amounting to over $100 million. The Brookings Institution, a non-partisan think tank, has found that up to 348 rules have significant reporting deficiencies, due to inconsistencies in recording prior to the creation of the CRA.
Because of this, the new utilization of the CRA may be extended and manipulated in ways we have not yet seen before. Already the Trump administration has taken advantage of the CRA in order to undercut Obama era regulations. Overall, the excessive use of the Congressional Review Act indicates President Trump’s inability to pass serious bills regarding restructuring the federal government’s regulatory powers as plain, good old fashion legislation.