How Trump Could Overturn Some Obama Regulations

As the clock counts down on the twilight of the Obama Administration, the president and thousands of federal employees are hard at work finalizing last-minute regulations that reflect the administration’s legislative and social priorities from the last eight years.

Many Americans are watching closely to see what will make the cut — like an overhaul to stream protection rules from the Department of the Interior. Some are excited to see these regulations passing, while others are unhappy with what they see as a last-ditch attempt to set policy during an interstitial period. Those unhappy with the regulations are about to have a one-time shot at repealing them, courtesy an obscure piece of legislation from 1996 called the Congressional Review Act.

First, some disambiguation:

• Legislation is passed by both houses of Congress after due deliberation and discussion. When Congress passes a law, it’s sent to the White House for signature or veto, and if the president signs it into law, there it will stay until repealed or struck down by the Supreme Court. For instance, the Defense of Marriage Act stood until 2013, when the Supreme Court struck key provisions.
• Regulations reflect rulemaking from within federal agencies tasked with overseeing various aspects of American life. For example, the Federal Trade Commission’s Funeral Rule sets out guidelines about how funeral homes do business.
• Executive orders are documents signed by the president to resolve or establish a policy issue. For example, President Obama recently signed an executive order establishing a Community Solutions Council.

All three of these policy tools can be useful. Executive orders are the weakest, because the president can repeal them with the stroke of a pen — something some progressives are concerned may happen when president-elect Trump takes office and weighs what to do with eight years of executive orders on a broad range of subjects. Regulations are theoretically robust, but it turns out that the CRA can change that.

Under the terms of the CRA, Congress has 60 “sessional days” (days when Congress is in session, rather than days overall) to review legislation — and if they don’t like it, they can craft a joint resolution to lodge their opposition. Resolutions aren’t subject to filibuster and they tend to move through Congress much more quickly, though they are still subject to presidential veto. That’s why the CRA by and large hasn’t been used very much — in fact, it’s only been successfully deployed once, to roll back OSHA protections. Often, the president and Congress are at odds, so if Congress doesn’t like a regulation pushed by the president’s administration, the president can veto the resolution and things proceed normally.

However, 2017 could become a perfect storm for the CRA. Legislative priorities and concerns may have changed, and the CRA addresses concerns that it wouldn’t be fair to let the prior Congress and administration ram through a bunch of last-minute legislation and regulations that the subsequent Congress is powerless to do anything about. If the new Congress does decide to take advantage of the CRA, at least 50 “major” rules and regulations from the Obama Administration could be subject to review and rejection.

These rules include: Sick leave for federal contractors; the stream protection rule; reforms to Medicare and Medicaid; loan forgiveness for students of schools that shut down; a ban on selling certain types of antibacterial soaps; emissions guidelines for landfills; nutrition standards for school lunches; limitations on migratory bird hunting; and compensation to people injured in the response to the September 11 attacks.

But it gets even more complicated. If Congress passes a resolution and the president signs it, the issuing agency isn’t allowed to issue a rule that takes “substantially the same form,” a measure designed to ensure that agencies can’t just keep issuing and reissuing the same disliked rule over and over again. That phrase leaves broad and fuzzy room for interpretation — for example, OSHA has been reluctant to move on any kind of ergonomics regulation after a specific rule addressing repetitive stress injuries was overturned in 2001, leaving people like poultry workers vulnerable to workplace injuries.

It’s easy to keep track of how Congress uses the CRA. GovTrak.us is a very user-friendly site that keeps an eye on what’s happening in Congress, and you can also see pending legislation on the House and Senate websites, including any resolutions taking advantage of the CRA. You can see what’s been introduced and by whom, and determine where it is, including whether it has been referred for committee or is scheduled for a vote.

If you want to take action on a given bill, start by determining if your legislator is a sponsor or cosponsor, or sits on the committee tasked with considering the legislation or resolution and weigh in early. If your legislator isn’t directly involved, you can still contact the office (a phone call is best!) to ask that your legislator vote for or against the bill under consideration.

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