03.30.2017 0

Congress may be able to rescind Obama regs dating back to 2009 under Congressional Review Act

By Natalia Castro

Congress has taken the lead in using the Congressional Review Act to remove some of the midnight regulations that the Obama Administration has burdened the American people with. Now as they push this legislation to the President, it is important the two branches work together to ensure that these regulations and many more can never be reinstated.

The House has successfully passed 14 Congressional Review Act (CRA) rescissions. Under the CRA law, Congress has 60 legislative days to offer joint resolutions of disapproval for any executive regulations, once passed through both houses and the presidency, the regulation is nullified and cannot be reinstated without a vote of Congress.

In just the last week, the Senate has voted on three of these regulations, moving a total of ten through both chambers.

The first the Senate handled last week was H.J. Res. 69 regarding the disapproval of the FWS Wildlife Management Rule. With this rules implementation, Alaskan citizens faced limitations on their hunting life and an estimated cost to communities of $5.9 million annually. The Senate voted 52-47 to remove this overreach onto local communities and maintain the cultural and economic value of hunting.

H.J. Res. 86 passed both houses of Congress, expressed disapproval of the FCC Privacy Rule, a rule that regulates how broadband and telecommunications companies to handle customer data according to FCC demands.

With the passage of H.J. Res. 83, the Senate disapproved of an OSHA regulation that increases oversight on how companies handle injury and illness claims. This regulation would add an additional cost to businesses of $18.54 per employee injury or illness, equating to an estimated national cost of $1.85 million per year.

Now President Trump will have the opportunity to sign these critical rescissions and end the burdening of the federal government onto local authority and individual rights.

Just on March 27, Trump signed H.J. Res. 44 into law, which nullifies the Bureau of Land Management’s Planning 2.0 Rule and protected state and local governments role in land management issues.

Now that the Senate has taken control over moving CRA rescissions to President Trump’s desk, they ought to consider a loophole that could provide Congress more latitude over Obama’s regulations than ever believed.

While the 60-day rescission window within the CRA is a tight deadline, it is important to note that the window only begins once the regulations have been reported to Congress.

The act itself outlines this process, 5 U.S. Code § 801(a)(1)(A) states, “Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing—(i) a copy of the rule; (ii) a concise general statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.”

On Jan. 26, Kimberly Strassel of the Wall Street Journal cited Todd Gaziano, a senior fellow in constitutional law at the Pacific Legal Foundation who was intimately involved in the drafting and passing of CRA, to explain that many regulations put in place by the Obama Administration were never formally submitted to Congress as the CRA legislation demands.

Strassel explains, “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.”

Currently, Congress is using the 60-day window to rescind the Obama midnight regulations dating back to June, but with this error made by the Obama administration, the Trump White House can now find regulations from even the early years of Obama’s presidency and report them to Congress to begin their rescission as well.

Americans for Limited Government President Rick Manning noted that, “This is not a question of whether the agencies published their regulations in the Federal Register, it is whether they followed the letter of the law by properly submitting these rules to Congress before they took effect. If they did not, then the Trump administration is perfectly justified in now submitting the regulations to Congress for review under the terms and conditions of the Congressional Review Act.”

Republicans in the House and Senate have already begun the critical job of removing the burdens the Obama Administration placed on everyday Americans; now the executive branch should work to uncover any other regulations the Obama Administration did not submit, and begin the process of reporting them so they can be removed by congress.

Republicans have control over the clock, so there is no reason they should run out of time on these CRA rescissions. Moving forward, and timing the reports to Congress, the Trump team could remove at least one regulation through CRA a week. If Republicans are serious about removing President Obama’s regulatory state, they must make uncovering misreported regulations and nullifying them a consistent priority until they are all gone.

Natalia Castro is a contributing editor at Americans for Limited Government.

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