Protections for internet privacy: gone. Protections for Planned Parenthood’s family-planning funds: gone. Protections for streams & forests: gone. And for wolves & grizzly bears on wildlife refuges: gone. Workplace protections for certain labor violations: gone. Sensing a pattern here? While the Trump administration hasn’t been able to get any major legislation passed in its first 100 days, one thing it has been very successful at is rolling back Obama-era regulations.
And there’s a reason Trump & the GOP have been able to pull this off, despite stumbling over big legislative lifts like health care reform. The reason is that they are using an arcane, nearly unprecedented maneuver to fast track these regulatory reversals and send them through the Senate without the possibility of a Democratic filibuster. This fast track maneuver is made possible by a 21-year old law called the Congressional Review Act. But, the window to enact these fast track reversals is quickly closing . . .
I wrote about the Congressional Review Act (CRA) in detail in a post a little over a month ago, I SPy. Now it’s time for a little update/rehash. The method by which the CRA allows Congress to reverse a regulation is quite technical and complex, so for those who missed it, I recommend reading that previous post in order to fully understand what exactly the GOP is doing here. But the basics are:
1) The CRA allows Republicans to circumvent the normally long, complex agency rules making process (which typically takes a year or two) to roll back rules made in the last 60 “legislative days” of Obama’s term. Because of the intricate rules of the CRA, along with the crazy legislative calendar, these “60 days” end up being almost an entire year. So the GOP was able to go back to reverse any rule made after June 13, 2016.
2) Republicans can overturn these rules with a simple majority vote in both chambers (and the President’s signature). This means Senate Democrats cannot stop them with a filibuster.
3) Once a rule is overturned using this method, an agency may not make another rule that is “substantially similar” unless it is specifically authorized to do so by a new law. This detail is really important, because for any regulation being overturned now by the GOP, the relevant agency can’t come back a few years from now, under a Democratic President, and just reinstitute it.
Prior to the Trump administration, the CRA had only been used once, ever, to overturn a regulation (also by Republicans, under G.W. Bush). Trump and the GOP have now used it to overturn 13 Obama-era regulations, including the ones I mentioned at the opening of this post. (See below for the full list of overturned regulations).* Several regulations they’ve overturned using the CRA got a lot of attention, such as the internet privacy protection rule, the protections for Title X (family planning) funding for clinics that provide abortion, and the social security gun law.) But while the substance of those rules changes got a lot of attention at the time, the method the GOP was using to change those rules got very little attention at all.
So I wrote about the CRA back in February and then again in March, in the hopes of calling attention to what the GOP was doing. As mentioned above, this method of overturning a regulation had been nearly unprecedented until Trump took office. Typically, making or changing or reversing a rule is an arduous process. And it’s that way for a reason. All of the affected parties are supposed to have a chance to weigh in before a rule is changed. The agency involved is supposed to consult with the stakeholders (affected industries, interest groups, etc) and there’s supposed to be a prescribed comment period for the public to weigh in.
Then, before the rule is changed, the agency takes all of that feedback into consideration, and may adjust the rule accordingly. By using the CRA method to reverse so many Obama-era rules, the GOP skipped that entire process. The rules were changed hurriedly, with little to no discussion, and sometimes before the public even realized what was happening. So I wanted to get the message out on this early, in the hopes that more attention could be called to the issue and Republicans might be slowed down.
Unfortunately, it is only in the last week or so, now that the window for the GOP to use the CRA is finally coming to a close, that a flurry of articles are being written about it.** So the the GOP has succeeded in overturning 13 Obama-era regulations in this short period of time where they been able to accomplish little else. Now, they have approximately one more week left in which they can undo regulations under the CRA. (Again, because the CRA rules are so intricate, legislative experts are coming up with slightly different dates for the deadline. But it’s somewhere between May 9 and May 11. At this point, they can no longer introduce any new CRA legislation, but they have until those May dates to vote on whatever is already in the pipeline).
So we have one week left until we can fully assess exactly how much damage Trump & the GOP managed to do under the CRA. After that, if they want to continue to dismantle Obama’s legacy, they’ll have to do it the old fashioned way.
*The following articles helpfully summarize the 13 Obama-era rules that the GOP has overturned using the CRA:
Which Obama-era Regulations Have Been Killed? (The last two items on this list have since been signed).
**As with yesterday’s post, I realize this post sounds critical of the media, where I point out that for the most part, they didn’t cover what was happening with the CRA until after the damage was done. So I wanted to make a note about my intentions. I probably should have written something about this earlier, because one of the main things I am trying to do with this blog is bring attention to issues that I think aren’t getting enough attention in the mainstream media, or things that are getting attention but where I think the audience might want additional explanation about how things work or why they happen the way they do.
So by definition, that means my posts will often come across as critical of what the media is doing. But like I said yesterday, I have great respect & admiration for our press. We wouldn’t be a truly free country without the press, and overall I think they do great work (obviously some better than others!). That’s why I’m trying to cover the things they’re not getting to, because the stuff they are covering thoroughly doesn’t need a rehashing from me. And I should also note that anything I cover here has been reported on by at least one person in the press, because while I do original analysis, I don’t do my own original reporting (and I will always credit and/or link to them), so I rely on them to be able to write about anything that I write about here.