Republicans in Washington are planning to make good on promises to roll back federal regulations on everything from mining pollution to consumer protections for credit card holders.
To do it, they are using an obscure legislative tactic that’s been successful only once in history – a tactic has some legal scholars worried.
How it works
To kill these rules, lawmakers are passing joint resolutions allowed under a law called the Congressional Review Act. The Act allows lawmakers to block regulations that have only recently been finalized. In terms of this new Congress, it means lawmakers have about 60 legislative days to review any rule that came out after mid-June of last year.
The law was passed in the 1990s as part of the “Republican Revolution” and signed into law by Bill Clinton. Sidney Shapiro, a law professor at Wake Forest University, says the idea was to give Congress more oversight over rules created by federal agencies.
He says the law was meant to add “an important degree of democratic accountability,” but what it created was “an introduction of politics into the regulatory process.”
One reason is that the Act requires the president to sign off if a regulation is going to be axed. No president is going to kill a rule put in place by his or her own people, so the Act is only effective when a new party takes control of the White House.
That’s one of the reasons it has been used successfully only once before the latest Congress was sworn in.
"Both houses have passed two [rollbacks] already and the House has passed several more,” says Tom McGarity, a professor of law at UT-Austin.
Among other things, these joint resolutions would roll back consumer protections for pre-paid credit cards, end rules to reduce methane pollution and block regulations on the safe handling of dangerous chemicals.
And there’s one more reason opponents of these rules have to be worried.
"Killed and buried"
Shapiro says Congressional Review also takes any similar regulations off the table.
“The legislation says, once Congress overrules a rule and it’s signed by the president, the agency is prohibited in the future from passing a similar rule in the same area,” without approval of both houses of Congress and the president, he says.
"Not only are these regulations killed, they are killed and buried and it really can’t ever be resurrected," McGarity told KUT last week.
That aspect of the Congressional Review Act is especially troubling to environmental groups, which argue it could freeze agencies' abilities to create policy that incorporates new scientific understanding.
“It basically says – no matter how much new science comes forward, no matter how much things may change or evidence comes forward of threats to public health and safety and the environment – federal agencies can’t do anything about it,” says Elgie Holstein with the Environmental Defense Fund.
Holstein says the Environmental Defense Fund will be fighting uses of Congressional Review in rollbacks. It’s difficult, though, she says, beyond lobbying Congress to see how groups could block the rollbacks.
Unknown legal territory
If President Trump begins signing regulatory rollbacks under the Congressional Review Act, it may lead to clarification of at least one question for federal agencies that's inherent in the law: How will an agency know whether a new regulation it proposes is too similar to an older one that was rolled back?
Holstein and Shapiro say that area of the law may be ripe for legal challenge.
“It may be that in the next administration, assuming a Democrat wins an election to president, the administration could try to test the scope of that congressional restriction,” says Shapiro.
Holstein says that may be constitutionally questionable, as it may be seen as an attempt to bind future action by federal agencies and Congress.
But those questions will have to wait for a later date. In the meantime, lawmakers intent on rolling back regulation will want to move quickly, as the clock is ticking.