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Congress Is Invoking A Little-Known Law To Undo Obama’s Regulatory Legacy

Waves of color surround the Capitol Dome in Washington, early Friday, Feb. 10, 2017.

CREDIT: AP/J. Scott Applewhite.

In these first weeks of the Trump administration, you may have heard some chatter about the Congressional Review Act (CRA). If you’ve never heard of it, you’re not alone. It’s a controversial, clunky statute that, until last week, had been used successfully only once before in history. But today, the Republican Congress is now using this law to roll back federal regulations put in place by the Obama administration that protect consumers, employees, the environment, and others.  You don’t need to be an expert on the CRA to get involved, but we wanted to give you the basics.  When your congressperson is using this law to rollback protections that are important to you, you can take action. So why, now, is the CRA being invoked so freely, and why does it matter for our generation?

What Is The Congressional Review Act, And Why Should You Care?

The CRA is a way for Congress to check the power of the executive branch by quickly reversing federal regulations issued by a presidential administration. The catch: the current Congress has only several months to rescind any regulation that was finalized by the Obama administration. One provision that makes the CRA especially dangerous for important regulations is that once Congress uses the CRA to undo a rule, no “substantially” similar regulation can ever be issued again. Though this stipulation has yet to be tested in court, it means that the executive branch may be barred from creating rules around that area ever again. Think of it as an irreversible meat-cleaver of authority, fast and fatal.

Put another way, the CRA is a seldom-used, roundabout method for Congress to erase federal regulations without the consideration—or inconvenience—of public input.

By contrast, the traditional rulemaking process is rather thorough and includes multiple opportunities for the public to weigh in on a proposal. When a federal agency wants to propose a new rule, it must notify the public by issuing a “Notice of Proposed Rulemaking” in the Federal Register. Once a rule is announced, members of the public are encouraged to consider the rule and submit comments to the regulating agency, which is required to consider those public comments and revise the rule as needed. Once the public input has been considered, final regulations are printed in the Federal Register and codified in the Code of Federal Regulations, making them enforceable.

The CRA, by contrast, leaves no time for public input, and allows Congress just one vote to rescind a regulation that may have taken years of public input and discussion to put in place. So far this year, just weeks into the Trump administration, the House has moved to use the CRA eight times to nullify critical Obama-era regulations, and there are over one hundred additional regulations that could be repealed using the CRA. This is a dangerous political precedent for Congress to employ, and one that is today being used or threatened with alarming frequency.

What’s under threat?

With the stroke of his pen, President Trump last week took his first steps toward dismantling significant portions of President Obama’s regulatory legacy. In a matter of days, Congress has successfully undone, or considered undoing:

  • A law barring gun ownership to some deemed severely mentally ill by the Social Security Administration
  • A rule preventing coal-mining companies from dumping runoff and debris into streams
  • A rule requiring oil and gas companies from reducing methane leaks from operations on federal and tribal land
  • A rule requiring federal agencies to consider companies’ labor and worker safety violations when deciding whether to award them contracts
  • A rule requiring oil, gas and mineral companies to disclose any payments to foreign governments

Paul Ryan, Speaker of the House of Representatives, recently said that these moves are “just the start.”

What’s Next?

To some conservatives in Congress, these reversals represent nothing more than political redress against an overreaching Obama administration. But the Trump administration and its congressional allies need to know that young people are watching. We care about safeguards that protect clean air and water, protect workers, and ensure that oil and gas companies are not making shady payments to foreign governments. This Congress’ activation of the CRA is but another way that they are rolling back significant progress that was made by the Obama administration over the last eight years. Young people are paying attention not only because we want to, but because we have to. Some of the regulations Congress might rollback next using the CRA do things like protect women’s health care, cut carbon pollution, and protect student loan borrowers from predatory schools. These regulations disproportionately impact our generation, and are important to protect.

So stay woke, y’all. Keep up with what rules are at risk, contact your elected officials to voice your concern over these aggressive rollbacks, or consider running for local office yourself. Because the CRA is, by nature, a shadowy political tool, let your representatives know that rules enacted with significant public input should not be subject to such capricious, in-the-dark rollbacks. Let them know that they, after all, are working for us.

Kyle Epstein is the Press Associate for Generation Progress.

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