Republicans are running out of time to use their secret weapon

In the last months of 2016 – and with special urgency after the election results rolled in on Nov. 9 – the Obama administration rushed to put in place a number of regulations meant to tie up loose ends of the president’s agenda. But thanks to a little-known law put in place in the ‘90s, Republicans in Congress have been able to send many of those last-minute rules to President Trump’s desk to be overturned.

The GOP’s special tool is the Congressional Review Act (CRA), a law from Newt Gingrich’s time as speaker of the House, during which he spearheaded a program of deregulation and tax cuts under the banner of a “Contract With America.” The CRA allows Congress to undo recently issued regulations through a resolution, not a bill – which means that Democrats have no opportunity to stop their opponents with a filibuster.

What’s more, once a regulation is undone using the Congressional Review Act, a federal agency under a future Democratic administration can’t simply put it back in place. Instead, any “substantially similar” rule would have to be approved by Congress. In this way, the CRA transfers authority on an issue from the executive branch, which includes the president’s agencies, to the legislative branch.

In the two decades between when the law was introduced and when Trump entered the White House, it was used only once. Since then, it has been used 14 times. Here are some of the CRA’s casualties:

• The very first rule in Congress’ crosshairs was the Cardin-Luger Rule, which forced the disclosure of payments made by oil, gas and mining companies to both the U.S. government and foreign governments. The regulation was part of the Dodd-Frank Act, and was finalized in June 2016 by the Securities and Exchange Commission. But the rule was fiercely opposed by the companies that would have to abide by it, including ExxonMobil (then under the stewardship of now-secretary of state Rex Tillerson).
• Next to go: A stream protection rule hated by the coal industry. The rule was put in place by the Department of the Interior in December 2016, and aimed to protect coal country and the people who live there from being poisoned by mining companies. While lawmakers were doing oil companies a favor by repealing Cardin-Luger, they also handed coal companies a victory by repealing this regulation and making it easier for them to dump waste into streams.
• Next on the chopping block: A regulation meant to keep guns out of the hands of the mentally ill. Republicans have long maintained that stricter controls on all guns are unnecessary, and that the real issue is mental health – but less than a month after Trump was inaugurated, they used the CRA to repeal a rule that would have required the Social Security Administration to put some 75,000 people with schizophrenia and other psychological disorders on a list of individuals barred from buying guns.
• The CRA-related move that perhaps prompted the most outrage came earlier this month, when Congress moved to roll back a rule meant to shield customers’ privacy from their internet service providers. By undoing that regulation, ISPs have been given the ability to do some pretty creepy stuff, New America Foundation fellow Matt Stoller noted on Twitter: “Do you want your insurance company to adjust your rates based on your web browsing activity? Do you want to be shown ads that offer lower salaries based on your age, gender, neighborhood, etc? Do you want prospective employers to use as a criteria who you are thinking of dating? That’s what this is about.” The ISP lobbying groups behind the push were unable to come up with much of an explanation of how this would improve anything other than their bottom line.
• Other CRA-related repeals took aim at workplace protections. Take, for example, a rule put in place last August and repealed in March that was aimed at keeping taxpayer money out of the hands of companies that mistreat their workers and violate labor laws. The now-overturned Obama-era regulation prevented these employers from receiving federal government contracts unless they came into compliance. But Republicans voted to give them a pass. “By blocking this rule, the president and congressional Republicans will ensure that taxpayers will continue to support contractors with a history of wage theft and health and safety violations,” Heidi Shierholz of the Economic Policy Institute told The Huffington Post.

Congress has struggled to respond to the White House’s mixed and conflicting signals during this discombobulated legislative year. But the CRA has allowed the deregulatory agenda to keep moving, and has facilitated some of the GOP’s biggest victories this year.

The CRA is particularly devastating to supporters of these now-repealed rules because it prevents agencies from putting the rule back in place in the future without a nod from Congress. This provision of the CRA may, in fact, be unconstitutional, and the Center for Biological Diversity – an environmental group frustrated by a CRA resolution removing protections for bears and wolves – is challenging the act’s constitutionality in court.

“The Congressional Review Act throws the balance of power out of whack and opens the door for politicians in Congress to meddle in decisions that ought to be made by experts at federal agencies,” Collette Adkins, an attorney and biologist with the Center, said in a statement.

“I think they’ve got an uphill battle, but I wouldn’t rule out the possibility they could win,” said Daniel Farber, a Berkeley law professor and the co-director of Berkeley’s Center for Law, Energy, and the Environment.

Meanwhile, Republicans are running out of time. The CRA had to be used within 60 legislative days of March 30 – which means their deadline for overturning Obama’s regulations will be May 10. Of the 50 rules that were eligible to be overturned using the CRA, Republicans have successfully undone 14. In the next few weeks, they may rush to usher more through by their May deadline.

Lobbyists and environmentalists are paying particularly close attention to one rule that the Obama administration put in place to crack down on gas companies that leak methane. The gas is a particularly potent driver of climate change. Republicans want to overturn the regulation.

After intense public pushback, some Republicans are saying they won’t give in to the gas industry by voting to undo the rule. Meanwhile, Sen. Heidi Heitkamp (D-ND) is pondering whether to break with her party and do fracking interests in her state a favor by helping Republicans overturn the rule.

“So far, they seem to be short a few votes to pass the resolution in the Senate,” says Berkeley’s Daniel Farber. “I’ll be watching to see whether they’re able to pick up those extra votes.”