For the past couple weeks, the news cycle has fixated on the protests and court battles kicked off by Donald Trump's sweeping executive orders on refugees, immigrants, and travelers to the US from seven Muslim-majority countries. And rightly so, given the impact these actions have had on the communities they've targeted. But in background, the 115th US Congress has quietly kicked into gear, passing its first two significant Trump-era measures and sending them to the president on Monday for a signature.
On their face, these House joint resolutions may seem a little niche. One nullifies a late Obama-era Department of the Interior rule that would have cracked down on pollution coming from coal mines. The other nullifies a Securities and Exchange Commission rule, also put into place near the end of Obama's tenure, which would have forced oil, gas, and mining companies to be more transparent about their deals with foreign governments. These moves, which Trump is likely to sign if he hasn't done so already, represent the beginning of a potentially major push to cull regulations, giving a freer hand to corporate America in all kinds of ways.
"Rules" are regulations adopted by various executive branch agencies like the Environmental Protection Agency. Often they constrain certain kinds of economic activity in the name of safety, the environment, or some other public good. They don't generally require congressional approval but can be challenged in court—one prominent example of a simple rule with far-reaching effects is an Obama Labor Department decision to mandate overtime pay for salaried workers making less than $47,476 a year that later got struck down in court.
Rolling back rules is an old Republican desire, but it's historically been tricky to do so by legislative means. These two repeals slid through quickly and easily through thanks to the little-known 1996 Congressional Review Act (CRA), which allows Congress to nullify any rules submitted to the Federal Register within the previous 60 legislative days using a joint resolution, which only takes a simple majority that cannot be filibustered, but can be vetoed by the president. It's essentially a tool a recently victorious party in control of Congress and the White House can use to cancel moves made by a lame-duck administration. The rarity of those circumstances means that CRA has only been utilized once before, in 2001, to repeal a late Bill Clinton rule on ergonomics in the workplace. (Congress passed five joint resolutions using the CRA since then, but Barack Obama vetoed all of them.)
While Trump has continuously talked about slashing regulations, and recently demanded in an executive order that for every new regulation, federal agencies identify two that can be eliminated, experts like Tom McGarity, an administrative law professor at the University of Texas at Austin, say that the coming assault on regulation is something Congress wants badly independent of Trumpian rhetoric.
"We have a Tea Party ascendant in the Republican Party," McGarity told me. "If we had the same Congress as we had now, and George W. Bush in the White House, it'd be the same [situation]."
Thanks to the peculiarities of how "legislative days" are counted, the CRA gives Congress the right to quickly repeal up to 214 Obama-era rules, about 50 of which are considered "major" by the Congressional Research Service, issued since June 13. This raises the question of what sort of rules the GOP-dominated Congress will prioritize and just how many of these rules it intends to eliminate in the coming weeks.
Republican leadership has said they plan to target three rules in addition to the two axed this week: A Labor Department rule requiring companies to report alleged or known labor violations from the past three years when bidding for government contracts valued at more than $500,000, a Department of the Interior rule to control oil- and gas-drilling emissions, and a Social Security Administration rule blocking disability aid recipients with mental health issues from owning guns. As of this week, there were almost 40 additional joint resolutions utilizing the CRA floating around Congress. More than 20 distinct rules were in the crosshairs and about a half dozen of these resolutions had passed the House.
According to McGarity, Republicans are targeting rules that hurt some of the party's key interest groups. The two already struck down obviously benefit oil and coal companies, while the three likely to be wiped out are obvious concessions to big business, oil companies (again), and the gun lobby. The GOP isn't so much anti-regulation as pro-business.
"Some of these rules help industries, so they're not going to get rid" of them all, says McGarity. "And to the extent that some of these help the industry, but hurt the environment or consumers, the consumer groups aren't going to be able to persuade a Republican Congress to push through a joint resolution."
McGarity and other observers initially suspected that only about a half-dozen rules would be killed in the end thanks to the fact that each joint resolution could take up to ten hours of debate in the Senate, eating up valuable bandwidth. However, given the speed with which these first rules were chopped, McGarity thinks he underestimated the tricks they could utilize to minimize floor debate time, for instance potentially forcing early-morning votes without a quorum and without dissenters to take issue with that. The House has also passed an act that would allow votes on batches of rules, rather than one rule at a time. McGarity cautioned that it's too early to say for sure how Congress will proceed, but told me he now suspects that they could churn through all of the rules leadership chooses to prioritize—more on the order of ten to 20.
It's unclear whether Congress will pursue this rule-slashing campaign beyond these priority targets. Skeptics note the energy that would take for legislative Republicans might not be worth it. McGarity and others think they'll likely look toward more traditional legislation for wide-ranging, but hard-to-pass, regulatory reform. (The House has also already passed an act that would give Congress the right of approval or rejection over any new regulation with more than a $100 million economic impact, which would potentially make life hard for any future Democratic administration.)
Even if Republicans only succeed in killing a dozen or so late Obama-era rules and slowing the promulgation of new regulations, that'll still have a substantial impact on the nation. The CRA bans agencies from enacting future rules similar to those struck down by Congress without the legislature's express permission. That means Congress could be invalidating classes of rules indefinitely. (McGarity describes this as a "scorched-earth approach" to culling rules.)
Observers like McGarity fear that congressional measures aimed at slowing or adding oversight to rule-making could so gunk up already complex mechanisms for their creation and approval as to de facto rule out substantial new rules in some fields for upwards of a decade. (To be clear, moves to slow or freeze rules won't affect all rules. Minor rules on issues related to public health and safety likely slide through unopposed no matter what: Think regulations on synthetic canniboids or toy safety standards, which recently passed despite Trump's moratorium on new rules.)
Most of the effects of slicing rules and regulations will be invisible in the short-term, only becoming apparent over years or decades. The GOP's quick moves to axe red tape will likely be great optics for its base, but McGarity cautions that this hack-and-slash campaign could come back to bite America in the future.
"The next time we have a Bhopal-like [gas leak] in this country," he said, reflecting on one rule facing the axe that was created in response to a 2013 explosion at a West Texas fertilizer plant, "people are going to regret [this.] We're going to get a whole lot of noise about, 'Where was the EPA on this?' And they're going to say, 'Well, we can't do [anything about this] because Congress overturned our similar [new] rules.'"
Follow Mark Hay on Twitter.