President Barack Obama hugs Democratic Presidential candidate Hillary Clinton after addressing the delegates during the third day session of the Democratic National Convention in Philadelphia, Wednesday, July 27, 2016. (AP Photo/Carolyn Kaster)

Redacting the Last Eight Years

Throughout the past eight years Americans have firsthand come to understand the deleterious effects of the Obama administration’s regulatory overreach. In his effort to effect social change in the very fabric of American society, it seemed as if every federal department and agency got into the act.

Often misunderstood, federal regulations are not law. Congress can only pass Law. Once passed, laws can be, and often are subject to interpretation by the effected federal department and/or agency. Many federal laws are passed without specifics regarding the actual enactment of said law. The Administrative Procedure Act of 1946 gives the federal government the right and ability to produce regulations which then will govern how the effected law if enforced.

Many assume federal regulations can be overturned as easily as Executive Orders. Not so. While a Presidential Executive Order can be overturned or changed by another EO, once a rule becomes a federal regulation, the process for undoing said regulation is time-consuming and unwieldy.

Enter the Congressional Review Act of 1996. This law gives Congress the right to an expedited review process of federal regulations, and to also overturn them with passage of a joint resolution. The CRA resolution of disapproval then goes to the President for either approval or veto. The veto can be overridden by a vote of two-thirds of each House of Congress.

Quoting Kimberly Strassel of the Wall Street Journal, Townhall explained how House Republicans might use this act to virtually redact all of the former president’s actions:

“The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule.

But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.”

“Brian Gaziano, staffer to Rep. David McIntosh at the time, was “intimately involved” in drafting the law. According to Strassel, “No one knows the law better.”

Ms. Strassel further explains how the CRA can be used to go back to the beginning of the Obama administration:

“It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.

“There was always intended to be consequences if agencies didn’t deliver these reports,” Mr. Gaziano tells me. “And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn’t.” Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports—for rules implemented long ago—Congress would be free to vote the regulations down.”

And this is where the confluence of arrogance and incompetence meet. Townhall’s Steve Hayward explains:

“There’s more. It turns out the CRA has an expansive definition of what counts as a “rule”—and it isn’t limited to those published in the Federal Register. The CRA also applies to “guidance” that agencies issue. Think the Obama administration’s controversial guidance on transgender bathrooms in schools or on Title IX and campus sexual assault. It is highly unlikely agencies submitted reports to lawmakers on these actions.

“If they haven’t reported it to Congress, it can now be challenged,” says Paul Larkin, a senior legal research fellow at the Heritage Foundation. Mr. Larkin, also at Wednesday’s meeting, told me challenges could be leveled against any rule or guidance back to 1996, when the CRA was passed.

The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations—a far safer approach than if the Mr. Trump simply rescinded them.”

This certainly sounds Trumpian, although time will tell if Speaker Ryan and the Republican bulls in the Senate have the fortitude to see this through.


About the author

Wm. P. Fitzhenry

5th generation Texan, 2nd generation reformed Presbyterian, a twin and a serial entrepreneur.

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