Republican opposition to eight years of Obama-era regulatory policy has built up like water behind a dam. The challenge – and the opportunity – Republicans now face is determining how to best change, repeal or replace various laws and regulations. NFDA wants to help you understand the six possible avenues Republicans have for changing laws and regulations currently on the books.
Congressional Review Act
One path exists with the Congressional Review Act (CRA), which provides for expedited consideration of Congressional legislation to repeal regulations that were finalized within 60 legislative days of introduction.
The advantages of pursuing repeal through the CRA is that it is an expedited, time-limited process and Senate passage can be achieved by a simple majority. There are a number of limitations on the CRA, including its application to rules that were finalized within the last 60 legislative days, meaning the clock is ticking and will soon expire Obama-era rules. With the CRA, an entire rule must be repealed – not select provisions – and the process may only be used on one rule at a time, not on a group of regulations that might result from a single piece of sweeping legislation such as Dodd/Frank.
As of this writing, Congress has already successfully deployed the CRA on a handful of items and more are expected to come in the future. One challenge will be prioritizing which regulations to repeal in the limited window that exists, especially with the Senate's demands on floor time.
President Trump has already employed the power of the pen to direct executive actions in a number of controversial areas, including immigration enforcement. The principal advantages of executive orders are that they can be enforced immediately and they do not require Congressional action or approval. The main disadvantage is their temporal nature – they apply only as long as the President who signed them is in office.
The annual appropriations process has long been a favored vehicle for congressional attempts to restrain executive actions through use of "riders" that limit expenditures of funds for particular purposes or limit enforcement of certain statutory provisions. Appropriations bills are favored because they are must-pass items and, given the scope and scale of recent omnibus measures covering multiple agencies, individual riders can avoid specific focus and opponents made to accept them as part of negotiated bargains. But restrictions enacted by appropriations bills apply only for the length of the fiscal year that is covered by those bills. They also require a Senate supermajority, which can be a high hurdle, and a rider that is a bargaining chip can be removed as easily as it can be inserted in the interest of getting the needed Senate supermajority or House majority.
The most impactful means of overturning previously enacted regulations is through the old-fashioned authorization process. Authorization bills create permanent statutes. They are passed through regular-order and, therefore, must achieve a Senate supermajority.
But not all authorization bills are created equal. Some, like the Department of Defense or Federal Aviation Administration reauthorization measures, are considered must-pass vehicles either because of the gravity of their subject matter or because the continued operation of the agency is critical to certain activities such as the air traffic system.
Congressional Republicans and other opponents of Obama-era regulations and executive orders have already pursued legal actions in a number of cases. For example, a Labor Department regulation regarding overtime was challenged and an injunction placed on further enforcement by a federal judge in Texas in November 2016. Legal remedies provide multiple points of entry to seek redress and plaintiffs with a national footprint have sought the most ideologically-friendly venues, often to great success.
The downside of legal action is the length of the process and the uncertainty of the outcome. When fewer options were available during the Obama Administration, with the Presidential veto and a divided Congress, legal action was often the best and only option. With unified Republican control, there are a plethora of other options to repeal Obama regulations. In fact, the courts are starting to get busy with Democratic and progressive challenges to President Trump's executive orders; the worm has turned.
In some cases, the Trump Administration will not seek to repeal a rule; they'll pull a rule back and re-issue it according to their own parameters. That has happened already with the President's executive action on the Dodd/Frank fiduciary rule. Rulemaking resides within the executive branch, so no Congressional action is needed.
The downside is the lengthy process required to pull a rule back and re-promulgate it, especially in light of the President's recent action requiring two regulations to be repealed for every one that is promulgated.
NFDA is your eyes and ears in Washington, D.C. Should any Congressional or legislative action impact you or your business, we will share that information with you as quickly as possible.