How Democrats Learned to Stop Worrying and Love the CRA: Both parties now embrace the Congressional Review Act to overturn each other's regulations.

AuthorBatkins, Sam
PositionREGULATORY REFORM

In the run-up to the 2016 election, Republicans spoke of using the Congressional Review Act (CRA) to repeal as many Obama-era regulations as possible. Standing in their way was the legislative calendar (the CRA can only be used for recently adopted regulations), control of Congress, and the White House. Although the G.O.R held both houses of Congress going into the election, few expected Donald Trump to win the presidency or for Republicans to hold the Senate. But then election night came and Republicans won unified control of Washington. As 2016 played out, the Obama administration rushed through "midnight regulations" (rules typically issued in the final year of a presidential administration or between Election Day and the Inauguration), and Republicans began compiling a list of those and other rules for rescission in the new Congress.

Once the 115th Congress convened that January, President Trump and G.O.P. lawmakers worked quickly. With expedited rules in the House and the filibuster curtailed in the Senate, they were able to use the CRA 16 times, undoing most of the controversial rules ushered in by the Obama administration in 2016.

Democrats were outraged by the effort. The CRA had been used successfully only once before, in 2001, but the Republicans had transformed the "obscure" law into a potent tool to overturn the previous administration's rules. And the CRA did more than just repeal a rule; once it was disapproved, it could not be reissued "in substantially the same form" again, meaning rulemakers had to start over from scratch. (See "Should We Fear Zombie Regulations?" Summer 2017.) Democrats and progressive allies quickly denounced the CRA, with some calling for repealing the law. Public Citizen, a progressive advocacy group, likewise called for repeal of the CRA in May 2017.

But then the Trump administration began issuing its own regulations, some of which progressives--and a few Republicans-opposed. When the Federal Communications Commission issued rules retracting Obama-era net neutrality rules, Public Citizen performed an about-face on the CRA and joined other progressives in calling for Congress to use the act to disapprove the FCC's move. Democrats got the resolution through the Senate, but the Republican House failed to take up the measure, leaving the new FCC rules in place.

A few months later, Democrats captured the House in the 2018 midterms and suddenly they were racing to introduce CRA measures. Granted, with the Senate and White House in G.O.P. hands, repeal was not in the offing, but the Dems now saw the efforts--and the CRA itself--as worthwhile because it allowed them to signal their opposition to Trump rulemaking. And, if the next election delivered Democrats unified control, they could do much more via the CRA. Indeed, lawmakers of both parties understood Congress has few checks on executive power. Why would Democrats or Republicans ever cede more power to the president, especially one they oppose on nearly all policy grounds? Republicans had figured out the power of the CRA, and Democrats glommed onto it once they saw the proof of concept.

We have now concluded another election cycle, and Democrats may soon have unified control. They have held...

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