When President Obama left office, Congressional Republicans undid many of the regulations his administration made within the last 60 legislative days of holding office. The Democrats leading Congress need to remember the power they have with the Congressional Review Act (CRA).
For a reminder, travel back in time to February 2017 and read this story from The Washington Post, “The obscure law allowing Congress to undo Obama regulations on guns and coal in a matter of days”.
This law, passed in 1996 and championed by then-House Speaker Newt Gingrich, gives Congress and the president the authority to repeal a federal regulation within 60 legislative days of it being implemented.
This law actually doesn't give Congress any new power. Congress already has the power to create laws, which the executive branch then figures out how to implement in the form of regulations or rules.
But for most of the 20th century, Congress was micromanaging the implementation of these rules by vetoing individual regulations it didn't like. In 1983, the Supreme Court said that was an unconstitutional violation of the separation of powers.
So Congress reworked its ability to have say over the executive branch into the Congressional Review Act, which requires the president's signature to undo these regulations.
But involving the president in undoing these regulations vastly limits when this law is useful.
Undoing the past 60 legislative days of Trumpism, I should say that would be useful. Also key is the word legislative, since due to the coronavirus pandemic the past 60 legislative days may extend many months deeper into 2020 than just a bit of November and December plus this January 2021.
Under the law, Congress can undo regulations with a simple majority. That means it can circumvent a filibuster by the minority party in the Senate, which requires 60 votes to clear. And once the repeal is enacted, it prevents a federal agency from ever putting in a new regulation (unless a new Congress orders it to, of course).
The Democrats need to be united in their repeal of Trumpism because if their repeal vote fails, then the Trump-era regulation goes into immediate effect.
Plus as Vox explained back in 2018, the Republican’s “novel use of the Congressional Review Act” was “a powerful tool in the conservative war on the administrative state.”
Republican lawmakers are now using a new wrinkle in the CRA, one that would allow them to go back much further and nix much older federal rules — some of which have been in place for decades. Under the law, in order for a rule to be considered in effect, it must have been submitted to Congress for review. If a rule hasn’t been submitted, then it isn’t technically in effect for the CRA’s purposes — which means the Trump administration could submit it now and start the 60-day clock for Congress to pass a resolution invalidating it. […]
[Republican] aides and law experts also acknowledge a secondary effect: If a federal rule is invalidated under the CRA, future administrations are barred from creating a new rule that is “substantially similar” to the one that was disapproved of. So for the rest of time, agencies will be limited if they try to create new regulations on the same subject.
Who would have predicted that a law passed by Republicans to screw over democratic governance and regulations could be leveraged to undo Republican damage to our country?