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Regulatory Report


February 16, 2016

Congress heads into the President’s Day recess having successfully deployed the Congressional Review Act against a series of Obama administration regulatory actions, with the President signing the first repeal into law this week.  The White House remained busy with executive orders in the last week, issuing four, of which only one – on Justice Department succession – directly reversed a prior Obama action.  Meanwhile, the White House is debating its next legal moves in terms of the President’s travel restrictions on seven countries, with the President stating during his news conference today that a new order would be issued next week “tailored” to address the concerns of the Ninth Circuit’s ruling.  Legislative action will abate with next week’s Congressional recess but speculation remains high for possible executive orders on cybersecurity and H-1B visas.

CONGRESSIONAL REVIEW ACT (CRA)

In the last week, the House passed three Resolutions of Disapproval under the CRA:

  • J. Res 42, a Department of Labor rule relating to drug testing of unemployment compensation applicants;
  • J. Res 43, a Department of Health and Human Services rule relating to compliance with title X requirements by project recipients in selecting subrecipients
  • J. Res 66, a Department of Labor rule relating to savings arrangements established by State non-governmental employees; and,
  • J. Res 67, a Department of Labor rule relating to savings arrangements established by qualified State political subdivisions for non-governmental employees.
  • J. Res 69, a Department of Interior rule relating to Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska

 

The Senate passed H.J. Res 40, a Social Security Administration rule relating to the implementation of the NICS Improvement Amendments Act of 2007, on a vote of 57-43. The Resolution now goes to President Trump for his signature.

 

CRA Disapproval Resolutions Signed into Law:

H.J. Res. 38- Disapproving the rule submitted by the Department of the Interior known as the Stream Protection Rule

 

H.J.Res.41 – Providing for congressional disapproval under chapter 8 of title 5, United States Code, of a rule submitted by the Securities and Exchange Commission relating to “Disclosure of Payments by Resource Extraction Issuers

EXECUTIVE ORDERS

On February 9, President Trump signed four executive orders, three dealing with law enforcement and one on the succession of the Department of Justice.

 

Providing an Order of Succession Within the Department of Justice (Feb. 9)

The order puts the U.S. attorney for the Eastern District of Virginia as first in line, followed by the U.S. attorney for the Northern District of Illinois and the U.S. attorney for the Western District of Missouri.

 

Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking (February 9)

The order lays out how the Trump Administration will address organized crime, such as gangs and cartels, and states that the activities of these groups presents “a threat to public safety and national security.”

 

Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

The order instructs the Department of Justice to determine if existing federal law protects law enforcement officers sufficiently, and instructs the Department to increase the penalties for crimes committed against them to “enhance [their] protection and safety.”

 

Task Force on Crime Reduction and Public Safety

The order instructs the Attorney General to create a task force to propose legislation that would “reduce crime”, focusing on “illegal immigration, drug trafficking, and violent crime.”

 

COURTS

After the Ninth U.S. Circuit Court of Appeals unanimously upheld the suspension of the Executive Order “travel ban”, the U.S. Department of Justice is continuing its internal debate about how to proceed, which the merits of the ban continue to work through the court system.

 

The Justice Department announced that it was withdrawing a request for the U.S. Court of Appeals for the Fifth Circuit to limit a lower court’s injunction blocking the Obama Administration’s guidance that existing federal civil rights laws include anti-transgender discrimination because it is a type of sex discrimination.


Republican opposition to eight years of Obama-era regulatory policy has built up like water behind a dam. The challenge – and the opportunity – now facing opponents of the accumulated regulatory regime is figuring out the best channels to use to repeal the individual pieces. With this document, Prime Policy Group will initiate a series of reports on executive and legislative regulatory actions – what happened over the past week and what to expect in the week ahead.

We’ll approach this reporting by dividing regulatory actions into six possible avenues:

CONGRESSIONAL REVIEW ACT

One is action pursuant to the Congressional Review Act (CRA). The CRA 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 on that class of Obama Administration 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 lots more will come. One challenge will be prioritizing which regulations to repeal in the limited window that exists, especially with the Senate’s demands on floor time.

Pros Cons
Only requires a simple majority Limited applicability
Expedited process Entire rule must be repealed, not specific provisions within a rule
  CRA can only be used on one rule at a time, can’t be done in batches

EXECUTIVE ORDERS

President Trump has already employed the power of the pen to direct executive agency 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.

Pros Cons
Immediate Temporal – last only for the duration of an Administration.
Does not require congressional action  

APPROPRIATIONS LEGISLATION

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.

Pros Cons
Must pass for government to continue to function Must be renewed each year
Provision you are inserting can be used as bargaining chip Requires supermajority vote (60 votes)
  Provision you are inserting can be used as bargaining chip

AUTHORIZATION LEGISLATION

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.

Pros Cons
Permanent statute Supermajority requirement

COURTS

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.

Pros Cons
Multiple entry points Lengthy
  Uncertainty of result

RULEMAKING PROCESS

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.

Pros Cons
Does not require congressional action Lengthy
  ‘One-in, two-out’ executive order

Paul Brown

Paul has 20-plus years of public affairs experience and works with a wide range of Prime Policy Group’s clients, including those in the telecommunications, energy, local government, and travel & tourism sectors. Among other things, Paul helps guide clients through the complex world of the U.S. Senate, using knowledge of Senate procedure and a wide range of policy issues gained from his work in Senate Democratic leadership. He also helps coordinate Prime’s integration efforts with other WPP and Burson Marsteller companies, and serves as treasurer of the firm’s political action committee.

 

Pam Turner

Pam has more than thirty years of experience in corporate government relations, political and legislative arenas. She is recognized as a leading political strategist, and has held senior positions in several Republican Administrations and the US Congress. She has participated in Presidential campaigns as well as the transition process following Presidential elections. Pam helps to lead Prime Policy Group’s defense and homeland security practice, as well as focusing on issues involving technology, telecommunications, and cybersecurity.