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Regulatory Report


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April 20, 2017

It’s Week 13 of the Trump presidency, and Congress is in recess.

EXECUTIVE ORDERS

On Tuesday, the President signed an Executive Order.

Buy American and Hire American (March 31)

The order requires all agency heads to assess their compliance with Buy American Laws; the use of waivers and their impact on jobs and manufacturing; and to develop and propose policy changes that would maximize the use of materials and products manufactured in the U.S. The EO does state that “consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements” U.S. made goods, products and materials are to be given preference. This limits its breadth and scope to Federal procurement. The order also requires the Secretaries of State, Labor, Homeland Security, and the Attorney General to issue guidance to prevent visa fraud or abuse that would negatively impact U.S. workers, as well as suggesting reforms to the H-1B visa programs.

Additionally, President trump signed a memorandum for the Secretary of Commerce.

Steel Imports and Threats to National Security (April 20)

The memo says that Commerce Secretary Wilbur Ross has initiated an investigation under Section 232 of the Trade Expansion Act to determine the effects on national security of steel imports. At the conclusion of the investigation, Secretary Ross will provide a report to the President; if he should find that the imports impair national security, the Secretary will provide recommendations on actions that should be taken.

RULEMAKING PROCESS/AGENCY ACTION

Center for Medicare & Medicaid Services

April 13, CMS issued a final rule aimed at helping “stabilize the individual and small group markets and affirm the traditional role of State regulators”. Among other things, the final rule adjusts the 2018 open enrollment period and allows issuers actuarial value flexibility.

  • Final rule announcement
  • Guidance to States on review of Qualified Health Plan Certification Standards in Federally-facilitated Marketplaces for Plan Years 2018 and Later

CMS issued a proposed rule on April 14 that would “update 2018 Medicare payment and policies when patients are admitted into hospitals.”

Consumer Financial Protection Bureau

Today, the CFPB released a final rule that will delay the effective date of the rule governing prepaid accounts by 90 days. The rule will now go into effect on April 1, 2018. The CFPB says that in response to the comment period delay, the CFPB will also revisit two issues governed by the rule: the linking of credit cards to digital wallets that are capable of storing funds and error resolution and limitations on liability for prepaid accounts.

Department of Energy

Energy Secretary Rick Perry directed the Department’s Chief of Staff to initiate a 60-day study “to explore critical issues central to protecting the long-term reliability of the electric grid”. An implementation plan was due to the Secretary on Wednesday. The study will look at the evolution of wholesale electricity markets; whether wholesale energy and capacity markets are adequately compensating attributes that strengthen grid resilience; and the extent to which regulatory burdens and tax policy are responsibly for forcing premature plant retirements. Secretary Perry cited discussions at the recent G7 Energy Ministerial about the need for greater energy efficiency and fuel diversity as the reason for commissioning the study.

Department of the Interior

Interior Secretary Ryan Zinke directed the Bureau of Land Management “to immediately begin a focused effort to identify and implement results-oriented improvements to its land use planning and NEPA processes.” The Secretary drew a connection between his directive at H.J. Res 44, the “BLM Planning 2.0 rule”, which was signed into law by President Trump on March 27. Secretary Zinke says that the new, transparent system must take less time, cost less money, and be more responsive to local needs.

Environmental Protection Agency

EPA Administrator Scott Pruitt announced that the Agency will reconsider the methane emissions final rule. Citing questions about the “fugitive emissions monitoring requirements”, the EPA has issued a 90-day administrative stay on the June 3 compliance date.

Federal Communications Commission

Today, the FCC voted 2-1 to reinstate the so-called UHF discount, which was eliminated in August 2016. The Commission says the decision is only until it “can address its national television ownership rule more holistically” later in 2017. The rule allows broadcasting companies to acquire UHF stations without going over the legal limits on media ownership.

  • FCC announcement
  • Letter from House Minority Leader Nancy Pelosi and Energy and Commerce Ranking Member Frank Pallone urging the FCC to vote against reinstatement

CONGRESSIONAL REVIEW ACT (CRA)

Today, the Center for Biological Diversity filed suit in the U.S. District Court in Anchorage, Alaska challenging the Constitutionality of the Congressional Review Act. The lawsuit alleges that the CRA violates the Constitution’s separation of powers by prohibiting future rulemakings “in substantially the same form”. The group specifically sued H.J. Res. 69, which overturned a Fish and Wildlife Service rule that hunters to kill hibernating bears and wolves in Alaskan wildlife refuges.


April 13, 2017

It’s Week 12 of the Trump presidency, and Congress is in recess. It was a relatively slow week on the regulation front.

RULEMAKING PROCESS/AGENCY ACTION

Office of Management and Budget

OMB released a memorandum to all Agencies and Departments on how it will implement President’s Trump’s March 13, 2017 executive order on reorganizing the Executive Branch. All Agencies are required to submit an Agency Reform Plan, progress reports on near-term workforce reduction actions, and a plan to maximize employee performance to OMB by June 30. The memorandum also lifted the government-wide hiring freeze and said that in its place “agencies should adhere to the principles, requirements, and actions laid out in this memorandum to inform workforce planning and personnel actions.”

 Department of Justice

Attorney General Jeff Sessions announced the Department’s “Renewed Commitment to Criminal Immigration Enforcement” during a speech to Customs and Border Protection personnel. The memo directs prosecutors to focus on prosecuting offenses that can help prevent and deter illegal immigration. He also announced that DOJ will add 50 immigration judges this year and 75 next year.

Department of Labor

The Occupational Safety and Health Administration announced that it would delay enforcement of the crystalline silica standard that applies to the construction industry. Enforcement was scheduled to begin June 23, 2017 but will be pushed to September 23, 2017.


April 6, 2017

It’s Week 11 of the Trump presidency, and Congress is concluding a six-week work period before adjourning for two weeks of recess.

CONGRESSIONAL REVIEW ACT (CRA)

Since the last version of this report, Congress sent one Congressional Review Act (CRA) measures to President Trump for his signature. Additionally, the President signed two previously passed CRA resolutions.

Allowing States to Block Planned Parenthood (and other providers) from Title X funding: The Senate passed H.J. Res. 43, which rolls back a Department of Health and Human Services rule, finalized December 19 that prevented states that receive Title X Project Grants for Family Planning Services from prohibiting certain entities from receiving funding. The CRA is in response to states who would like to block providers who perform abortion services from receiving the funding.

  • Catherine Cortez Masto (D-NV), Patty Murray (D-WA), and Richard Blumenthal (D-CT) joint statement
  • Diane Black (R-TN) statement

CRA Disapproval Resolutions Signed into Law:

For more in-depth information on these measures see archived versions of the Regulatory Report.

S.J. Res. 34, which eliminates an FCC rule making it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

H.J. Res. 42, which rolls back a Department of Labor rule that limits the groups of people who can be drug tested before receiving unemployment benefits.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

The Omnibus Report on Significant Trade Deficits (March 31)

The Executive Order instructs the Secretary of Commerce and the United States Trade Representative (whose confirmation by the Senate was postponed until after the April recess) to “prepare and submit… an Omnibus Report on Significant Trade Deficits” report, which should “assess the effects of the trade relationship” on U.S. production strength and capacity and employment and wage growth. Additionally, the report is tasked with assessing the major caucuses of the trade deficit; if U.S. trading partners are imposing unequal burdens; and identifying imports and trading practices that are impairing U.S. national security.

 Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Laws (March 31)

The Executive Order seeks to improve the way that the U.S. imposes penalties on countries that are “dumping” products in the U.S. It instructs the Secretary of Homeland Security (through the Commissioner of U.S. Customs and Border Protection) to develop and implement a strategy to combat “violations of United States trade and customs law”. Additionally, the Secretary of the Treasury and DHS Secretary are instructed to “take all appropriate steps, including rulemaking” to ensure the enforcement of intellectual property rights holders against imported counterfeit goods.

Providing an Order of Succession Within the Department of Justice (March 31)

The Executive Order revokes President Trump’s February 9 EO on DOJ succession and clarifies that the line of succession, after the Attorney General, Deputy Attorney General and Associate Attorney General will be: United States Attorney for the Eastern District of Virginia; United States Attorney for the Eastern District of North Carolina; and United States Attorney for the Northern District of Texas.

RULEMAKING PROCESS/AGENCY ACTION

H-1B Visa Enforcement

Several Departments and Agencies announced a renewed commitment to combat H-1B visa fraud.

Department of Interior

The Department announced that it would propose repealing the Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Reform Rule, which was finalized on July 1, 2016.

Department of Justice

Attorney General Sessions, in a memo entitled “Supporting Federal, State, Local and Tribal Law Enforcement” laid out the Department’s priorities toward its law enforcement partners, stating that it “[understood] the crucial role interagency partnerships play in successful crime prevention strategies.” Additionally, the memo instructed the Attorney General and Deputy Attorney General to review all Department activities, including reform agreements with troubled police forces.

Department of Labor

The Department announced a 60-day extension of the applicability of the final fiduciary rule, which was published April 8, 2016. The effective date for the rule will now be June 9, 2017.


March 30, 2017

It’s Week 10 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is ongoing. It was, once again, a busy week on the regulatory front.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature.

State-Based Retirement Plans for Private Sector: The Senate passed H.J. Res. 67, which rolls back a Department of Labor rule that was finalized December 20. The rule allowed states to design and operate payroll deduction savings programs for private-sector employees.

Selling Consumer Data: The House passed the controversial S.J. 34, which eliminates a Federal Communications Commission rule finalized December 2, on a 215-205 vote. The rule made it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

CRA Disapproval Resolutions Signed into Law:

For more in-depth information on these measures see archived versions of the Regulatory Report

H.J. Res. 37, which would rescind an Obama Administration rule that sought to change the Federal Acquisition Regulation requiring prospective federal contractors to disclose their labor violations.

H.J. Res. 44, which would disapprove a Bureau of Land Management (BLM) rule on land-use planning processes.

H.J. Res. 57, which disapproves a Department of Education rule from November 29 that relates to states’ accountability plans governed under the Every Student Succeeds Act.

H.J. Res. 58, which would overturn the Department of Education rule that requires states to use specific performance indicators to measure the effectiveness of teacher preparation programs.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

Revocation of Federal Contracting Executive Orders (March 27)

The EO withdraws all or part of three Obama-era Executive Orders governing federal contractors: Executive Order 13673; section 3 of Executive Order 13683; and Executive Order 13738. Essentially, the new EO rolls back the requirement for federal contractors bidding on contracts worth more than $500,000 to disclose labor law violations.

 Promoting Energy Independence and Economic Growth (March 28)

Among other actions, the EO withdrew a number of Obama-era Executive Actions on climate change. Most significantly the Executive Order instructed the Environmental Protection Agency to review, and if necessary and appropriate, “suspend, revise, or rescind” the previous administration’s Clean Power Plan.

Establishing the President’s Commission on Combating Drug Addiction and the Opioid Crisis (March 29)

The Executive Action creates the President’s Commission on Combating Drug Addiction and the Opioid Crisis, which will be chaired by New Jersey Governor Chris Christie (R-NJ). The Commission is tasked with studying current federal policy and funding, identifying best practices, and making recommendations for improving the “federal response to drug addiction and the opioid crisis”.

RULEMAKING PROCESS/AGENCY ACTION

 Department of the Interior: Interior Secretary Ryan Zinke signed two orders to “advance energy independence.

  • Secretarial Order 3348 overturns the moratorium on new coal leases on federal land, as well as ending the “programmatic environmental impacts statement”, which was expected to be completed no earlier than 2019.
  • Secretarial Order 3349 implements the President’s Executive Order on energy independence and orders a reexamination of the Department’s climate change policies and guidance

COURTS

The Trump Administration’s second-generation travel ban, which had been temporarily blocked by a federal judge in Hawaii, saw the block extended. Though DOJ lawyers had asked for the order to be dismissed or narrowed, the judge instead turned the order into a preliminary injunction. The Trump Administration must now appeal to the 9th U.S. Circuit Court of Appeals.


March 23, 2017

It’s Week 9 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is ongoing.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature.

Hunting in Alaska: The Senate passed H.J. Res. 69, which rolls back a Department of Interior rule, released August 5 that limited some hunting practices on federal wildlife refuges in Alaska. It should be noted that the CRA repeal only extends to the regulation by the Fish and Wildlife Service, as a similar regulation issued by the National Park Service fell outside the scope of CRA.

Hunting in Alaska: The Senate passed H.J. Res. 83, which rolls back an Occupational Safety and Health Administration rule that was finalized December 19.  The OSHA rule was billed as a “clarification rule” that employers have an obligation to maintain record of employees’ work-related injuries and illnesses for five years. The rule was a direct response to the Volks Constructors vs. Secretary of Labor decision from 2012.

Additionally, the Senate passed one CRA bill that will now head to the House of Representatives:

Selling Consumer Data: The Senate passed S.J. 34, which eliminates a Federal Communications Commission rule finalized December 2. The rule made it more difficult for internet service providers to sell customers’ information, including their browsing history, without first receiving consent.

RULEMAKING PROCESS

Carrier Safety Fitness Determination: Wednesday, the Federal Motor Carrier Safety Administration withdrew its January 21, 2016 notice of proposed rulemaking regarding a revised methodology for safety fitness determination for motor carriers.

March 16, 2017

It’s Week 8 of the Trump presidency and the regulatory overhaul being pursued by Congress and the administration is still going strong. The past week has seen the president issue a sweeping Executive Order on reorganizing governmental functions and a directive to reopen the Obama Administration’s 2025 fuel-economy standards for cars and light trucks. Congress, for its part, passed another Congressional Review Act (CRA) disapproval resolution by party-line votes and debated several measures that seek to alter the regulatory process.

In other news, two federal courts have halted President Trump’s revised “travel ban” Executive Order.  The president, speaking at a rally in Tennessee Wednesday night, pledged to appeal the federal rulings and would take the case “as far as it needs to go.”

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent two Congressional Review Act (CRA) measures to President Trump for his signature, and we expect other CRA resolutions to move through the legislative process in the weeks ahead.

Drug Testing for Unemployment Benefits: The Senate passed H.J. Res. 42, which rolls back a Department of Labor rule, released August 1, that limits the groups of people who can be drug tested before receiving unemployment benefits. A 2012 law, The Middle Class Tax Relief and Job Creation Act, already restricts drug testing for beneficiaries to those who were previously fired for drug use or work in jobs that regularly tests its workers.

School Accountability: The Senate passed H.J. Res. 57, which disapproves a Department of Education rule from November 29 that relates to states’ accountability plans governed under the Every Student Succeeds Act. The final rule governs a wide-ranging set of issues including opt-outs for testing to transparency requirements to accountability measures.

 EXECUTIVE ORDERS

In the last week, President Trump signed one executive order.

Comprehensive Plan for Reorganizing the Executive Branch (March 13)

The EO has the stated purpose of improving the “efficiency, effectiveness, and accountability” of the Executive Branch by instructing the OMB Director to propose a plan within 180 days to reorganize and eliminate unnecessary agencies. The Director is also instructed to publish a notice in the Federal Register to allow the public to comment and make suggestions.

Travel Ban: Once again, the President’s travel ban was blocked by court order, though this time the injunction occurred before the ban was to go into effect at 12:01am on March 16. A federal judge in Hawaii found that the plaintiffs seeking to stop the ban were likely to succeed in their claim that the EO violates the Establishment Clause, saying specifically that the “stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims”. A federal judge in Maryland also halted the ban, by issuing a preliminary injunction.

RULEMAKING PROCESS

ESSA Implementation: The Department of Education released a new template for implementing the Every Student Succeeds Act (ESSA). The new guidance requires State Education Agencies (SEAs) to submit a consolidated state plan or individual program states plans by either April 3, 2017 or September 18, 2017.

Fracking: The Department of the Interior indicated that it will rewrite the 2015 Bureau of Labor Management’s rule on hydraulic fracturing on public lands. In a motion filed by the Department of Justice to the 10th Circuit Court of Appeals, the Trump Administration said the current rule “does not reflect” the “policies and priorities of the new Administration” and cited President Trump’s January 30th EO on Reducing Regulation and Controlling Regulatory Costs.

 Auto Emissions: During a visit to Detroit, President Trump announced that the EPA and NHTSA will revisit the Midterm Evaluation of the CAFE and GHG standards for the automotive industry. In January, the Obama EPA signed off on vehicle standards for 2022-2025.


March 9, 2017

While much of Washington’s attention this week is focused on the House GOP’s rollout of plans to repeal and replace the Affordable Care Act (and certain tweets originating from 1600 Penn), Congress and the administration continued to advance their regulatory agenda.

In the most notable development, President Trump on Monday issued a revised “travel ban” executive order that seeks to overcome legal challenges posed to the president’s original order of January 27. In a move to avoid the confusion generated by the original order, the revised ban will be phased in over a period of two weeks. The president is considering – but has yet to act on – additional executive actions on high-profile issues, including on the Obama Administration’s Clean Power Plan.

CONGRESSIONAL REVIEW ACT (CRA)

Congress this week sent three Congressional Review Act (CRA) measures to President Trump for his signature, and we expect other CRA resolutions to move through the legislative process in the weeks ahead.

Federal Contractors: The Senate passed H.J. Res. 37, which would rescind an Obama Administration rule that sought to change the Federal Acquisition Regulation requiring prospective federal contractors to disclose their labor violations. Under the final rule, a prospective contractor would be required to divulge whether it has violated a host of federal labor laws. The Obama Administration suggested the rule would protect workers and assist agencies award contracts to responsible companies. The House passed H.J. Res. 37 on February 2; President Trump is expected to sign the measure.

BLM Planning 2.0: The Senate passed H.J. Res. 44, which would disapprove a Bureau of Land Management (BLM) rule on land-use planning processes. The final rule, dubbed Planning 2.0 by BLM, seeks to enhance the role of public input during BLM’s assessments of land use plans for federal lands and shifts to Washington from BLM field offices the responsibility of drafting land use plans. The House passed the measure on February 7; President Trump is expected to sign the resolution.

Teacher Preparation: The Senate passed H.J. Res. 58, which would overturn the Department of Education rule that requires states to use specific performance indicators to measure the effectiveness of teacher preparation programs. The Obama Administration rule limits eligibility for federal grants to students in programs deemed effective, and require states to provide technical assistance to under-performing programs. The House passed the resolution on February 7; President Trump is expected to sign it.

 EXECUTIVE ORDERS

In the last week, President Trump signed one executive orders: a revised version of the “travel ban”.

Protecting The Nation From Foreign Terrorist Entry Into The United States (March 6)

Among other actions, the EO suspends visas from six countries (Iraq is the only country included in the original EO that is now excluded) for 90 days; suspends the U.S. Refugee Admissions Program for 120 days; and lowers the cap of refugees to 50,000 for the current fiscal year. Notably, the ban will not take effect until March 16.

However, a group of states is headed back to court to block portions of the executive order.

RULEMAKING PROCESS

The Department of Transportation announced late March 2 that it was suspending the public comment process on the Transparency of Airline Ancillary Service Fees rulemaking, which would have required airlines to disclose fees, such as those implemented on baggage. DOT is also delaying implementation of a regulation requiring airlines report on mishandling baggage, wheelchairs, and scooters.

The Department of Education delayed enforcement of the gainful employment, which was aimed at for-profit colleges that leave students with significant debt obligations but few job prospects. Enforcement will now not begin until July 1, 2017.


March 2, 2017

Once again, it was a busy week for both Congress and the Administration on the regulatory front.

While the Administration was expected to release a revamped “travel ban” executive order on Wednesday, reports indicate that it was postponed so as not to step on the positive news cycle that came from President Trump’s first address to a joint Congress on Tuesday. Therefore, it is likely that a new EO will come next week.

Additionally, President Trump is expected to release an executive order directing the Environmental Protection Agency to end a federal moratorium on new coal leases on federal lands, as well as to redo the Clean Power Plan.

CONGRESSIONAL REVIEW ACT (CRA)

In the last week, the House has passed one Resolution of Disapproval under the CRA:

  • J. Res 83, a Department of Labor rule relating to clarification of employers continuing obligation to make and maintain an accurate record of each recordable injury and illness

 The Senate passed H.J. Res 37, disapproving of a rule relating to the Federal Acquisition Regulation and requiring prospective contractors to disclose their labor violations, on a vote of 51-46. The Resolution now goes to President Trump for his signature.

 CRA Disapproval Resolution Signed into Law:

H.J. Res. 40- Disapproving the rule submitted by the Social Security Administration relating to Implementation of the NICS Improvement Amendments Act of 2007

LEGISLATION

This week, the House voted on three pieces of legislation that will affect the regulatory process. House Rules Committee Chairman Pete Sessions released a statement on the following actions:

H.R. 998, the SCRUB Act, introduced by Rep. Jason Smith (R-MO). The legislation establishes a BRAC-style commission to review existing federal regulations to identify those that should be eliminated. The vote was mostly party-line vote 240-185, although 11 Democrats voted “aye” and 5 Republicans voted “no”.

H.R. 1004,the Regulatory Integrity Act of 2017, introduced by Rep. Tim Walberg (R-MI). The legislation requires agencies to post all communications they issue during the rulemaking process.  The vote was mostly party-line vote 240-185, although 15 Democrats voted “aye” and 1 Republican voted “no”.

H.R. 1009, the OIRA Insight, Reform, and Accountability Act, introduced by Rep. Paul Mitchell (R-MI). The legislation would place OIRA under congressional oversight; require a written report on proposed regulations; and require a retrospective review of regulations to eliminate those that are outdated. The vote was mostly party-line vote 241-184, although 7 Democrats voted for passage.

EXECUTIVE ORDERS

In the last week, President Trump signed three executive orders:

Enforcing the Regulatory Reform Agenda (Feb. 24)

Among other things, the EO calls for each agency to designate a Regulatory Reform Officer (RRO) and establish a Regulatory Reform Task Force, which will “evaluate existing regulations… [and] make recommendations… regarding their repeal, replacement, or modification.”

The White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities (Feb. 28)

The order transfers the federal initiative on HBCUs from the Department of Education into the White House and establishes a President’s Board of Advisors on HBCUs.

Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule (Feb. 28)

The order requires the Environmental Protection Agency and the Army Corps of Engineers to formally reconsider the Waters of the United States (WOTUS) rule.


February 23, 2017

President Trump and the Republicans in Congress are making regulatory relief a large priority as we have seen by the many Executive Orders starting on Inauguration Day.  Congress too has been busy on a regulatory agenda that includes both resolutions of disapproval of regulations under the processed dictated by the Congressional Review Act as well as bills aimed at improving the regulatory process.

While a broad interpretation of the Congressional Review Act (CRA) might suggest Congress and the President can roll back years of regulatory activity, we are hearing that House and Senate Leadership are looking at a more finite universe of regulations for repeal under the CRA.  That makes a lot of sense both from the standpoint of managing the calendar in the Senate and mitigating any potential legal challenges.

LEGISLATION

Next week, the House Rules Committee is expected to meet to consider three pieces of legislation that will affect the regulatory process:

  • R. 998, the SCRUB Act, introduced by Rep. Jason Smith (R-MO). The legislation establishes a BRAC-style commission to review existing federal regulations to identify those that should be eliminated.
  • R. 1004,the Regulatory Integrity Act of 2017, introduced by Rep. Tim Walberg (R-MI). The legislation requires agencies to post all communications they issue during the rulemaking process.
  • R. 1009, the OIRA Insight, Reform, and Accountability Act, introduced by Rep. Paul Mitchell (R-MI). The legislation would place OIRA under congressional oversight; require a written report on proposed regulations; and require a retrospective review of regulations to eliminate those that are outdated.

EXECUTIVE ORDERS

This week, the Department of Homeland Security took steps to answer questions about how it will implement the President’s executive orders, issued January 25, on immigration and border security. Further, after President Trump called the removal of undocumented immigrants, a “military operation,” Secretary of Homeland Security John Kelly clarified in a joint press conference with Mexican officials during his trip to the country that there would be “no use of military force for immigration operations.”

Executive Order: Border Security and Immigration Enforcement Improvements (Jan. 25)

Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25)

COURTS

Although the Trump Administration had previously promised to release a new, updated “travel ban” Executive Order this week, that action has been pushed to next week.

The Trump Administration followed through with their plan to withdraw guidance from the Obama Administration that protected transgender students under Title IX. The change in guidance could have limited impact if, as planned, the Supreme Court hears Gloucester County School Board v. G.G., which involves a transgender student in Virginia who identifies as male and wants the right to use the men’s restroom at his high school.

The Department of Justice withdrew Obama-era guidance to phase-out private contractors to federal prisons.

 


February 16, 2017

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.