Update on Congressional Review Act

 I've posted before on the use of the Congressional Review Act to kill regulations. The last time I posted it seemed as if the administration was hesitant to use it, partly because of uncertainty over its effects down the road. CRA has a provision if Congress votes to kill a reg, the agency cannot do new regulations substantially the same without new legislation.

It now appears that maybe Democrats will try to apply it to six regulations. Because the Trump administration used their control of Congress to kill several regulations from the Obama administration, I also looking to see if any agencies try to revive them and test how much flexibility SCOTUS will allow in interpreting the act.

Congressional Review Act Lives!

 Slate notes  that Warnock and Ossoff's victories mean the reviving of the Congressional Review Act.  

I've posted about it before--it briefly allows Congress to revoke regulations passed within the last 60 business days, and makes it more difficult to reinstate them later. That last bit hasn't been tested yet, while the Republicans made extensive use of it in 2017 to revoke Obama's last regulations.

I suspect lawyers will be interested to see how things play out. I know the papers have cited a number of different issues on which the Trump administration has been moving recently. One of the most recent was limiting the basis for regulatory action to research for which the data is publicly available, an issue of big concern on climate change. 

A Rush To Regulate

Eric Lipton at the Times writes about the Trump administration's rush to get their last (I fervently hope) regulations through the process and published in the Federal Register.  It's not a new process, but as the Obama administration learned to its regret the Congressional Review Act puts regs issued now in jeopardy.   I hope the Biden/Harris transition team has studied their history and is ready to apply the same medicine to these regs.

On the Filibuster and Policy Flip-Flops

Just replied to an Ezra Klein tweet about ending the filibuster.

If the Democrats can win the presidency, and if they can win control of the Senate, they've not won too much, at least not when compared to the stack of policy proposals the candidates, especially Warren, are coming up with.  The fact that the Senate majority will likely be composed of Sens. Manchin, Rosen, Jones, Kelly (AZ), Gideion (ME) and whoever, all centrists whose seats aren't the most secure, means the most liberal proposals won't get considered in the Senate, regardless of the filibuster.

The filibuster means even somewhat bipartisan measures (say 51 Dems plus 7 Reps) won't pass.

Removing the filibuster means a Dem majority can change policy (if they can agree, which is a big "IF").  My reservations here can be seen in the Mexico City policy on abortion--see my discussion below.

Two considerations might make me change my mind:

1. suppose ACA is deemed unconstitutional by the Supremes next fall.  Obviously the Dems will want to pass some new healthcare legislation, but what can be passed that will not also be invalidated by the Supremes? I'd like to see some discussion of this.  Is it possible to change ACA enough to get past the 5 conservatives on the Court?  If so, we might need to kill the filibuster to get it done.  Pass it, and hope 8 years of a Dem administration gets it solidly entrenched enough to withstand Rep control of Congress and the Presidentcy.
2. the other issue is the Congressional Review Act, which has been used extensively by the Reps to kill Obama's regulations.  The Act includes this provision:

(2)A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

That provision hasn't been tested in the courts, but what it could mean is there's no way for a victorious Dem party to reinstate Obama's regulations.  That's my interpretation, though one should never underestimate the ingenuity of lawyers.  If that's its meaning then we may need to kill the filibuster to permit bare majorities to pass the new laws needed to reauthorize the regulations.

 As Wikipedia describes:

First implemented in 1984 by the Reagan Administration, the United States Agency for International Development (USAID) has enforced the policy during all subsequent Republican Administrations, and rescinded the policy at the direction of all Democratic Administrations.[3] After its initial enactment by President Reagan in 1984,[4] it was rescinded by Democratic President Bill Clinton in January 1993,[5] then re-instituted in January 2001 as Republican President George W. Bush took office,[6] rescinded in January 2009, as Democratic President Barack Obama took office[7][8] and reinstated in January 2017, as Republican President Donald Trump took office.

That's no way to run a railroad, much less a country, if applied to all major policies.

What Happens If We Win--the CRA

Commented in a twitter thread today or yesterday about what would happen if a Democrat wins the Presidency next year.  Part of the discussion was to the effect that the new administration would reverse a lot of the Trump administrations regulatory actions.  The impression was that it would relatively easy.

Not true, at least for those regulations which were killed by Congress using its authority under the Congressional Review Act.  The reason is the wording of the act--once a regulation is killed by Congress the agency is prohibited from issuing a substantially similar regulation, forever.  The out is that Congress can authorize the agency to regulate again. 

The problem I see for a new Democratic administration is presumably such a Congressional authorization would require 60 votes in the Senate to be brought to the floor for passage (assuming the legislative filibuster is still available.   For some regulations such authority might be included in a budget reconciliation act, but others wouldn't.

The alternative for a new administration is to kill the  legislative filibuster, at least with respect to CRA actions.

The bigger problem, of which CRA is only part, is a decrease in stability of laws and regulations.  If citizens can assume that laws/regulations are permanent, they can act on that basis.  If they assume the next administration of the party in opposition will undo what the current party has done, there's less stability, less certainty.

The Farm Bill and Payment Limitation

The Post editorial page says that Rep. Conaway got his nieces/nephews provision (see my previous post under this label) included in the farm bill, which will be included in the final appropriations bill, assuming Congress and the President can come to some agreement on it.

This seems to fit a long lasting pattern where public attention is limited in both time and scope.  So when people pay attention to how the farm bill is being put together in House and Senate payment limitation will get attention.  Attention means that the power of the lobbyists and "special interests" is somewhat diminished as the more fringe players have more of a place at the table.

But when public attention moves away from the subject the lobbyists/special interests then have more power.  Typically they exercise their power by adding provisions to appropriations bills or omnibus "must pass" legislation where the voices which oppose the provision, like the Post editorial writers, are drowned in concerns over the bigger picture--as now, whether or not part of the government will be shut down, mostly over a dispute over the President's "Wall".

Prediction for a Democratic Congress: Reverse Congressional Review Acts

This article on the President's accomplishments notes that several of the bills he's signed into law are revocations of regulations as provided by the Congressional Review Act. The CRA provides if the Congress revokes a regulation, the agency cannot later issue a new regulation on the same subject.  There is an exception, however: Congress can specifically authorize the agency to regulate the subject.

My prediction is this means that CRA revocations will become like the Mexico City rule (no federal money for population control info):  each new administration (change of control of Congress) will result in legislation switching the revocations.  That is, when the Democrats regain control of Congress they'll pass a law(s) authorizing agencies to reissue the regulations killed this spring by the Republican Congress.  An interesting question: under the Administrative Procedure Act would the agencies be able to bypass the proposed rulemaking process if the regulation is reinstated verbatim?