The Republican War on Obama’s Regulations Is About to Begin
Policy + Politics

The Republican War on Obama’s Regulations Is About to Begin

iStockphoto/The Fiscal Times

While President Obama’s signature Affordable Care Act looms as the Republicans’ biggest target in the new Congress, conservatives in the House and Senate are poised to roll back hundreds of administration regulations and rules in the coming weeks. They range from environmental and workplace protections to off-shore drilling, financial industry reforms, and energy-saving mandates.

GOP Congressional leaders, including House Speaker Paul Ryan of Wisconsin and Senate Majority Leader Mitch McConnell of Kentucky, have bitterly complained for years about executive overreach by Obama and his agency heads – arguing that they have unnecessarily hamstrung businesses, industries and consumers and added billions of dollars to the cost of doing business.

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Now, with Republicans in firm control of Congress and GOP President-elect Donald Trump preparing to succeed Obama in the White House Jan. 20, conservative lawmakers have an open field to demolish many of the most controversial Obama-era regulations that were implemented dating back to early June.

“These last eight years, we have seen a disturbing trend of the federal government unnecessarily inserting themselves more and more into the lives of hardworking Americans – and the results have been economically disastrous,” Rep. Meadows (R-NC), chair of the arch-conservative House Freedom Caucus.

“When the American people spoke on Nov. 8, they provided conservatives with an opportunity to restore order in our government and to remove the out-of-control bureaucratic red tape that so often stunts the growth of otherwise successful Americans,” Meadows added.

From the perspective of conservative lawmakers in the Freedom Caucus, the U.S. Chamber of Commerce, small business owners, mining companies, utilities and the financial industry, many of Obama’s cherished regulatory actions are prime for the plucking.

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For instance, the Centers for Medicare and Medicaid Services (CMS) last September issued a major revamping of nursing home rules to improve the quality of service and bar operators from compelling residents to settle disputes in arbitration as a condition of admission. The nursing home industry has fought the 713-page rule.

Then in late December, the Obama administration unveiled a major new environmental regulation for the coal industry that would restrict the use of highly destructive mountaintop-removal mining – another measure that the coal mining industry and its allies on Capitol Hill insist will kill jobs and further harm the economy.

Congress is likely to block or roll back those and scores of other regulations by using a little-known piece of legislation called the Congressional Review Act, which was authored by a conservative Indiana House member and signed into law by President Bill Clinton in 1996.

The rarely used law allows Congress to cast simple majority votes of disapproval of regulations implemented by the executive branch within 60 legislative days of action in order for Congress to reclaim some of its policymaking authority – but without becoming a super regulatory body.

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Between 1996 and August 2011, agencies have submitted 1,029 major rules and 56,000 minor regulations to Congress for review. Throughout that period, 72 Congressional Review Act resolutions of disapproval targeting 49 major rules were introduced, according to the Congressional Research Service. Of those, only three passed both chambers of Congress, and only one was enacted – a Department of Labor ergonomics regulation during the Clinton administration.

Since 2011, when the Republicans were back in control of the House, Congress has adopted a number of resolutions of disapproval, but all have been vetoed by Obama.

Now that the Republicans will have control of the House and Senate and the White House, it will be far easier to get a resolution of disapproval enacted.

Writing recently for the Heritage Foundation, analysts Daren Bakst and James L. Gattuso said that the “stars are aligned” for the CRA and congressional Republicans to push for action against what they view as the most onerous Obama regulations. A Congressional Research Service memo released in November concluded that 220 regulations submitted to Congress after May 30, 2016, would be subject to review under the Congressional Review Act.

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One problem for the Republicans is that the CRA would only allow them to roll back one Obama regulation at a time, a legislative piecemeal approach rather than rolling dozens of targeted regulations into one resolution and passing it. In an effort to address that problem, Rep. Darrell Issa (R-CA) introduced the “Midnight Rules Relief Act) on Tuesday that would allow Congress to address multiple regulations at one time.

Although House and Senate leaders haven’t agreed among themselves on which Obama regulations to attack, here are a dozen or so that the Freedom Caucus and Senate GOP leaders have floated in recent weeks:

Labor regulations: A Department of Labor overtime rule that more than doubles – from $23,660 to $47,476 – the annual threshold under which workers generally qualify for time and a half pay when working more than 40 hours in a week. The rule is currently being challenged in courts by the business community and advocates.

Department of Labor rules implementing Obama’s 2014 Fair Pay & Safe Workplace executive order. The rules require that federal contractors report violations of 14 different federal and state labor laws to the federal government. Critics say it is too intrusive.

Financial Industry: Major changes in the 2010 Dodd-Frank financial industry reforms, including neutralizing the Consumer Financial Protection Bureau. The CFPB, created as part of the overall law, has long been a target for lawmakers championing banks. Its future has been called into question after a federal appeals court ruling that the bureau’s leadership structure is unconstitutional.

The Treasury Department finalized rules that would “re-characterize” some debt as equity. This would have the effect of raising taxes since businesses often loan money to each other and can deduct interest payments on these loans.

Within the telecommunications field, conservatives want to do away with the FCC’s 2015 “net neutrality” rule that prohibits internet service providers from actively blocking, favoring or slowing down access to any particular online content.

The Environment and Energy production: The U.S. Department of the Interior released the final Stream Protection Rule, which aims to protect streams from the impacts of surface, long-wall and mountaintop removal mining. Senate Majority Leader Mitch McConnell and others vowed to lead a fight against the new regulations.

The Bureau of Land Management issued a final rule regarding methane emissions from venting and flaring during oil and natural gas production on federal and Indian land. The EPA separately published a final rule regarding methane emissions. Critics say these rules will hurt American oil and gas-related jobs.

The Interior Department’s Office of Natural Resources Revenue issued a final rule regarding the valuation of coal produced on federal and Indian land and oil and natural gas produced on federal land and waters. The rule changes the way royalties are calculated when companies sell the fossil fuels they remove from federal land and is opposed by industry.

 The Energy Department has finalized six of 14 energy efficiency rules it announced it would issue this year as part of its broader climate policy, including new efficiency standards for ceiling fans, dehumidifiers and battery chargers. Opponents say the rule increase the price of energy-powered products and reduce manufacturing jobs.  

Education: The Department of Education issued final regulations altering the accountability measures for K-12 schools that critics says are too prescriptive and conflict with congressional intent.

The Department of Education issued final rules for teacher preparation programs requiring federal standards for evaluating these programs – based significantly on test scores. Critics say the rule conflicts with the flexibility Congress provided in the recent reauthorization of the Elementary and Secondary Education Act.

Health care: The Department of Health and Human Services issued a notice of proposed rule-making in September that could prevent states from blocking Title X funding to Planned Parenthood, which would provide tax dollars for family planning services. Republicans who oppose this measure fear that it will be finalized before January 20 when Trump is inaugurated.

Restrictions on the tobacco industry. While this idea lacks clarity, many Freedom Caucus members want the Food and Drug Administration to ease regulations on cigarette and cigar manufacturers.