It’s always a risk that an outgoing presidential administration and the executive agencies under administration control will issue complicated and partisan rules as a last-ditch effort to preserve the president’s legacy.
In order to combat this, the Congressional Review Act (CRA) was signed into law in 1996 to expedite the process of peeling back last-minute regulations.
Obviously, it’s possible for many executive agencies to unwind some of the Obama-era regulations with standard policymaking; however, CRA review can be used for some of the big regulations that have already been put into effect that may already be hampering businesses and consumers.
Last week, Congress voted to strike down three Obama-era regulations, including environmental and gun control regulations, and they’ll use the CRA in more votes this week on education and labor rules.
But there are more executive regulations passed in the waning days of the Obama administration that Republicans could target — and ones that may be even more important.
{mosads}There are two big appeals to using CRA review on prior regulatory implementation: They cannot be filibustered, and if CRA is used to overrule a regulation, the regulation can’t be re-implemented again. This is enormously important for a GOP that may want to handcuff future administrations from over-reliance on executive authority.
What exactly qualifies for CRA review is vague, as the law merely stipulates it pertains to regulations that are “recently finalized.” However, the Congressional Research Service published its interpretation as it relates to regulations implemented at the end of the Obama era: any regulations that were finalized after June 13, 2016.
The CRS judgment means there are over 50 regulations subject to CRA review in this Congress, so there’s no shortage of policies for Republicans to target. Conservative groups have put one issue at the top of their wish list, though: data privacy.
Last week, Americans for Tax Reform, the Competitive Enterprise Institute, TechFreedom and other center-right technology-focused organizations sent a coalition letter to Republican and Democratic leadership in Congress focused on the data privacy rules instituted by the Obama-era Federal Communications Commission (FCC). Although the rules were meant to ostensibly protect consumer data privacy, what they actually did was to create a two-tier system that treats technology companies differently. The regulation created a different set of rules that apply to Verizon, T-Mobile and other data companies than apply to Facebook, Google and other platforms.
The conservative groups that have pushed for this regulation to be reconsidered under the CRA have made a good point. This FCC rule was largely a power grab, and a good example of the executive agency overreach that became too common in the Obama administration. The rules applied only to the companies that the FCC had the power to regulate, which is why it created an uneven playing field for companies that compete in the data space.
The regulatory rules are ones that the Obama administration and Democrats would likely want to apply to all companies, but could not; applying them universally would have required congressional action, and they did not have the votes for that. So they did what they could through regulation, logic and common sense be damned.
It’s a good idea for the current Congress to use the Congressional Review Act to act quickly on some of the last-ditch Obama-era regulations — in particular, the FCC’s data privacy rules. They got off to a good start with the action in Congress last week, but there’s more to be fixed.
Nicole Neily is the president of the Franklin Center for Government and Public Integrity, a nonprofit that publishes public-interest journalism at Watchdog.org.
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