ASA Washington Update
One of the perennial talking points on the campaign trail is the burden on business owners that regulations can have.
From how your drivers deliver products to what markings must be on that valve, the impact on operations of manufacturers, small businesses and just about everyone’s day-to-day lives is real and burdensome.
Regulations effectively have the force of law and often are outside the control of our representatives in Washington. Regulations also take a long, circuitous path to implementation, with the public participating along the way.
Briefly, a pre-rule announcement is published in the Federal Register, then draft or proposal of the regulation is published and the public is given a chance to advocate in its favor or opposition, identifying what’s wrong (or right) in writing, and many times in person. The comments, which can range in the thousands, are reviewed by the agency; then another final draft of the regulation is submitted to the public and often another round of comments are accepted. Finally, the White House and the Office of Management and Budget’s Office of Information and Regulatory Affairs makes the final call on whether or not to go forward with the regulation.
Much of this process is necessary to give the regulators as iron-clad a case for regulating as possible. Congress often has little ability to impact these outcomes, other than writing the original law, which is where the authority to regulate originates. It is the courts that decide if the regulation goes too far, unduly harms businesses or the economy and whether it must be rewritten or is struck down, temporarily or permanently. Most often the U.S. Court of Appeals D.C. Circuit is where the battle is waged. That’s why there is a perennial fight to seat judges in this court, which often is a stepping stone to the Supreme Court.
As the third co-equal branch of government, Congress has managed to insert itself into this process by passing the Congressional Review Act in 1996. A rarely used statute, it gives Congress the ability to effectively overturn a regulation, but with a number of parameters. The CRA enables Congress to review and override major regulations enacted by federal agencies within 60 legislative days. In the Senate, the vote would not be subject to filibuster (60-vote threshold).
The CRA has been used before, but only once when George W. Bush entered office and effectively repealed unpopular ergonomics regulations. The House has used the law a number of times to take a swipe at many of President Obama’s policies, only to die in the Senate or face his inevitable veto pen. Now that President Trump is in office, the GOP holds majorities in both houses and the executive branch for the first time since 2006. As another useful provision of this law, agencies are not allowed to pursue any further changes to the regulation for a period of time.
So far Congress — the House specifically — has spent much of 2017 tending to regulations approved in the last year of President Obama’s term, such as:
1) The Stream Buffer Rule would have saddled mines with unnecessary regulations, putting up to 64% of America’s coal reserves off limits and threatening between 40,000 to 70,000 mining jobs. – Signed by President Trump
2) The SEC Disclosure Rule for Resource Extraction would have put an unreasonable compliance burden on publicly-traded American energy companies, putting them at a disadvantage to foreign-owned businesses. – Signed by President Trump
3) The Social Security Service’s Second Amendment Restrictions would increase scrutiny on up to 4.2 million law-abiding disabled Americans attempting to purchase firearms, potentially depriving people of their constitutional rights without proper due process protections. – Passed by the Senate
Others that have passed the House and awaiting Senate action include:
￭ The Federal Contracts Blacklisting Rule
￭ The BLM Venting and Flaring Rule
￭ The BLM Planning 2.0 Rule
￭ The Teacher Preparation Rule
￭ The Education Accountability Rule
￭ The Unemployment Insurance Drug Testing Rule
￭ The State Retirement Plan Rule
￭ The Local Retirement Plan Rule
￭ The National Wild Refuge Hunting and Fishing Rule
￭ The Title X Abortion Funding Rule
As the president and Congress set new budgetary priorities for many federal agencies, voters will be watching to see if these regulatory repeals and others in the works are a benefit to society or not. Republicans are counting on their lack of popularity and ability to spur economic growth as their validation. No matter the outcome, voters will have their say.