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PSCA Executive Reports

January 31, 2017

Regulatory Reform

President Trump has signaled his intent to roll back many of the Obama Administration’s rules, and Republican operatives have already compiled a list of several hundred rules they would like to see repealed.

On Inauguration night, White House Chief of Staff Reince Priebus issued a memorandum (the “Memo”) – similar to those of prior administrations – directing executive agencies to (i) withdraw regulations that had been sent to the Federal Register but not yet published and (ii) postpone for 60 days the effective date of regulations that have been published in the Federal Register but that are not yet effective.  Also on Inauguration night, President Trump signed an Executive Order instructing federal departments and agencies with authority over implementation of the Affordable Care Act (“ACA”) to minimize the economic burden of the ACA, pending its repeal by Congress, and to take all actions consistent with the law to minimize its regulatory burdens.   

On January 30, President Trump issued another Executive Order that requires federal departments and agencies to eliminate at least two existing regulations for every new regulation they create.  It also sets an annual cap on the cost of new regulations, with the cap for fiscal year 2017 is expected to be $0.  

Regulations that are currently effective generally would have to be repealed or amended through the normal rulemaking process under the Administrative Procedures Act (“APA”), which can take a significant amount of time.  Congress can also act to block the Obama Administration’s rules.  However, Congressional action is difficult since Democrats can still filibuster legislation in the Senate.  Recently issued rules can be overturned using an expedited procedure under the Congressional Review Act (“CRA”), which allows rules to be overturned by a simple majority vote in both chambers.  House Majority Leader Kevin McCarthy (R-CA) recently announced that the House will begin voting to overturn regulations under the CRA as early as this week.

The House recently passed the following bills to either roll back existing regulations or make it more difficult for agencies to issue new regulations:

  • REINS Act.  The bill would require all major rules to receive an affirmative vote in Congress before taking effect.  
  • Midnight Rules Act.  The bill would essentially allow Congress to vote to overturn a bundle of regulations under the CRA rather than taking the votes one by one.  Each CRA vote takes approximately 10 hours in the Senate, so without the legislation, many rules Republicans oppose will not get a vote.  
  • Regulatory Accountability Act.  The bill would reform the process for analyzing and formulating new regulations and guidance documents, imposing new requirements.  Among other things, it would largely eliminate the deference courts give to federal regulations under the Chevron doctrine.

Although all three bills passed the House, the prospects in the Senate are dim because there currently do not appear to be sufficient Democratic votes to override Senate filibusters.  

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