May 11, 2017

Historic Regulatory Relief: Eliminating Obama-Era Overreach

  • Congress struck down 14 Obama regulations using the Congressional Review Act.
  • These 14 CRAs will save taxpayers at least $3.7 billion and 4.2 million hours of paperwork.
  • This was the first Congress to successfully use the CRA to repeal a regulation since 2001.

Congress has passed 14 resolutions disapproving Obama-era midnight rules under the Congressional Review Act. These resolutions have provided Americans substantial relief from the burden of unfair and unwise regulations. The 14 rules Congress has repealed will save Americans at least $3.7 billion and 4.2 million hours of paperwork, according to agency estimates compiled by the American Action Forum. 


Ending the war on coal (McConnell): Last December, the Department of the Interior issued a rule to significantly reduce surface coal mining. The “stream buffer” rule was expected to eliminate up to one-third of American coal mining jobs and would have threatened American energy independence. While drafting the rule, Interior ignored concerns raised by state and local governments, and the rule conflicted with more than 400 existing state and federal regulations.

Preserving overseas opportunities for U.S. energy companies (Inhofe): In June 2016, the Securities and Exchange Commission issued a rule to require some energy firms to report payments made to foreign governments for natural resource development. The rule was based on the naïve assumption that any business payment to another government must be a bribe. The effect of the rule was to place publicly owned firms at a competitive disadvantage. In some cases, it would force companies to violate the laws of the countries in which they operated. The SEC estimated that the costs for initial compliance could be more than $700 million, with almost $600 million in ongoing costs. 

Internet CRA

Keeping internet privacy consistent (Flake): Last November, the Federal Communications Commission issued a rule restricting how internet service providers handle their customers’ information. The rules placed ISPs under different, stricter regulations than other internet companies handling the same information.

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Standing up for state authority (Sullivan): Last August, the Fish and Wildlife Service issued a rule stripping away Alaska’s basic right to manage fish and wildlife in its National Wildlife Refuges. It moved that power to Washington. The rule not only usurped Alaska’s long-standing statutory authority in this area, it asserted that wildlife management could best be accomplished from thousands of miles away. It deprived the state of the ability to provide residents social and economic opportunities, including the sustainable harvest of food. The rule limited opportunities for the public to participate in NWR management decisions. While the rule only applied to Alaska, FWS’ flawed action set a dangerous precedent for Washington to commandeer state authority to manage fish and wildlife in other states.

Restoring state input on land use (Murkowski): On December 1 – weeks after the election – the Bureau of Land Management substantially limited recreation, energy development, mining, ranching, timber harvesting, and grazing on federal land through its “Planning 2.0 Rule.” The rule effectively rewrote procedures to prepare, revise, or amend federal land use plans under the Federal Land Policy and Management Act. It concentrated control in Washington and took authority away from state, local, and tribal land managers who have the most experience overseeing resources.

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Returning freedom in health care grants (Ernst): In December, the Department of Health and Human Services finalized a rule that limited Title X grant recipients’ ability to select subrecipients of grants. It was an attempt by the Obama administration on its way out the door to ensure grant funding would not be restricted for organizations like Planned Parenthood. The rule limited states from determining how grants are distributed – another Washington intrusion into local decisions about health care. States and other local entities should have the freedom to determine the best Title X providers to serve the needs of their citizens.

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Preserving due process for government contractors (Johnson): Last August, the Department of Labor issued guidance – and the Federal Acquisition Regulatory Council issued final rules – requiring that federal contractors report if they had been accused of violating 14 federal and state labor laws. The companies reporting violations could be blacklisted from receiving federal contracts even if the allegations had not been adjudicated, violating their due process rights.

Upholding the law on drug testing programs (Cruz): Also in August, DOL issued a rule that permitted states to drug test applicants for unemployment compensation, but restricted its effectiveness. Testing was allowed if the applicant was terminated from employment due to the illegal use of a controlled substance; or if the only available suitable work is in an occupation that regularly conducts drug testing. The DOL rule imposed an arbitrarily narrow definition of occupations. It also constrained a state’s ability to conduct a drug testing program in its unemployment insurance system, as authorized by a provision in the Middle Class Tax Relief and Job Creation Act of 2012.

Reining in overreach by OSHA (Cassidy): In 2012, a federal court held that the Occupational Safety and Health Administration could not cite an employer for recordkeeping violations outside a six-month statute of limitations. In response, OSHA issued a rule last December extending liability for paperwork violations beyond the six-month window set by law. The rule improperly subjected U.S. businesses to penalties for paperwork violations, while doing nothing to improve worker health and safety.


Defending Second Amendment rights (Grassley): On December 19, the Social Security Administration issued a rule infringing on the Second Amendment rights of people with disabilities. It required SSA to report to the National Instant Criminal Background Check System people who receive Social Security disability benefits and who the agency says have been adjudicated as “mentally defective.” The rule would have restricted the gun rights of people with disorders that have nothing to do with firearm safety. There were also concerns that the rule, which could lead to the presumptive revocation of Second Amendment rights without a hearing, would impinge upon the due process rights of affected parties.


Restoring local control over teacher preparation (Sasse): On October 31, the Education Department released a rule to federalize teacher preparation grant programs, which previously were handled at the local level. The rule required federal standards for evaluating these programs based on four federally defined criteria. This conflicted with the flexibility Congress provided in the recent reauthorization of the Elementary and Secondary Education Act. It also ran afoul of prohibitions in the law on federally mandated teacher evaluations.

Increasing state flexibility in education accountability (Alexander): On November 29, the Education Department issued regulations modifying accountability measures for K-12 schools. Under the 2015 Every Student Succeeds Act, states must have an accountability system, which they choose for themselves. The intent was to provide maximum flexibility to states. The department’s rules were too prescriptive, conflicted with congressional intent, and violated explicit prohibitions on the education secretary’s authority to regulate.

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Repealing of state-mandated pension plans (Hatch): In August, the Department of Labor issued a rule allowing state-mandated retirement savings plans. It gave states an exemption from the protections of the Employee Retirement Income Security Act if they mandated that employers not offering a retirement plan automatically enroll their workers in the state-run plan. The rule did not require government-run plans to be portable or permit workers to withdraw their savings at any time. DOL performed no analysis of whether states have the capacity to run plans without posing a burden on taxpayers or jeopardizing participants. 

Repealing of municipality-mandated pension plans (Hatch): In December, DOL issued a rule to expand the exemption from the ERISA protections previously offered for state-mandated retirement plans to also cover some cities and counties. ERISA protections include stringent rules to protect workers related to the management of the plans and safekeeping of plan assets. 

Issue Tag: Senate