The GOP is preparing to mount a full-scale assault on President Obama’s regulatory agenda, using the party’s strengthened hand in Congress to delay, soften or block contentious administration rules at every turn.
As long as Obama sits atop the executive branch, Republicans’ power to derail scores of rulemaking efforts now under way is limited. But control of both the House and Senate in the next Congress will enable GOP lawmakers to ratchet up their attacks on what they view as overzealous regulation.
“So long as we have this president the federal agencies can go around Congress," said Sen. Jim InhofeJames (Jim) Mountain InhofeOvernight Defense & National Security — Presented by AM General — Senators slam Pentagon officials Generals contradict Biden, say they advised leaving troops in Afghanistan LIVE COVERAGE: Senators press military leaders on Afghanistan MORE (R-Okla.) "But we can make it very, very difficult for them."
Critics of Obama’s regulatory policies are likely to look to the Congressional Review Act (CRA), which allows lawmakers to disapprove of regulations that have already been finalized and stop them from going into effect.
Inhofe, for instance, says he intends to push such a measure against the EPA’s newly proposed ozone rules, which manufacturers say could cost industry $270 billion in compliance costs during its first year alone. However, the president would have to approve such a measure, which is highly unlikely.
Only once before has the CRA been used successfully to block a regulation — a Labor Department rule on ergonomics overturned in 2001.
“The challenge for Republicans is President Obama would have to sign a resolution disapproving of the rule his own agency put out,” said Dan Bosch, manager of regulatory policy at the National Federation of Independent Businesses. "So you can see how that would basically never happen.”
Similarly, Senate Republicans do not have enough of a majority to prevent a filibuster on anti-regulatory legislation — nor could they override a veto from President Obama, without support from Democrats.
“In the rulemaking space, the president has the upper hand,” said Public Citizen President Robert Weissman. “It’s going to be difficult for congressional Republicans to muster legislation to stop any rule and succeed,” he added.
Further, Weissman disputed the suggestion from many conservative observers that the Obama administration is likely to unleash a flood of new regulations in the coming months.
The administration’s formal rulemaking agenda, released last Friday, lists 23 significant new actions, compared to 21 in the previous agenda.
“I don’t think there’s any reason to believe there’s a Tsunami of regulations coming,” Weissman said.
However, Republicans see value in moving ahead, under the auspices of regulatory reform, with a series of bills that passed the House the current Congress, only to stall in the Democratic-controlled Senate.
Among them is the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require Congress to approve a regulation before it can go into effect, rather than requiring lawmakers to disapprove a rule in order to do away with it.
“No regulation would ever take effect under this legislation,” said Ed Mierzwinski, spokesman for U.S. PIRG. "It’s a recipe for gridlock.”
Such standalone legislation — though seen as having no chance for enactment —would serve to highlight Republican opposition to the administration’s regulatory policies.
Control over the appropriations process, however, gives Republicans a more potent weapon in their efforts to block regulations.
While the Obama administration directs the policy focus of federal agencies, Congress is responsible for funding the agencies. Lawmakers therefore have authority to restrict how the agencies spend their money, allowing those in control of the process to prohibit an agency from spending money on a particular rule they disagree with.
“They could refuse to pass the budget unless the White House gives something up,” Bosch said. "Last year, they were trying to defund ObamaCare and the government ultimately shut down.”
Industry groups including the National Association of Manufacturers would like to see Republicans defund the EPA’s ozone rule. While other business groups are targeting the agency’s carbon emissions rules for new and existing power plants. All of those regulations would reduce air pollution, but business interests have relentlessly assailed their expected costs.
Sen. Ron JohnsonRonald (Ron) Harold JohnsonMost Senate Republicans don't want to see Trump run again Hillicon Valley — Presented by American Edge Project — TSA to issue cybersecurity directives to secure rail, aviation sectors Bill requiring companies report cyber incidents moves forward in the Senate MORE (R-Wisc.) said Republicans would not be afraid to use the “power of the purse" to block regulations they don’t like.
Republicans’ majority status in the Senate also gives them control at the committee level. The new crop of GOP chairmen is expected to put their gavels to work with a slew of oversight hearings focused on some of the rules they are most upset about.
The hearings could put “political pressure” on the Obama administration to relent with some of these rules, Bosch said.
Critics can also seek to delay or water down the language of regulations during meetings with the White House’s Office of Information and Regulatory Affairs, which reviews all of these rules before they are published.
If all else fails, Republicans and business groups could challenge the regulations in court, an arena where regulatory opponents have claimed some success.
For example, the Supreme Court this summer ruled in favor of business groups in the case Hobby Lobby v. Burwell, in which the justices decided religious business owners cannot be forced to provide contraceptive insurance coverage to their employees.
Sen. Sherrod BrownSherrod Campbell BrownBuilding back better by investing in workers and communities US on track to miss debt payments as soon as Oct. 19: analysis On The Money — Presented by NRHC — Democrats cross the debt ceiling Rubicon MORE (D-Ohio) believes public support for Republicans’ deregulatory agenda will evaporate when the public realizes what protections it could be losing.
"I hear what they say — that the best growth strategy is more tax cuts for the rich and deregulation,” Brown said.
“I don’t know if that means that toys from China with lead-based paint will be more welcomed in our country,” he added. "I don’t know if it means weaker safe water and clean air laws. I don’t know if it means weakening rules on Wall Street."
All sides agree, however, that the fight over regulation hinges on the White House, where Obama is likely to face heightened criticism to scale back plans as he looks to secure his legacy in the next two years.
“The hope is that anything that will really undermine health, safety and welfare, the administration will recognize those riders are what they are — attempts to undermine public protections and they’ll veto them,” said Ronald White, director of regulatory policy at the Center for Effective Government.