The Washington PostDemocracy Dies in Darkness

The obscure law allowing Congress to undo Obama regulations on guns and coal in a matter of days

Guns at a show in Ohio. (Spencer Platt/Getty Images)

By the end of the day Friday, some 75,000 people the government deems mentally incapable of managing their affairs could have it that much easier to buy guns, thanks to a rarely used law allowing Congress and incoming presidents to quickly unravel an outgoing president's last-minute regulations.

Until now, the decades-old law had been used only once before in history. But Republicans are rewriting its usefulness by, well, being the first lawmakers to repeatedly use it.

Over the span of a few days, Republicans in Congress have dusted off the Congressional Review Act to vote or make plans to vote to overturn nearly half a dozen Obama-era federal regulations, including preventing coal companies from dumping their waste in nearby water and stopping the Social Security Administration from notifying the national gun background check systems of people deemed mentally incapable of managing their affairs.

Those two rule repeals could be on President Trump's desk by the end of day Friday, and House Speaker Paul D. Ryan (R-Wis.) said others are on their way.

Here's more on the law Congress is using to unravel so many of the Obama administration's regulations so quickly.

What the Congressional Review Act does

This law, passed in 1996 and championed by then-House Speaker Newt Gingrich, gives Congress and the president the authority to repeal a federal regulation within 60 legislative days of it being implemented.

This law actually doesn't give Congress any new power. Congress already has the power to create laws, which the executive branch then figures out how to implement in the form of regulations or rules.

But for most of the 20th century, Congress was micromanaging the implementation of these rules by vetoing individual regulations it didn't like. In 1983, the Supreme Court said that was an unconstitutional violation of the separation of powers.

So Congress reworked its ability to have say over the executive branch into the Congressional Review Act, which requires the president's signature to undo these regulations.

But involving the president in undoing these regulations vastly limits when this law is useful.

Why it's useful

Under the law, Congress can undo regulations with a simple majority. That means it can circumvent a filibuster by the minority party in the Senate, which requires 60 votes to clear. And once the repeal is enacted, it prevents a federal agency from ever putting in a new regulation (unless a new Congress orders it to, of course).

But undertaking a repeal effort could backfire: If Congress tries and fails to repeal a federal regulation, that regulation goes into effect pretty much immediately — essentially quicker than if Congress had left it alone.

Why it's not that useful

To state the obvious: The president who approved these regulations probably isn't going to sign a bill into law that undoes them. President Obama vetoed several repeals Congress sent to him.

Which means the Congressional Review Act is pretty much only helpful in the very short window of time when there's a transition of power from one party to another — i.e., when Congress and the president are united in opposition to a rule that was implemented just 60 legislative days ago.

That one time it was successfully used

On his way out the door in 2001, President Bill Clinton authorized a regulation requiring workplaces to create an ergonomic program for workers to reduce injuries.

It was a program the first Bush administration had considered. But the regulation was vastly unpopular in the business world and, thus, with the Republican Congress. The Senate was split 50-50 at the time, which meant they wouldn't be able to undo it without a law that bypassed the filibuster.

Under the Congressional Review Act, they undid the law in a day.

Labor unions in support of the regulation were stunned. Here's what Peg Seminario, with the AFL-CIO, told the New York Times, as uncovered by the Harvard Law Review:

“What’s happening is stunning … This rule is 10 years in the making, with 10 weeks of public hearings on it, and now they want to wipe it out with not even one hearing and less than 10 hours of debate. That’s about as undemocratic a process as you can get.”

Notably, on its way out the door, the second Bush administration made sure to implement nearly two dozen last-minute regulations months before the next (Democratic) Congress started.

What the Congressional Review Act could be used for now

So far, the House has voted to undo five regulations and sent two to the Senate: the coal-pollutant restriction rule and the background check rule for mentally unstable Social Security beneficiaries.

Congress is also considering rolling back disclosures to the Securities and Exchange Commission, methane emissions regulations on federal land, and a rule requiring federal contractors to share their worker violations.

There are some 50 more Obama-era regulations Congress could quickly undo — limits on bird hunting, protections for nursing patients, fuel standards for trucks and more.

By the summer, which would be 60 legislative days, the time limit to undo those regulations will have expired, and the Congressional Review Act will likely lie dormant once again — until the next time there's a presidential transition.