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The Daily 202: Trump may unwittingly agree to tie his hands, limit executive power

Donald Trump is eager to score some early wins, so that he can look like an effective leader, and congressional Republicans are fixing to give him bills he can sign immediately upon taking office. But, for the new president, some might bring unintended consequences.

The Congressional Review Act is such an incredibly powerful tool that it has only been used once in the two decades it has been on the books. In the next couple months, it will probably be used about half a dozen times.

Somewhere around 150 rules finalized by the Obama administration – going as far back as last June – could be overturned under the CRA, if Congress passes a “joint resolution of disapproval” and the new president signs off.

High on the chopping block: Regulations which would curb methane emissions from the oil and gas sector, prohibit coal-mining companies from engaging in activities that permanently pollute streams used for drinking water and increasing the salary threshold below which employees are entitled to overtime pay. Industry lobbyists are also pushing GOP lawmakers to get of nondiscrimination and fair pay rules for federal contractors. And a bunch of companies are trying to drum up AstroTurf support for rescinding Energy Department efficiency standards for dehumidifiers, battery chargers and air conditioners.

But here’s the rub: the executive branch may never again be allowed to regulate on these subjects if the Congressional Review Act is employed. It is hard to overstate what a big deal that is and how much it raises the stakes. If the overtime rule gets rescinded, for example, any new overtime requirements would need to pass Congress. If you know anything about the Hill, you know that will happen – when pigs fly. . .

Every modern president, no matter his party, has not been able to resist expanding the regulatory state and trying to usurp Congress’s power, at least to some degree. The power that comes with controlling the executive branch has tended to seduce even the most conscientiously conservative appointees once they get their security details.

— Many movement conservatives – who still fear that Trump is a wolf in sheep’s clothing (he was, after all, a registered Democrat until Sept. 2009) – are privately ecstatic about the possibilities of tying his hands before he even realizes it. Certain Republicans in Congress also care sincerely about the emergence of “The Imperial Presidency” and want to reassert more authority under Article I. Not to mention, many Republican lawmakers would be totally fine if there never any new environmental regulations.

— There is palpable fear among the smartest people on the right that Trump, after he faces his big setbacks in the Oval Office, will follow the playbook that led Arnold Schwarzenegger astray in California. “The Terminator” governed initially as a conservative after winning in the 2003 recall, but then he shifted leftward and jumped the shark after voters rejected a referendum to curb union power – hiring an outspoken liberal to be his chief of staff. Jared Kushner, arguably Trump’s most influential adviser, has given more than $100,000 in contributions to Democrats. There is nothing in his background to suggest that the new president’s son-in-law will advise him to follow the more conservative course when it is politically treacherous.

— This is why many Hill Republicans see the CRA as an insurance policy against future Trump overreach.

— There were several regulations that got pushed through in the waning months of George W. Bush’s administration, which Barack Obama’s team did not like and mulled using the CRA to get rid of. Remember that Democrats had big majorities in both chambers. But the president’s lawyers were so concerned that this would undercut their ability to regulate on the same subjects in the future that they never pursued the possibility. POTUS played the long game.

— One problem is that the 1996 law has never been tested in the courts. The legislation says that any rule which is rescinded under the CRA “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”

The statute includes no definition for what “substantially the same” means. Lawyers on the left and the right tell me that the lack of clarity would give enough leeway for a conservative judge to strike down pretty much any new regulation on the same general topic as something the CRA was used to eliminate.

— The only time the law has been used successfully was in 2001. Right after George W. Bush took office, he signed off on a joint resolution of disapproval to get rid of the ergonomics rule that had been enacted in the waning months of the Clinton administration to improve worker safety. As a result, there was never any meaningful push to again regulate ergonomics during the Obama years because Labor Department officials feared that a new rule would get struck down by the courts. That could theoretically be cited as a precedent of sorts in court.

— Every committee chairman was asked immediately after the election to identify some rules under their jurisdiction that could be reversed. A big frustration for GOP leadership is that the CRA requires each rule to be overturned individually, and the rules of the Senate mean that there could be 10 hours of floor time devoted to debating each one. Since that could suck up days that are needed to advance other priorities, the conventional wisdom is that about half a dozen rules will ultimately hit the chopping block. But Republicans plan to make a show of proposing resolutions to get rid of far more than that in the coming days.

— Hill Republicans are also very seriously exploring other ways to curtail executive power. There are a few different measures being considered that would require Congress to affirmatively assent to any major new regulation in the future. The REINS Act, which passed the House last week, could meaningfully shift the balance of power in domestic policymaking away from the White House and toward the Congress. Sources say that another version, the Regulatory Accountability Act, is most likely to make it through the Senate.

THE NEW NIXON:

— “Watch what we do, not what we say,” John Mitchell told reporters at the start of Richard Nixon’s administration. The incoming attorney general was trying to reassure African Americans who were alarmed about the incoming president’s shameful embrace of the Southern Strategy to win in 1968, but the words eerily foreshadowed the relentless assault on the rule of law that would end only with a constitutional crisis six years later.

— Trump is not just the most emotionally fragile president since Nixon: He’s literally planning to hang a framed letter from R.N. in the Oval Office. He modeled his RNC speech last summer off Nixon’s from 48 years earlier. Repudiating Reaganism, which won the Cold War, he’s embracing Nixon’s “madman theory” of foreign policy. He’s consulting with the disgraced former president’s advisers. He’s stocking his West Wing with his protégés.

— Expect to hear a lot of words this week that sound reassuring. As Trump holds his first press conference in months, the transition team is looking to project an image of sober-minded sanity and a seriousness of purpose. This weekend, all the important cabinet nominees participated in dress rehearsals – or “murder boards,” in D.C. parlance. They practiced saying all the right things – with an emphasis on giving short answers, non-answers (when pressed about differences with Trump) and keeping their cool in the face of pointed questions from Democrats looking to score points.

— But far more important than someone’s words are their deeds – and their record. When Trump talks about how he’s dealing with his conflicts of interest, what matters are the specifics. When a nominee for the cabinet dodges and is non-committal about something (e.g. opposing the use of torture), that deserves extra scrutiny.

— Don’t let yourself get distracted by the many shiny objects coming your way in the next 96 hours. As FedEx founder Fred Smith likes to say, “The main thing is to keep the main thing the main thing.” Watch what they do, not what they say. . .

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