Two month ago, the Obama administration pushed a new regulation that stripped some Social Security disability recipients of their right to purchase firearms. At the time, advocates for the regulation insisted it would keep the mentally ill from possessing deadly weapons, but the regulation allowed the Social Security Administration carte blanche in taking away recipients’ constitutional rights, regardless of mental illness was present or not, and provided no due process to the recipients. That unchecked authority brought the NRA and the ACLU together in opposition.
Using the Congressional Review Act, the Senate followed the House yesterday in sending Donald Trump a bill canceling the new regulation. And Democrats may not yet fully realizing it, but once this regulation is dead, it’s really dead:
Canceling the regulation is part of the Republican-led Congress’ effort to pull back some last-minute rules passed by President Barack Obama’s administration through the rarely-used Congressional Review Act. Under the act, the House and Senate can vote by a simple majority to overturn agency rules passed in the last 60 legislative working days, a period that started in June. That is a lower-than-usual threshold for legislation in the Senate, where 60 votes are often needed.
Opponents of the gun regulation said it was too broadly defined and unfairly took away Constitutional rights from people with disabilities. Speaking on the Senate floor on Wednesday, Sen. Chuck Grassley (R., Iowa) said the Social Security Administration should not be in the business of limiting gun rights and that people were added to the agency’s list without due process.
“With that type of Constitutional status, the Second Amendment requires greater effort and precision from the government in order to fairly regulate how the American people exercise their rights,” Mr. Grassley said. “This regulation simply doesn’t meet that standard.”
Opponents of the regulation included a wide variety of groups such as the National Rifle Association, the nonpartisan National Council on Disability and the American Civil Liberties Union, which said in a letter to Congress that the “rule automatically conflates one disability-related characteristic, that is, difficulty managing money, with the inability to safely possess a firearm.”
In one sense, this mirrors the Democrats’ plan to use no-fly and terror watchlists to block firearms sales. Most of the people on those lists have no idea of their own status, and have very few options in getting that status changed. The ACLU rightly opposed the precedent of denying constitutional rights without due process in this case, which may have helped Republicans score a few Democratic votes in the Senate for the 57-43 passage.
The new Congress has plans to use the CRA to get rid of other last-minute Obama administration regulations, and that may be more final than some may have originally thought. In fact, Barack Obama might have given the new Congress a big boost in blocking progressive regulation permanently, as David Freddoso explained yesterday:
It’s been 20 years since CRA became law, so you would think lawmakers would have become accustomed by now to its presence and power on the legislative chess board. But we’re seeing now, in Democrats’ frustrations during these debates, that they failed to appreciate the threats in the position and were unprepared for what’s happening now. By making midnight rules both shortly before and after Trump’s victory, the Obama administration actually only helped Congress prevent those very rules, or anything like them from ever being issued at all.
Prior to this year, the CRA had only been used once — in 2001, to repeal a late Clinton administration Labor Department regulation on ergonomics. The obscurity and rare use of the CRA may be why no one saw this coming. CRA doesn’t just let Congress repeal regulations issued in the last 60 legislative days, so that some future president can reissue them, it pulls rules and regulations up by their roots so they cannot be reissued at all. As the CRA puts it, a rule or regulation disapproved by Congress in this fashion …
“…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.”
So if Elizabeth Warren becomes president in 2020, she cannot issue anything similar to the regulations that Congress is striking down right now. A CRA disapproval doesn’t require the same supermajority process as a law, yet it is just as permanent and binding in limiting the rules and regulations that future presidential administrations can issue. This is why you can find Democrats on the House floor today, complaining fruitlessly that the Trump administration should be rewriting these rules, instead of repealing them through the CRA.
We’re getting a little sunlight on midnight regulations. The new Congress should shine that light on as many of Obama’s last-minute regulations as possible, while salting the regulatory earth to ensure nothing of that sort grows there again.