This may end up being the most vicious hardball escalation and norm-breaking of Trump’s first two years: retroactively declaring that guidances are suddenly rules. Then, since guidances aren’t submitted to Register like rules, ripping them out via CRA. https://www.politico.com/story/2018/04/17/congressional-review-act-fallout-485426 …
By Tom Sullivan, Digby’s Blog
Premature talk of the “end stage” of the Trump administration has begun to circulate. Adam Davidson writes at The New Yorker, “This is the week we know, with increasing certainty, that we are entering the last phase of the Trump Presidency. This doesn’t feel like a prophecy; it feels like a simple statement of the apparent truth.” Money laundering, bank fraud and evidence of “rampant criminality” lie waiting to be uncovered in Michael Cohen’s files and elsewhere federal investigators now peek.
It has become commonplace to say that enough was known about Trump’s shady business before he was elected; his followers voted for him precisely because they liked that he was someone willing to do whatever it takes to succeed, and they also believe that all rich businesspeople have to do shady things from time to time. In this way of thinking, any new information about his corrupt past has no political salience. Those who hate Trump already think he’s a crook; those who love him don’t care.
The Republican caucus, however, can read the tea leaves. Legislators are stuffing their pockets with whatever they will hold before, as Gordon Lightfoot sang, “the skies of November turn gloomy.”
Politico reports they plan to use an unusual maneuver to sweep away a host of federal regulations:
As soon as Tuesday, GOP senators, backed by President Donald Trump, will use the Congressional Review Act to topple safeguards issued by the CFPB in 2013 that were intended to discourage discrimination in auto lending.
While Republicans in the Trump era have already taken advantage of the 1996 law to remove more than a dozen recently issued rules, this would be the first time that Congress will have used it to kill a regulatory policy that is several years old.
Now, actions going back to President Bill Clinton’s administration could be in play under the procedure GOP lawmakers are undertaking, forcing numerous agencies to reconsider how they roll out new regulations.
The maneuver requires leveraging provisions of the CRA that enables them to eliminate regulatory rules by a simple majority and avoid a filibuster. They plan to redefine what was previously regulatory guidance as regulatory rules under the Administrative Procedure Act, making them eligible for elimination via the CRA. Sen. Pat Toomey (R-Pa.) leads the effort and considers it “potentially a big, big opening.” Senate Majority Leader Mitch McConnell (R-Ky.) announced Tuesday, “Our whole economy is getting a tune-up. And now it’s time for the front end of the auto industry to come along for the ride.”
Toomey tells reporters:
“When regulators regulate by guidance rather than through the process they’re supposed to use, which is the Administrative Procedure Act and do a proper rulemaking, they shouldn’t be able to get away with that,” Toomey said. “If we can get a determination that the guidance rises to the significance of being a rule, then from that moment the clock starts on the CRA opportunity.”
Amit Narang, regulatory policy advocate at Public Citizen, said it “is really going to open up a Pandora’s box.” Public Citizen and 60 other advocacy groups covering the gamut of finance, the environment, labor and gay rights are calling on Congress to oppose the CFPB rollback, saying it would set a dangerous precedent.
They warned it would put at risk not only protections for workers, consumers, minorities and the environment, but also regulatory certainty for businesses.
Roosevelt Institute fellow Mike Konczal responded in a series of tweets:
If you told me 3 years ago they’d try this I wouldn’t have believed it, nor would most disinterested regulatory observers. It’s telling that conservatives, at the height of their power, are only capable of making change through ratfucking guidances, not putting forward a vision.
The notion that regulators in the 1990s forgot to submit a guidance for 25 years (they just didn’t get around to it!) and nobody in any Republican Congress noticed until January 2017 (because they were busy too?) is so obviously bad faith courts shouldn’t buy this hardball.
But then, Mitch McConnell should not have been able to stonewall Merrick Garland’s Supreme Court nomination, either.
The Consumer Financial Protection Bureau guideline first onto the scaffold is one meant to discourage discriminatory “dealer markups” in auto lending. Writing for Vox, Emily Stewart elaborates:
Research shows high dealer markups often disproportionately affect nonwhite people — in other words, car dealers charge black and Latino buyers higher interest markups than they do white buyers. The CFPB tried to curtail this by introducing the guidance, a sort of notice of how to apply and interpret a law, in 2013.
The CFPB then targeted multiple dealers for discriminatory lending.
Consumer advocates and anti-discrimination groups have come out in fierce opposition to the loan discrimination guidance rollback. A group of 64 organizations, including the Consumer Federation of America, the NAACP, and United Steelworkers, signed on to a letter opposing the resolution, warning that it could set a “dangerous precedent” and that it “sends a message to the public that Congress is more interested in giving narrow handouts to special interests” than helping American workers and families.
“This is an attempt by auto lenders and auto dealers to prevent the CFPB from monitoring fair lending issues and enforcing them, and to tie the hands of future CFPBs on discrimination issues,” Debbie Goldstein, who heads the federal policy team at the Center for Responsible Lending, told me.
On Saturday, I mentioned a study from Mercatus, the free-market think tank. The research paper contradicts conservative conventional wisdom that regulations hold back the economy, not that Toomey et. al. have seen it. But as with proof of Trump Organization criminality, it will have no political salience. If their assumptions are proven wrong, they won’t care. What matters to the Republican caucus is control, and Republicans are headed for losing it. After the Trump administration meets its fate, maybe permanently.
So pending a hasty retreat, it’s time to loot, slash and burn.
Returning home about twelve or one
Thinking “Lord, what a deed I’ve done?”
I killed the girl I love, you see
Because she would not marry me
— “Banks of the Ohio,” traditional
If they can’t have America for their very own, no one else can.