Recently, the roofing industry has been subjected to a significant increase in regulatory activity by the federal government. Given current events in Washington, D.C., this trend appears likely to accelerate in the years ahead.
In November 2013, Senate Majority Leader Harry Reid (D-Nev.) used the so-called "nuclear option" to pave the way for Senate confirmation of some of President Obama's nominations to judicial and executive branch positions. The Senate voted 52-48 (with three Democrats joining all Republicans in opposition) to change its rules to essentially eliminate the option to filibuster all presidential nominations except Supreme Court nominations. The filibuster is a procedural tactic used by senators to delay or block a vote on most legislation and nominations.
The change means obtaining Senate confirmation for most presidential nominations will now, for the first time in U.S. history, require a simple majority of 51 votes instead of the 60 previously needed to cut off a potential filibuster. Senators have long used the filibuster to delay votes on presidential nominations for months and, in some cases, to derail nominations. The previous rule requiring 60 votes for confirmation of nominees served as an important check on the power of the majority under our system of government.
This unprecedented rule change could have significant implications for the roofing industry in terms of future regulatory action by the federal government.
The Senate's action immediately cleared the way for approval of three of President Obama's pending judicial nominees to the U.S. Court of Appeals for the D.C. Circuit, so far blocked by Republican senators. The president has been pushing to fill several vacancies on the court with judges who are more likely to reject legal challenges to his regulatory initiatives. The administration primarily has relied on regulations to advance its policy agenda since legislative efforts stalled when Republicans took control of the House of Representatives in 2011.
In recent years, the appeals court has frustrated the Obama administration's regulatory initiatives by finding many of the government's actions unlawful. This includes President Obama's January 2012 "recess" appointments to the National Labor Relations Board (NLRB), which the court struck down as unconstitutional. (The case has since been appealed to the Supreme Court, which will issue a final decision later this year.)
The appeals court also has overturned several regulations the NLRB issued that were challenged in litigation brought by NRCA and other business groups. In May 2013, it upheld a lower court ruling finding the NLRB exceeded its legal authority when it issued a regulation requiring employers to post a notice of employee labor rights in the workplace. Additionally, in response to another lawsuit supported by NRCA, the court ruled the NLRB violated procedural rules when it issued a regulation designed to facilitate union organizing, invalidating the regulation.
The appeals court has served as a significant check on the executive branch's rulemaking capability, and any significant shift in the court's ideological makeup has major implications for businesses.
The possibility the appeals court could become less skeptical of federal regulatory initiatives in the coming years makes it even more important Congress approves regulatory reform legislation.
NRCA supports the Regulatory Accountability Act (S. 1029 and H.R. 2122), which would require federal agencies to choose the lowest-cost rulemaking alternative that meets statutory objectives, improve agency fact-finding processes, require formal rulemakings in more situations and fortify judicial review of new regulations.
NRCA is encouraged the Regulatory Accountability Act has significant bipartisan support and expects the Republican-controlled House to approve the bill in early 2014. However, similar legislation approved by the House in 2011 with bipartisan support died in the gridlocked Senate in 2012. Whether senators can break through partisan gridlock to pass regulatory reform in 2014 is uncertain.
A difficult path
It is clear the roofing industry will continue to face numerous regulatory challenges, and the recent change in Senate rules could make it more challenging to rein in federal agencies through litigation. NRCA will continue working in support of regulatory reform legislation designed to provide businesses with regulatory relief.
Duane L. Musser is NRCA's vice president of government relations.