Consumer Product Safety Commissioner Elliot Kaye
Consumer Product Safety Commissioner Elliot Kaye (Photo: Carolyn Kaster/AP)

In its 21-year history, the Congressional Review Act had been successfully deployed only once to void a federal regulation—in that singular instance, a President Bill Clinton-era workplace safety rule.

That was before the dawn of the Donald Trump presidency.

In his first 100 days, Trump has signed 13 bills reversing President Barack Obama-era regulations under the Congressional Review Act—and he’s done so with gusto. As recently as April 29, in a speech marking his 100th day in office, Trump told a crowd in Harrisburg that his administration has been “eliminating job-killing regulations.”

It was the kind of rhetoric that Elliot Kaye, once the nation’s top consumer product safety regulator, might file under the category of “fabricated outrage about the impact of regulations.”

Kaye, a Democratic member of the U.S. Consumer Product Safety Commission who lost the chairmanship after Trump assumed office, used that language in a statement on the agency’s vote to advance new regulations for table saws. The rules, if approved, would require table saws to be able to sense contact with the user’s hand or another body part and stop the blade from turning.

The 3-2 vote last week marked the latest display of how Kaye’s decision to stay on—in the diminished role of one of the four remaining commissioners—has prolonged the Democratic majority and made acting chairwoman Ann Marie Buerkle only the nominal leader of the product safety agency.

“Safe to say, this [notice of proposed rulemaking] was long overdue,” Kaye said in the statement last week. “Before getting into dry topics such as timelines and performance standards and regulatory requirements, it is important to start with the human impact of regulatory inaction. While we hear a lot of fabricated outrage about the impact of regulations, there is far less genuine discussion about the real costs of a failure to act.”

At a time when federal agencies have been able to quickly shift gears and ride Trump’s deregulatory wave, Kaye’s statement preaching the merits of regulation was remarkable in that it came from a commissioner on the winning side of a vote. Indeed, with the vote last week, Buerkle found herself at once leading the agency but also limited in preventing Democrats from pushing forward with new regulations before Democratic Commissioner Marietta Robinson’s term expires in October.

Kaye told The National Law Journal on Tuesday he did not refer to “fabricated outrage” over regulations with anyone or any particular group in mind. Rather, he said, it came from having witnessed regulation “being discussed for a couple of decades and the frustration over how the topic seems to be a very powerful magnet for misleading and disingenuous statements about the impact of regulations.”

“It’s just a sense of frustration over how regulations have been portrayed and trying to provide a vantage point of the other side of the argument,” Kaye said. “I thought the table saws rule and the time it’s taken to move it even to this stage, and the human impacts of that inaction, were very profound in this case.”

The CPSC was urged to take up new table saw regulations in 2003, when the inventor of the blade-stopping technology petitioned the agency. Buerkle voted against moving toward requiring that technology, in part, over questions over whether it would be licensed to manufacturers on “fair, reasonable and nondiscriminatory terms.”

“In effect, we may be granting a monopoly in favor of one company that could control the supply of table saws and charge whatever it wants without any effective competition,” Buerkle said.