The Special Tool Dems Aren’t Using to Nuke Trump Regulations 1

Protections for cleaner air and water, habitats for endangered birds, workplace protections for truckers—those were just a few of the federal regulations eroded in the twilight of the Trump administration.

For the first months of 2021, Democrats in Congress had the power, theirs alone, to reverse the rules made by former President Trump on his way out. But largely, they haven’t used it. With time running out, they’re not especially worried about it.

Under the Congressional Review Act, a complex and controversial Clinton-era law, the legislative branch has the authority to reject proposed executive branch rules within a given timeframe. When the new Democratic-controlled Congress met on Jan. 3, the clock began ticking—60 legislative days—on their ability to nix Trump administration policies issued in the final days of his presidency.

In the House, the buzzer sounds on April 2. Senate Democrats beat the deadline last week by going after four regulations on employment discrimination, banking, and the environment.

Even if House Democrats manage to file a few more CRA challenges before Friday, Democrats will still fall far short of how much Republicans used the CRA in the first days of the Trump administration.

Immediately after taking power four years ago, GOP majorities in Congress moved to repeal 16 eleventh-hour regulations from the Obama administration. In the past, the CRA was a sparingly used authority, and Republicans’ aggressive use of it raised eyebrows and tough questions at the time.

But President Joe Biden and Democrats took over in Washington facing numerous crises, from the COVID-19 pandemic to the Jan. 6 attack on the Capitol, as well as the need to confirm a presidential cabinet. Because of the immediate needs, Democrats say time on the House and Senate floors was a valuable commodity. With slim majorities in both chambers, it was no guarantee that repeals of Trump regulations would pass during required votes on the floor.

“The CRA is hard to do,” Rep. Jared Huffman (D-CA) told The Daily Beast. “Margins are slim. It’s a big investment in our floor time and our bandwidth to move something, only to have Joe Manchin give it the thumbs-down.”

Outside the Capitol, the reluctance of Democrats to use this power has drawn criticism. The party spent the Trump years vowing to undo his policies however they could, and outside progressive advocates watched with concern, wondering why they would leave this tool untouched now that it is in their grasp.

“I’m disappointed by the passivity of Democrats,” said Jeff Hauser, founder of the Revolving Door Project, a group that scrutinizes executive branch functioning. “It’s low hanging fruit for Democrats to accomplish.”

Others feel the CRA is an imperfect tool that should be used sparingly, given the other avenues for overturning regulations, such as the courts. Biden’s new appointees can do it, too, but internal abolition of federal rules can take a long time. The CRA may be a forceful way to nuke a bad rule, some Democrats say, but some read the law with concern; using it could effectively salt the earth for future rulemaking from Biden in that particular issue area.

“There are all sorts of terrible Trump rules we want to get rid of,” explained a senior Democratic aide. “The CRA is not necessarily the right tool to do that.”

For at least four Trump rules, however, Democrats have decided the CRA will get the job done.

Democrats are targeting a regulation that limited the power of the Department of Labor’s internal workplace discrimination watchdog, and another one to reinstate an Obama-era rule—which itself was repealed through the CRA—restricting methane emissions from the oil and gas industry, a major driver of climate change. They are also going after a pair of financial regulations approved at the end of Trump’s term: one seen as rolling back shareholder rights, and another making it easier for lenders to charge sky-high interest rates.

Amit Narang, an expert on federal government rules at advocacy group Public Citizen, told The Daily Beast that a “dam broke” in the final week the Senate had CRA power. “If we had had this conversation exactly a week ago, I’d very much agree the Democrats are not using the CRA as much as they should,” he said.

Republicans, said Narang, seemed to use the CRA in 2017 just to show that they could. “Democrats, on the other hand, are being much more disciplined and judicious in their use of the CRA,” he said. “They’re not going to use it just to use it, or use it in instances where it’ll be a waste of time.”

Nevertheless, many of the Trump administration’s final acts will likely make it out of the CRA window intact. As the outgoing president clung to power, his administration was busy making use of their last days, producing an estimated 1,500 rules that are now subject to the CRA, according to the Regulatory Studies Center at George Washington University. Notable last-minute additions to the federal rulebook include limits on protections for spotted owl habitats, lowering environmental efficiency standards for washing machines, and revoking a state-level labor protection for truckers.

Ironically, many of these rules could be doomed due to poor due diligence. Democrats say the Trump administration never bothered to submit many of its last-minute rules to Congress as required by the CRA—meaning they could get another chance to undo them after these deadlines pass. Biden might even be able to ice them himself.

In a March 19 letter to the Office of Management and Budget, Rep. Jamie Raskin (D-MD) said a last-minute Trump administration rule allowing federal inmates to be executed by firing squad or electrocution, for example, had not been submitted to Congress, making it vulnerable to repeal. He requested that the OMB provide a list of all the other rules Trump had failed to send to Capitol Hill.

It’s not exactly clear if this blunder will translate into opportunities for Democrats, however.

Bridget Dooling, a professor at GWU’s Regulatory Studies Center, said it’s uncertain what might happen if many of the final Trump regulations didn’t go through the proper procedure. She also said it’s up in the air whether using the CRA now would prevent Biden from issuing new rules in the same space.

That hinges on a phrase in the law that said future administrations cannot issue rules that are “substantially the same” as a rule that was repealed by Congress. That standard has never really been tested in court, but advocates and experts like Hauser and Dooling cast doubt on the idea that Biden, for example, might be prohibited from issuing his own rules on capital punishment.

Few observers are surprised that Democrats have been less aggressive about using the CRA than Republicans. “This seems like about what I expected,” said Dooling. “Some folks were hoping for more resolutions, and some were hoping for none.”

Many in the party would like to get rid of the CRA altogether. Sen. Cory Booker (D-NJ) has in the past introduced legislation to repeal it. But the party’s former longtime leader, Sen. Harry Reid—never one to shy away from using Congress’ unique powers—sang the law’s praises when he left the Senate in 2016.

“What [the CRA] said is the President promulgates a regulation and Congress has a chance to look it over to see if it is too burdensome, too costly, too unfair,” Reid said that year. “We have done that quite a few times.”

Reid continued that the CRA might be a bit painful when Republicans use it against Democrats. “But it was fair,” he said.