Jurisprudence

Democrats Have a Filibuster-Proof Tool to Erase the Trump Administration’s Final Months

Chuck Schumer and Nancy Pelosi look at a podium while wearing masks.
Chuck Schumer and Nancy Pelosi on Capitol Hill in December. Tasos Katopodis/Getty Images

As the president spends his waning days in office spreading election conspiracy theories and inciting insurrection, his administration has quietly plowed ahead with a destructive deregulatory agenda. Over the past few months, federal agencies have rushed out dozens of new rules to gut crucial safeguards against pollution, corruption, labor abuse, segregation, workplace discrimination, and much more. They plan to keep working up until Jan. 20 to roll back as many regulations as possible.

But Congress has a way to swiftly undo the damage. The victories of both Raphael Warnock and Jon Ossoff in Tuesday’s Georgia Senate runoffs puts the Trump administration’s eleventh-hour deregulatory blitz in grave jeopardy. A federal law called the Congressional Review Act allows Congress, with the assent of the president, to repeal recent agency rules by a simple majority vote. It is not subject to the filibuster. Once Congress kills a rule under the CRA, the agency can never enact it again.

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When Republicans secured a trifecta in 2017, they used the law to erase the closing months of the Obama administration. Democrats are now positioned to do the same for Trump.

In an age of perpetual congressional gridlock, most important federal regulations come not directly from Congress, but from the hundreds of agencies that actually implement federal law. Many major statutes outline a broad goal, then delegate authority to a federal agency to fill in the details. For instance, Congress doesn’t decide exactly how much mercury is allowed in drinking water; instead, it directs the Environmental Protection Agency to determine what level of mercury is safe, and enforce that limit through a federal rule. Trump’s political appointees have exploited their rule-making power to strip away crucial regulations that guard against environmental devastation, fraud, financial malfeasance, and other threats. Congress may have been paralyzed by partisanship for much of Trump’s term, but bureaucrats have spent the past four years dismantling lifesaving regulations.

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Many of the worst rules have arrived in the twilight of Trump’s presidency, and that’s good news for Democrats. The CRA, passed in 1996, uses a complex formula to establish which rules are subject to fast-track repeal, and regulatory expert Cheryl Bolen Smelson has identified the cutoff point as Aug. 21, 2020. Any agency rule finalized after that date may be repealed by a majority vote in Congress, plus President-elect Joe Biden’s signature. According to ProPublica’s tracker of “midnight regulations,” some of Trump’s most noxious rules were finalized (or are scheduled to be finalized) in this window, including:

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•A rule that lets federal contractors discriminate against racial and religious minorities, women, and LGBTQ people in the name of “religious liberty.”

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•A rule that alters eligibility for so-called food stamps, removing 3 million people from the rolls.

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•A rule that delays tighter restrictions on soot for at least five years—even though tightening the current standard would prevent tens of thousands of early deaths every year.

•A rule that limits future EPA regulations by requiring the agency to ignore, among other things, the greenhouse gas reductions that result from other regulations.

•A rule that lets the Forest Service skip environmental review, allowing more logging and roads on public lands.

•A series of rules that decrease energy efficiency standards for manufacturers and loosen efficiency testing requirements.

•A series of rules that make it much more difficult for immigrants to obtain asylum or delay their deportation.

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•A series of rules that make it easier for banks to merge and accumulate deposits from other banks, threatening the return of “too big to fail.”

ProPublica also identifies a number of rules that may become law by Jan. 20 if the administration acts quickly enough, including:

•A rule that removes penalties for fossil fuel companies that kill birds while engaged in industrial activities like drilling.

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•A rule that bars banks from declining to provide credit on environmental or social grounds—thereby forcing them to fund the fossil fuel industry.

•A rule that would value individual property rights and economic impact over wildlife protection, undermining the Endangered Species Act.

•A rule that exempts investment advisers from conflict-of-interest rules, allowing them to take commissions from investments they advise to clients.

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•A rule that decreases federal disaster aid, particularly for blue states.

•A rule that denies subsidized housing to the families of noncitizens.

•A rule that bars the use of fetal tissue from elective abortions in federal funded research, halting groundbreaking advances in the treatment of HIV, Parkinson’s, diabetes, and other chronic illnesses.

None of these rules have popular support. Many of them are blatant favors to the industries that fund the GOP. Congress can repeal every one of them at the start of Biden’s term—and permanently bar the agency from passing any regulation that is “substantially the same.”
Republicans established the precedent: At the start of Trump’s term, Congress went on a repeal spree, eradicating 14 rules issued by the Obama administration. Before 2017, the CRA was used just once to repeal an agency rule. Republicans transformed the law into a powerful weapon. And progressives were helpless to fight back in the courts: Unlike the usual rule-making process, the CRA is not subject to judicial review. When an agency repeals a rule, the courts can block the move as “arbitrary and capricious”; when Congress repeals a rule through the CRA, the courts have no such authority.

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That’s one reason why the CRA is, by far, the quickest way to repeal a federal rule. When the executive branch undertakes this task without Congress, it’s a lengthy, burdensome process: The agency has to jump through hoops set out in the Administrative Procedure Act, including a “notice and comment” period of public input. This method of repeal is also vulnerable to legal challenges, and courts routinely freeze agency efforts to roll back prior rules. Another method of repeal is the traditional lawmaking process—Congress passes a bill—but this legislation would be subject to the filibuster. Democrats are poised to hold the Senate by a bare 50-50 margin, with Vice President–elect Kamala Harris breaking ties, and West Virginia Sen. Joe Manchin has already promised he won’t abolish the filibuster.

Before Democrats get the filibuster blues, they may as well use the tools at their disposal to undo at least some of the damage of the Trump administration. Erasing the stain of Trumpism will take decades. But erasing the last few months of the Trump administration only takes a majority vote.

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