Jurisprudence

Democrats Are Blowing Their Opportunity to Rapidly Repeal Some of Trump’s Worst Policies

Joe Biden speaks as Chuck Schumer and Nancy Pelosi look on at an event in the White House Rose Garden.
President Joe Biden with Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi. Olivier Douliery/Getty Images

Democrats currently have an opportunity to swiftly erase much of the damage that Donald Trump’s administration inflicted on workers, consumers, immigrants, the environment, and pretty much every vulnerable group in the country. But this opportunity will not last forever; in fact, the window is closing quickly, and will slam shut by early April. Yet Democrats have shown virtually no interest in seizing the moment. They are, in short, refusing to use one of the most powerful tools they received upon winning control of Congress.

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That tool, the Congressional Review Act (or CRA), is a powerful yet obscure law passed in 1996. It allows a new Congress to roll back the clock on the previous president’s regulatory agenda. Every administration issues new rules on a vast variety of issues—the Department of Labor sets overtime standards, the Environmental Protection Agency restricts toxic chemicals, and so on. By favoring large corporations and industries, Trump’s regulations consistently authorized more pollution, labor abuse, consumer fraud, and housing discrimination. The CRA allows lawmakers to fast-track repeals of Trump regulations that were finalized in the last months of the administration. It requires a simple majority vote in Congress plus the president’s signature. And, crucially, it is not subject to the filibuster in the Senate.

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Under the CRA, Congress can repeal every Trump policy finalized after Aug. 21, 2020. The last administration rushed out a huge number of last-minute rules that fall within this window, including regulations that imperil endangered species, let factories spew toxic emissions, permit banks to scam customers with exorbitant interest rates, keep asylum-seekers out of the country, undermine employment discrimination lawsuits, and allow LGBTQ discrimination in government grants. If Congress does not repeal these policies through the CRA, the Biden administration will have to spend years—as well as precious time and resources—to wipe them off the books; federal agencies will have to undergo the onerous process of formal rulemaking, which is susceptible to legal challenges.

The clock is ticking. If Democrats do not introduce a resolution to undo a regulation by April 4, they will lose their opportunity to kill it through the CRA. If the Senate does not approve that resolution by May 10 to May 21, it will lose the power to repeal the regulation under the law. (The statute uses a complex formula to determine the window for repeal that depends on how many days Congress is in session.)

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In 2017, Republicans used the CRA a whopping 16 times to repeal the Obama administration’s regulations. Before that point, it had been used just once, in 2001. Many progressives speculated that Democrats would use the same strategy in 2021 to efficiently erase regulations that Trump appointees finalized on their way out the door. But so far, Democrats have introduced zero CRA resolutions.

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Why? On March 15, Politico reported that Democrats say they’re afraid of unintended consequences. They point to a provision of the law that prohibits federal agencies from implementing regulations that are “substantially the same” as a previous rule repealed through the CRA. Some Democrats fear that this clause would prevent the Biden administration from issuing any rule that covers the same topic as a Trump policy repealed through the CRA—even if Biden wants to bolster regulations where Trump weakened them. Sen. Tim Kaine fretted the statute is such a “blunt instrument” that those who use it can “put a bar in your own way.” Similarly, Sen. Brian Schatz told Politico that CRA repeals “may constrain the executive branch from making good policies” in the future.

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As David Dayen has explained in the American Prospect, this trepidation is misplaced. The Congressional Research Service noted in a recent report that the CRA explicitly forbids judicial review. That means courts cannot stop an agency from issuing a new rule that is “substantially the same” as an old rule repealed through the CRA. The Trump administration confirmed this reading of the law when it reissued two rules that Congress repealed through the CRA in 2017. One rule had let states drug-test some people receiving unemployment benefits; Congress repealed the policy because it didn’t think it went far enough. Trump’s Department of Labor then reissued the rule—this time letting states drug-test even more people. The administration asserted that, thanks to its tweaks, the new rule was not “substantially the same” as the old ones. No one challenged this conclusion.

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There are a few other possible reasons why Democrats are hesitant to use the CRA. Perhaps moderates like Senators Kyrsten Sinema and Joe Manchin are hesitant to deploy the law, viewing it as an unacceptable shortcut around the filibuster. Yet both voted in favor of four CRA resolutions in 2017 that repealed the Obama administration’s regulations.

Alternatively, Democrats may think that Joe Biden has enough other tools at his disposal to roll back eleventh-hour Trump regulations. In its haste to finalize these policies before Jan. 20, the Trump administration cut corners at every turn, and many rules were not actually finalized by the time Trump left office. The progressive think tank Public Citizen has uncovered dozens of these unfinished rules, including several that target LGBTQ people, endangered species, asylum-seekers, consumers, and family farms. During his first hours in the White House, Biden issued a regulatory “freeze” that kept these rules on ice indefinitely; because they were never officially put on the books, they will be much easier for the administration to repeal.

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But other Trump policies will not be so easy to undo. Biden’s “freeze” does not cover independent or semi-independent agencies that are still under Republican control. The Equal Employment Opportunity Commission, for instance, is still dominated by a 3–2 GOP majority. Its Republican commissioners recently issued a rule over the dissent of both Democratic commissioners, which will give employers much more power to avoid workplace discrimination lawsuits by forcing premature settlements, cheating victims out of their day in court. Unless Biden fires a GOP commissioner, the EEOC will stay in Republicans’ hands until July of 2022. If Congress does not repeal this rule through the CRA, then, it will likely remain in effect until 2023, if not later.

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At this stage, no one expects Democrats to use the CRA as aggressively as Republicans did in 2017; there just isn’t enough time. But the party still has a few weeks to take down a handful of Trump policies that will inflict immense damage, and it is puzzling to see how few lawmakers appear to care. Many Democrats have complained that the filibuster has stymied their agenda—yet they now have a brief opportunity to slash away at Trump’s legacy with a simple majority, and they are blowing it. If they let the clock run down, they will essentially concede that the CRA is just one more legislative maneuver that only Republicans are allowed to exploit.

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