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It’s been over two months since Donald Trump left office, yet his impact lingers. Thanks to a surge in regulatory action as the last administration was packing its things, measures that facilitate discrimination in health care and greenlight pollution (among many others) are on the books. And due to the cumbersome realities of administrative procedure, it could be months or years more before they’re gone. In the meantime, the country could be forced to endure many of these rules’ damaging effects while the Biden administration will be obligated to dedicate scarce resources to administrative procedures like notice and comment — resources that would be better spent developing new initiatives to use the executive branch’s vast powers for good.
But, at least for the time being, there’s a faster, easier path to address some of these damaging, last ditch efforts to exert lasting Trumpian control on the government. For just a short while longer, Congress can use the Congressional Review Act to strike last-minute Trump rules from the books by a simple majority vote. This could skyrocket the Biden administration months or years forward on critical issues, such as air pollution, labor and civil rights. That’s obviously good policy, but it also makes for good politics in a world in which congressional Democrats’ political prospects are entwined with the president’s ability to deliver major improvements quickly and keep his approval ratings high. Whether out of moral commitment or cold political calculation, Democratic lawmakers should move quickly and aggressively to repeal eligible Trump rules.
Whereas reversing regulations via administrative procedure is a months-long process (effectively writing a new rule to replace the old one) by using the CRA, lawmakers can strike rules from the books in the space of just a few weeks. CRA resolutions also are not subject to the Senate filibuster. This power is limited in several ways — it only applies to rules that are finalized within a set time period and only lasts for a short window — but, provided those conditions are met, it’s a formidable tool. Indeed, in 2017, Republicans used it to target 34 Obama-era regulations and successfully eliminated 14.
The window to act in 2021 closes this week. Lawmakers who wish to make use of the CRA to strike Trump’s rules have until April 4 to introduce their resolutions of disapproval, after which point they’ll have five to seven weeks more in which to consider and vote on them. So far, members have only taken this perfunctory step for five rules.
Needless to say, this is not for a shortage of eligible regulations. The Trump administration took an estimated 1,490 regulatory actions that are subject to the CRA, of which the Coalition for Sensible Safeguards has identified 28 rules that challenge key Democratic priorities.
On the docket, for instance, is a Health and Human Services regulation that, as Lambda Legal describes, “permit[s] social service agencies and providers that receive HHS grant funding to discriminate on the basis of sexual orientation or gender identity, as well as religion and sex.” Also, eligible is a housing rule that, according to the National Low Income Housing Center, makes it “virtually impossible for victims [of housing discrimination] to prove they were discriminated against.”
Lawmakers could also reverse a Trump rule that “lets some of the biggest polluters spew much more toxic mercury, lead, arsenic, asbestos and benzene pollution into the air” thereby “expos[ing] millions of people to risks of cancer, neurotoxic effects, fetal damage and premature death — and disproportionately impact[ing] Black, brown and low-income people who often live near toxic facilities,” according to the Natural Resources Defense Council. So far, we’ve received little indication that they will.
Some lawmakers have suggested that they are reluctant to use the CRA due to a provision barring future administrations from implementing rules that are “substantially the same” as those eliminated under the law. Some argue that this prohibition could apply to any rule that tackles the same subject matter, even if it is in a different form or with drastically different intent. But there’s good reason to believe that these concerns are overblown. The Trump administration, for example, implemented two rules that treated “substantially the same” issue as ones reversed under the CRA. Inevitably, Republicans will cry foul (emphasis on “cry”) when Democrats implement prosocial regulations after reversing Trump’s cruel ones — but, especially if their party already did the same thing, does it matter? More fundamentally, the CRA bars judicial review, so it is unclear how parties can bring cases relating to the interpretation or enforcement of CRA provisions.
So why the dearth of CRA resolutions? This is likely just a reflection of the fact that congressional Democrats have not considered rolling back Trump rules a major priority. Unfortunately, as someone who regularly critiqued Democratic leadership for being inattentive to the tremendous damage the Trump administration inflicted using executive power, this is hardly a surprise to me.
As previously noted, lawmakers have moved to reverse five of Trump’s disastrous midnight regulations. By erasing these rules, lawmakers will ensure strong standards for methane emissions, protect the ability of victims of workplace discrimination to get relief, maintain shareholders’ ability to push companies on climate and other matters, and stop predatory lenders’ latest effort to skirt interest-rate limits. These are important steps. Lawmakers should go further to target all of the eligible rules public-interest advocates have identified as a priority.
But is there time? Despite Democrats’ procrastination, yes. CRA resolutions consist of just a few lines of text into which the name of the specific regulation in question is inserted. A motivated aide could draw up resolutions for all of the remaining 23 regulations on the Coalition for Sensible Safeguards’ list in about 15 minutes. Having taken this initial step, Democrats will have several weeks more in which to fight to get these resolutions passed.
And that fight is well worth their while. First and most obviously, the rules described above stand in direct opposition to everything Democrats ran on; they should be eager to ensure that they are not the policy of the United States. Arguably even more importantly, it’s a simple matter of resource management — in this case, Democratic man-hours and political capital. Allowing Biden to sidestep the lengthy administrative process to reverse rules (a process that hostile courts could draw out even longer) will let him put the full force of his team’s resources and talents behind new initiatives to advance the public interest that much faster. There are 208 weeks in a presidential term. Biden’s already burned through 11. The stakes, especially before the midterm elections, are just too high to let any opportunity slip through Democrats’ fingers.
In general, lawmakers who are eager to enact transformative change should care not only about passing new legislative measures, but also ensuring that strong, existing statute is applied as effectively as possible. Using the CRA is an early opportunity (among many) to put this into action.
The considerable policy benefits aside, helping Biden help people faster is plainly good politics. Rightly or wrongly, Democrats’ control of both chambers of Congress will depend a great deal on Biden’s performance over the next two years. And while the recovery bill made for a strong start, that goodwill is unlikely to endure for the duration of this Congress absent additional action.
In other words, it is in Congressional Democrats’ interest for Biden to continually demonstrate that the federal government can help people — and in more ways than just writing checks. Using the CRA expansively to help this administration enact better regulations faster would make for a strong start.