After winning both of Georgia’s runoff Senate races and taking back the Senate after six long years, Democrats have a window of opportunity to undo some of President Donald Trump’s anti-regulation legacy.
The Trump administration has weakened workforce safety standards, gutted pollution rules, promoted junk health insurance, and rolled back rules on everything from drilling in the Arctic to protections for transgender persons in homeless shelters. On the campaign trail, President-elect Joe Biden promised to reverse at least 100 Trump-era rules.
The Congressional Review Act is a 1996 law that gives Congress the power to nullify any major regulations an executive branch agency finalized within the previous 60 days, not counting periods when Congress was out of session for three days or longer. Republicans used the act, known as the CRA, to hack away at Obama-era rules; before that it had only been used once, in 2001.
“I have no doubt that we will aggressively move forward to undo as many of the damaging environmental rules and executive orders as we’re capable of undoing,” Sen. Brian Schatz (D-Hawaii) told HuffPost on Wednesday.
Crucially, the CRA requires only a simple majority of senators to get a disapproval resolution through the Senate. That’s good for Democrats, who will only control 50 seats in the Senate and have to rely on Vice President-elect Kamala Harris for tie-breaking votes.
Republicans made extensive use of the CRA in the early days of the Trump administration, after learning of a convenient loophole that let them review regulations and guidance that had been on the books for decades — as long as they hadn’t technically been submitted to Congress yet. They nixed 16 regulations, including one that had been finalized in 2013.
According to the Regulatory Studies Center at George Washington University, the new Congress could use the law to kill any Trump regulations that were published in the federal register on or after Aug. 22, 2020.
The CRA also makes it harder to revive those rules, prohibiting agencies from reissuing regulations that are “substantially the same” as ones stricken by the law.
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A Toxic Legacy
Climate and environmental rules have been perhaps the biggest target of Trump’s deregulatory agenda. Since taking office, the industry-friendly administration has scrapped, weakened or proposed rolling back nearly 100 environmental rules and regulations, according to a New York Times analysis.
That effort has ramped up in the weeks since the November election, with the outgoing administration scrambling to finalize dozens of additional environmental rollbacks.
Last month, as the coronavirus pandemic overwhelmed hospitals across the country, the Environmental Protection Agency opted to maintain rather than strengthen air quality standards for particulate matter and ozone, two toxic air pollutants emitted from power plants and vehicles. It also finalized a rule requiring the agency to give greater consideration to economic factors when crafting new public health safeguards under the Clean Air Act.
More recently, Trump’s Interior Department finalized a rule that permanently slashed protections for hundreds of species of migratory birds by legalizing all unintentional killings, including those caused by oil and gas infrastructure, power lines and wind turbines. And the EPA completed a so-called science “transparency” rule that will block certain peer-reviewed scientific studies from the rule-making process.
All of these could soon be targets of congressional Democrats. (EPA Administrator Andrew Wheeler has claimed, dubiously, that his agency’s “transparency” rule is not subject to the CRA.)
Rebuilding Worker Protections
The morning after the Georgia runoffs, Trump’s Labor Department announced a new federal rule regarding the use of “independent contractors” by companies like Uber and Doordash. The new industry-friendly regulation would make it difficult for workers to prove through lawsuits that they are actually employees entitled to basic labor protections. It’s slated to go into effect in March. Democrats could undo it through the CRA if they choose to, though not without provoking a fight from the gig companies and other businesses that use contractors.
Democrats may be more readily willing to spike a new rule from the Trump administration that allows religious institutions that take federal contracts to make hiring decisions based on faith. The Labor Department finalized that regulation in December. While the administration claimed the rule encourages “the full and equal participation of religious organizations as federal contractors,” groups like the American Civil Liberties Union said it amounts to a license for employers to discriminate.
Meanwhile, advocates for agricultural workers may press Democrats to halt a new Trump rule that will drive down the minimum wage on farms. The outgoing administration has moved to phase out a survey that helps determine the base pay for agricultural guest workers; the new methodology will produce lower pay rates for poor migrant workers and slash farmers labor costs. The Labor Department finalized that rule in early November.
Saving The Social Safety Net
The Trump administration couldn’t get any safety net cuts through Congress, so it used regulations to push changes to food, health and disability benefits. In November, the administration finalized a rule that could make it harder for Social Security Disability Insurance applicants to win appeals after they’ve been initially denied benefits.
The Office of Management and Budget is also reviewing a final regulation that would trim enrollment in the Supplemental Nutrition Assistance Program. Another pending final rule from the Social Security Administration would increase reviews of whether people who have already been awarded disability benefits are still disabled.
Bethany Lily, director of income policy for The Arc, a nonprofit that advocates for people with disabilities, said she has been checking OMB’s regulatory dashboard daily to see if the disability rule moves forward.
“The proposal is still at OMB and if they do finalize it in the next 15 days, we will be asking Congress to use the Congressional Review Act to rescind the rule,” Lily said in an email.
The CRA Is Trump’s Own Undoing
Democrats’ newly won Senate majority will completely reshape the first years of Biden’s administration and the CRA will likely play a significant role in its initial days.
“What is good for the goose is good for the gander,” Nicholas Bagley, a University of Michigan Law Professor and regulatory law expert, said, noting the CRA will allow Biden’s team to act quickly without going through the often-cumbersome regulatory procedure. “It’s just a matter of clearing the political hurdles of getting consensus among the Democrats in Congress over their willingness to get rid of the rules in the book.”
Trump’s administration was creative with its implementation of the CRA, using it to undo agency rules that dated back to 2013. Now some legal scholars are evaluating how Biden’s administration can stretch the law to undo some of the Trump administration’s more extreme policies, even if they don’t fall into the traditional definitions of a regulation.
Matthew Lawrence, a law professor at Emory University, argued in the Yale Journal on Regulation this week that Biden’s administration could even use the law to undo waivers granted to states to enact Medicaid work requirements — a policy change that would otherwise need the support of 60 senators.
Biden’s transition team did not respond by press time on its strategy for the Congressional Review Act. But with control of the Senate, it certainly makes the president-elect’s campaign trail promises to undo Trump’s regulatory legacy a little more likely.
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