WASHINGTON – At the beginning of the Trump era, Republicans in the White House and Congress turned an old law into a new potent weapon. An obscure 1996 statute was used to end 14 Obama-era regulations in 16 weeks, before President Trump decided to enact the most significant deregulation agenda of the modern presidential era.
In the 21 years prior to its existence, this law, the Congressional Revision Act, had been used only once, to undo a Clinton-era rule on workplace ergonomics in 2001.
Now, Democrats are eager to show that the turnaround is a fair game and are preparing their own attack on Trump-era regulations if they can take control of the White House and the entire Congress in November.
“Many people were surprised at how aggressively this tool was used and how a dying rule could be so powerful,” said Susan Dudley, who headed the White House’s regulatory affairs office under the George W. Bush administration.
Under the intricate rules of the review act, the Trump administration crossed a critical threshold sometime between May and June, and from now until the next presidential inauguration, any regulation that came to a conclusion could be quickly obliterated by a Democratic Congress and a Democratic president.
And advisers to Biden’s presidential campaign and the Capitol are already following the Trump administration’s recent and future rules with an eye to their end.
“Absolutely, we gave them a handbook on how to use the CRA to break the previous guy’s rules,” said Michael McKenna, a Republican strategist who served on the Trump administration transition team and later served as the White House liaison on Capitol Hill.
In a speech at the White House on Thursday afternoon, Trump celebrated his deregulation agenda as an important achievement and warned that Democrats would have the power to reverse their twists and turns in November.
“Before I took office, American workers were suffocated by a ruthless, expensive and intrusive flood of federal regulations,” he said, adding, “Under my administration, we removed almost 25,000 pages of job destruction regulations, more than than any other president by far in our country’s history. “
“The extreme left wants to reverse these extraordinary gains, to reimpose these disastrous regulations,” he continued. “They want to take what we took and put it back on. And I think they can do that.
Biden’s field is ready. In a speech earlier this week, Biden said, “We are going to reverse the reversals of Trump’s 100 public health and environmental rules and then pave the way for greater ambition.” His campaign spokesman, Jamal Brown, added: “Joe Biden will consider all the tools available, including actions by Congress and executives, to reverse Trump’s damaging policies.”
Under the revision law, any regulation finalized within 60 legislative days after the end of a presidential term can be revoked with a simple vote in Congress – not subject to obstruction of laws or any other Senate rule that may delay it.
Hundreds of regulatory reversals and new conservative rules have passed this deadline, but several major initiatives have not. On Wednesday, the government concluded a regulation that unilaterally weakened the National Environmental Policy Act, limiting public review of federal infrastructure projects to speed up permitting roads, power plants and pipelines and relieving infrastructure planners from considering climate change. in their assessments.
But with less than four months to go before the election, a Democratic government could end these changes quickly. Dozens more are still in process, including a rule that would weaken Obama-era controls on methane pollution from climate warming, another that would restrict the type of scientific research that can be used to draft environmental and public health regulations and work Proposal of the department that prohibited retirement investment managers from considering the environmental consequences in their financial recommendations.
Other vulnerable initiatives include a pending rule to restrict immigration, making it more difficult for migrants to obtain asylum, a rule finalized in June that would erase civil rights protections for trans patients seeking medical care and an expected rule from the Housing Department and Urbanism Development that would allow homeless shelters to deny transgender people access to same-sex shelters that match their gender identity. Instead, they would have to go to shelters that agree with their biology, a rule that transgender rights groups fear could lead to serious abuse.
On the environmental front, it is expected that in the coming weeks the rules will code that companies that kill birds “incidentally” will not be subject to prosecution and allow energy companies to use underwater sonic explosions to search for oil, regardless of the impact on the health of the ocean. mammals.
“Donald Trump, his government and Republicans in Congress have done irreversible damage to our country, especially when it comes to dealing with the climate crisis, health care, voting rights, income inequality, immigration and other areas,” said Senator Chuck Schumer , the New York Democrat who would become the majority leader if Democrats gained control.
“Senate Democrats are committed, like us, to examining all the tools in our toolbox, including the use of the Congressional Revision Act, to find ways to prevent the president’s most blatant policies from becoming a reality,” he continued. he.
Schumer, from his current position as a minority leader, has already used the Congressional Revision Act six times to force Republicans to take positions on Trump-era regulation – and in three cases he embarrassed the president by winning the 51 votes needed to overthrow administration rules.
In 2018, the Senate’s bipartisan majorities voted to reimpose Obama-era “network neutrality” rules that would prevent Internet service providers like Verizon and Comcast from imposing restrictions on the Internet. Another vote would have overturned a rule that allows political groups to hide the identities of their donors. And in March, Congress voted to overturn a Department of Education rule that severely restricts access to debt relief for students misled by schools that attracted them with false allegations.
The first two votes died in the House, then controlled by Republicans. The overturning of the student loan rule was vetoed by Trump.
Such opportunities are unlikely to escape through a government completely under democratic control. “We are aware of this statutory tool and we are closely monitoring the harmful actions taken by the current government,” said Drew Hammill, spokesman for speaker Nancy Pelosi, of California.
McKenna, a former Trump and White House transition official, said he remembers when the revision law was enacted. It took a while to be armed, he said, “but the CRA was a republican invention. I don’t think Democrats have understood their power – until now.
Judd Deere, a White House spokesman, said Trump was not willing to let approval of the review deadline slow his deregulation efforts.
“If the radical left, in coordination with the media, wants to telegraph its efforts to reinstate harmful and costly regulations that kill jobs, close factories and devastate the agricultural industry,” he said in an email. he will not allow an election to stop him from doing what is right and what he has promised the American people. “
Some experts warned that for Democrats, using the law as aggressively as Trump could have unintended consequences. because the law also states that once a rule is deleted, it cannot be replaced by a substantially similar rule.
This could create legal complications for a Biden administration if it uses the law to undo, for example, a Trump environmental rule that weakened pollution control and then replaced it with a structurally similar but stricter rule.
“If there is a successful CRA vote to eliminate a rule, what will it replace?” asked Sally Katzen, who headed the White House’s regulatory affairs office under the Clinton administration, and served on the Obama administration’s transition team. Katzen said the Obama transition team was aware that it could have used the Congressional Revision Act to break the rules of the George W. Bush era, but ended up deciding against it.
But other regulatory experts have found a delightful turnaround in Democrats who plan to use Trump’s roadmap.
“I think it would be particularly ironic if Democrats reached a position where the stars would line up to use the CRA,” said Amit Narang, an expert on federal regulatory issues at the Public Citizen government oversight group. “They could turn the tables on the Trump administration to quickly and effectively block some of the reversals that were canceled by the Trump administration at the end of this term.”