Democrats have a new tool to undo Trump’s ‘midnight rulemaking’. But there is a catch.

In taking a Senate majority, Democrats rarely empower Trump-era policies through an underutilized tool that allows Congress to overturn federal regulations.

But the instrument, known as the Congressional Review Act, has limitations: it only applies to recently finalized rules, and when Congress uses it to reverse a rule, it Imposes new restrictions on federal agencies’ ability to pursue similar regulations, raising questions. How would Democrats use it broadly to take Trump’s policies about books

Typically, it is possible to reverse federal rules with a court ruling or lengthy rulemaking process – a rigorous undertaking that can take years. Under the Congressional Review Act of 1996, however, Congress could overturn a rule in the House and Senate through a fast-track vote of disapproval and a simple majority – a 60-vote threshold required to pass most legislation in the Senate is less.

“It’s the fastest way to get the rules off the books,” said New York University law professor and regulator expert Richard Revez. “They can use it to clean the underbrush.”

The Congressional Review Act applies only to rules that have been finalized during the last 60 working days of Congress – a period that is often months, since Congress is usually only in part of the session. It would apply to Trump-era rules that have been completed since late August, including the most recent haggling of the midnight rule since Election Day.

Potential candidates for repeal under Democrat-controlled Congress include several controversial environmental regulations, such as Trump’s restrictions on the Environmental Protection Agency’s ability to consider the benefits of regulating air pollution; Limits on agency use of scientific research in justification of public health regulations; And repeal of energy efficiency standards for showers, washing machines and other bathroom fixtures.

A senior Democratic aide to Congress confirmed that Democrats are planning to use the device to reverse some Trump rules, according to their interactions with three other Capitol Hill offices. The ally requested anonymity due to ongoing deliberations.

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The Democrats never overturned a rule through the Congressional Review Act, which was designed to force legislators to rein in the executive branch. In the early months of the Trump administration, the Republican-led Congress used the device to kill 14 Obama-era regulations, to meet new record-keeping requirements for workplace injuries and illnesses, coal-mining waste Prohibitions against dumping into streams and hunting restrictions Alaska wildlife take refuge, among other changes.

Some of Trump’s controversial midnight rules – including stricter restrictions on asylum seekers and new wage limits for foreign farmwork – have already been blocked by the courts, which could make him a less likely candidate for congressional repeal Huh.

While Democrats would have to be prudent about using limited floor time for bills – particularly in the Senate, which would have to confirm President-elect Joe Biden’s nominees – using the Congressional Review Act as per administrative legislation May reduce the burden on administration. specialist.

“The federal government is focused on scarce goods.” They cannot do everything even once, even with a dedicated bureaucracy, ”said Nicholas Bagley, a law professor at the University of Michigan, who urged Democrats to take advantage of the act.

“Just because an instrument was fashioned from the other side does not mean that you do not take advantage of it when you take power”.

However, some prominent Democratic lawmakers and progressive groups have urged that the Congressional Review Act should be repealed altogether, arguing that it has allowed large-scale disregard without adequate public scrutiny, and its use It can make it harder for federal agencies to change rules that have been removed. .

The law contains a provision that prohibits federal agencies from issuing a new rule, which is “substantially the same” as Congress has disapproved, unless Congress specifically mandates agencies to make new rules Does not give instructions.

This could be an additional boon if Democrats want to prevent future administrations from implementing the same rules as Trump-era policies that they want to overturn. “If there is a type of rule that the incoming administration would really like to make sure it is never adopted again, the CRA is a good way to do it,” Cary Coglianese, an administrative law expert at the University of Pennsylvania and law The professor said.

But some progressive advocates believe it could backfire from a change in the rules that Democrats want in the future to be considered “largely the same” as the overturned rules – a requirement Which is left undefined in law.

“According to some interpretations, it may prevent the Biden administration from moving forward in areas similar to the old rules,” said Aaron Richlin-Melnick, policy adviser at the American Immigration Council, a pro-immigration advocacy and legal aid group.

The limitations of the Congressional Review Act are never heard in court and remain largely unused, as the device is rarely used. The law was successfully implemented only once before Congressmen embraced the act in 2017, when the GOP enacted a Clinton-era rule regulating workplace ergonomics in 2001. In the beginning of Obama, Congressional Democrats did not use the act to overturn Bush. -Sare rule, despite having prominence in both chambers.

Although Democrats have not publicly made plans to use the Congressional Review Act when taking the Senate, there is some precedent: Major members of the party attempted to use the Congressional Review Act in 2017 – unsuccessfully – by the Trump administration To reverse the policies. Given the GOP’s control of Congress and the White House, the Democrats’ move to lodge objections to policies that they disagreed with was largely symbolic.

James Goodwin, senior policy analyst at the Center for Progressive Reform, a left-leaning advocacy group, is sympathetic to Democrats’ renewed zeal to use the Congressional Review Act, particularly as Trump’s midnight rule-making elder Given the scale and scope. But he worries that using it will eventually lead to a law that is fundamentally anti-propaganda.

“If officially it becomes a bipartisan device, it becomes legalized and further normalized, and I don’t know if the Democrats want to crash that threshold,” Goodwin said, repealing the act. should go. “If the toothpaste is out, it’s not going back.”

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