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Democrats have a new tool to undo Trump's 'midnight rule-making.' But there's a catch.

Democrats have never reversed a rule through the Congressional Review Act, which was created to allow legislators to rein in the executive branch.
Image: Chuck Schumer
Sen. Chuck Schumer speaks to reporters on Capitol Hill on Dec. 30, 2020.Susan Walsh / AP file

In taking the Senate majority, Democrats are newly empowered to undo Trump-era policies through a seldom-used tool that allows Congress to reverse federal rules.

But the tool, known as the Congressional Review Act, has limits: It applies only to recently finalized rules, and when Congress uses it to reverse a rule, it places new restrictions on federal agencies’ ability to issue similar rules going forward, raising questions about how broadly Democrats will use it to take Trump policies off the books.

Usually, it’s only possible to reverse federal rules with a court decision or the lengthy rule-making process — a formidable undertaking that can take years. Under the 1996 Congressional Review Act, however, Congress can quickly overturn a rule through a fast-track vote of disapproval and a simple majority in the House and the Senate — lower than the 60-vote threshold needed to pass most legislation in the Senate.

“It’s the quickest way for rules to get off the books,” said Richard Revesz, a law professor at New York University and a regulatory expert. “They can use it to clear the underbrush.”

The Congressional Review Act applies only to rules that have been finalized during Congress’ previous 60 working days — a period that often stretches to months, because Congress is usually only in session part of the time. That would apply to Trump-era rules that have been completed since late August, including the most recent flurry of midnight rule-making since Election Day.

Potential candidates for repeal under the Democrat-controlled Congress include many contentious environmental rules, such as Trump’s restrictions on the Environmental Protection Agency’s ability to consider the benefits of regulating air pollutants; limits on the agency’s use of scientific research in justifying public health rules; and the repeal of energy efficiency standards for showers, washing machines and other bathroom fixtures.

A senior Democratic aide in Congress confirmed that Democrats are planning to use the tool to overturn some Trump regulations, according to his conversations with three other Capitol Hill offices. The aide requested anonymity because of the ongoing deliberations.

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Democrats have never reversed a rule through the Congressional Review Act, which was created to allow legislators to rein in the executive branch. In the early months of the Trump administration, the Republican-led Congress used the tool to kill 14 Obama-era rules, undoing new record-keeping requirements for workplace injuries and illnesses, prohibitions against dumping coal-mining waste into streams and hunting bans in Alaskan wildlife refuges, among other changes.

Some of Trump’s contentious midnight rules — including draconian restrictions on asylum-seekers and new limits on wages for foreign farmworkers — have already been blocked by the courts, which could make them less likely candidates for congressional repeal.

While Democrats will have to be judicious about using limited floor time for bills — especially in the Senate, which will have to confirm President-elect Joe Biden’s nominees — using the Congressional Review Act could ease the burden on the incoming administration, according to administrative law experts.

“The scarcest commodity in the federal government is attention. They can’t do everything at once, even with a dedicated bureaucracy,” said Nicholas Bagley, a law professor at the University of Michigan, who urged Democrats to avail themselves of the act.

“Just because a tool happened to be fashioned by the other side doesn’t mean you don’t take advantage of it when you take power,” he said.

Some leading Democratic lawmakers and progressive groups, however, have urged that the Congressional Review Act be repealed altogether, arguing that it has allowed rampant deregulation without adequate public scrutiny, and its use could make it harder for federal agencies to replace rules that have been scrapped.

The law contains a provision that prohibits federal agencies from issuing a new rule that is “substantially the same” as the one that Congress has disapproved, unless Congress passes legislation specifically instructing the agencies to create the new rule.

That could be an additional boon if Democrats want to prevent future administrations from enacting rules similar to the Trump-era policies they want to overturn. “If there’s a type of rule that the incoming administration would really like to ensure never gets adopted again, the CRA is a good way to do that,” said Cary Coglianese, an administrative law expert and law professor at the University of Pennsylvania.

But some progressive advocates are concerned that this could backfire by precluding rule changes that Democrats may want in the future that are deemed to be “substantially the same” as the overturned rules — a requirement that is left undefined in the law.

“According to some interpretations, it could prevent the Biden administration from moving forward in the same areas as the old rules,” said Aaron Reichlin-Melnick, policy counsel for the American Immigration Council, a pro-immigration advocacy and legal aid group.

The limits of the Congressional Review Act have never been heard in court and remain largely untested, in part because the tool has been so rarely used. Before congressional Republicans embraced the act in 2017, the law had been successfully applied only once, when the GOP undid a Clinton-era rule regulating workplace ergonomics in 2001. Congressional Democrats at the beginning of the Obama administration did not use the act to overturn Bush-era rules, despite holding majorities in both chambers.

While Democrats have not publicly laid out their plans for using the Congressional Review Act when they take the Senate, there is some precedent: Leading members of the party attempted to use the Congressional Review Act in 2017 — unsuccessfully — to reverse Trump administration policies. The move was largely symbolic to register Democrats’ objections to policies they disagreed with, given the GOP’s control of Congress and the White House.

James Goodwin, senior policy analyst at the Center for Progressive Reform, a left-leaning advocacy group, sympathizes with Democrats’ new enthusiasm for using the Congressional Review Act, especially given the large scale and scope of Trump’s midnight rule-making. But he worries that using it will ultimately entrench a law that is fundamentally biased toward deregulation.

“If it officially becomes a bipartisan tool, then it’s legitimized and becomes further normalized, and I don’t know if Democrats want to crash that threshold,” said Goodwin, who believes the act should be repealed. “If the toothpaste is out, it’s not going back in.”