The January 5 victory of two Georgia Democrats gave progressives the Democratic Senate they’ve been yearning for. While 50 votes is technically a tie, with a Democratic vice president, it’s enough to break the Republican hold on the Senate agenda and possibly make some legislative progress.
One cause for progressive hope? An obscure 25-year-old law, the Congressional Review Act, which could potentially unravel some of the Trump administration’s most harmful rules. Up until President Donald Trump, the law had only been used once, to overturn a Clinton administration rule.
When Barack Obama succeeded George W. Bush, and the Democrats held both chambers, there was no rush to use the CRA to throw out Bush-era regulations, says James Goodwin, senior policy analyst for the Center for Progressive Reform, a think tank focused on regulatory policy and law.
Back then, Democrats held back, he says. The law “was perceived as too extreme.” But the Trump White House had no such inhibitions. The Trump White House used CRA with a vengeance, dispatching 16 Obama rules implemented late in Obama’s second term.
The law now has been “completely normalized,” Goodwin says. “The amount of discussion I’ve seen today about the Congressional Review Act has been absolutely mind-blowing.” But is turnabout fair play now that Democrats have control of Congress and the White House? Or even desirable? That’s what progressives are tussling with.
Blue Tent asked Goodwin, known in the progressive nonprofit world as the go-to person on CRA, for his views.
Goodwin says he’d like to avoid using the CRA, if at all possible. “I know a lot of other people in the progressive community feel very differently about that,” he says. “I agree that the Trump administration has been such a mess, and cleaning it up requires resorting to every tool in the toolbox.” But he adds: “When you start to weigh seriously the pros and the cons, it's hard to justify using it when you have other alternatives.”
Whether to use the CRA? Goodwin offers six issues for progressives to consider:
Remember where the CRA came from and what the fine print says: This wasn’t a law that progressives dreamed up to get rid of bad rules. It was born in Congress in 1996 under the leadership of then-House Speaker Newt Gingrich (R-Ga.) during the “anti-regulatory ferment” he stirred up, Goodwin says. The law offers Congress an easy glidepath to get rid of pesky rules finalized toward the end of a previous administration and to block them from ever being proposed again.
In the Senate, using the CRA requires only a majority vote. It can’t be filibustered, Goodwin says. If a CRA resolution is stalled in committee, there’s a process for 30 Senators to push it to the floor for an up-or-down vote. Even better for the “overturn the rule” folks: CRA resolutions approved by Congress and signed by the president are not subject to judicial review.
But there is some fine print to the process: Congress has only 60 legislative days to use the CRA under this expedited process. It only applies to rules that were made final in the waning days of the previous administration. In Trump’s case, that applies to final rules that were published in the federal register August 21 or later. So many Trump rules undermining public protections would not be eligible.
There are other options for attacking bad rules: The Trump administration has a pretty pathetic record when it comes to rebuffing court challenges to its rules. Scores of Trump agency rules that aimed to relax or gut current regulations were successfully challenged in court. The Trump administration won under 14% of these cases. In previous administrations, agencies had a 70% success rate. So progressives might find court challenges effective for many of these rules.
And keep in mind that if you use the CRA to get rid of a bad Trump rule, the regulation returns to whatever it was pre-Trump, but that does not necessarily mean that the existing rule is the strongest or most protective. So just replacing a Trump rule with a better rule might be more productive, Goodwin says.
Using the CRA takes up precious Senate floor time: Each time a rule is eliminated through CRA, it consumes 10 hours of debate on the floor, Goodwin says. That may not sound like a lot, but these CRA resolutions must be approved by the Senate during the first few months of the Biden administration. That could be time better spent confirming Biden cabinet appointments or new federal judges, or restarting the economy with more federal dollars, he suggests.
It is the rare rule that progressives want to kill entirely: Once a rule is overturned, an agency cannot propose “substantially the same” rule ever again, although legal scholars aren’t sure what that phrase means. In the past, it has prevented agencies from even trying to regulate in certain areas. For example, at the end of the Clinton administration, labor unions were able to get an ergonomics rule approved. In 2001, in the early days of the Bush administration, Congress used CRA to kill the rule. The Department of Labor has never attempted to propose another ergonomics rule, wary of the CRA ban on rules that are “substantially similar,” Goodwin says. While Goodwin suspects the fear of the CRA’s ban on “substantially similar” rules may be “overblown,” it still is another factor for progressives, who usually favor protective regulation, to consider.
What about really, really bad rules that should never see the light of day? In the waning days of the Trump administration, the Environmental Protection Agency put through a rule that limits the types of studies that the agency can use in making protective regulations. Studies that can be publicly disclosed and reproducible are prioritized. Environmental advocates fear that the so-called “secret science” rule, which took effect January 5, would exclude from EPA consideration most public health studies, which have been the cornerstone of many rules that reduce the impact of air and water pollution. Such studies must protect patient privacy. The rule might seem like the ideal CRA candidate. But here’s where things get complicated, and also offer Democrats other alternatives, Goodwin says. The CRA does not apply to an agency’s procedural rules. EPA Administrator Andrew Wheeler has claimed that the “secret science” rule is just that—procedural. That’s clearly not the case, Goodwin says, but a Biden EPA could accept that interpretation and choose not to enforce it, find loopholes in the rule to ignore it, or write another procedural rule that gets rid of it. “Because the rule would be procedural, it would be exempt from time-consuming notice-and-comment procedures,” he adds.
Goodwin concedes that there may be Trump rules that harm LGBTQ rights, women’s rights or undocumented immigrants, with direct impacts so dire and so immediate that they may justify using the CRA. But he adds that in the areas of regulatory law he’s most familiar with—environmental, public health, consumer and worker safety—“I'm not aware of anything that would rise to the necessity of using the CRA.”
If Democrats use the CRA, they’ve made it much more difficult to repeal the law: Progressives have to weigh the benefits of nuking a few bad Trump rules against holding the moral high ground in any fight to eliminate the law, Goodwin says. Up until now, only Republicans have used the CRA to gut protective regulations that progressives support. The law has been a purely partisan one for a quarter-century. He contends that it’s far easier for a Democratic Congress to repeal a law that mostly works against progressive policies if it’s never been used to advantage a progressive agenda. If progressives use the CRA against Trump rules, he says, “they've transformed it into a bipartisan law. And then that makes it much more difficult for them going forward to repeal it. You can’t credibly claim it’s a partisan statute anymore.”
Nevertheless, Goodwin acknowledges that the CRA might be unavoidable this year. Progressives “may find that [some of] these rules are just so god-awful, and there’s no better alternative to dealing with them. … If we can pull together … that group of rules, and we can say, ‘Yes, we’ve considered the cost of using the CRA, and we still feel it’s a good idea,’ then I say, ‘Go for it.’”
