On April 4, Senate Democrats face a non-negotiable deadline: It’s the last day they can start a fast-track process to repeal harmful rules made final in the waning days of the Trump administration.
Public Citizen has been sounding the alarm on this looming date, and journalists have followed suit with a number of stories.
Writing in The American Prospect, David Dayen called the Democratic majority “surprisingly nonchalant” about the deadline. “If they want to make progress and swiftly erase some of the worst abuses of the Trump era, they’ll get to work.”
“Democrats are blowing their opportunity to rapidly repeal some of Trump’s worst policies,” Slate warned.
Public Citizen is leading the push to get Democratic senators to take advantage of the obscure Congressional Review Act (CRA) to knock these regulations into oblivion. But not all progressives are on board with the idea.
The split isn’t about the value of the rules themselves. Rather it’s about tactics and how this approach will affect both Biden’s ability to get an ambitious legislative agenda through Congress, and Senate Democrats’ willingness to go for the biggest target: the filibuster.
Senate Democrats hold back
Public Citizen has been pretty hard on the Democrats. “There is a lack of leadership,” Public Citizen analyst Matt Kent told E&E News. “Whether that is Congress or the Biden administration—we are running out of time, and someone has to take point.”
But to date, Democrats have remained cautious. Sen. Tim Kaine (D-Va.) called the CRA “a blunt instrument” that could pose some risks to Biden regulatory efforts in the future.
“We’ve got to get these confirmations done,” said Sen. Debbie Stabenow (D-Mich.)
James Goodwin, senior policy analyst for the Center for Progressive Reform, has defended Democrats on Twitter. “That Dems are not bulldozing ahead recklessly should be seen as a strength and not a weakness,” he wrote.
Nobody likes the CRA
To be clear, no one in the progressive community likes the CRA. Passed in 1996 as part of Rep. Newt Gingrich’s (R-Ga.) “Contract with America,” it offered Congress a fast way to repeal rules implemented during the final months of the Clinton administration.
The law permits Congress to overturn any rules finalized in the final days of a previous administration through a simple majority vote and the president’s signature. It can’t be filibustered. And CRA resolutions approved by Congress and signed by the president are not subject to judicial review. Until Trump, the CRA was used only once—to kill a Clinton-era ergonomics rule.
But the Trump White House, in alliance with the Republican congress, went crazy, killing more than a dozen Obama-era rules using the CRA.
Now that Biden is in the driver’s seat, with Democrats in charge of Congress, the CRA is once again an option. But that offer is time-limited. Senators must file resolutions of disapproval for each rule they target by early April and must vote to overturn each rule by mid-May.
That time period, of course, coincides with Biden’s honeymoon period with the public. And each time senators overturn a rule through this process, they can burn up to 10 hours of floor time.
Freezing rules
Complicating matters is that the Trump administration has made it far easier for the Biden White House to get rid of many damaging rules by freezing them, giving the new administration a chance to review and potentially nix any that diverge from its agenda. That’s because a raft of rules drafted late in 2020 were not formally submitted to both chambers of Congress before January 20, or had other procedural problems.
The Biden White House ordered agencies to freeze pending rules, and Public Citizen’s own study found many more it could go after. Amit Narang, who co-authored that study, noted: “Trump’s sloppiness and incompetence has created an opening to undo some of the damage caused by his destructive anti-regulatory agenda.”
Other harmful Trump rules have already been thrown out by the courts, including a major source of progressive angst—the so-called “secret science” rule. The regulation would have made it difficult for the Environmental Protection Agency to take public health studies into account when it regulated pollution.
That’s one of the reasons that Goodwin does not feel urgency over using CRA. Nevertheless, Narang, regulatory policy advocate for Public Citizen, believes there’s still good reason for Democrats to take advantage of the law.
A few good targets
The Biden White House can’t “freeze” independent agency rules, “to quickly dispose of them,” he tells Blue Tent, adding that agencies with Republican and Democratic commissioners may not yet have a Democratic majority. So it would take far longer for these agencies to address any harmful rules.
He offers some examples: an SEC rule weakening the rights of shareholders, and a rule from the Office of the Comptroller of the Currency that allows banks to skirt interest rate caps set by state laws. In early January, seven state attorneys general sued the OCC over the rule, charging that it opens the door to predatory lending and will harm the poor.
Likewise, a rule finalized by the Equal Employment Opportunity Commission in the waning days of the Trump administration would make it far more difficult for the EEOC to sue companies that discriminate against their workers.
And then there are “ideologically motivated rules” that the Biden administration would “never seek to replace,” Narang says. Narang says a “sunset rule” issued by the Trump Department of Health and Human Services is a good example. The rule would automatically kill more than 17,000 rules issued by HHS or its sub-agencies—including the Centers for Medicare and Medicaid Services and the Food and Drug Administration—by 2026. The only way agencies could save these rules would be to review them one by one.
A coalition of environmental and public health groups called the rule “a ticking time bomb.” They are suing to block it. But since it was implemented a day before Biden’s inauguration, a CRA repeal would not only stop it for now, but in theory, no agency could ever bring it up again.
“Salt the earth”
That is because one provision of the CRA states that once a rule is overturned using this process, a substantially similar rule cannot ever take its place.
Legal scholars are doubtful that this provision, which is called the “salt the earth” mandate, actually could block a future rule. "It’s worth digging a bit deeper rather than just accepting the conventional wisdom that the CRA 'salts the earth,'” Narang tweeted recently.
Indeed, a recent report by the Congressional Research Service notes that after CRA resolutions eliminated two Obama-era rules, Trump agencies issued new rules, arguing that they were not “substantially the same” as the old ones, and got away with it.
Goodwin also doubts that the provision has much legal heft. But he is worried that CRA could have a “chilling effect” on normally risk-averse federal agencies when they actually want to do protective rules.
Worth the fight, or a distraction?
To date, Goodwin adds, the CRA has been used only by Republicans. He is concerned that, should Democrats start using it, it will become a bipartisan tool that neither side wants to give up.
But Narang sees the dilemma in a wholly different light—more like two countries having nuclear weapons who face mutually assured destruction. In his opinion, Democrats must use the CRA so that Republicans can understand the tool can mean bad news for either party out of power.
If they don’t use the CRA this year, Narang contends, Democrats must repeal the entire law, or at least the “salt the earth” provision so that it doesn’t become a potentially even stronger cudgel should Republicans regain control of Congress and the White House. Even if Democrats do use the CRA this year, he says, the law ultimately ought to be repealed.
But Goodwin’s bigger worry is that all this emphasis on the CRA is a distraction from the more consequential fight—ending the filibuster.
Narang also would like to see the filibuster go the way of the Edsel. But he doesn’t see the two efforts as mutually exclusive.
But Goodwin isn’t so sure. “The progressive community has this rare historical moment to reform the filibuster, and all their energy, all their attention, should be focused on this goal with a laser-like intensity,” he says. “My fear is that this small fight over the Congressional Review Act is an unnecessary distraction from that.”
