facebook linkedin twitter

Democrats Expected to Invoke Congressional Review Act to Undo Trump-Era Regulations

February 3, 2021 by Reece Nations
Dawn breaks at the Capitol in Washington, Monday, Jan. 11, 2021. (AP Photo/J. Scott Applewhite)

WASHINGTON — Although sparingly used since its ratification in 1996, the Congressional Review Act is expected to be utilized by congressional Democrats to reverse a number of Trump administration rules. 

The CRA was enacted to fast-track congressional oversight of the executive branch and empower Congress to review and overrule new federal regulations via passage of a joint resolution, according to the bill’s text. Because CRA regulations do not enact new laws, they require only a simple majority to pass the House and Senate. 

In February 2017 alone, former President Donald Trump signed CRA resolutions overturning a Securities and Exchange Commission rule that required oil and gas companies to disclose payments to the United States or foreign governments for commercial development, a Department of the Interior rule that prohibited coal companies from mining waste into waterways and streams, and a Social Security Administration rule that related to the implementation of the NICS Improvement Amendments Act of 2007. 

Prior to these invocations, the CRA had only been used once before in its entire history to overturn a 2001 Department of Labor rule that related to ergonomics. In all, the Trump administration overturned a total of 16 Obama administration-era regulations between February 2017 and May 2018. 

Despite Trump’s unprecedented string of rollbacks, the CRA can only be used against rules published in the Federal Register and submitted to Congress for review after a 60-day cut-off threshold. Any rule approved by Trump from Aug. 21, 2020, onward is eligible for congressional review. 

Trump-era rules finalized after this date expected to be taken up for congressional review include a Department of Transportation rule that raised the reporting threshold for gas pipeline property damage reports, a Department of Justice rule that reworked evidentiary standards and shortened the deadlines for asylum seekers’ applications, and a Department of Housing and Urban Development regulation that raised the standards required to prove a “disparate impact claim” under the Fair Housing Act. 

Further, Biden and congressional Democrats could set their sights on an Environmental Protection Agency rule requiring the agency to rely more on “publicly available data,” an EPA Clean Air Act rule that forced the agency to ignore indirect benefits of a given rule when conducting a cost-benefit analysis, and an SEC regulation that revised procedural requirements for shareholders submitting proposals at annual meetings. 

In addition, several of Trump’s executive actions could fall under the umbrella of congressional review. Trump-era executive orders on faith-based organizations participating in federal agencies’ financial assistance programs, HHS guidance documentation requirements, and the removal of safe harbor protections for rebates involving prescription pharmaceuticals are all eligible for congressional review. 

In May 2017, Sens. Cory Booker, D-N.J., and Tom Udall, D-N.M., submitted a bill that would have repealed the CRA if enacted. The act was referred to the Committee on Homeland Security and Governmental Affairs but received no further action. 

Democrats must navigate their way through uncharted waters to make these moves happen as no Democratic lawmakers have ever invoked the CRA before. If a certain regulation is eliminated using the CRA, regulations that are “substantially the same form” cannot be proposed without special congressional authorization, according to the bill’s text. 

Further complicating the matter is the CRA’s broad prohibition against judicial review of a rule’s nullification. Despite this provision, courts have entertained CRA challenges when others were rejected by the U.S. Court of Appeals for the D.C. Circuit and other appeals courts. 

At this time, it remains unclear which regulations are on the radar of the Biden administration and congressional Democrats. However, utilizing the CRA in a manner consistent with Trump’s precedent is just one of the tools Democrats have to undo the regulations set forth under his administration. 

Congress

September 24, 2021
by Dan McCue
House Votes to Guarantee Woman’s Right to an Abortion

WASHINGTON -- With wrangling over a $3.5 trillion spending plan seeming to tie the House in knots in recent days,... Read More

WASHINGTON -- With wrangling over a $3.5 trillion spending plan seeming to tie the House in knots in recent days, Democrats pivoted Friday to take on a Texas law that threatens to unravel protections afforded women by the Supreme Court's 1973 Roe v. Wade decision. Early... Read More

September 24, 2021
by Dan McCue
House Approves Defense Authorization Act With Strong Bipartisan Support

WASHINGTON -- Members of the House might not agree on much these days, but one thing they do seem to... Read More

WASHINGTON -- Members of the House might not agree on much these days, but one thing they do seem to be in agreement on is that passing the annual defense spending authorization falls into the same rarified category as mom and apple pie. On Thursday, the... Read More

Biden: Budget Talks Hit 'Stalemate,' $3.5T May Take a While

WASHINGTON (AP) — President Joe Biden said Friday that talks over his $3.5 trillion rebuilding plan have hit a "stalemate"... Read More

WASHINGTON (AP) — President Joe Biden said Friday that talks over his $3.5 trillion rebuilding plan have hit a "stalemate" in Congress as he made the case for his expansive effort to recast the nation's tax and spending programs and make what he sees as sweeping,... Read More

Democrats See Tax 'Framework' to Pay for Huge $3.5T Package

WASHINGTON (AP) — The White House and congressional Democrats have agreed to a framework of options to pay for their... Read More

WASHINGTON (AP) — The White House and congressional Democrats have agreed to a framework of options to pay for their huge, emerging social and environment bill, top Democrats said Thursday. Now they face the daunting task of narrowing the menu to tax possibilities they can pass... Read More

September 23, 2021
by Dan McCue
Cannabis Banking Act Added to House Defense Bill

WASHINGTON -- The bipartisan SAFE Banking Act, a measure intended to allow banks to provide financial services to legitimately licensed... Read More

WASHINGTON -- The bipartisan SAFE Banking Act, a measure intended to allow banks to provide financial services to legitimately licensed cannabis businesses in states that have deemed the substance legal for use, has been added as an amendment to the National Defense Authorization Act. The NDAA,... Read More

September 22, 2021
by Tom Ramstack
Protecting Children During Pandemic Guides Policy at Congressional Hearing

WASHINGTON -- A congressional panel on Wednesday examined whether the federal government’s strategy is appropriate for protecting children during the... Read More

WASHINGTON -- A congressional panel on Wednesday examined whether the federal government’s strategy is appropriate for protecting children during the COVID-19 pandemic. Lawmakers asked about the potential for vaccinating children, having them return safely to school and whether they should wear masks. The update they sought... Read More

News From The Well
scroll top