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Biden has a shortcut in Congress to cancel Trump’s regulatory reversals, but comes with risks
Many of the resolutions and executive orders that Trump signed at the beginning of his administration reversed Obama-era decisions involving the fossil fuel industry. The Trump administration has devoted itself to deregulation with unprecedented fervor. It has reversed a number of regulations in government agencies, including more than 80 environmental rules. The Biden government can reverse some of these actions quickly – for example, as president, Joe Biden can undo Donald Trump’s executive orders with a tap of the pen. He plans to restore the United States’ involvement in the Paris climate deal in this way on his first day in office. Undoing most regulatory reversals, however, will require a review process that can take years, usually followed by more delays during litigation. There is an alternative, but it carries risks. Biden could take a leaf out of the 2017 Republican handbook, when Republicans in Congress used a shortcut based on an obscure federal law called the Congressional Review Act to eliminate various regulations from the Obama administration. Some scholars have called these 2017 revocations “the main achievement of the Trump administration’s domestic policy in its first 100 days”. Not surprisingly, there is much interest in the new Democratic-controlled Congress turning the tables and using the same procedure against Trump’s regulatory reversals. However, this procedure is far from a panacea to undo Trump’s legacy. Its mysterious rules can tie the hands of future administrations without providing clear standards for how it applies, and it offers little time for deliberation. How Congress Could Cancel Trump’s Reversals The Congressional Revision Act of 1996 provides a way to undo new rules issued by executive branch agencies without getting bogged down in agency and court proceedings. Democrats could use it to cancel reversals from the Environmental Protection Agency, the Department of the Interior and others. The Congressional Revision Law applies equally if a rule expands or reverses regulation. Within 60 legislative days after the publication of a new rule, Congress can disapprove of it using simplified procedures. Senate obstructors are not allowed and the Senate debate is limited to 10 hours. Since only the session days of Congress are counted, the law can be applied to regulations that go back several months. Once a rule is disapproved, it dies forever. It cannot be reissued. But that is not all. The law says that no rule can be issued “in substantially the same way” without additional authorization from Congress. How similar should a future rule be before it becomes “substantially the same”? There is no definitive answer, so there is a risk that a hostile judge may invalidate a Biden rule that addresses the same issue as a repealed Trump rule. Assuming that Biden’s rule goes in the opposite direction from Trump’s rule, this may not be a big risk. But we cannot be sure. Time and numbers Democrats may find some attractive targets for the Congressional Revision Act. In the past few weeks alone, the Trump administration has adopted rules that limit the consideration of public health studies to set air pollution limits, requiring banks to lend to the firearms and oil industries, and protecting industries other than utilities of electricity against climate change regulations. These are just some of Trump’s last-minute efforts to sabotage regulations favored by Democrats. The number of votes in Congress needed to succeed, especially in the Senate, is likely to narrow the list, however. Democrats have only 50 senators and will need 50 votes, plus Vice President Kamala Harris’ decisive vote to use the law. Unless they can find a moderate Republican like Susan Collins of Maine to cross the hall, they will need each of their own senators. This includes Joe Manchin of West Virginia, generally his most conservative senator, especially on fossil fuel issues. Repeals of the Congressional Review Law also take time. Each takes up to 10 hours in the Senate floor. Plenary time in the Senate is limited and desperately needed to confirm Biden’s nominees and consider Trump’s impeachment. Not to mention a coronavirus relief bill and other priorities. This is a strong reason to be selective. Is it time to revoke the act? Progressives see the Congressional Revision Act as a remnant of Newt Gingrich’s “Contract with America”, designed as a conservative tool for deregulation. They also point out that the Congressional Revision Act’s time limits on repealing a regulation and shortcuts in procedures mean that there is very little opportunity for Congressional deliberation. As a law professor specializing in energy and the environment, I studied the use of the Congressional Review Law by Republicans in 2017. My research shows that target selection was, at best, random, having little to do with the charges created individual regulations. Democrats may find that the choice of targets in the Congressional Review Law will be less motivated by major political concerns and more by the vagaries of undecided voters like Senator Manchin. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Given the reservations of some parts of the party about the Congressional Revision Act and the more Democrats now have on their agenda, it seems unlikely that Democrats will use the law to the same extent that Republicans used it in 2017. Perhaps if the Revision Law Congress has now turned against Republican policies after turning against Democratic policies, we can begin to have a healthy debate about whether it is worth maintaining this Congressional oversight mechanism. This article was republished from The Conversation, a nonprofit news site dedicated to sharing ideas from expert scholars. It was written by: Daniel Farber, University of California, Berkeley. Read more: Biden plans to fight climate change in a way that no U.S. president has before the EPA team says the Trump administration is changing its mission to protect human health and the environment to protect the industry for which Daniel Farber does not work, consult, own shares or receive funding from any company or organization that would benefit from this article and did not disclose relevant affiliations beyond his academic appointment.