Trump and GOP Congress Will Have a 60-Day Deregulation Fast Pass

WASHINGTON – With President-elect Donald Trump entering the Oval Office in January with a Republican majority in Congress, his administration may wield an influential tool to establish its deregulation agenda from the get-go: an obscure law called the Congressional Review Act (CRA).

Experts anticipate that the CRA will be applied liberally as Trump works to deliver on his promises to reverse many of Democratic President Joe Biden’s administration policies.

When Trump became president in 2017 – after two terms served by Democratic President Barack Obama – he made quick use of the CRA, disapproving 16 rules.

“I think there’s a lot of interest from Republicans on the Hill to get as many of these (joint resolutions of disapproval through the CRA) across the line as they feasibly can,” Dan Goldbeck, director of regulatory policy at the American Action Forum, an independent, nonprofit organization that analyzes domestic economic issues from a center-right perspective, told Capital News Service. “I would not be surprised to see them exceed their 2017 total.”

The CRA allows an incoming administration that follows a preceding administration of an opposing party to overturn rules created by federal agencies. Congress must agree to the reversals through joint resolutions of disapproval. 

Once a resolution of disapproval has been passed by both chambers of Congress and signed by the president, the targeted regulatory rule is void and the federal agency that drafted it is blocked from introducing another rule in “substantially the same form.”

“This has been four years of a liberal Biden administration,” Sarah Hay, a policy analyst at The George Washington University Regulatory Studies Center, told CNS. “Going into next year, there’s going to be unified Republican control of both Congress and the presidency. This is the lightest lift way to overturn regulations issued by a prior administration that you disagree with.”

Passed in 1996 under President Bill Clinton, the CRA is used most often after a presidential transition in which there is a switch in party affiliation in the White House. The CRA allows a new Congress and president to look back to the previous Congress within 60 working days before the session’s end and overturn final rules issued by federal agencies.

When the 119th Congress convenes in January, those regulations issued during the 118th Congress within the lookback period are subject to review and potential action. While regulations aren’t actually passed by Congress, the body grants appropriate federal agencies the authority to issue regulations.

Doubling down, the CRA also provides an expedited procedure for the Senate to avoid the threat of the filibuster under certain criteria, requiring only a 51-vote simple majority.

“That makes it a very attractive tool,” Steven Balla, co-director of the George Washington University Regulatory Studies Center, said. “Under normal legislative procedure (the Senate) needs a filibuster-proof majority, which is going to be essentially impossible for them to come by when it comes to disapproving Biden administration regulations. It provides a way around some of those super majoritarian constraints in the Senate.”

The first Trump administration’s reversal of 16 rules marked the largest single batch of rule disapprovals in history and topped the total previous reversals combined under earlier administrations.

Experts said they expected that a second Trump term will see even more repeals, erasing a significant number of rules issued under the Biden Administration.

Goldbeck pointed to two EPA rules that may be particularly susceptible to reversal due to their potential significant costs. A rule establishing a system to phase down over 15 years the use of hydrofluorocarbons (HFC’s), which contribute to climate change, and a rule dealing with replacing the country’s lead pipes to increase safety in drinking water are both major regulations passed within the look-back period that could be overturned, according to Goldbeck.

“When you look at the rules that they disapproved of (in the last Trump term), many of them weren't very significant,” Balla said. “They weren't economically significant, they weren't really headline-generating rules. It almost seemed like it was a haphazard, scattershot approach.”

Two such nullified rules that were not deemed economically significant were the Department of Labor’s Savings Arrangements Established by States for Non-Governmental Employees and a Department of the Interior Stream Protection Rule intended to protect water supplies, streams and wildlife from the adverse impacts of surface coal mining.

Senate Republican Leader Mitch McConnell of Kentucky published an April, 2017 statement crediting the Trump administration and Congress for their use of the CRA, citing rule reversals on education, an anti-coal mining rule and a rule restricting Alaska's ability to manage wildlife on federal lands.

“Regulations aren’t issued in a vacuum; they have real economic consequences that can harm the middle class,” McConnell said during floor remarks on March 6, 2017. “They can kill jobs, raise prices, depress wages and lower opportunities … Fortunately, we now have the opportunity to provide relief from some of these costly, duplicative rules using the tools provided by the Congressional Review Act, or CRA.”

Balla said this time around, the Trump administration will approach its deregulation efforts more strategically.

The Congressional Research Center estimates that August 1, 2024, will likely be the cut-off date for subjecting all Biden administration rules submitted to the House or Senate on or after that date to the CRA lookback provisions.

According to the George Washington Regulatory Study Center’s Congressional Review Act Window Exploratory Dashboard, 70 significant rules are susceptible to being struck down. Twenty-seven of those rules are deemed economically significant, meaning they each would be likely to impose an annual impact of the economy of at least $200 million.

According to Balla, in the coming weeks, Republican think tanks, policy foundations and Republican lawmakers likely will start publicly highlighting rules they want to present as joint resolutions of disapproval on the CRA chopping block.

“I would think that the Republican leadership on both the House and Senate side will want to play a role in this,” Balla said. “In looking from the outside at what they disapproved of last time, there wasn't much of a concerted leadership strategy – I would guess that's going to be quite different this time around.”