|
Thanks to a once rarely-used law, Republicans are now ready to wipe away many of Biden’s final regulatory victories. Here are the protections likely first on the chopping block — and that may never be able to be reissued. Also:
🎯 We have a target on our backs. Corporate giants, corrupt politicians, corporate media — they’re all trying to stop us. To ensure they don’t succeed, we need your support. If you are able, become a paid supporter today.
The Biden Reforms That Will Be First To Go
By Lucy Dean Stockton
[View in browser] As Trump announces his cabinet picks and develops his policy priorities, many of the Biden administration’s final policy measures could soon be rolled back and permanently prohibited, thanks to Democratic gambles and an obscure federal law increasingly weaponized by Republican lawmakers. Leaning on a piece of 1996 legislation called the Congressional Review Act (CRA), the incoming Trump administration and a Republican Congress will be empowered to easily repeal at least 800 of President Joe Biden’s final regulatory initiatives, including victories such as lead poisoning protections, methane emission reductions, strengthened child care programs, and automatic flight refunds. Republicans are likely to control the Senate and the House as final races are called around the country, giving them a governing trifecta they could use to wipe away these rules and dramatically shift the regulatory landscape — though it remains unclear if Trump’s latest appointments could jeopardize this majority. Passed by a Republican-controlled Congress but signed into law by Democratic President Bill Clinton, CRA empowers Congress to exert more power over the executive branch. In this case, the law allows lawmakers to use an expedited procedure to repeal recently enacted agency rules — even if the rules took years to develop and were initially ordered by acts of Congress. Usually, legislation reversing government rules requires at least 60 Senate votes to overcome a potential filibuster, but under the CRA, recent rules can be revoked through a simple majority vote of 51 senators. Republicans are set to have at least a 52-member Senate majority. Dan Goldbeck, director of regulatory policy at the American Action Forum, a right-leaning think tank, explained that the CRA “allows Congress to have an up-or-down vote on regulations.” And it’s most effective, he said, during “these cross-administration periods,” when an incoming administration can use a governing sweep to overturn the last administration’s final rules. This means the Biden administration’s final rules are particularly vulnerable. The CRA had only been used to revoke one rule prior to 2017, but during the first two years of Donald Trump’s presidency, when Republicans controlled Congress, lawmakers invoked the CRA at unprecedented rates, overturning 16 rules. The opening months of 2017 were “historic,” said Steven Balla, an associate professor of political science and director of George Washington University’s Regulatory Studies Center. “The bulk of all of the rules that have ever been disapproved were disapproved under the CRA.” Balla suggested that the new Trump administration and GOP congressional majorities would be keen to revisit their success. After Biden became president in 2021, Democratic lawmakers proposed using the CRA to repeal six measures from the Trump administration, three of which Biden approved, rescinding Trump-era regulations on methane pollution, predatory lenders, and workplace discrimination. “People on the left are very divided over whether Biden should have used it at all,” said James Goodwin, policy director at the Center for Progressive Reform, a left-leaning nonprofit research and advocacy organization. “No Democrat had ever used the CRA before Biden,” said Goodwin, who noted that critics were concerned that “if Biden were to use it, that would give it bipartisan legitimacy.” While Biden was in office, Republican lawmakers continued to invoke the CRA to try to repeal agency rules — without lasting consequence, as those “resolutions of disapproval” didn’t make it out of Congress or past Biden’s veto. Goldbeck estimates that Republican lawmakers targeted 111 rules with what he calls “messaging exercises” largely intended to express Republican opposition to the regulations without changing them. Vice President-elect and Sen. JD Vance (R-Ohio) was especially active in signaling his disapproval of Biden’s regulatory agenda. In his two years in the Senate, The Lever found that Vance cosponsored 24 resolutions taking aim at consumer protection regulations, environmental preservation, and other issues. The CRA’s “lookback period” only allows the law to be used to rescind rules established in the last 60 working “pro forma” days of a lawmaking session and the subsequent remaining days of a president’s term. Goldbeck said that the exact date is “kind of a moving target,” but most experts agree that once Trump assumes office on Jan. 20, 2025, the CRA could be used to revoke any rules passed after Aug. 1, 2024.
|
Listen To MASTER PLAN
|
Master Plan, an investigative podcast series years in the making from The Lever, reveals how political ideologues and corporate forces have spent years orchestrating a system of legalized corruption in America. We are exposing their scheme. |
|
|
Balla said that Democrats were likely preparing for this August deadline when Biden issued a record-breaking slate of significant final rules in April. Balla said that the Biden administration “had a massive, massive output of regulations in April” in a “strategic” attempt to safeguard these rules from being easily repealed by an incoming administration. “The idea,” he said, “was to CRA-proof those rules,” but because of a laborious rulemaking process, some didn’t make it out the door in time. Perhaps the most serious consequence of the aggressive utilization of the CRA is the impact these moves may have on rulemaking in the years to come. One aspect of the law prevents an executive agency from ever issuing a rule that is “substantially the same,” which could preclude any future rulemaking on the issues that are repealed. “Everybody knows this [consequence] is out there,” said Goodwin. “They’re taking a huge risk.” The delayed impacts of the CRA is one of the “unexplored dynamics of the CRA,” says Goldbeck, thanks to the relatively limited number of rules it’s been used to rescind and the lack of litigation challenging those repeals. On The Chopping BlockRegulatory records show that currently, at least 830 recently established federal rules could fall into the CRA’s review period next year — and all of them could be under threat from the incoming administration. Just 109 of those rules were impactful enough to undergo review from the Office of Information and Regulatory Affairs, which only analyzes economically significant, controversial, or logistically complex rules, likely making these regulations top targets for Republican lawmakers in the coming year. The rules finalized after Aug. 1 are far-reaching in scope and originated in a number of different federal agencies, spanning everything from environmental safeguards to consumer protections. Biden’s landmark lead-pipe rule, for example, which concluded for the first time in American history that “there is no safe level of lead exposure,” was finalized by the Environmental Protection Agency (EPA) on Oct. 8. The rule mandates all drinking water systems to identify and replace lead pipes within 10 years, expediting a process that many public utilities and private water systems had been dragging their feet on for decades. The regulation also aims to distribute $2.6 billion in grants for lead remediation efforts. That funding could soon dry up, as many Republican officials have already voiced opposition to the rule. In February, during the EPA’s rulemaking process, a group of 15 Republican state attorneys general publicly decried the accelerated timeline to replace lead systems, arguing that it was “unworkable, underfunded, and unnecessary” and suggested the EPA rely on previous rules that prioritized water testing and allowed for “safe levels” of lead in water. In 2017, Trump’s own EPA moved to loosen restrictions on lead protections and to defund assistance programs like renovation and relocation initiatives for families with young children potentially poisoned by lead paint and pipes. On Nov. 12, the EPA rule released another rule activists lauded as a major climate accomplishment: regulations designed to reduce methane emissions from the oil and gas sector. Trump has already committed to roll back many environmental protections, including mandates to limit pollution from fossil fuel operations. Other environmental rules could also be in jeopardy. The Department of Energy, for example, was still working on finalizing a number of new energy efficiency standards this fall. That includes conservation rules for commercial ice makers that were finalized in September, rules for commercial refrigerators and freezers expected in November, and regulations for consumer boilers expected in December.
|
Hold Them Accountable With A Donation
|
Give a one-time donation in any amount to fund The Lever‘s mission to hold the powerful accountable through reader-supported investigative journalism. Every cent helps. |
|
|
That’s not all. The Interior Department’s Fish and Wildlife Service announced plans to take final action on regulations promoting the National Wildlife Refuge System’s biological diversity and environmental health by December, just weeks before Trump takes office. The National Labor Relations Board has also handed down a slew of pro-worker rules and regulations in recent months, including one released on Nov. 13 outlawing “captive audience meetings,” in which employers force workers to sit through anti-union informational sessions. That ruling and others could be quickly repealed by an administration with a known anti-worker record. Other government rules designed to help unions ensure worker safety have already earned preemptive resolutions of disapproval from Republicans in Congress. Experts say that Republican lawmakers may also take aim at an embattled Transportation Department rule guaranteeing consumers automatic refunds when flights are canceled or significantly delayed. The rule, which narrowly survived multiple industry-backed challenges before it went into effect on Oct. 28, could help stop the airline industry from quietly pocketing billions of dollars from consumers in the form of unused flight vouchers. To help address labor shortages in the child care industry, on Aug. 16, the Department of Health and Human Services released a rule boosting salaries and health benefits for teachers and staff in its Head Start program, which provides support and education for more than 800,000 young children in low-income families. Last January, Republican lawmakers sent a letter to the agency calling the proposal “misguided” and “inappropriate” for mandating salaries higher than the federal minimum wage of $7.25 an hour. A new anti-money-laundering rule from the Treasury Department’s Financial Crimes Enforcement Network that requires investment advisers to report suspicious activity to counter money laundering and terrorism financing could also be a target for GOP lawmakers. According to Goldbeck, Republicans have bemoaned business “costs in the billions” thanks to paperwork caused by the rule. Both the Senate and the House of Representatives will likely be controlled by Republicans next year, allowing them to efficiently use the CRA to roll back Biden-era reforms. However, overzealous CRA actions could come with downsides for the GOP. “It’s easy to pass CRA resolutions, but it’s not cost-free in the sense that it sucks up floor time,” said Goodwin, noting that the lawmakers would likely want to devote more time to nominees and a reconciliation package. Both Balla and Goodwin expect the potential Republican governing trifecta to be more strategic with CRA repeals than they were during Trump’s first presidency. “Some of the rules that Trump and the congressional Republicans rescinded were really small-ball types of things that were not discussed in Heritage Foundation newsletters or talked about on Fox News,” said Goodwin And in some cases, Goodwin said, while the administration rescinded rules because they considered the regulations too lenient, the repeals might have ended up precluding them from then passing stricter rules. Using the CRA, Trump repealed a Department of Labor rule in 2017 mandating drug testing for some people receiving unemployment benefits because the administration claimed the testing requirements weren’t strict enough. Whether intentional or not, a similar rule hasn't been released since. But the Biden team may be taking the biggest political gamble: Any rule released in the final days of his term is subject to being repealed — and then might never again be reissued. Goodwin pointed to an incident that he says has become a “paradigmatic lesson” and a cautionary tale for Democrats: In 2004, President George W. Bush employed the CRA for the first time to repeal a Clinton-era Occupational Safety and Health Administration ergonomics rule that required employers to implement workplace standards designed to prevent repetitive stress injuries. “OSHA has never done a thing about ergonomics because of that,” said Goodwin. “Here we are, 25 years later, and it remains, far and away, the biggest [cause of] workplace injury. And the agency that was created to prevent workplace injuries feels like they legally can’t touch it.”
|
Keep Your Data Safe
|
|
|
|
|
While repealing and permanently barring regulation plays into Republicans’ small-government goals, it works directly against Democrats’ objectives to regulate industry. The CRA, then, is effectively “politically asymmetric,” said Goodwin. “That’s a feature, not a bug.” That means any rules Democrats release after Aug. 1 could risk permanently barring future reforms. “They’re taking a huge risk,” said Goodwin. “Everybody’s aware of the risks of this. And they’re taking a gamble that cooler heads will prevail.” Months after the Supreme Court abruptly limited executive power by overturning the Chevron doctrine and limiting agencies’ ability to interpret laws and enact regulation, it’s clear that a wave of Republican rollbacks could soon further upend government protections. “CRA is essentially a tool of nihilism, it’s a tool of chaos,” Goodwin said. “And when you hand it to a bunch of nihilists, it’s very hard to discipline [them].”
Help us spread the word! Please forward this email to family and friends. Was this email forwarded to you? Sign up for free to receive original reporting like this in your inbox every day.
|
