After taking full control of the government, Republicans and former President Donald Trump wielded a little-used law to roll back more than a dozen Obama-era regulations. But Democrats are taking a different approach.
Democrats have yet to use the Congressional Review Act to claw back any Trump-era regulations as of mid-March. The 25-year-old law allows the congressional majority party to essentially veto out regulations established during the waning days of an administration without facing a Senate filibuster.
In the wake of their Senate takeover in early January, several Democrats spoke of plans to roll back Trump regulations they believed were hurting consumers and the environment. Then the party started rebuilding after an insurrection, impeaching Trump a second time and passing a $1.9 trillion economic stimulus law.
“We’ve been pretty busy,” said Senate Finance Chair Ron Wyden (D-Ore.). “We passed arguably the most significant piece of legislation in decades and now we’re pushing hard on the next steps — for example, infrastructure, and looking at tax reform. These are big issues and there’s only so many hours in the day.”
Still, nearly two months into the new administration, time is running out to use the maneuver given the constraints of using the so-called CRA within 60 legislative days of a new regulation. The Senate is currently working through a series of Cabinet confirmations and set for a two-week recess at the end of the month. Most committee leaders said Monday they have made no final decisions.
Senate Banking Chair Sherrod Brown said his committee is still mulling whether to tear down some Trump regulations and that lack of action so far doesn’t mean Democrats won’t act.
“The fact that nothing’s happened yet is because everything was happening earlier,” Brown said of Trump’s regulatory pace. The Ohioan added that he has until the end of next month to try to roll back some elements of the former president’s agenda.
Democrats’ deliberative approach differs greatly from that of former Senate Majority Leader Mitch McConnell, who by early February 2017 had already begun rolling back an EPA stream protection regulation and a resource extraction regulation issued as part of the Dodd-Frank financial reform law.
In all, the GOP’s blitz amounted to gutting 14 Obama regulations by mid-May of 2017. Before Trump became president, the law had been successfully used just once, to roll back an ergonomic regulation from former President Bill Clinton’s administration.
“It was a major tool that we were able to use,” said Sen. John Cornyn (R-Texas), who was the majority whip in 2017.
Yet some Democrats are wary of proceeding against Trump’s regulations now due to a legally untested provision that could limit the Biden’s administration ability to rewrite those rules. The law bars the rewriting of new regulations that are disapproved by Congress if they are “substantially the same form” as the previous, vetoed regulations.
In other words, if Congress scratches an October rule from Trump’s EPA rolling back methane limits on new oil and gas wells, some environmental advocates fear Biden would have his hands tied in rewriting it. That means that Biden and congressional Democrats need to closely coordinate on whether Congress should take action or leave it to the new administration.
“That may constrain the executive branch from making good policies. So we’re sort of taking each one on a case by case basis,” said Sen. Brian Schatz (D-Hawaii).
The review act “is a blunt instrument,” in the words of Sen. Tim Kaine (D-Va.), who said Democrats have not yet had a caucus-wide discussion about zeroing out Trump's actions. “If you succeed, you don’t only repeal the regulation that you don't like, but you can then put a bar in your own way.”
Still, Democrats haven’t entirely ruled out using the straightforward CRA mechanism to chip away at Trump’s deregulatory actions. House Financial Services Committee Chair Maxine Waters (D-Calif.) last week began gauging support for three resolutions to block Trump-era revisions to housing and banking rules. One of the proposals would nullify a rule that would make it harder to bring discrimination claims under the Fair Housing Act.
“There’s been discussions. But nothing’s settled yet,” said Senate Health, Education, Labor and Pensions Chair Patty Murray (D-Wash.).
Democrats also have to weigh the best use of their time at this stage in the Biden presidency. The Senate still needs to fill several Biden Cabinet posts, including CIA director and health and human services secretary, with limited floor time and lots of competing imperatives.
“It’s not that we’re deciding not to do it. We just haven’t got there yet because of Covid. And we’ve got to get these confirmations done,” said Sen. Debbie Stabenow (D-Mich.), who chairs the Agriculture Committee and serves in leadership.
Another factor at play in the regulatory debate: Democrats currently enjoy smaller majorities in both chambers than Republicans had in 2017. That means that they’d need to make sure they had near-total party unity before starting to burn a good deal of floor time in the Senate.
“I know that there’s been a bunch of work done to figure out what’s possible, what makes sense, whether or not there are 50-plus votes for each of those things,” said Sen. Martin Heinrich (D-N.M.). Although there are Trump actions Heinrich said he personally wants to repeal, he added: “That’s a different matter than doing the analysis to make sure we’d also be successful.”
Anthony Adragna and Zachary Warmbrodt contributed to this report.
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