Biden Races to Trump-Proof His Agenda

Less than four weeks after taking office, President Trump, his senior White House aides, and a group of Republican lawmakers gathered in the Oval Office to sign a resolution that killed an obscure Obama-era energy regulation.

“This is a big signing—very important signing,” Trump said during the 2017 event.

In the following months, Trump would sign more than a dozen similar resolutions, undoing a raft of Obama administration regulations on everything from unemployment to education. The effort was made possible by Trump’s unprecedented use of a 1996 law called the Congressional Review Act, which allows a new president, with the help of allies on Capitol Hill, to eliminate regulations in the previous administration’s final months quickly.

If he wins a second term, Trump plans to use the same tactic to unravel as much of President Biden’s agenda as possible, according to people close to him. And senior Biden aides are doing everything in their power to stop him, setting off a behind-the-scenes scramble to Trump-proof as many regulations as they can before they become vulnerable to being overturned under the 1996 law.

The past few months have seen a frenzy of regulatory activity. In April, government agencies finalized nearly three dozen economically significant regulations, more than during any single month of Biden’s presidency, according to the George Washington University Regulatory Studies Center. The White House makes new policy announcements multiple times weekly on issues ranging from tighter environmental rules to new restrictions on noncompete agreements.

“They’re all looking back to what happened in 2017 and thinking, ‘That could repeat itself in 2025,’” said Steven Balla, the co-director of GW’s Regulatory Studies Center, which analyzes the Congressional Review Act.

Administration officials say they have until late May to wrap up key regulations, though that timeline could change as a result of the CRA’s arcane and difficult-to-navigate rules.

Under the Congressional Review Act, lawmakers introduce dozens of largely symbolic resolutions of disapproval that don’t win enough support to overturn regulations.

Only agencies with five or more resolutions introduced are shown. Doesn’t include resolutions targeting jointly issued rules.  The CRA gives Congress the power to overturn regulations, but that power is usually only exercised successfully following periods of transition from one president to the next.

The law gives members of Congress authority to introduce resolutions of disapproval aimed at nullifying final regulations put in place by the executive branch. It also includes “fast track” provisions that circumvent key Senate rules, allowing the resolutions to move forward with the support of a simple majority with limited debate or no amendments.

The disapproval resolutions will only go into effect if they clear both chambers of Congress and secure the president’s signature. Since a president is unlikely to sign a resolution killing a regulation put forward by his own administration—Biden, on Friday, vetoed a resolution of disapproval that would have overturned a National Labor Relations Board regulation—the resolutions only work in practice when a president and Congress of the opposite political party ascends to power in Washington. But that doesn’t stop lawmakers from introducing dozens of doomed disapproval resolutions every year to score political points with their constituents.

If Trump wins the election and Republicans keep the House and take back the Senate, GOP officials can target final regulations that were introduced 60 working days before the end of this session of Congress. While analysts say the “lookback window”—in which final regulations will be vulnerable to CRA challenges—will open in late May, that time frame is an estimate that could change if lawmakers cancel recesses or change their schedule. Some analysts said the deadline to push out final regulations could be extended until July or August once “pro forma” sessions, in which the House or Senate meets briefly but conduct little business, are taken into account.

All of this was largely theoretical before Trump took office. Before 2017, the law had only been used once successfully to overturn a regulation—during the George W. Bush administration. Trump did it 16 times, part of a broader deregulatory strategy that included a policy of eliminating two regulations for every regulation issued by the Trump administration.

Congressional Review Act Resolutions by administration

Biden, who entered office with Democratic control of the House and Senate, also used the CRA, but on a much smaller scale. He signed resolutions overturning three Trump administration rules, including an effort by Trump’s Environmental Protection Agency to roll back methane emissions regulations for the oil and gas industry.

In the second term, Trump promised to disassemble most of Biden’s policies through a series of executive actions. Like past presidents before him, Trump could sign an order freezing all proposed regulations, making it easier to undo them before they are completed. He could also undo many Biden administration executive orders with the stroke of a pen. However, according to analysts, unwinding final regulations that he can’t overturn with the CRA could prove more difficult. It would likely require proposing new regulations that alter the existing ones, a process that could take years.

“When re-elected, President Trump will immediately cut Joe Biden’s burdensome regulations, unleash our domestic energy industry, and implement a pro-worker agenda that will uplift all Americans,” Trump campaign spokeswoman Karoline Leavitt said.

In recent weeks, Biden has issued a series of sweeping final regulations. Administration officials cast the effort as a precautionary measure and said it shouldn’t be viewed as an indication that the White House thinks Trump—who is neck and neck with Biden in many polls—will win the election.

The Biden Administration has issued these regulations and is awaiting their final approval.

• The Federal Trade Commission last month issued a ban on noncompete agreements, a measure aimed at making it easier for millions of Americans to switch jobs.
• The EPA issued four separate regulations to cut pollution from coal and new natural gas-fired power plants. The rules will force utilities to control emissions of carbon dioxide, mercury, and other airborne toxic chemicals, wastewater, and coal ash stored in ponds. The EPA also issued new final clean-water regulations requiring states, cities, and communities to filter six types of so-called forever chemicals, known as PFAS, that are linked to liver damage, immune disruption, death, and delayed development in newborn animals, according to the Centers for Disease Control and Prevention.
• The Food and Drug Administration finalized a rule with unusual speed, giving the agency oversight of the $10 billion industry for lab-developed tests. The agency attempted to regulate the area earlier but was thwarted by the Trump administration. The FDA also released a final rule aimed at bolstering the safety of water used to grow produce.
• New Transportation Department rules will require airlines to provide cash refunds when flights are canceled automatically and to disclose fees like checked-bag costs earlier in the booking process. The department also published final rules that softened its proposed limits on tax credits for electric vehicles, letting consumers get up to $7,500 for cars containing Chinese graphite through 2026.
• The Department of Health and Human Services finalized a rule making recipients of the Deferred Action for Childhood Arrivals program, known as Dreamers, eligible for government healthcare subsidies. The Biden administration estimates that 100,000 Dreamers could gain health insurance through the initiative.