By Jonathan Nicholson
With President-elect Joe Biden’s inauguration expected next week, Democrats on Capitol Hill are eyeing votes to roll back some of the Trump administration’s recently issued regulations, but the drawn-out post-election lame duck session means some of their targets will be unscathed.
House Majority Leader Steny Hoyer said Democrats plan to use the Congressional Review Act, a 1996 law that allows a new Congress to roll back rules and regulations put in place late in the previous congressional session, but he gave no timeline or what the the party’s top repeal priorities will be.
Earlier on a weekly conference call on Jan. 6, Hoyer told reporters that “I think that the President-elect is certainly looking at that. He’ll make some recommendations. Our committees are looking at that as well,”
“They will make recommendations. I don’t want to speak to that at this point in time, but certainly I think there is no doubt that we’re looking at what the President has done – and when I say “the President,” I mean what Trump has done and what actions, if any, are warranted.”
The CRA is distinctive in federal law in that includes what is called a “lookback period,” allowing a newly seated Congress to repeal rules put in place by federal agencies late in the prior Congress on a fast-track basis, including with only 51 votes in the Senate. Votes to repeal rules, though, are limited to early in each Congress, making them competitors for other legislative priorities.
The length of the lookback period extends through the last 60 days when either of the chambers meet prior to final adjournment of a Congress. When the previous 116th Congress recessed in March after passing the $1.7 trillion CARES Act, many federal regulation watchers thought the lookback could extend further back in to 2020 than usual , maybe to April or May.
But Congress stayed in session until almost Christmas to pass an economic stimulus deal to combat the coronavirus pandemic and even came back in the week between Christmas and New Year’s to override a presidential veto.
Those extra days shrank the lookback period deadline to mid-August.
“I think the Trump administration got lucky Congress took so long deciding what to do on covid,” said Dan Bosch, director of regulatory policy with the conservative American Action Forum.
Bosch said three big potential targets for Democratic rollback attempts now appear safe from the Trump administrations viewpoint because they were put in place before the start of the lookback period.
A rule easing gas mileage requirements for new vehicles, the “Waters of the United States” rule restricting regulation of non-navigable bodies of water, and a recent Health and Human Services rule giving employers more leeway in what benefits they have to offer under the Affordable Care Act appear to be exempt from review, Bosch said.
Still, Bosch said there are a few rules that Democrats are likely to target, dealing with environmental and labor issues.
One EPA rule limits how regulators calculate the benefits of a proposal when they may only be tangentially related to the rule. Repealing the rule would likely strengthen the Clean Air Act and affect rules that govern emissions for power plants and manufacturers, Bosch said.
Another rule Democrats could target is a Department of Labor proposal to codify regulations on independent contractors, regulations previously scattered over years of administrative guidance and precedents.
Bosch said the contractor rule may be saved though, by a quirk in the CRA — once repealed, the law prohibits new regulations being put in place that are “substantially similar.”
It is legally unclear whether that means the entire area a repealed rule dealt with is off-limits or, more simply, new rules that would do the same thing the repealed rules did are forbidden. Challenging the contractor rule could throw that question into the courts, a potentially riskier course for the Biden administration than simply taking more time and withdrawing the Trump-era rule.
“We don’t know exactly what ‘substantially similar’ means,” he said. “We just don’t know for certain how broad that will be.”