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Democrats have a shortcut to start undoing parts of Trump's legacy

January 18, 2021 in Blogs

By The Conversation

by Daniel Farber, University of California, Berkeley

The Trump administration dedicated itself to deregulation with unprecedented fervor. It rolled back scores of regulations across government agencies, including more than 80 environmental rules.

The Biden administration can reverse some of those actions quickly – for instance, as president, Joe Biden can undo Donald Trump’s executive orders with a stroke of the pen. He plans to restore U.S. involvement in the Paris climate agreement that way on his first day in office.

Undoing most regulatory rollbacks, however, will require a review process that can take years, often followed by further delays during litigation.

There is an alternative, but it comes with risks.

Biden could take a leaf from the Republicans’ 2017 playbook, when congressional Republicans used a shortcut based on an obscure federal law called the Congressional Review Act to wipe out several Obama administration regulations. Some scholars have called these 2017 repeals arguably “the Trump administration’s chief domestic policy accomplishment of its first 100 days.”

Not surprisingly, there’s a lot of interest in having the new Democratic-controlled Congress turn the tables and use the same procedure against Trump’s regulatory rollbacks.

However, this procedure is far from a panacea for undoing Trump’s legacy. Its arcane rules can tie the hands of future administrations without providing clear standards for how it applies, and it offers little time for deliberation.

How Congress could cancel Trump’s rollbacks

The 1996 Congressional Review Act provides a way of undoing new rules issued by executive branch agencies without being mired in agency and court proceedings. Democrats could use it to cancel rollbacks by the Environmental Protection Agency, the Interior Department and others.

The Congressional Review Act applies equally whether a rule expands regulation or rolls it back. Within 60 legislative days after a new rule comes out, Congress can disapprove it using streamlined procedures. Senate filibusters are not allowed, and Senate debate is limited to 10 hours. Since only days Congress is in session are counted, the act can apply to regulations that go back several months.

Once a rule is disapproved, it’s dead forever. It can’t be reissued.

But that isn’t all. The act says no rule can be issued in “substantially the same form” without additional authorization from Congress.

How similar does a future rule have to be before it becomes “substantially the same”? There is no definitive answer, so there’s some …read more

Source: ALTERNET

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