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The Biden Administration is working quickly to undo the regulatory policies of the Trump Administration. Through a torrent of Executive Orders, President Biden has shifted the federal government's regulatory priorities and instructed agencies to evaluate which Trump Administration agencies need to be rescinded or revised. Yet unwinding Trump Administration regulations will take time–generally as much time as it took to adopt such regulations in the first place–and the new administration is in a hurry.
The Congressional Review Act offers one means through which the Biden Administration, with the cooperation of Democrats in Congress, may undo Trump regulations without having to go through administrative rulemakings. The CRA may only be used on those regulations adopted at the tail end of the prior Administration. Nonetheless, there are literally hundreds of vulnerable Trump Administration regulations.
Enacted in 1996, the CRA creates an expedited procedure for congressional repeal of recently adopted regulations through the passage of a joint resolution in both houses of Congress. CRA resolution are subject to bicameralism and presentment, like normal legislation, but are much easier to enact. Under the CRA's express terms, resolutions to repeal a regulation are not subject to filibusters or extended floor debate, and final votes cannot be blocked by the Senate leadership. Indeed, even had Democrats not prevailed in the Georgia Senate races, Democrats could have used the CRA to force Republicans to vote on the advisability of controversial Trump policies.
The CRA was only used successfully to repeal one federal regulation in its first twenty years on the books–the Clinton Administration's 2000 ergonomics rule. Four years ago, however, the GOP used the CRA to eliminate over a dozen Obama regulations early in Trump's term. This year, Democrats cold use the CRA to eliminate an even greater number of Trump rules, if they so choose.
What regulations are vulnerable to CRA repeal? Any regulation finalized on or after August 21, 2020, according to the folks at the GW Regulatory Studies Center. As it turns out, this is a good amount of regulations. Indeed, nearly 1,500 final rules were finalized in that time period, including over 150 from the Environmental Protection Agency. In short, there are plenty of potential CRA targets, several of which are profiled here.
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