The Democrats’ ambivalence over the use of the law stands in stark contrast to Republicans, who quickly used it in 2017 to wipe out 14 rules issued under Obama on topics ranging from coal mining pollution to bear hunting and gun purchases for the mentally ill. Prior that, the CRA, which provides a streamlined process for Congress to nullify late rules from a prior administration with simple majority votes, was used successfully just once since it was enacted in 1996.
Veterans of regulatory policy defended the Democrats’ tactics, saying factors such as the new circumstances caused by the Covid-19 pandemic to the willingness of the courts to toss out Trump regulations have reduced the need to invoke the CRA this year.
“The Biden administration to its credit has already put a huge legislative win on the board and it’s one that’s going to help Americans for years, if not decades,” said Amit Narang, a regulatory policy advocate with Public Citizen who has called for aggressive use of the law. “That justifiably took up a lot of time and resources. Given that, there’s no doubt the Democrats were going to use the CRA less than the Republicans did.”
That accomplishment, the American Rescue Plan, delivered nearly $2 trillion in stimulus, educational assistance and state aid, and could stand as Biden’s biggest legislative achievement. The pressure to address the pandemic required that to be pushed through quickly, while Trump’s signature legislative accomplishment — his tax package — wasn’t signed into law until December of his first year in office.
“No one should be blaming the Democrats for not using the CRA as much as Republicans when you take into account how much progress Congress and Biden have made,” Narang said.
Democrats also used a ton of political capital to pass that relief package in March, which came after juggling the second impeachment of Trump and confirming the bulk of Biden’s Cabinet.
Meanwhile, the federal courts have also helped Democrats by batting down late Trump rules, and some in the party are wary of using the blunt — and potentially legally risky — tool of the CRA when agencies can undo regulations administratively.
Democrats argue they’ve been picking their spots to go after the most egregious Trump regulations, while allowing the new administration to unwind others. The resolution the Senate passed Wednesday, would reimpose Obama-era methane limits, for example, rather than leaving no protections in place.
“A repeal of a repeal is the legislative equivalent of a double negative, and of course we all know a double negative produces a positive, and that’s exactly what will happen in this case,” said Sen. Angus King (I-Vt.) on Wednesday.
So far in this Congress, lawmakers have introduced a total of six CRA resolutions, targeting rules from agencies like the Office of the Comptroller of the Currency, Securities and Exchange Commission and Equal Employment Opportunity Commission. Advocates say rules from independent agencies may be better targets for CRA challenges because the Biden administration cannot direct those bodies to reverse course and Trump appointees may remain for a while.
In other cases, the Biden administration can unwind the rules through the time-consuming normal regulatory channels. For example, regulators will re-write fuel economy standards for vehicles and defining the limits of the Clean Water Act through normal channels in an attempt to keep them on firm legal ground.
Another complication to aggressive wielding the CRA is an untested provision in the statute barring agencies from enacting new rules that are “substantially the same” as the ones Congress axes. Legal authorities are divided on what exactly that prohibition means.
“Democrats have never been a big fan of the CRA,” said Dan Bosch, director of regulatory policy at the American Action Forum. “They tend to be more concerned than Republicans with the provision of the law that doesn’t allow for a substantially similar rule to be issued again.”
Some progressives have even broader concerns and say Democrats should be wary to use anything that could weaken their future regulatory authorities since the statute is considered such a blunt tool.
“I worry the more they use it and they develop a taste for the CRA blood that they may be reluctant to get rid of the law,” said James Goodwin, a senior policy analyst with the Center for Progressive Reform. “Democrats are about building new things. The CRA is all about tearing things down.”
And since the federal courts have been tossing a number of rules seen as possible candidates for the CRA, such as the Trump EPA’s so-called secret science rule, it has reduced the number of targets for lawmakers. Other rules, like the Department of Homeland Security’s “public charge” rule and EPA’s weaker power plant emissions rules, have also been tossed by courts before they could be considered for CRA challenges.
“The irony here is many of the best targets for using the CRA have been taken off the table by the sheer sloppiness and incompetence of the Trump administration,” Narang said. “Courts have been overturning some of the best targets for using the CRA before Congress can even use the CRA on them.”
