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Democrats disappoint by not going after more Trump regs with CRA

Senate Democrats are planning to use their legislative authority to roll back just a handful of Trump-era regulations, disappointing some activists who hoped they would be more aggressive in using maneuvers to topple the former president's legacy.

Senate Majority Leader Charles Shumer (D-N.Y.) announced Thursday that Democrats would use the Congressional Review Act (CRA) to overturn two different Trump-era regulations, one that weakened regulations on methane and another that limited workplace discrimination protections.

But by committing to attempt to nix just a few rules, Democrats are taking a sharp turn from the strategy employed by Republicans, who after Trump was elected used the act on 16 different regulations. 

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“I think it's a powerful tool,” said Alison Kamhi, an attorney with the Immigrant Legal Resource Center who helped analyze which of the many Trump immigration regulations could be good CRA targets.

“It's not the only tool, but it’s a tool, and you want to see the Democrats using every tool in the toolbox," Kamhi added. "So I would have hoped for more rules to be introduced for potential CRA disapproval.”

It’s possible more will be coming.

Democrats have introduced resolutions that would unwind two different Trump financial regulations, including one that significantly weakens predatory lending regulations. But so far Schumer hasn’t committed to a vote on either.

Democrats have some reason to be hesitant to use the CRA. Scrapping a rule reverts policy back to whatever was in place before it was adopted — which can leave weaker regulations in place.

There is also concern over statutory language in the CRA that then blocks the relevant agency from crafting another rule that’s substantially similar, a feature some fear could hinder future necessary regulation.

“The CRA is a blunt tool, so you have to be careful when you're using it that you’re not going to tie the hands of the administration going forward,” said Aaron Weiss, deputy director of the Center for Western Priorities, which tracked Trump’s environmental rollbacks. 

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“So it’s not surprising that Congress is going to use it judiciously this year considering how quickly the Biden administration is moving to roll back Trump’s environmental legacy the right way,” he said.

The CRA process also eats up about 10 hours of floor time, something in short supply in the Senate after Trump’s second impeachment trial and various 30-hour holds placed on several of Biden’s nominees.

Still, Democrats could be giving up a significant number of opportunities if they just use the CRA twice.

A coalition of various advocacy groups identified 28 different Trump rules ripe for CRA use that they hoped the Senate would prioritize.

On the list: changes to the asylum process, a rule opening up logging in Alaska’s Tongass National Forest, a rule weakening unfair and deceptive practices regulations for airlines, and a rule that would have sunset all Department of Health and Human Services rules more than 10 years old if they weren’t reviewed within the next few years.

“It’s an extremely powerful tool because the alternative is typically to repeal through notice and comment rulemaking, and notice and comment rulemaking could take years and then that’s followed by one year of judicial review,” said Richard Revesz, a professor at New York University School of Law, who warned of legal challenges.

“The CRA allows for the definitive undoing of a bad policy very quickly.”

The two rules that will get a vote are ones Democrats view as particularly dangerous.

The methane rule short circuited existing regulations for the oil and gas industry, allowing them to spew heat-trapping methane — a gas several times more potent that carbon — into the atmosphere.

The other was an Equal Employment Opportunity Commission regulation that critics say tilted the scales in favor of employers fielding challenges from employees claiming they faced discrimination. 

To be successful, Democrats will have to wrangle votes from each of their 50 senators or secure Republican backing — a potentially heavy lift with such tight margins.

But advocates are also hopeful Schumer will see fit to bring additional CRA resolutions to the floor, regulations they argue won’t trip up any future rulemaking.

That includes an Office of the Comptroller of the Currency rule targeted by Sens. Chris Van HollenChristopher (Chris) Van HollenVan Hollen says members should stand with Cheney on election claims Democratic fissures start to show after Biden's first 100 days Senate votes to repeal OCC 'true lender' rule MORE (D-Md.) and Sherrod BrownSherrod Campbell BrownSenate Democrats offer bill to scrap tax break for investment managers Wyden: Funding infrastructure with gas tax hike a 'big mistake' Sherrod Brown calls Rand Paul 'kind of a lunatic' for not wearing mask MORE (D-Ohio).

“This is a terrible rule,” said Lauren Saunders, associate director of the National Consumer Law Center, who said the federal government has no right to help payday lenders skirt state laws that cap interest rates.

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“So the simplest thing to do is to just get rid of the rule.”

The bills came just in the nick of time. Public Citizen estimates lawmakers have until April 4 to file resolutions that comply with the law, leaving little time to file additional measures. Schumer has until mid-May to bring them to the floor before the CRA clock runs out.

Immigration advocates have yet to secure a CRA resolution for one of their top priorities — a regulation that barred asylum to those from any number of countries who passed through Mexico to arrive at the Southern border. It’s since been enjoined by the courts, but it has not yet been struck down.   

“The reason that was our top priority is because it’s a rule that could bar asylum eligibility for vast numbers of people, if it were to go into effect, and we’re not concerned about the potential effects of CRA disapproval because that’s a place where we don't want there to be rules issued,” Kamhi said. “We don't think there should be rules barring people from applying for relief based on where they transited through.”

Democrats may also not be eager to let Republicans set a precedent. The CRA had only been used once since it was first adopted in 1996 until the GOP heavily used it in 2017.

The Biden administration has already opted to use a number of more traditional tactics, using a “freeze” memo to block regulations that had not yet taken effect, while striking some internal memos and directives. They’ve also flipped positions on a number of existing challenges to Trump era regulations, leaving the courts as another viable path for striking many of them down.

That’s part of the reason Weiss doesn’t think Democrats should rely too heavily on the CRA.

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“They’re moving so quickly on everything else,” he said, and when there are bad regulations “the courts generally step in and do the right thing anyway. And when a court throws out a rule it tends to not tie the hand of the agency going forward. It just means they go back and do it right the next time.” 

But Revesz worries that Democrats are too cautious about the CRA language blocking any future regulation that is substantially similar. 

“I understand that argument floats around, but for this administration it shouldn't be considered a bar even in cases where they actually want to replace a regulation,” he said. “Strengthening something not substantially the same as weakening something.”