Until recently, when analysts looked at how the incoming Biden administration could undo some of the Trump administration’s egregious acts, they usually looked at executive actions — President Biden is expected to sign more than a dozen on Wednesday alone — and reversing “midnight regulations” which haven’t yet gone fully into effect. Both approaches will provide Biden and Americans with tangible early successes, including rejoining the Paris climate accord, ending construction of a southern border wall, and impeding corporations’ efforts to categorize workers as gig employees and deny them benefits.
But the unexpected victories of Jon Ossoff and Raphael Warnock in their respective Georgia Senate races earlier this month opened up another possibility. Now that Democrats control the House of Representatives, the Senate and the presidency for the first time in a decade, they can — and should — aggressively use the Congressional Review Act.
The Congressional Review Act permits Congress, by a majority vote, to repeal federal regulations that went into effect in the final 60 legislative days of the previous administration — in this case, Aug. 21 — with a bare majority vote. CRA votes cannot be filibustered.
Regulations subject to possible erasure under the CRA include such recently enacted environmental catastrophes as Trump’s easing restrictions on the oil and gas industry’s monitoring and fixing of methane emissions and leaks, weakening the protections agriculture workers receive when they apply pesticides to crops, and permitting a faster flow of water in dishwashers, showers and toilets. (Who can forget Trump’s claim, “People are flushing toilets 10 times, 15 times, as opposed to once”?)
Before the Trump administration, the CRA was successfully used exactly once — in 2001, when congressional Republicans and President George W. Bush utilized it to wipe out workplace ergonomic standards designed to combat repetitive workplace stress injuries put in place by the departing Clinton administration.
But congressional Republicans turned it into a weapon in the aftermath of Trump’s surprise 2016 victory, overturning 16 regulations initiated during the Obama administration, including a Consumer Financial Protection Bureau attempt to ban banks and credit card issuers from putting mandatory arbitration clauses in their contracts that would stop users from joining class-action lawsuits.
Many Democrats and progressive activists are not fond of using the CRA, dating back to its enactment as part of Newt Gingrich’s anti-government agenda in the 1990s. Their first objection is practical: Once a law is overturned using it, all administrations are forevermore prohibited from enacting a regulation that is “substantially” the same — a nebulous, never-defined standard that leaves many worrying that it will prevent some future, still to be determined, rules.
The second is more philosophical. They believe the CRA has an anti-regulatory bias, and that any use of it, no matter how well meant, simply legitimizes a fundamentally bad law. In other words, tit-for-tat politics will normalize it.
But this analysis, while well-meaning, misses the politics in, well, politics. The refusal to use the CRA will simply leave a bunch of bad regulations on the books — hardly a good outcome.
And there is a bigger issue here, too. Democrats are often the eat-your-peas, take-the-high-road party. But that strategy simply won’t work in this case. Forgoing use of the CRA is essentially one-sided disarmament. Republicans will use the CRA when they can, and no amount of moral posturing will change that reality.
It’s true that all of this — the freeze on midnight regulations, the flurry of executive orders and aggressive use of the CRA — won’t cover more than a small portion of the regulatory damage done over the past four years by the Trump administration, which took an indiscriminate sledgehammer to federal rules that protect the environment and keep Americans safer and healthier, frequently at the behest of business interests. But we all need to start somewhere. So get to work, Democrats, and use the CRA. Turnabout is fair play.