First 100: The Forgotten Bills Biden Can Get Through By Majority Vote

The Congressional Review Act allows repeals of certain Trump-era regulations by simple majority. But so far no CRA resolutions have been introduced.

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It’s March 9, 2021 and welcome to First 100. You can sign up to have First 100 delivered to your email by clicking here.

The Chief

The House will pass the American Rescue Plan today, and it will become only the second bill President Biden will sign into law. [UPDATE: The Senate was late in getting the bill over, so now the plan is for passage on Wednesday.] This is a good example of why raw numbers of bills don’t tell you much about anything, since bill #1 was a waiver for Defense Secretary Lloyd Austin, and bill #2 is about a year’s worth of public policy. (And good public policy!)

Still, it’s unclear where bill #3 will come from, or the subsequent ones. No Republicans voted for the extremely popular ARP, a trend that in all likelihood will continue today. There are two more reconciliation bills available between now and the midterms, but Joe Manchin has said he wants to try regular order for an infrastructure package, which seems doomed to failure. There are a handful of bills—like the reauthorization of the Biden-authored Violence Against Women Act—that could get bipartisan support. And there’s maybe a deal to be made on raising the minimum wage, though it’ll be months off. 

But there’s a whole genre of bills that only require a majority vote, that have to be done in a particular time frame in the next few months, that the Democratic majority has been surprisingly nonchalant about thus far. If they want to make progress and swiftly erase some of the worst abuses of the Trump era, they’ll get to work.

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The Congressional Review Act (CRA) allows Congress to author resolutions of disapproval against regulatory measures within 60 legislative days (that’s days in session) of the regulation being finalized and entered into the Federal Register. These resolutions need only a majority vote in both houses of Congress and the president’s signature. This really only gets used during a changeover in power, because Joe Biden is unlikely to sign a resolution eliminating a rule from his own federal agency. Donald Trump used the CRA 16 times to reverse Obama-era rules.

Based on the legislative calendar, any regulation filed on August 21, 2020 or afterward is eligible. (The lack of legislative days in the pandemic year widened the look-back period.) But the timeline is limited on the front end. According to Public Citizen and based on the expected schedule for Congress to be in session, members of Congress only have until April 4 to introduce a CRA resolution of disapproval against a particular regulation, and only have between May 10 and May 21 to use the fast-track procedures to pass the resolution by a majority vote. In other words, the spring should be taken up at least in part with CRA.

Yet no member of Congress has introduced a single resolution to this point. With the House scheduled to be out of session starting March 26 for a couple weeks, there’s really only 17 days left to introduce a CRA resolution. And this doesn’t need to come from leadership; any member can do it. What’s the holdup?

“It’s not too late but time is running out,” said Amit Narang, regulatory policy advocate at Public Citizen. These resolutions don’t require much drafting, you just name the regulation targeted for repeal. Helpfully, the Coalition of Sensible Safeguards has assembled 28 options.

They range from HUD’s “disparate impact” rule that would allow for housing discrimination, to EPA’s rule allowing more methane and other air pollutants into the atmosphere, to the “true lender” rule, which effectively allows non-bank lenders like payday lenders to make outrageously high-cost consumer loans as long as they have a bank partner (I’ve written about these “rent-a-bank” schemes before). Asylum-related procedures, trucking rules, mine inspection procedures, and regulations on shareholder proposals are also potential subjects for CRA.

I’ve heard a few reasons for the lack of progress on CRA. First, obviously Congress has been consumed with the rescue bill. Second, there may just be strategizing on the right regulations to attack, although just because you introduce a CRA resolution doesn’t mean it gets an automatic floor vote, so that one seems bogus. Finally, there’s language in the CRA that says any repealed resolution cannot be brought up against by a federal agency, or anything “substantially the same,” without agreement from Congress. There’s some fear on Capitol Hill that repealing a Trump rule would tie Biden’s hands in future regulations.

Narang says this objection is overblown. “Some of the best CRA targets are in places where Democrats don’t want to see a replacement,” he said. He gave the example of the Clean Air Act cost-benefit analysis rule, which rigged the process to prevent climate benefits or the social cost of carbon from counting in the cost-benefit calculation. “I don’t know that it would be bad going forward for Biden’s EPA to take that off the table,” said Narang.

It’s also unclear whether the “substantially the same” provision, which is undefined in the legislative text, is an enforceable restriction. A recent Congressional Research Service report finds that the Trump administration rewrote two rules on subjects repealed through CRA, and nobody raised an issue.

Some of the regulatory repeal work was already done for Biden by Trump-era sloppiness. Trump violated the CRA by submit several rules to Congress late or never submitting them at all, preventing them from taking effect. Biden has capitalized on this by quickly freezing some of these rules, like the infamous rule on showerhead pressure. But he could freeze about a dozen more.

The point is that Congress has an opportunity to reverse damaging regulations from the Trump era, in a way that cannot be challenged in court, the way that a laborious reversal at the administrative level can be. It’s the only majority-vote process immediately available to Congress, and it would be in Biden’s interest to flush out these rules. There’s literally a two-month window where this can get done; it’s a little baffling why there’s been no movement.

What Day of Biden’s Presidency Is It?

Day 49.

Today I Learned

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