An obscure law could help Biden roll back Trump-era policies

The Trump administration rushed through regulations at the end of its term, leaving them vulnerable to legal challenge

Josh Marcus
San Francisco
Tuesday 02 March 2021 19:09
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The Trump administration’s last-minute haste to cement regulatory changes before President Joe Biden took office has left its legacy vulnerable to legal challenge, the watchdog group Public Citizen argues in a new report, released on Monday.

“In its rush to roll back as many regulatory protections as possible following the 2020 election, the Trump Administration violated an obscure regulatory law called the Congressional Review Act (CRA), making the last-minute regulatory rollbacks more legally vulnerable to reversal,”  the report’s authors Amit Narang and Matt Kent write.

They argue that Mr Trump’s final deregulatory push failed to submit new regulations to Congress in time under the act before Mr Biden took office, meaning they could fall under the common practice of presidential “freeze memos,” where new administrations review pending rules that haven’t taken legal effect yet.

“While these technical details usually don’t have much of a practical impact, during transitions from one Administration to another when every day counts for the outgoing Administration to lock in its final regulations that dramatically changes,” the report adds.

The group has identified at least 26 major rules that fall into this category, covering everything from safety protocols for offshore drilling, to clean air rules, to federal executions and faith-based discrimination.

“Yet, this could be just the tip of the iceberg,” the report warns.

Lawmakers have previously used CRA violations to roll back regulations, such as when Senator Pat Toomey of Pennsylvania pushed to repeal a guidance from the Consumer Protection Bureau in 2018 that hadn’t been submitted to Congress before taking effect.

On his first day in office, President Biden directed federal agencies in a memo to review the Trump administration’s brand new and pending rules, and Mr Biden is likely to reinstate many rules slashed by Mr Trump, who favoured heavy deregulation, particularly in areas like the environment.

Mr Biden has promised to review more than 100 rules and regulations about the environment alone, though it could take years to put them back in place.

Some last-minute Trump rules have already been challenged, even without input from the White House. In early February, a federal court vacated a Trump administration rule limiting what kind of studies the Environmental Protection Agency could use while making public health rules.

The former president, as much he painted himself as an anti-elite outsider, made eliminating regulations that affected big businesses a major priority.

In 2017, he directed government agencies to scrap two regulations for every new one they created and frequently touted (and overstated) how many rules he had cut.

His agencies also took a more hands-off approach to enforcing regulations that were on the books, prosecuting polluters far less aggressively and leaving business largely to regulate themselves du.

Towards the end of his administration, as Mr Trump faced down an incoming Biden term, the former president had agencies skip their usual waiting period of 30 days and issue regulations put into effect immediately, arguing they were in the public interest.

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