Democrats take note of Trump use of rollback tool

WASHINGTON — At the dawn of the Trump administration, Republicans in the White House and Congress turned an old law into a potent new weapon. An obscure 1996 statute was harnessed to wipe out 14 Obama-era regulations in 16 weeks, before President Donald Trump set out to enact the most significant deregulatory agenda in the modern presidential era.

In the 21 previous years of its existence, that law, the Congressional Review Act, had been used only once, to undo a Clinton-era rule on workplace ergonomics in 2001.

Now Democrats are eager to show that turnabout is fair play and are readying their own assault on Trump-era regulations, if they can seize control of the White House and all of Congress in November.

“A lot of people were surprised at how aggressively this tool was used and how a moribund rule could suddenly be so powerful,” said Susan Dudley, who headed the White House office of regulatory affairs in the George W. Bush administration.

Under the intricate rules of the review act, the Trump administration crossed a critical threshold sometime between May and June, and from now until the next presidential inauguration, any regulation reaching completion could be swiftly obliterated by a Democratic Congress and a Democratic president.

And aides on both former Vice President Joe Biden’s presidential campaign and Capitol Hill are already tracking recent and upcoming Trump administration rules with an eye on their demise.

“Absolutely, we handed them a playbook on how to use the [Congressional Review Act] to undo the previous guy’s rules,” said Michael McKenna, a Republican strategist who served on the Trump administration’s transition team and later served as a White House liaison to Capitol Hill.

In a White House speech Thursday afternoon, Trump celebrated his deregulatory agenda as a crowning achievement and warned that Democrats would have the power to roll back his rollbacks with sweeping victories in November.

“Before I came into office, American workers were smothered by a merciless avalanche of wasteful and expensive and intrusive federal regulation,” he said, adding, “Under my administration, we have removed nearly 25,000 pages of job-destroying regulations, more than any other president by far in the history of our country.

“The hard left wants to reverse these extraordinary gains, reimpose these disastrous regulations,” he continued. “They want to take what we have taken off and put them back on. And I guess they can do that.”

The Biden camp is ready. In a speech last week, Biden said, “We’re going to reverse Trump’s rollbacks of 100 public health and environmental rules and then forge a path to greater ambition.” His campaign spokesman, Jamal Brown, added, “Joe Biden will consider every tool available, including congressional and executive actions, to reverse Trump’s damaging policies.”

Under the review act, any regulation finalized within 60 legislative days of the end of a presidential term can be overturned with a simple congressional vote — not subject to filibuster or any other Senate rules that could slow it down.

Hundreds of regulatory rollbacks and new conservative rules did beat that deadline, but several major initiatives did not. On Wednesday, the administration completed a regulation that unilaterally weakened the cornerstone National Environmental Policy Act, limiting public review of federal infrastructure projects to speed up the permitting of freeways, power plants and pipelines and relieving infrastructure planners of even considering climate change in their assessments.

But with less than four months to go before the election, a Democratic government could swiftly wipe those changes out. Dozens more are still in the pipeline, including a rule that would weaken Obama-era controls on climate-warming methane pollution, another that would restrict the type of scientific research that can be used to craft environmental and public-health regulations, and a Labor Department proposal that would forbid retirement investment managers from considering environmental consequences in their financial recommendations.

Other vulnerable initiatives include a pending rule to restrict immigration by making it more difficult for migrants to obtain asylum, a rule finalized in June that would erase civil-rights protections for transgender patients seeking health care, and an expected rule from the Department of Housing and Urban Development that would allow homeless shelters to deny transgender people access to single-sex shelters that correspond to their gender identity. Instead, they would have to go to shelters that accord with their biology, a rule that transgender-rights groups fear would lead to serious abuse.

On the environmental front, rules are expected in the coming weeks to codify that businesses that kill birds “incidentally” will not be subject to prosecution and to allow energy companies to use undersea sonic blasts to search for oil regardless of the impact on ocean mammals’ health.

“Donald Trump, his administration and congressional Republicans have done an unconscionable amount of damage to our country, especially when it comes to addressing the climate crisis, health care, voting rights, income inequality, immigration and other areas,” said Sen. Charles Schumer, D-N.Y., who would become the majority leader if Democrats win control.

“Senate Democrats are committed, as we have been, to looking at every tool in our toolbox, which includes using the Congressional Review Act, to find ways to prevent the president’s most egregious policies from becoming a reality,” he continued.

Schumer, from his current position as the minority leader, has already used the Congressional Review Act six times to force Republicans to take positions on Trump-era regulation — and in three cases he embarrassed the president by winning the necessary 51 votes to overturn administration rules.

In 2018, bipartisan Senate majorities voted to reimpose Obama-era “net neutrality” rules that would have prevented internet service providers like Verizon and Comcast from imposing restrictions on the internet. Another vote would have overturned a rule that allows political groups to conceal the identities of their donors. And in March, Congress voted to overturn an Education Department rule that greatly restricts access to debt relief for students misled by schools that lured them in with false claims.

The first two votes died in the House, then controlled by Republicans. The overturn of the student-loan rule was vetoed by Trump.

Some experts cautioned that for Democrats, using the law as aggressively as Trump could have unintended consequences because the law also stipulates that once a rule is erased, it cannot be replaced with a substantially similar rule.

That could create legal complications for a Biden administration if it uses the law to undo, for example, a Trump environmental rule that weakened pollution controls, and then moved to replace it with a structurally similar but more stringent rule.

“If there is a successful [Congressional Review Act] vote to wipe out a rule, what takes its place?” asked Sally Katzen, who headed the White House office of regulatory affairs in the Clinton administration and served on the Obama administration’s transition team. Katzen said that the Obama transition team was aware that it could have used the Congressional Review Act to wipe out George W. Bush-era rules but ultimately decided against it

But other experts in regulatory affairs found a delicious twist in Democrats planning to use the road map laid out by Trump. “I think it would be particularly ironic if the Democrats get in a position where the stars align for them to use the [review act],” said Amit Narang, an expert on federal regulatory issues with the government watchdog group Public Citizen. “They could turn the tables on the Trump administration to quickly and effectively block some of the rollbacks that were rushed out by the Trump administration at the end of this term.”