Where Congress Stands on Undoing Trump’s Last-Minute Rules

(Bloomberg) -- Like presidents before him, Donald Trump raced to finalize new rules before he left office in January. The U.S. Congress, using a law designed for just such occasions, is moving to repeal as many as three of those rules. But the window to repeal even more probably has closed.

1. What’s the law?

The Congressional Review Act, enacted in 1996, empowers Congress to overturn rules issued by a federal agency if lawmakers decide those rules veer from the congressional legislation that spawned them. Congress can use the act to undo regulations issued during the waning days of the past administration. Success typically requires one-party control of both chambers of Congress and the presidency. For those reasons, the law generally draws attention only in the immediate months after a change of party in the White House -- which happened in January, when Democrat Joe Biden replaced Trump, a Republican.

2. How is Congress using the act?

The Senate and House have both approved repealing three Trump-era rules, with Biden expected to sign the repeals into law. The rules in question relate to methane emissions, the lending practices of fintech firms and workplace discrimination claims. Three other proposed repeals have not passed the Senate or the House.

3. How long does Congress have to act?

Practically speaking, time has run out on Senate Democrats to use the Congressional Review Act to repeal anything beyond the three rules that have already been voted on. That’s because their window to overturn a regulation with just Democratic votes closed in late May, and from now on they’d need at least 10 Senate Republicans on board to successfully overturn a Trump regulation. But the Congressional Review Act is not the only way to overturn regulations of a previous administration. The Biden administration, without needing approval from Congress, could rewrite rules it doesn’t like. That way just takes longer.

4. How common is this?

Until Trump came to office in 2017, the act had been used successfully just once. That was in 2001, when a Republican-controlled Congress passed, and Republican President George W. Bush signed, a measure overturning a Labor Department ergonomics rule issued under Bush’s Democratic predecessor, Bill Clinton. In 2017, congressional Republicans and Trump used the act to repeal 14 rules passed under Barack Obama. Democrats are being much pickier about what regulations they target, in part because the effort eats up precious floor time that Democrats would rather use to advance other priorities while they have control of Capitol Hill and the White House.

The Reference Shelf

• The Congressional Research Service delves into the history and mechanic of the Congressional Review Act.
• This examination of how Trump used the act appeared in the Georgetown Journal of Law & Public Policy.
• Bloomberg’s coverage of Trump’s methane rule change that Democrats now hope to override.

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