Democrats’ ambivalence over the use of the law contrasts sharply with Republicans, who quickly used it in 2017 to eliminate 14 rules made under Obama on topics ranging from pollution from coal mines to hunting. bears and gun purchases for the mentally ill. Previously, the ARC, which provides a streamlined process for Congress to overrule late rules of a previous administration with simple majority votes, has only been used successfully once since its enactment in 1996. .
Regulatory policy veterans have defended Democrats’ tactics, saying factors such as the new circumstances caused by the Covid-19 pandemic to the willingness of courts to reject Trump regulations have reduced the need to invoke the ARC this year.
“The Biden administration in his honor has already put a huge legislative victory on the board of directors and it is one that will help Americans for years, if not decades,” said Amit Narang, a policy advocate. regulatory with Public Citizen who called for aggressive use. of the law. “It justifiably took a lot of time and resources. Given that, there’s no doubt Democrats would use the ARC less than Republicans.
That accomplishment, the American Rescue Plan, has provided nearly $ 2 trillion in stimulus, education aid, and state aid, and could be Biden’s greatest legislative achievement. The pressure to deal with the pandemic demanded that this be implemented quickly, while Trump’s signature legislative accomplishment – his tax package – was not enacted until December of his first year in office.
“No one should blame Democrats for not using the CRA as much as Republicans when you factor in the progress made by Congress and Biden,” Narang said.
Democrats too used a ton of political capital to pass that relief package in March, after juggling Trump’s second indictment and upholding most of Biden’s cabinet.
Meanwhile, federal courts have also helped Democrats by defeating Trump’s latest rules, and some party members are reluctant to use the CRA’s blunt – and potentially legally risky – tool when agencies can. cancel the regulations administratively.
Democrats say they have chosen their place to tackle Trump’s most egregious regulations, while allowing the new administration to relax others. The resolution the Senate passed on Wednesday would reimpose the Obama-era methane limits, for example, rather than leaving no protection in place.
“A repeal of a repeal is the legislative equivalent of a double negative, and of course we all know that a double negative produces a positive, and that is exactly what will happen in this case,” said Senator Angus King (I-Vt.) Wednesday.
So far, during this Congress, lawmakers have introduced a total of six ARC resolutions, targeting the rules of agencies such as the Office of the Comptroller of the Currency, Securities and Exchange Commission and the Commission for Equal Employment Opportunities. Supporters say independent agency rules may be better targets for ARC challenges because the Biden administration cannot order those agencies to reverse course and those Trump appointees can stay for. some time.
In other cases, the Biden administration may unwind rules through normal, time-consuming regulatory channels. For example, regulators will rewrite fuel economy standards for vehicles and set Clean Water Act limits through normal channels to keep them on a solid legal footing.
Another complication to the aggressive handling of the CRA is an untested provision in the law prohibiting agencies from promulgating new rules that are “substantially the same” as those of the axes of Congress. Judicial authorities are divided on the exact meaning of this ban.
“Democrats have never been a huge fan of the ARC,” said Dan Bosch, director of regulatory policy at the American Action Forum. “They tend to be more concerned than Republicans about the provision in the law that does not allow a substantially similar rule to be reissued.”
Some progressives have even broader concerns and say Democrats should be wary of using anything that could weaken their future regulators, as the statute is seen as such a brutal tool.
“I worry more they use it and they develop a liking for the blood of the CRA than they might be hesitant to get rid of the law,” said James Goodwin, senior policy analyst at the Center for Progressive Reform. “Democrats want to build new things. The CRA’s goal is to demolish things.
And because federal courts have rejected a number of rules seen as possible candidates for the CRA, like EPA Trump’s so-called Secret Science Rule, it has reduced the number of targets for lawmakers. Other rules, like the Department of Homeland Security’s “public charge” rule and the EPA’s lower emission rules for power plants, were also rejected by the courts before they could be considered for consideration. the challenges of the CRA.
“The irony here is that many of the best targets for ARC use have been taken off the table through the sheer negligence and incompetence of the Trump administration,” Narang said. “The courts overruled some of the best purposes for using the CRA before Congress could even use the CRA on them.”