The Biden administration has released a bevy of regulations over the past month. These include environmental regulations limiting “forever chemicals” and requiring power plants to reduce carbon emissions. Labor regulations have also been prominent, with restrictions on non-compete agreements and an expansion of eligibility for overtime pay.
In one sense, the timing is curious. Administrations have historically waited until the last minute to issue controversial regulations. These “midnight regulations” were often issued after elections in order to minimize the chance they would lead to negative campaign outcomes for the incumbent.
But the Congressional Review Act (CRA) changed the calculus for the executive branch. The CRA allows Congress to pass a resolution to overturn a regulation within 60 session days of its issuance. The resolution to overturn the regulation is immune to the filibuster in the Senate. Congress rarely uses the CRA to overturn regulations, but, when it does, it focuses on those that were issued late in a previous presidential administration. This is because the resolution must be signed by the president, and a president will almost never sign a resolution overturning regulations issued by his own administration.
By issuing all of these regulations in the spring of 2024, the Biden administration has ensured that the Congress that is seated in January 2025 will not be able to use the CRA to overturn them. Any attempts to overturn the regulations will likely require 60 votes in the Senate.
But opponents of these regulations will have other options. Indeed, the CRA was used to overturn only a handful of regulations issued at the end of the Obama administration. Many other regulations issued by President Obama’s administration were delayed or repealed using entirely administrative and legal means.
Nearly all of the high-profile regulations issued by the Biden administration will be the subject of lawsuits from business interests that oppose them. Even if the administration vigorously defends its actions in court, application of the new “major questions doctrine” could lead to several of them being overturned in court.
The major questions doctrine, put forth by the Supreme Court in West Virginia v. EPA, says that where there is something extraordinary about the “history and breadth of the authority” an agency asserts or the “economic and political significance” of that assertion, courts should “hesitate before concluding that Congress meant to confer such authority.”
Even if courts were going to look favorably on some of the Biden regulations, there is a great deal that a potential second Trump administration could do to subvert the rules. Most simply, the Trump administration could repeal the regulations using the regulatory process. Doing so would take several years and would also be subject to legal challenges.
But while going through the repeal process, a Trump administration would likely not mount a vigorous defense of many (or any) of these regulations in court. While other parties may be able to step in and defend some of them, the absence of the executive branch as a party to any lawsuit would almost certainly harm the defense of the new rules.
Finally, a second Trump administration could cease or otherwise undermine enforcement of the new regulations. This would likely be done in combination with the steps above as the new administration would argue that it shouldn’t be enforcing a regulation it was on its way to repealing.
The head of the Office of Information and Regulatory Affairs, Richard Revesz, wrote before assuming his current position that it had become necessary for presidents to serve two terms in order to ensure that their regulatory legacy endured. Certainly, that was the case for Trump, as many of his efforts to deregulate were either unsuccessful before Biden took office or were quickly discarded by the new president.
While the courts may overturn some of the recent Biden administration efforts, the best way to make sure they have the impact that was intended is simple: President Biden has to win reelection. And that would be true regardless of the Congressional Review Act.
Stuart Shapiro is the Dean of the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him @shapiro_stuart.
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