President-elect Joe Biden could be severely hampered in undoing Trump-era regulations if the runoff elections in Georgia result in Republicans keeping control of the Senate.
At issue is a legislative tool known as the Congressional Review Act. The law allows both chambers of Congress to pass a joint resolution to end recently implemented regulations. What makes the procedure especially powerful is that only a majority of support is needed from both chambers of Congress to reverse a rule. Democrats will keep their majority in the House, but Republicans could keep control of the Senate after Georgia’s runoffs and make it harder for Biden to reverse course on several Trump-era rules.
“If [Republicans] stick together, they can block any resolution … coming from the Senate they want, and the Trump regulations will remain in force,” said William Galston, the Ezra K. Zilkha chair in the Brookings Institution’s governance studies program.
Upon assuming the presidency, Biden and his administration are expected to employ a law that would allow them to roll back Trump-era regulations with just a majority of support from the House and the Senate, where 60 votes are normally required.
The law they intend to employ is the Congressional Review Act, which was enacted in 1996 and gives Congress the power to overturn regulations from federal agencies. The law was rarely used until the Trump administration took control of the White House.
When Trump took office in 2017, his administration overturned 15 Obama-era regulations, which included rolling back stream protections in regard to mining and reversing workplace safety rules, which Republicans touted as a major victory. Before Trump, the law was used once to overturn a rule on ergonomics in the workplace back in 2001.
The act can be applied to regulations finalized 60 legislative days before a congressional session ends, which can be a moving target. Based on the assumption that lawmakers adjourn in early December, Biden could potentially use the act to reverse regulations finalized as early as May 2020, according to the law firm Akin Gump Strauss Hauer & Feld.
Trump regulations that fit within this time frame include rules allowing states greater flexibility in calculating energy rates pursuant to the Public Utility Regulatory Policies Act of 1978 and limiting states’ authority to issue water quality certifications pursuant to the Clean Water Act, according to Akin Gump.
Still, Biden’s ability to use the Congressional Review Act will hinge on Democrats controlling both chambers of Congress. Currently, it looks like Democrats will have a majority in the House but not the Senate, according to the Cook Political Report, which described Democrats’ hope for a majority in the upper chamber as “disappearing.”
There are two Georgia runoff elections scheduled for Jan. 5 that will decide which party controls the upper chamber. One is between Democrat Jon Ossoff and incumbent Republican David Perdue. The other pits incumbent Republican Kelly Loeffler against Democrat Raphael Warnock. The Cook Political Report gives “Republicans … the upper hand.”
Democrats need to win both the elections to secure a majority in the Senate. Republicans only need to win one.
