Mad Rush to regulate
/Red State: Biden Admin Fast-Tracking Rule Changes As Trump Victory Becomes a Threat
The administrative state is preparing for former President Donald Trump to win reelection by implementing a surge of bureaucratic regulations before a deadline that renders them difficult to undue [sic] by a potential Trump administration. ...
Biden’s administrative state published 111 more regulations than Trump implemented at the same point in his term, Axios reported. Many of the rules will protect the progressive agenda of “climate change,” such as limiting auto tailpipe emissions and forcing power plants to cut carbon dioxide emissions.
The rules implemented during an upcoming “lookback period” can be reversed in a potential Trump administration via the Congressional Review Act. Any rules put into action before the deadline cannot be reversed. When the “lookback period” begins in 2024 is murky, but Axios reported Biden’s deadline to range between next week and September.
They can be reversed, but it will take longer to accomplish. However, if the White House rushes these through by violating the Administrative Procedure Act (APA), a court will reverse them immediately if challenged. The APA is a potent tool for plaintiffs seeking to reverse arbitrary imposition of regulations.
Presidential administrations have historically rushed to issue regulations in their final few months in office, but with nine months still left in this presidential term, that rush to the finish line is already evident. Polls show a tight race between President Biden and former President Trump, and the Biden administration appears to be working overtime to codify their regulatory priorities in time to shield them from change if the November election doesn’t go their way.
April was the busiest month on record for big ticket rules (those with estimated annual impacts of $200 million or more). The Office of Information and Regulatory Affairs (OIRA), which reviews all executive branch agency rules before publication, concluded its review of a whopping 42 such economically significant final rules in April, compared to fewer than five in an average month. According to the American Action Forum, in the first four months of 2024 alone, the Biden administration has issued regulations that—by agencies’ own estimates—will impose new costs on the public of more than $1 trillion dollars per year.
What accounts for this burst of regulatory activity with so many months to go in the term? A once obscure law known as the Congressional Review Act (CRA). If the November election brings Republican control of the White House and Congress, rules issued later in the summer or fall may be subject to review and disapproval in 2025. The CRA provides for expedited Senate procedures after which Congress can send a joint resolution disapproving a regulation to the president’s desk. Presidents tend to veto such disapprovals of their own administration’s rules, but a presidential transition offers a unique window in which a disapproval resolution could land on a sympathetic president’s desk. This is what happened in 2017, when newly inaugurated President Trump signed 15 resolutions disapproving regulations issued toward the end of the Obama administration. President Biden himself signed three disapprovals of Trump-era rules when he took office in 2021.
[Before Trump left office in 2021, he signed an executive order (EO) to reclassify federal government employees into Schedule F, which would have allowed the president to enhance accountability and job performance within the bureaucratic agencies. “You have some people that are protected that shouldn’t be protected,” Trump said in May about Schedule F.
Biden canceled the order when he assumed office in 2021, but if Trump reclaims the White House, he will reportedly reimplement the executive order and purge the unelected technocrats artificially running the federal government. “It would effectively upend the modern civil service, triggering a shock wave across the bureaucracy,” Axios previously concluded about the EO’s impact.
Exactly when the Biden administration’s deadline is for avoiding a similar fate for its priority rules is uncertain. The CRA gives Congress a 60 working day window during which disapprovals can be introduced and considered. But, if a rule is submitted late enough in the year that either the House or Senate doesn’t get the full 60-day review period, a “lookback” provision ensures the next Congress can review the rule (see graphic).
The CRA allows Congress to overturn rules issued by the Executive Branch by enacting a joint resolution of disapproval that cancels the rule and prohibits the agency from issuing a rule that is “substantially the same.” One of the CRA’s most unique features—a 60-day “lookback period”—allows the next Congress 60 days to review rules issued near the end of the last Congress. This means that the Administration must finalize and publish certain rules long before Election Day to avoid being eligible for CRA review in the new year.
Overview of the CRA
The CRA requires federal agencies to submit all final rules to Congress before the rule may take effect. It provides the House with 60 legislative days and the Senate with 60 session days to introduce a joint resolution of disapproval to overturn the rule. This 60-day period counts every calendar day, including weekends and holidays, but excludes days that either chamber is out of session for more than three days pursuant to an adjournment resolution. In the Senate, a joint resolution of disapproval receives only limited debate and may not be filibustered. Moreover, if it has been more than 20 calendar days since Congress received a final rule and a joint resolution has not been reported out of the appropriate committee, a group of 30 Senators can file a petition to force a floor vote on the petition.
If a CRA resolution receives a simple majority in both chambers and is signed by the President, or if Congress overrides a presidential veto, the rule cannot go into effect and is treated “as though such rule had never taken effect.”[1] The agency is also barred from reissuing a rule that is “substantially the same,” unless authorized by future law.[2]
Election Year Threat: CRA Lookback Period
These procedures pose special challenges for federal agencies in an election year. If a rule is submitted to Congress within 60 days before adjournment, the CRA’s lookback provision allows the 60-day timeline to introduce a CRA resolution to start over in the next session of Congress.
This procedure ultimately requires the current administration to assess the threat of a CRA resolution against certain rules and determine whether to issue the rule safely before the deadline or risk a potential CRA challenge.
Mid-May Deadline Estimated for Biden Agency Actions
Agency leaders are working to finalize rules in time to meet this deadline. At a recent conference held by the American Law Institute’s Continuing Legal Education, Vicki Arroyo, the Environmental Protection Agency’s (EPA) Associate Administrator for Policy, explained that the deadline is “something that [the EPA is] very focused on.”[3] Although the deadline is uncertain, she noted that to be cautious, agencies may submit rules as “early as the end of April or May.”[4]
Federal agencies have already begun or plan to submit rules to Congress before the late May deadline, including:
(FWIW interpretation in brackets)
An EPA rule that sets new standards to reduce air pollutant emissions from cars and a rule that requires fossil fuel plants to rely on new technologies to reduce pollution levels. [Bans ICE vehicles, cars and trucks, closes gas and coal-powered energy plants]
A Department of Labor rule that modifies Wage and Hour regulations to clarify the criteria for classifying workers as independent contractors as opposed to employees and a rule that narrows the standards to classify as exempt from the Fair Labor Standards Act’s minimum pay and overtime requirements. [Bans GIG jobs]
A Department of Justice rule that takes additional steps to implement the Bipartisan Safer Communities Act, which makes various changes to federal firearm laws, including expanding background check requirements and broadening the scope of existing restrictions. [Gun control]
The Energy Department’s regulations setting consumer water heater energy efficiency standards to lower utility costs for American families and increase energy savings. [and drive the prices of those heaters higher]
An Office of Personnel Management rule that would implement stronger guardrails for career employees, allowing them to keep civil service protections unless they voluntarily accept a political appointee position and adding requirements when reclassifying career positions as political appointments. [protect the federal bureaucrats — permanent employment]
A Bureau of Land Management rule setting management standards that put conservation on par with resource extraction to protect public lands and restore degraded habitats. [places most federal lands off-limits for coal and oil production]
The fate of these rules will depend on how soon the Administration can finish these rulemakings and submit them to Congress. Otherwise, the outcome of the 2024 election will determine whether these rules ever take effect.
