Biden has only weeks to safeguard policies from potential Trump victory

President Joe Biden has eight months remaining on his presidential first term. However, he has only weeks to safeguard his key policies and regulations from a potential Donald Trump victory in November.

“The Biden administration is right now trying to rush out in final form all of the regulations that he’s been working on for a couple of years to make sure that they are final before the Congressional Review Act cutoff date,” Columbia Law Professor Michael Gerrard said.

The 1996 law allows an incoming president to unravel the previous administration’s recent rules and regulations with support from a simple majority in the House and Senate. 

“It was adopted during the time when Bill Clinton was president and Newt Gingrich was the speaker of the House. There were a lot of conflicts and Congress — the majority in Congress — felt that it should have more ability to control what the administrative state does,” Gerrard said.

The rules are obscure, but essentially, once a federal agency reports a new rule to Congress, Congress has 60 working days to introduce a joint resolution disapproving of the rule. The review also includes a “lookback” provision that allows the next session of Congress to review rules if passed with fewer than 60 chamber work days left in the session.

It had been considered to be an extraordinary step.

Michael Gerrard, Columbia Law Professor

The Congressional Review Act (CRA) essentially gives Congress the opportunity to get on the record, but it rarely makes it to the president’s desk. That’s largely because no sitting president is likely to overturn a rule he or she made. This is why the act has only ever succeeded when a new president comes in.

“It had been considered to be an extraordinary step,” Gerrard said.

“Before this administration, only one time in our history had a president signed a bill that used the CRA to cancel a federal regulation,” then-President Trump said in 2017. “So we’re doing a lot of them.”

That one time in history was at the beginning of former President George W. Bush’s term. But then Trump and the Republican-controlled Congress used the CRA to overturn 16 Obama-era rules.

“I will keep working with Congress, with every agency, and most important with the American people, until we eliminate every unnecessary, harmful and job-killing regulation that we can find,” Trump said.

The impacts of a successful CRA are long-lasting. When a president signs a CRA that overturns a rule, it prevents federal agencies from ever issuing a “substantially similar” rule unless specifically authorized by Congress. After Trump successfully used the CRA 16 times, Biden’s first months in office included three of his own.

“The fact that we have the Congressional Review Act means that we can undo that damage and undo it quickly,” Sen. Chuck Schumer, D-N.Y., said in 2021.

Now, with Trump back on the ballot, George Washington University research shows the Biden administration is finalizing rules this spring at a pace that far exceeds any other time in his term to get ahead of the 60-working-day window.

“There’s every reason to believe that [Trump] would want to revoke as many of the Biden-era regulations as he could, just as in the first term he revoked a lot of the Obama-era regulations,” Gerrard said.

Trump’s campaign confirmed as much.

“When re-elected, President Trump will immediately cut Joe Biden’s burdensome regulations, unleash our domestic energy industry and implement a pro-worker agenda that will uplift all Americans,” Trump campaign spokesperson Karoline Leavitt said.

Gerrard said it’s only in the past couple of decades that federal policy has shifted so radically from one party to the next, and that political environment has made the business environment more chaotic.

“It’s completely disruptive,” he said. “Because for one thing, industry needs to know what investments to make. They need to know how clean their power plants need to be, what kind of automobiles to make. All across industries, companies rely on predictability for what regulatory schemes will apply.”

Of course, CRAs just scrape the surface of what’s possible to undo presidential legacies. Executive orders, court challenges, new legislation and agency rules are other ways to attack previous policies and implement new ones.

Any rule that can be adopted with the stroke of a pen can be revoked with a stroke of a pen.

Michael Gerrard, Columbia Law Professor

“On the day that Donald Trump was first inaugurated as president, we launched our climate deregulation tracker because we knew what was coming,” said Gerrard, who is the founder and director of Columbia Law School’s Sabin Center for Climate Change Law. “And on the day that Joe Biden was inaugurated, we rebranded it the Climate Reregulation Tracker.”

The Sabin Center tracked 176 deregulation actions during Trump’s administration and 214 reregulation actions during Biden’s. Gerrard said since it’s so difficult to get new legislation through Congress, presidents are increasingly resorting to executive moves.

“On the day that Joe Biden was inaugurated, he walked into the White House for the first time as president and had on his desk in the Oval Office a stack of executive orders that he signed within hours of taking the oath of office,” Gerrard said. “He was signing those in order to revoke a lot of the Trump policies that had been issued just as executive orders and to start instituting new policies.”

Executive action can be swift, which means it can also be fleeting. 

“Any rule that can be adopted with the stroke of a pen can be revoked with a stroke of a pen,” Gerrard said. “And that makes it far more difficult for industries to predict what’s going on and to act accordingly.”

Gerrard said the energy industry in particular — from renewables to fossil fuels — is downshifting ahead of the election, hesitant to make large investments without knowing what November will bring.