Republicans plan to use a familiar playbook to eliminate Biden-era rules when they take over Congress and the White House — but the outgoing administration has made that job harder.
The next Congress will be empowered to scrap recently finalized rules under the Congressional Review Act. Federal agencies completed work on many regulations earlier this year so they would be outside the review window.
Some of the Democratic administration’s landmark rulemakings, like prescription drug transparency and limits on noncompete clauses, are out of the reach of Congress under the law.
“Some of the highest-priority regulations that a conservative government would have wanted to overturn are not going to be in the look-back window,” said Sarah Hay, a policy analyst at the George Washington University Regulatory Studies Center.
When President-elect Donald Trump started his first term in 2017, lawmakers used the CRA to overturn 16 rules from the Obama administration. Democrats rescinded three rules from the Trump administration using the act. The tool dates back to Newt Gingrich’s Contract with America and was signed into law in 1996. Before 2017, it had only been used once to overturn a final rule.
While Republicans may have fewer targets than in Trump’s first term, they are still planning on killing as many Biden rules as possible.
Senate Minority Leader Mitch McConnell (R-Ky.), who is stepping down from his leadership post in January but will helm defense appropriations, said Republicans have a “crystal clear mandate” to undo the Biden administration’s regulations. McConnell cited the CRA as an opportunity to “hit the brakes on runaway regulation.”
The GOP will target “anything that the administration has done in the last few days of” Biden’s term, said Rep. Andy Harris (R-Md.), who leads the conservative Freedom Caucus.
60-Day Window
Under the law, rules finalized and submitted to Congress within 60 session days of adjournment can be subject to joint resolutions of disapproval. Such resolutions must be approved by a majority in both chambers and aren’t subject to Senate filibusters.
Republicans could target a minimum of 900 rules under the Congressional Review Act in 2025, according to George Washington University’s Regulatory Studies Center. Of those, 24 would have an economic impact of $200 million or more.
The Biden administration likely “strategized” to ensure some of its pet regulations would be finalized before the window, Rep. Adrian Smith (R-Neb.) said, making them less vulnerable to the incoming GOP majority. Smith said the Biden administration has been active enough that Republicans still have a long list of regulations to tackle.
Democratic Sen. Brian Schatz (Hawaii) has similar expectations. The Biden administration did a better job than the Obama administration at understanding the look-back period for rules and “tried to get as many in under the wire as possible,” Schatz said.
“But they still didn’t get a bunch of stuff done,” he added. “And I have a feeling they’re going to be repealed through the CRA.”
Lawmakers don’t yet know the full scope of regulations they can target, because they don’t know how many last-minute regulations agencies will try to finalize. Rep. Bill Huizenga (R-Mich.), who sponsored the first successful Trump-era CRA and is seeking the House Financial Services chairmanship, said staff is looking at “generous time frames” — rules published this fall, which will almost certainly be subject to CRA — and narrower ones, like rules published in August that may or may not be eligible.
House Republicans are still organizing and still don’t have a full list of what they want to overturn. But Huizenga named some regulators whose rules they’ll be interested in rescinding: Rohit Chopra’s Consumer Financial Protection Bureau, Gary Gensler’s Securities and Exchange Commission, and Lina Khan’s Federal Trade Commission.
Hay cited the Environmental Protection Agency’s recent rule targeting lead pipes, the Food and Drug Administration’s final rule on tobacco age requirements, and a Health and Human Services rule on raises for Head Start preschool teachers as rules vulnerable to the CRA next year. Other recently completed rules, like the EPA’s Nov. 12 methane fee — which environmentalists see as an important tool to crack down on fugitive methane — also could be on the chopping block.
The Biden administration finalized many of its most significant energy and environment regulations this past spring, before the eligible CRA timeframe kicked in, said Matthew Davis, vice president of federal policy at the League of Conservation Voters. Republicans will also have slim majorities in both chambers and it’s not guaranteed they can muster enough support to override all of the eligible rules, particularly if lawmakers from swing districts or states balk.
Still, Republicans could go after the Biden administration’s lead and copper rule and its regulations related to fees on methane emissions, which were finalized within the mandated review period. But Davis added that the methane fee rule has industry support, and it “might not be a fight” that Republicans want to pick.
The Trump White House will still have an opportunity to scrap Biden-era rules that aren’t in the CRA window, but it’s a more cumbersome process that requires the new president to issue a new rule.
The speed of using the CRA is one reason lawmakers cited for their upcoming onslaught. It’s also a blunter tool for overturning regulations than the administration introducing its own rule, because the CRA bars agencies from ever crafting another rule that’s “substantially the same.”
Dan Lee in Washington also contributed to this story.
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