Why is the Biden administration doing so much rulemaking this month?
Why *right now* specifically?
Since the beginning of the year, the Biden administration has significantly accelerated its federal rulemaking. In just the past month, Biden has issued rules to:
ban noncompete agreements to strengthen worker bargaining power
end the gun show loophole that allows dangerous weapons to be bought without a background check
regulate power plant emissions to clean our air
boost electric vehicles and reduce transportation emissions
improve permitting to accelerate the construction of clean energy projects
crack down on junk health insurance plans that scam Americans
protect patient privacy for reproductive health care
This is just a tiny sampling of the most well known new rules.1 You can type in “new rule” to the WhiteHouse.gov search bar and find nearly two thousand releases, most from the past two months. Partly, the new spike in volume is because the federal rulemaking process usually takes two to three years for controversial rules, and we’re now three and a half years into Biden’s presidency. But there’s another reason which has major implications for this fall’s elections.
Why now?
There’s a little known law called the Congressional Review Act passed by Republicans during Bill Clinton’s presidency. It allows Congress, by a simple majority vote, to overturn any federal rule within 60 legislative days of the rule being submitted to Congress and into the Federal Register, and to bar the relevant agency from crafting a substantially similar rule in the future. Crucially, those 60 days only include days when Congress is in session, but if a new session of Congress starts before then — e.g. in January of next year — Congress gets another 60 days to take action.
If Republicans take back Congress and win the White House, they will be able to easily discard any rules that are passed in the second half of the year. Because Congressional calendars can change, no one is exactly sure by when rules need to be passed, but most people agree that the deadline to be safe is in mid-May.
The Biden administration’s rapid output of new administrative rulemaking can best be viewed as a hedge against the odds that Republicans win in November, and avoiding the mistakes of the Obama administration.
Prior to 2017, the Congressional Review Act had only ever been used once. But after the Obama administration completed a spate of new rulemaking late in 2016,2 Trump was able to rollback a host of Obama era regulations very easily. Trump, of course, spent much of his term trying to undo various Obama era policies. But his general administrative incompetence and small legislative majorities meant that he was often unsuccessful. The Congressional Review Act is the single easiest way to undo administrative policy: it requires simple majorities, can’t be filibustered in the senate, and prevents future rulemaking on the same subject. Trump couldn’t repeal the ACA legislatively, but he did manage to use the CRA to stop regulations on consumer protection, environmental land use, unemployment insurance, finance, labor protections, and more.
80% of total CRA uses in history came during the first six months of the Trump administration, and Biden’s team is working hard to make sure a potential second Trump administration doesn’t have it so easy.
Housekeeping Notes
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Last Friday: The House of Representatives Is In A Really Weird Place Right Now
Federal rulemaking refers to executive agencies’ ability to craft rules clarifying how a law will be enforced. Congress often passes laws empowering cabinet agencies to pursue a specific goal, but leaves the exact mechanics up the agency itself. During divided government, rulemaking is commonly used to pursue the president’s policy agenda in situations where he or she cannot pass laws through Congress.
The 2016 legislative calendar was unusually sparse and the 60 day period accordingly stretched back further than most people expected.
ICF was integral to the analysis underpinning EPA's new PFAS , aka "forever chemicals" rulemaking. You're welcome America!