Biden to be inaugurated in a high security setting, before a ‘field of flags’ instead of people



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Biden has congressional shortcut to reverse Trump’s regulatory cancellations, but it comes with risks

Many of the resolutions and executive orders that Trump signed early in his administration overturned Obama-era decisions regarding the fossil fuel industry. AP Photo / Evan Vucci The Trump administration has dedicated itself to deregulation with unprecedented fervor. He rescinded numerous regulations in government agencies, including over 80 environmental rules. The Biden administration can quickly reverse some of these actions – for example, as president Joe Biden can override Donald Trump’s executive orders with the stroke of a pen. He plans to re-establish American involvement in the Paris climate agreement on his first day in office. However, reversing most regulatory cancellations will require a review process that can take years, often followed by further delays during litigation. There is an alternative, but it comes with risks. Biden could take a leaf from the Republicans’ playbook from 2017, when Republicans in Congress used a shorthand based on an obscure federal law called the Congressional Review Act to erase several regulations of the Obama administration. Some scholars have called these 2017 repeals “the main domestic political achievement of the Trump administration in its first 100 days.” Unsurprisingly, there is a lot of interest in seeing the new Democrat-controlled Congress turn the tables and use the same procedure against Trump’s regulatory cancellations. However, this procedure is far from a panacea for undoing Trump’s legacy. Its obscure rules can tie the hands of future administrations without providing clear standards for its application, and they offer little time for deliberation. How Congress Could Reverse Trump’s Cancellations The 1996 Congress Review Act provides a way to overturn new rules made by executive agencies without getting bogged down in agency and court proceedings. Democrats could use it to reverse cancellations by the Environmental Protection Agency, the Home Office and others. The Congressional Review Act also applies whether a rule broadens or rescinds the regulation. Within 60 legislative days of the publication of a new rule, Congress can disapprove it using streamlined procedures. Obstructions in the Senate are not allowed and debate in the Senate is limited to 10 a.m. Since only congressional sitting days are counted, the law may apply to regulations that are several months old. Once a rule is frowned upon, it is dead forever. It cannot be reissued. But that’s not all. The law states that no rule can be issued in “substantially the same form” without additional permission from Congress. How similar must a future rule be before it becomes “substantially the same”? There is no definitive answer, so there is a risk that a hostile judge will invalidate a Biden rule dealing with the same subject as a repealed Trump rule. Assuming the Biden rule goes in the opposite direction of the Trump rule, that might not be a major risk. But we can’t really be sure. Times and Numbers Democrats may find attractive targets for the Congressional Review Act. In recent weeks, the Trump administration has passed rules limiting the review of public health studies to set air pollution limits, requiring banks to make loans to the gun and petroleum industries, and protecting industries other than electric utilities from climate change regulations. These are just a few of Trump’s last-minute efforts to sabotage regulations favored by Democrats. The number of Congressional votes needed to be successful, especially in the Senate, will likely narrow the list, however. Democrats only have 50 senators, and they’ll need 50 votes plus Vice President Kamala Harris’ deciding vote to use the act. Unless they find a moderate Republican like Susan Collins from Maine to cross the aisle, they’ll need each of their own Senators. This includes Joe Manchin of West Virginia, often their most conservative senator, especially on fossil fuel issues. Repeals of the Congressional Review Act also take time. Each takes up to 10 hours in the Senate. Speaking time in the Senate is limited and desperately needed to confirm Biden’s candidates and consider Trump’s impeachment. That’s not to mention a coronavirus relief bill and other priorities. This is a good reason to be selective. Is it time to repeal the law? Progressives see the Congressional Review Act as a holdover from Newt Gingrich’s “Contract with America”, conceived as a conservative tool for deregulation. They also point out that the Congressional Review Act’s time limits for repealing a bylaw and procedural shortcuts mean there is very little room for deliberation in Congress. As a law professor specializing in energy and the environment, I studied Republicans’ use of the Congressional Review Act in 2017. My research shows that their target selection was random at best, not having not much to do with the burdens created by individual regulations. Democrats may find that their selection of Congressional Review Act targets will be driven less by major political concerns than by the whims of swing voters like Senator Manchin. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Given the reservations of some parts of the party on the Congressional Review Act and everything Democrats now have on their agenda, it seems unlikely that Democrats will use the law to the same extent as Republicans do. ‘did in 2017. Perhaps if the congressional review act has now been turned against Republican policies after being turned against Democratic policies, we could start having a healthy debate on whether this mechanism of Congressional control is worth keeping. experts. It was written by: Daniel Farber, University of California, Berkeley. Read more: Biden plans to tackle climate change in a way no US president has before EPA staff say the Trump administration is changing its mission of protecting health Human and Environmental Protection Industry Daniel Farber does not work, consult, own stock or receive funding from any business or organization that would benefit from this article and has not disclosed any affiliation relevant beyond their academic appointment.

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