Democrats Eye Senate Control—Here’s How They Could Roll Back Trump’s ‘Midnight’ Regulations

Topline

With Democrats closer to controlling the Senate as the United States awaits the final results of one senate runoff election in Georgia, their potential new majority could use a once-obscure law to roll back some of the last minute rules the Trump administration has issued in its waning days.

Key Facts

In the final days of his presidency, Donald Trump’s administration has finalized 40 so-called “midnight regulations” (catalogued by ProPublica here), with nearly 30 more in the works. 

Those last minute rule changes have covered everything from letting companies list on public exchanges without the oversight of an investment bank as an underwriter to relaxing regulations on national banks to regulating air travel with service animals. 

Sen. Brian Schatz (D-Hawaii) said Wednesday that he anticipates Democrats will move “aggressively” to undo Trump’s last-minute rollback of environmental regulations, according to HuffPost’s Igor Bobic.

If they sweep Georgia, Democrats would find it easier to roll these rules back under the Congressional Review Act, which was signed into law in the 90’s and allows lawmakers to overturn rules created by federal agencies within a certain period of time after they are enacted. 

The CRA only requires a simple majority in both chambers of Congress (though a two-thirds majority would eventually be necessary if a sitting President moves to veto the rule rejection) and can sometimes avoid the Senate’s filibuster, according to the Congressional Research Service, to overturn a rule within 60 legislative days of its issuance.

Key Background

In the days after Trump’s inauguration in January 2017, Republicans used the Congressional Review Act to undo rules from his predecessor to an unprecedented degree. “We’re directly attacking the over-regulation issue, thanks to the Congressional Review Act,” Senate Majority Leader Mitch McConnell (R-Ky.) said at the time, “and plan to take as many of these job-killing regulations off the books as possible,” Roll Call reported. In the spring of 2017, the Republican controlled House and Senate voted to repeal more than a dozen Obama-era regulations including a rule barring internet providers from selling their customer’s data without permission, an oil anti-corruption rule at the Securities and Exchange Commission, and a prohibition on hunting bears in Alaska using aircraft, NPR reported. 

Surprising Fact

Even if Democrats do not take control of the Senate, the Yale Journal on Regulation’s Sam Wice points out that it would be possible for them to use the CRA to roll back some of Trump’s last minute rule changes, provided they could secure a Republican vote or two to achieve a simple majority in the Senate. Those few Republicans votes would be enough for Congress to pass a joint resolution to overturn a rule, and President-elect Biden would obviously be much less likely to veto that joint resolution than would his predecessor. 

Further Reading

We Looked At How The Stock Market Might Perform If Democrats Sweep Georgia – And The Results Aren’t What You Think (Forbes)

Goldman Sachs Predicts Another $600 Billion Stimulus If Democrats Win In Georgia (Forbes)

Here’s What The Georgia Runoff Elections Will Mean For Economic Recovery (Forbes)

Betting Markets Have Georgia Senate Runoffs As Toss-Ups–Here’s What Investors Should Expect If Democrats Pull Off A Win (Forbes)

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