As Election Day 2024 draws near, the Biden administration is scrambling to make sure its legacy is cemented no matter the victor. Part of this includes pushing through a huge number of favored regulations before time runs out. Under the Congressional Review Act (CRA), federal rules can be rolled back within 60 legislative days after they are issued, putting pressure on the president to act quickly to safeguard a long list of regulations should Donald Trump win in November.
Biden Rushes to Lock in Regulations
“In April 2024, federal agencies broke records by publishing 66 significant final rules,” the George Washington University Regulatory Studies Center recently reported. This is higher than any previous month during the Biden administration “and is nearly five times the average of the preceding months.”
According to the report, more than half (34) of the rules are economically significant, which means that "each of those rules is likely to have an annual impact of $200 million or more on the economy.” Of those 34, 27 were published during the last two weeks of April. That number is higher than any other month going back to Ronald Reagan’s administration, including the “midnight” months, when there is a flood of activity just before a president leaves office.
The report demonstrated the rush, showing that the Biden administration published 262 final rules each month from February 2021 to March 2024. Five percent of those were significant, and 2% were economically significant. Fast forward to last month, and 22% of the rules were significant, while 11% were economically significant. “That comparison suggests that agencies have likely been prioritizing publication of the most controversial, high impact rules to minimize the risk of CRA disapproval in case of a presidential transition.”
In 1996, Congress enacted the CRA as a tool to measure resolutions that were introduced and did not result in disapproval. The late Sen. Harry Reid (D-NV) said about the bill: “The President promulgates a regulation and Congress has a chance to look it over to see if it is too burdensome, too costly, too unfair. We have done that a few times. That was legislation that I did, and it was great when we had Republican Presidents, not so great when we had Democratic Presidents, but it was fair.”
The act had been used only once before Trump became president. In March 2002, President George W. Bush signed a resolution to overturn an OSHA ergonomics rule from the Clinton administration. When Trump became commander-in-chief, he signed 16 CRA resolutions against rules from Barack Obama’s administration. “This is Newt Gingrich’s knife against the throat of the administrative state that Trump weaponized,” Craig Segall, vice president of the climate advocacy group Evergreen Action, told The American Prospect. And this is what Biden is trying to prevent from happening again.
Some of the regulations Biden is pushing through include:
A Federal Trade Commission non-compete clause rule
Environmental Protection Agency’s standards for coal-fired power stations
A Labor Department overtime rule
A boost to electric vehicles by limiting automobile tailpipe emissions
A ban on non-compete agreements
The first federal mandate to cut carbon dioxide from power plants
National limits on forever chemicals in drinking water
Healthcare for DACA undocumented immigrants
Government use of HIPAA to safeguard access to abortion
Biden needs to publish regulations before the end of May to protect them from the CRA, although some lawmakers argue that such significant changes could be safeguarded as far out as September. Whatever the ultimate deadline, passing rules and regulations that an incoming administration would have to expend effort to repeal hints at the wisdom of Ronald Reagan's famed 1964 adage that “governments’ programs, once launched, never disappear.”
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