Senate Democrats missed their window to undo most of Trump's last-minute rule-making

Congressional Democrats made sparing use of a law that allows them to immediately overturn the Trump administration's last-minute flurry of "midnight regulations" — including measures that weakened environmental protections, permitted discrimination on the basis of sexual orientation and gender identity and made it harder for shareholders to hold corporations accountable.

While the Democrats were juggling many priorities over the past several months — including impeaching former President Donald Trump and passing a massive pandemic relief package — the inaction on many of the last-minute Trump rules disappointed some progressive advocates, who had urged the party to strike the rules as quickly as possible.

"It's disappointing because it's so important," said Sasha Buchert, a senior attorney for Lambda Legal, a civil rights advocacy organization focused on LGBTQ issues. The group had pushed Congress to undo a Trump-era rule allowing social services providers receiving federal funds to discriminate based on sexual orientation and gender identity, but lawmakers did not act in time to reverse it immediately.

Video: Lisa Murkowski lone GOP senator to support voting rights bill

The Congressional Review Act allows lawmakers to eliminate recently finalized regulations quickly, requiring only simple majorities in both the House and the Senate. (Such resolutions cannot be filibustered in the Senate.) But it allows a limited time to act: After a rule is finalized, lawmakers must introduce a resolution of disapproval within 60 days that Congress is in session. In the early months of the Trump administration, the Republican-controlled Congress used the law to eliminate 14 Obama-era rules.

During the Biden administration, Senate Democrats passed resolutions to eliminate only three Trump rules during the same period — and the deadline for Senate action closed the last week of May. The resolutions would halt the Trump administration's rollback of methane emissions standards, repeal a rule that gives employers certain advantages when workers file bias claims against them and stop lenders from circumventing caps on high interest rates. The resolutions still need the House's approval and President Joe Biden's signature to become law, although there is no deadline, and they are expected to be successful.

To reverse the scores of other last-minute Trump rules, agencies must now use the often long and laborious rule-making process — unless a court strikes them from the books sooner.

Related: Democrats have never reversed a rule through the Congressional Review Act, which was created to allow legislators to rein in the executive branch.

Among the Trump rules that progressive advocates had urged Congress to reverse was a measure that limited shareholders' ability to demand corporate action on climate change, workers' rights and other issues. Groups like Lambda Legal also supported the reversal of a rule forcing the Department of Health and Human Services to review more than 17,000 of its own regulations, or they would expire automatically. But while lawmakers introduced resolutions to scrap both rules, along with a third focused on a Social Security rule, the measures never went to the Senate floor for votes. Now it could take months or even years to dislodge them, taking up agency time, personnel and resources.

"To undo a rule that is fully solidified could easily take more than half of Biden's presidency," said Jeff Hauser, a progressive strategist who advocated for more aggressive use of the Congressional Review Act. "I just don't think it was a priority."

James Goodwin, a senior policy analyst for the Center for Progressive Reform, an advocacy group, agreed.

"Democrats in Congress were definitely reluctant to make aggressive use of the Congressional Review Act," he said. "There are folks like myself scratching our heads and asking, 'Why didn't you guys get more done?'"

The office of Senate Majority Leader Chuck Schumer, D-N.Y., declined to comment about the small number of resolutions that went to the Senate floor for votes. In a letter in March detailing his support for two of the resolutions that did pass, Schumer described the Congressional Review Act as "an opportunity to repeal some of the most harmful rules that the Trump administration put into place at the end of its term."

One of the biggest constraints, congressional staff members said, was an agenda that was packed from the moment Democrats took power, as they impeached Trump after the U.S. Capitol riot on Jan. 6, passed pandemic relief and confirmed Biden's political appointees. Under the Congressional Review Act's strict requirements lawmakers faced an early April deadline to introduce resolutions to dislodge rules issued during the final months of the Trump administration. Only rules finalized from late August to January were eligible to be removed.

"They had much bigger legislative priorities to deal with right at the beginning of the Congress," said Amit Narang, regulatory policy advocate for Public Citizen, a consumer advocacy organization. "Back in 2017, the GOP wasn't close to doing anything of that scale in terms of passing major legislation."

The list of potential targets also narrowed after court rulings halted some of the most contentious Trump rules early on, blocking restrictions on asylum and striking down limits on the Environmental Protection Agency's use of scientific research. The EPA ruling cited the Trump administration's failure to follow proper rule-making procedures — a problem that undercut Trump's agenda from the beginning of his administration.

Pending court decisions were another factor for Democratic leaders, who consulted with the Biden administration about which rules to target: The Supreme Court is expected to rule this year on whether government-funded groups can discriminate on the basis of religion, sexual orientation or gender identity. Democrats may have been reluctant to target the related Trump rule before the decision, said Buchert of Lambda Legal.

Democrats also faced political obstacles in using the Congressional Review Act. The law has historically been considered a tool for Republicans to combat government overreach: It not only provides a fast track for deregulation; it also prohibits agencies from issuing future rules that are "substantially the same."

The Congressional Review Act "at heart is a deregulatory law," said Meghan Hammond, a Washington-based lawyer who represents the energy industry and has closely tracked the law's use. The statute had been used only once to remove a rule before Trump became president, and never successfully by Democrats, some of whom want to scrap the law altogether.

Some advocates say the party could have used the Congressional Review Act to cement their policy priorities for years to come, because rules through the law would prohibit future presidents from enacting the same policies. While many of Trump's last-minute immigration rules had already been halted in court, for example, passing resolutions of disapproval "could have restricted a future administration from acting," said Aaron Reichlin-Melnick, policy counsel for the American Immigration Council, an advocacy group. "Congress missed an opportunity."

But while many Democrats have come around to embrace the law, the party would need the support of every caucus member in the Senate to pass a rule-reversing resolution, given the 50-50 split along party lines, and votes on contentious issues could have carried additional political risks.

One Trump rule that has remained in place removed protections for Alaska's Tongass National Forest, the largest temperate rainforest in North America, which had drawn fierce criticism from environmental groups.

"It would have been a good one to undo, because the Trump rule waived away 20 years of protections, opening things up for logging in the future," said Brett Hartl, government affairs director for the Center for Biological Diversity, an environmental advocacy group.

But there was no guarantee that Democrats had the votes to remove the rule, and bringing a resolution of disapproval to the floor could have risked alienating key members, like Sen. Lisa Murkowski, R-Alaska, who is often involved in bipartisan negotiations, Hartl said.

While the window for Senate action has closed, Hartl and other advocates remain hopeful that the Biden administration will act quickly to remove more Trump rules through the normal rule-making process. The White House, which did not respond to a request for comment, has already begun reinstating fair-housing rules that Trump undermined and reversing a Trump policy that relaxed clean air rules, among other major changes.

In the meantime, however, many Trump-era rules remain in place. "Many of them will be on the books for a year or two or more," Hartl said.