Why Senate Democrats reversed few of Trump's 'midnight rules'

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.

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.
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.

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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.