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The Regulatory Push

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The last couple of weeks have seen a cavalcade of superb regulations coming out of the Biden administration. Often, this happens closer to the end of a presidential administration. But that causes all kinds of problems, as Obama later learned when Trump overturned as many of those regulations as he could. Biden learned from this, which explains what is happening.

Nearly every day for the past month, the Biden administration has made an announcement about a finalized regulation. They have completed a minimum staffing ratio for nursing homes, conserved 13 million acres in the Alaskan Arctic, designated “forever chemicals” as hazardous substances, invested in rooftop solar panels in low-income communities, banned most noncompete agreements at U.S. businesses, directed federal agencies to purchase sustainable products, and closed the “gun show loophole,” to name just a few.

Why has April been a month of regulatory action? The administration surely wants to show key constituencies that they have made progress. But policymakers are also racing to get regulations done to protect them from being overturned in the next Congress.

The threat depends on the outcome of the 2024 election. If Donald Trump and the Republicans sweep back into power, they would have the ability to use the Congressional Review Act (CRA), a 1996 law that allows Congress to overturn federal agency rules through a streamlined process. Unlike most legislation, CRA resolutions can pass with a simple majority in the Senate, giving a future Republican majority a path to quickly show progress early in 2025.

But because of the timeline outlined in the CRA, any rule finalized before late May (roughly speaking; this is a moving target) is safe from being reversed by Congress. So agencies have clearly been told to get their most important rules out the door now.

In other words, the CRA is so powerful that it virtually shuts down executive branch rulemaking authority, months before the end of a presidential term.

Glad to see Democrats learning, especially the most old school of them all, Old Man Biden.

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