As Congressional gridlock has made it more difficult for US presidents to enact policy agendas through legislation, the executive branch has increasingly relied on regulatory measures to implement policy changes. On January 27, at an NYU Law Forum, sponsored by Latham & Watkins, experts identified tools, such as the Congressional Review Act (CRA), that were used by the Trump administration to overturn regulations established under the Obama administration, and discussed how the new Biden administration might utilize the same tools. AnBryce Professor of Law and Dean Emeritus Richard Revesz moderated the virtual panel.
Selected remarks from the discussion:
Bethany Davis Noll, executive director of NYU Law’s State Energy & Environmental Impact Center: “[Under the CRA] Congress and the president aligned can disapprove a regulation issued by the prior administration, and before the Trump administration that statute has only been used once, to disapprove of the ergonomics rule which was issued under Clinton. Under Trump it was used 14 times to roll back rules right at the beginning of the transition.… Later in 2017 it was used against two other [Consumer Financial Protection Bureau] rules, so we just saw a huge expansion of interest in this statute. That’s a new tool that puts pressure on [the Biden administration].” (video 14:30)
Sally Katzen, professor of practice and distinguished scholar in residence: “[Obama-era regulations] had a phenomenal record of well-documented scientific, economic, legal basis for going forward. And the reason the Trump record on appeal was so bad is they never talked about it, they never countered it, they never were able to offer anything on the other side. So we can go back to what we had, beef it up, and I think that could expedite everything a lot.” (video 55:40)
Watch the full discussion on video:
Posted February 19, 2021