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Joe Biden can’t ‘Trump-proof’ his agenda

What's that coming over the Hill? Credit: Getty

May 7, 2024 - 7:00pm

In recent weeks, the Biden administration has unleashed a pack of regulations. Among other actions, it has established new guidelines for electric-vehicle tax credits under the Inflation Reduction Act, banned noncompete agreements, and released new rules for coal-fired power plants. In addition to trying to generate fodder for an election message, the administration is also seeking to undercut a potential Republican legislative programme if the GOP prevails in November.

As a recent Wall Street Journal story reveals, 1996’s Congressional Review Act (CRA) is giving the White House additional urgency to finalise rule-making. Originally passed as a deregulatory measure, the CRA establishes a window within which Congress can nullify a new presidential regulation. Because this congressional resolution would need either to be signed by the president (who generally would not approve a measure gutting his own administration’s regulations) or to overcome a veto (a tall legislative hurdle), this CRA provision has often functioned more as a messaging tool than something with legislative teeth.

There’s an exception to this trend, though: after a presidential election in which the White House changes hands and the new president’s party controls Congress, the regulations passed in the waning months of the last administration can be a target-rich environment.

We saw this occur when Donald Trump took over the presidency in 2017. During his opening days, 16 Obama-era rules were overturned. And when Joe Biden took office, Democrats used the CRA to wipe out three rules from the Trump administration.

The CRA had particular appeal for Republicans during Trump’s presidency. Torn between austerity and populism, the party was deadlocked on many issues. An attempt to repeal or reform the Affordable Care Act was blocked by divisions regarding coverage for preexisting conditions and healthcare subsidies for working families, among other disagreements. While Trump ran on building a wall along the southern border, some congressional Republicans were sceptical of such an enforcement-first approach, and he proved unable to bundle the idea into a wider legislative deal.

This brings up the question of whether Republicans would be able to rack up more of a legislative record in a second Trump term. Much would depend on the election results, as well as how Trump positions himself. Theoretically, there could be some bipartisan common ground to be found on a defence-industrial base, trade policy, and potentially even immigration — where the breakdown on the border has made the public much more sympathetic to a harder line on unauthorised immigration.

However, the divisions that haunted the GOP between 2017 and 2021 could reassert themselves if the party wins in 2024, especially if it does so with narrow congressional majorities. While rebuffing entitlement reform was a signature component of Trump’s primary campaign, and shaped much of his presidency, many Republicans on Capitol Hill are deeply concerned by the skyrocketing national debt, much of which is driven by the trajectory of entitlement spending.

Foreign policy only compounds those possible tensions. Increasing global instability could very well prompt a sharp debate over defence spending. Many of the trade reforms that Trump has proposed — such as a 10% across-the-board tariff — would likely require congressional buy-in, and he could face considerable opposition from “free trade” allies in the congressional GOP. Republicans may be united in their opposition to certain Biden-era regulations, but the party still faces considerable disagreements about the way forward.

Without some legislative nimbleness, even a victorious GOP in 2025 could retreat to an executive-centred trench warfare — consumed by investigations, struggles over presidential appointments, and legal battles about executive power.

Fred Bauer is a writer from New England.


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