As President Trump moves unilaterally to slash the federal bureaucracy and upend longstanding policies, Republicans in Congress have embarked on a spree of deregulation, using an obscure law to quietly but steadily chip away at Biden-era rules they say are hurting businesses and consumers.
In recent weeks, the G.O.P. has pushed through a flurry of legislation to cancel regulations on matters large and small, from oversight of firms that emit toxic pollutants to energy efficiency requirements for walk-in freezers and water heaters.
To do so, they are employing a little-known 1996 law, the Congressional Review Act, that allows lawmakers to reverse recently adopted federal regulations with a simple majority vote in both chambers. It is a strategy they used in 2017 during Mr. Trump’s first term and are leaning on again as they work to find ways to steer around Democratic opposition and make the most of their governing trifecta of the House, the Senate and the White House.
But this time, Republicans are testing the limits of the law in a way that could vastly expand its use and undermine the filibuster, the Senate rule that effectively requires 60 votes to move forward with any major legislation.
Because resolutions of disapproval under the Congressional Review Act need only a majority vote, they are some of the only legislation that can avoid a filibuster in the Senate. This allows them to circumvent the partisan gridlock that stands in the way of most significant bills…
Now Republicans are trying to go much further with the law, including using it to effectively attack state regulations blessed by the federal government. The House this week passed three disapproval resolutions that would eliminate California’s strict air pollution standards for trucks and cars by rejecting waivers from the Environmental Protection Agency that allowed them to take effect.
The move would also permanently prevent federal regulators from writing a similar rule in the future. Both the Government Accountability Office and the Senate parliamentarian, who is in charge of enforcing the chamber’s rules, have said that the E.P.A. waivers do not constitute federal regulations and thus are not subject to the Congressional Review Act.
The pressure now falls on Senator John Thune, Republican of South Dakota and the majority leader, to decide whether he will proceed with the measures anyway, sidestepping the parliamentarian in a move that would undermine the filibuster.
Mr. Thune’s decision is something of a warm-up act for an even more consequential showdown coming later in the year as Republicans try to deliver Mr. Trump’s agenda through the budget reconciliation process, another way of shielding legislation from a filibuster. G.O.P. senators already steered around the parliamentarian in early April, when they pushed through a budget blueprint that deemed the continuation of Mr. Trump’s tax cuts as cost-free, even though nonpartisan budget scorekeepers have estimated it would cost about $4 trillion over a decade….
Category Archives: legislation and legislatures
Wisconsin Supreme Court on 4-3 Ideological Vote Upholds Governor Evers’ Crazy Rewriting of State Law to Protect School Funding for 402 Years Instead of 2 Years
You can find the majority decision, a concurrence, and the dissent at this link. It’s not every day I side with the conservative justices on the Wisconsin Supreme Court, but they are surely right here. As the majority explained: “As related to this matter, the governor deleted entire words and some numbers from Sections 402, 403, 404, and 408 of Senate Bill 70. The result, published as 2023 Wisconsin Act 19, authorized a $325 per pupil revenue limit increase from 2023–2425,
extending the provision by 400 additional years.”
Here’s the key edit:
Here’s the introduction to Richard Briffault’s amicus brief in this case (authored by Rob Yablon and Bryna Godar):
Wisconsin’s partial veto power stands at a fork in the road. For decades, this Court has been the most permissive in the nation in condoning broad partial vetoes, an outlier even among states with similar constitutional text. But the Court’s most recent precedent has rejected creative partial vetoes, albeit without binding reasoning. See Bartlett v. Evers, 2020 WI 68, ¶ 4, 393 Wis. 2d 172, 945 N.W.2d 685 (per curiam). As the Court considers the future of this jurisprudence, it should maintain guidelines that phold the partial veto’s founding purpose: facilitating the democracy-promoting system of bicameralism and presentment, not subverting it.
Wisconsinites adopted the partial veto to address a defect of early twentieth century democracy: the “[v]ery definite evils” of legislative malfeasance through “log-rolling” multiple measures that “could not pass on their own merits.” State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447–48, 289 N.W. 662 (1940). As this Court has correctly recognized, the partial veto is a broad gubernatorial power. State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 314–15, 260 N.W. 486 (1935). By design, it is an affirmative or even “quasi legislative” power. Id. at 315. “By putting asunder what the legislature has put together,” a partial veto necessarily “results in laws that the legislature never passed.” Briffault at 1174.
But the power is not limitless. The governor may only reject “part” of an appropriations bill for the legislature’s “reconsideration”—he may not invent entirely novel provisions. Wis. Const. art. V, § 10. Neither the text nor purpose of Wisconsin’s partial veto provision establishes a loophole for the governor to act as a unilateral lawmaker. Using the veto to add unforeseen measures cannot be squared with the state constitution’s structural commitment to deliberative, accountable lawmaking. Whatever the merits of this or any individual policy dispute, such an unbounded power is corrosive to democracy in the long run. Line-drawing in partial veto cases is inherently difficult; no state court has avoided close judgment calls. Yet this Court, like every court to consider the question nationwide, has recognized a role for state courts in preventing the partial veto power’s misuse. This is an appropriate case in which to resist further expansion.By striking individual digits and words to convert a two-year revenue limit increase to a 402-year increase, the governor here engaged in novel lawmaking that exceeds this Court’s prior approvals (at least under the Constitution’s current text). Allowing this creativity would further depart from the Constitution’s text, history, and structure and its core democratic commitments. And it would make Wisconsin even more of an outlier among states with partial vetoes.
“Senate Republicans set to bypass parliamentarian on Trump tax cuts”
Alexander Bolton for The Hill:
Republicans are set to make the audacious play of bypassing the Senate parliamentarian and moving forward with a budget resolution based on a scoring baseline set by Budget Committee Chair Lindsey Graham (R-S.C.) that would allow them to argue extending President Trump’s 2017 tax cuts won’t add to the deficit.
Senate Republicans are being careful to say they won’t “overrule” the parliamentarian — the Senate’s procedural umpire — but Democrats are already accusing them of going “nuclear” by flouting the Senate’s rules and precedents.
“We think the law is very clear, and ultimately the budget committee chairman makes that determination,” Senate Majority Leader John Thune (R-S.D.) told reporters Tuesday, arguing Graham has the authority to decide whether extending the Trump tax cuts would add to the deficit and need to be offset by big spending cuts or revenue-raising proposals.
The stakes are high as the outcome could determine the size of the tax relief package passed by the Republican-controlled Congress and whether Republicans are able to make the 2017 Tax Cuts and Jobs Act, the biggest legislative accomplishment of President Trump’s first term, permanent.
The biggest procedural question facing Trump’s agenda is whether Republicans can project their impact on future deficits by scoring them as “current policy.”….
Election Litigation Hits Record, Increasing More than 14 Percent in the 2024 Election Cycle Compared to the 2020 Election Cycle, Despite End of Covid Pandemic
As described in my forthcoming Essay, the results of updating my data on the rates of election litigation to include 2023 and 2024:
The voting wars also brought a significant increase in litigation. The rate of election administration has tripled since Bush v. Gore compared to before it and remains consistently high, including through the 2023-2024 election season.
Figure 1. Sample of Election Litigation Cases Per Year, Before and After Bush v. Gore
The 2020 election, conducted in the midst of the Covid pandemic and with Donald Trump (unsuccessfully) challenging his presidential loss to Joe Biden in multiple lawsuits, led to a record amount of election litigation in a single year (2020), but the 2023-2024 election season overall saw a 14.3 percent increase over the 2019-2020 election season overall: There were 661 cases in the 2019 and 2020 election years in my sample (which does not cover all election litigation brought in those years), compared to 756 cases in the 2023 and 2024 election years. See Figure 2. It is remarkable that election litigation is even higher in the election after the pandemic than in the period before. My suspicion is that ongoing conflict surrounding the 2020 election created political incentives for Trump and his allies to file suits alleging the potential for fraud an irregularities in connection to the 2024 elections.
Figure 2. Sample of Election Litigation Cases Per Two-Year Presidential Election Cycle, 2000 Election Season-2024 Election Season
Source: Hasen Election Litigation Database, 1996-2024, https://electionlawblog.org/wp-content/uploads/Hasen-Election-Litigation-1996-2024.xlsx
My New Draft: “Bush v. Gore’s Ironic Legacy”
I have written this draft for a symposium issue of the Florida State University Law Review on 25 Years after Bush v. Gore. Here is the abstract:
The Supreme Court framed its holding in its 2000 case, Bush v. Gore, as fulfilling its “unsought responsibility” to protect voters’ equal protection rights by stopping a potentially outcome-determinative recounting of Florida ballots in the disputed 2000 presidential election. Yet the Court to this day has not relied upon the case’s equal protection holding as precedent, leading some to call it a “one way ticket” to help Bush’s election. In 2023, a Supreme Court majority finally cited Bush as a worthy precedent to apply in future cases. It turned out the ticket was good for a different train: the conservative Supreme Court majority in Moore v. Harper embraced not Bush’s equal protection holding as contained in its per curiam majority opinion, but instead an Article II-based claim in Chief Justice William Rehnquist’s concurrence. Rehnquist advanced what has come to be known as the “independent state legislature theory” contending that the problem with the recount was judicial usurpation of the power of the Florida legislature to set recount rules for the presidential election. Bush v. Gore’s ironic legacy is that a decision dressed up as one protecting voters’ equal protection rights instead has advanced a bogus legal theory for federal courts to use to subvert popular will. ISLT reserves for the Supreme Court a license to overturn democratically-conducted presidential and congressional elections by second-guessing state court interpretations of state constitutional provisions protecting the right to vote and state statutes governing the electoral process. It empowers legislatures over voters in choosing the President. Unless the Supreme Court overturns or limits Moore, ISLT will hang like a Sword of Damocles over the heads of state courts as they contemplate whether to read their state constitutions in voter-protective ways and to apply voter protective methods of statutory interpretation.
Part I briefly describes how—despite advances in voting technology and increased voting opportunities since 2000—Bush v. Gore’s equal protection holding has mostly been a dead end, and federal courts more generally have retreated from protecting voting rights in the last quarter century. It includes an empirical analysis showing election litigation continuing to grow, triple the rate since before Bush v. Gore and with a 14.3 percent increase in 2024 election season litigation compared to the 2020 season. Part II shows how the resurrection of Rehnquist’s Bush ISLT concurrence in Moore is anti-voter and anti-democratic. It is already deterring state court protection of voting rights, turning the supposed voter-protective holding of Bush on its head. Part III argues that Bush demonstrates that an advanced democracy should not rely upon the whims of the United States Supreme Court or optimistic readings of snippets of constitutional text to protect voters’ rights. What is needed is an affirmative right to vote in the U.S. Constitution, which would be a more fitting legacy to a case that exposed fundamental flaws with American election administration and purported to find in the Constitution protection for voters’ equal rights.
“Under G.O.P., Congress Cedes Power to Trump, Eroding Its Influence”
The Republican-led Congress isn’t just watching the Trump administration gobble up its constitutional powers. It is enthusiastically turning them over to the White House.
G.O.P. lawmakers are doing so this week by embracing a stopgap spending bill that gives the administration wide discretion over how federal dollars are distributed, in effect handing off the legislative branch’s spending authority to President Trump. But that is just one example of how Congress, under unified Republican control, is proactively relinquishing some of its fundamental and critical authority on oversight, economic issues and more.
As they cleared the way for passing the spending measure on Tuesday, House Republicans leaders also quietly surrendered their chamber’s ability to undo Mr. Trump’s tariffs on Mexico, Canada and China in an effort to shield their members from having to take a politically tough vote. That switched off the only legislative recourse that Congress has to challenge the tariffs that are all but certain to have a major impact on their constituents.
Republicans have also stood by, many of them cheering, as the administration has upended federal departments and programs funded by Congress and fired thousands of workers with no notice to or consultation with the lawmakers charged with overseeing federal agencies. So far, no congressional committee has held an oversight hearing to scrutinize the moves or demand answers that would typically be expected when an administration undertakes such major changes….
ELB Podcast 6:5: Fair Elections and Voting Rights: What Ahead in the Next Four Years? (Gardner, Karlan, Richer)
Season 6, Episode 5 of the ELB Podcast:
What will the new Trump Administration and the new Congress do when it comes to voting rights and fair elections?
What challenges face state and local election officials going forward?
Will the courts stand up for voting rights and fair elections in the years to come?
On Season 6, Episode 5 of the ELB podcast, we feature a discussion with Amy Gardner, Pam Karlan, and Stephen Richer.
You can subscribe on Soundcloud, Apple Podcasts, and Spotify.
Pennsylvania Republicans, in Jones Day Petition, Try Again to Get U.S. Supreme Court Interested in Second Guessing State Election Law Decisions Through Independent State Legislature Theory
SCOTUS recently passed on taking up a case out of Montana, but Pennsylvania Republicans are trying again, with this cert petition involving a PA Supreme Court ruling allowing under state law those voters who filed a technically defective mail-in ballot to cast a timely provisional ballot instead. Republicans argue that the state Supreme Court violated the Supreme Court’s Moore v. Harper decision through interpretation that “exceeded the ordinary bounds of judicial review” thereby purportedly arrogating the power of the state legislature.
Stay tuned.
(h/t Democracy Docket)
“Trump Kicks Congress to the Curb, With Little Protest From Republicans”
Congress passed a law shutting down TikTok, and President Trump flouted it. Congress required advance notification for firing inspectors general, and the Trump administration ignored it. Congress approved trillions of dollars in spending on a multitude of federal programs, and Mr. Trump froze it.
The new administration is quickly demonstrating that it does not intend to be bound by the legal niceties or traditional checks and balances of its relationship with Congress. That has infuriated Democrats but drawn shrugs and approval from Republicans who say Mr. Trump is delivering what he promised even if it comes at the expense of Congress’s authority and constitutional status as a coequal branch of government.
“President Trump clearly ran for office to be a disrupter, and he’s going to continue to do that,” said Senator John Barrasso of Wyoming, the No. 2 Republican.
Mr. Trump is also clearly embarking on a test of what he can cow a Congress under total Republican control into swallowing. Early indications are that it will be a lot….
The lack of pushback from congressional Republicans is a stark acknowledgment that Mr. Trump is large and in charge, controlling their political futures while executing an agenda that they believe Republican voters demanded. It is a distinct break from the past, when lawmakers of both parties would vigorously defend Congress’s power — particularly the spending power granted in Article I of the Constitution — no matter who was in the White House….
“Roberts Calls Court’s Relationship With Congress ‘Strained.’ Who’s to Blame?”
Jimmy Hoover for the NLJ.
I offered some thoughts in this one:
Many commentators say that a similar dynamic is responsible for today’s partisan rancor in light of the Supreme Court’s now solidly 6-3 supermajority of Republican appointees.
“The Supreme Court for the first time in modern history has all the conservatives appointed by one party and all the liberals appointed by the other,” said Rick Hasen of UCLA Law, a prominent Supreme Court scholar.
In the past, Hasen noted, several Republican appointees such as Justices John Paul Stevens and David Souter frequently voted with Democratic-appointed liberal justices in politically or socially fraught cases. No longer.
“It’s much easier to see and to describe the court as acting in partisan ways: ‘the Republican majority on the Supreme Court, the Democratic dissenters on the Supreme Court,’” Hasen said. “Language like that is accurate in a way that it wasn’t before.”
What’s more, this expanded conservative majority has not shied from wielding its power, often at the expense of the legislative and executive branches, and often without any of the court’s liberal members signing on, Hasen said. This past term’s blockbuster 6-3 decision establishing broad criminal immunity for former President Donald Trump and effectively delaying his trial over the 2020 election is a prime example.
“That was huge and I was wrong,” said Hasen.
“I was expecting the chief justice to be looking for some common ground and to be looking for a way for the court to speak, if not with one voice, at least with some bipartisan agreement, and that didn’t happen at all,” Hasen added. “Something has changed with John Roberts.”
Although Hasen faults the court for its failure to bridge partisan divide, he lays part of the blame at politicians such as Schumer who have only fanned the flames of division with their rhetoric.
“I do think that because of this partisan split, you often get hyperbole or worse coming from political actors,” Hasen said.
“It’s not as though every criticism of the court is well considered,” he added. “I thought that language was intemperate and not helpful.”
“Democrats rage as Johnson restricts their ability to oust him”
House Democrats are pushing back furiously against a proposed change to House rules that would allow only Republicans to force a vote on removing the speaker of the House.
Why it matters: Top Democrats are arguing the move would inhibit bipartisanship and effectively make House Speaker Mike Johnson (R-La.) answerable only to his members — not the entire House…
Driving the news: The 36-page rules package for the 119th Congress, unveiled on Wednesday, raises the threshold to introduce what is called a motion to vacate in multiple ways.
- Whereas in the last Congress, any single House member could introduce such a motion, now eight others have to co-sponsor the measure.
- But all nine of those lawmakers have to be members of the majority party — which will be the Republicans in this Congress.
- The rule change is part of a deal struck by House Republicans’ internal factions in November as the party renominated Johnson for speaker.
“State Law and Federal Elections After Moore v. Harper”
Carolyn Shapiro has written this article for the NYU Law Review. Here is the abstract:
In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.
“The 118th Congress passed the fewest laws in decades”
If measured by the number of bills signed into law, the 118th Congress was by far the most unproductive since at least the 1980s, according to data from public affairs firm Quorum.
Why it matters: That is not the only metric of success, but the stunning stat is a marker of how difficult the chaos of the last two years made actual legislating.
- Every fiscal deadline led to brinksmanship between the Republican House and the Democratic Senate and White House.
- House Republicans were also beset by infighting and palace intrigue, most notably the ouster of former House Speaker Kevin McCarthy.
- Throughout the disarray, trust between House Democrats and Republicans reached a low ebb— making bipartisan compromise rare.
“A Razor-Thin House Majority Creates Headaches for Republicans”
They won, but barely.
Republicans held on to control of the House of Representatives in November by one of the thinnest margins in the country’s history—even smaller than in the current Congress—a result that will have them walking a tightrope again for the next two years. The drama starts next week when the party tries to elect a new speaker on the first day of the new session, with fresh grumblings about leadership setting the stage for an unpredictable vote.
Republicans won 220 seats to Democrats’ 215. One planned vacancy—that of former Rep. Matt Gaetz, who was elected to another term but said he won’t take office—will reduce Republicans to 219 when lawmakers reconvene on Jan. 3. Two resignations of lawmakers set to join the Trump administration—Reps. Elise Stefanik and Mike Waltz—will temporarily reduce GOP numbers to 217 later in January before special elections are held. President-elect Donald Trump starts his second term on Jan. 20.
While Republicans will have full control of Congress and the White House, the wafer-thin cushion in the House means any small handful of Republican defectors could trip up the GOP agenda by holding out for their leaders or their own terms. As the past two years have shown, it also means that a run of bad luck for Republicans—such as health setbacks or a string of resignations—could eat into the margin.
“We know how to work with a small majority; that’s our custom now,” House Speaker Mike Johnson (R., La.) told reporters earlier this month. “This is a team effort and we’ve got to all row in the same direction.”
At the extreme, Republicans could surrender the majority by attrition before the next election, something that actually happened in 1931, when Republicans lost a two-seat majority midway through then-President Herbert Hoover’s term….