If Republicans sweep on Election Day, they could easily repeal these Biden policies

Rules dealing with vehicle fuel economy standards, pay for early childhood education teachers and migration all could be at risk if Republicans take back the White House and Congress after Tuesday. 

Assuming both chambers of Congress and the presidency are aligned, the Congressional Review Act lets lawmakers overturn recently-issued regulations by simple majority, even in the Senate where the filibuster typically requires the support of 60 senators to approve a measure. 

Any rule issued during the lookback period — either 60 session days in the Senate or 60 legislative days in the House before a session of Congress adjourns, whichever is earlier — is subject for revocation. So the “lookback date” after which Congress could review rules won't be known for sure until the current Congress ends and newly-elected members are sworn in.

“[U]ntil Congress finishes meeting for the year, there is no way to anticipate what the lookback date would be with any precision,” wrote Sarah Hay, a policy analyst at George Washington University’s Regulatory Studies Center, in an October blog. 

The Center’s earliest estimate is that May 22 will be the lookback date, which would cover more than 1,300 final rules, but noted that it usually falls in late July or early August. The Congressional Research Service predicted that the lookback period will begin on Aug. 1. 

“I think [the lookback date] will definitely be later in the summer, and absolutely not a possibility that it’s going to be May 22,” said Hay in an interview with Government Executive. 

But if the lookback date does fall on the earlier side, a June rule from the Transportation Department enacting stricter fuel economy standards for new vehicles could be in danger. 

While Transportation Secretary Pete Buttigieg said the standards would save consumers money and decrease pollution, 26 Republican state attorneys general challenged them in court, arguing they are unrealistic and are intended to boost production of electric vehicles. 

The Health and Human Services Department in August issued a rule to increase wages and benefits for Head Start workers. Sen. Bill Cassidy, R-La., denounced the rule, saying it would reduce the number of low-income children who could take advantage of the program. 

Cassidy, who is the top Republican on the Health, Education, Labor and Pensions Committee, could use the CRA process to unwind the HHS rule. 

EPA in October issued a final rule requiring drinking water systems to replace lead pipes within the next decade. Utilities will likely have to pay tens of billions of dollars to comply with the order, which could prompt a GOP push to use the CRA to repeal it. 

The Biden administration also in October finalized a “Securing the Border” rule that limits the ability of migrants to request asylum. While Republicans criticized an earlier iteration of the rule as an election-year gimmick, Homeland Security Department officials said it has significantly reduced border crossings. 

Anticipating that a potential GOP-controlled Congress could repeal regulations issued after the lookback date, agencies in early spring promulgated a flurry of new regulations. 

“It seems like the Biden administration…pushed out the vast majority of its economically-significant rules before the end of May, so a lot of the major administration priorities are almost certainly not going to be in the lookback period,” Hay said.

In fact, Zoey Xie, a senior policy analyst at the Regulatory Studies Center, wrote in a May blog that federal agencies in April published 66 significant final rules, which is higher than any previous month during Biden’s presidency. 

There’s recent precedent for using the CRA to overturn new rules. When Donald Trump became president in 2017, Republicans used it to overturn 16 regulations issued under Barack Obama. Likewise, Biden and congressional Democrats in 2021 were able to use it to revoke three Trump rules.