By Donald B. Stenberg

The Biden administration has been pumping out large numbers of new regulations since January in an effort to have them in place soon enough to prevent a new Trump administration and Republican Congress from overturning them using the Congressional Review Act next year.

The Congressional Review Act allows Congress to rescind any agency rules within 60 congressional session days of when a regulation is finalized and sent to Congress and provides a great way to quickly eliminate recently adopted Biden administration regulations — if the Republicans can win the presidency and both houses of Congress.

But what if Donald Trump wins in November but Republicans don’t win both houses of Congress? And even if they do, what about the regulations that are outside of the 60-day window?

In my opinion, there is an answer to this problem that is applicable to several of the most onerous Biden regulations. That answer is found in the lawsuits that have already been filed (or could be filed) against those regulations.

These lawsuits, many filed by state attorneys general, are often challenges to the issuing agency’s statutory authority to issue the regulations, such as a violation of the major questions doctrine. Other challenges may allege a violation of the Administrative Procedures Act in the enactment of the regulations.

What the Trump Justice Department can do, if those allegations are true (and in many of the cases they are), is to agree with the plaintiffs in these lawsuits that the regulations exceed the authority of the issuing agency or that the Administrative Procedures Act was violated.

The Trump Justice Department can then consent to a court order permanently enjoining the enforcement of the regulations.

This would dispose of the regulations without the need to go through a difficult, years-long administrative process to repeal or amend the Biden regulations. And, unlike the Congressional Review Act process, a Democrat Congress, if there is one, would not be able to save the regulations.

Not only could the Trump Justice Department do this, but the oath of office to uphold the Constitution and laws of the United States, in my opinion, requires them to do it.

Donald B. Stenberg was elected to and served three terms as Nebraska’s attorney general and two terms as Nebraska’s state treasurer, in addition to his private law practice. He has argued several cases in the Supreme Court of the United States, including the Stenberg v. Carhart case in which he defended Nebraska’s law banning partial-birth abortion. He is the author of a Christian novel, Eavesdropping on Lucifer. Mr. Stenberg holds a Juris Doctorate degree with honors from Harvard Law School and a Master’s Degree in business administration from Harvard Business School.