Undoing Past Policies: How Likely Are Repeals in the 119th Congress?

But what about the legislative branch? Specifically, will Trump and his Republican allies in Congress succeed in their effort to reverse laws enacted by prior congresses? From the Affordable Care Act and CHIPS to the Inflation Reduction Act and others, Republicans have promised to repeal several laws enacted by prior Democratic congresses.

According to conventional wisdom, when one party wins control of the White House and Congress, they quickly dismantle the policies enacted by their rivals. Such a view is central to how politicians and pundits discuss elections and policy outcomes. On the one hand, candidates often campaign on a promise to reverse the laws enacted by their rivals. On the other hand, we often think of the two parties as unified teams engaged in a tug of war over the nation’s policies.

I argue the conventional wisdom is not so simple and that Republicans will find it surprisingly difficult to repeal Democratic laws enacted by prior congresses. A large portion of what follows is based on my book with Nate Birkhead Congress in Reverse: Repeals from Reconstruction to the Present published in 2020 by the University of Chicago Press. Our book is the first to examine when and why repeals occur. Although volumes have been written about law creation, few examine the opposite: efforts to undo legislation. What little exists has explored federal programs and reauthorization efforts (Berry, Burden, and Howell 2010), the survivability of general interest reforms (Leighton and Lopez 2013; Patashnik 2008), and amendments (Adler and Wilkerson 2012).

Repeals Are Difficult

If there is one central thesis in our book, it is that repealing legislation is not simply the mirror opposite of enacting legislation. Although they face the same constitutional and procedural requirements, repeals are different in that they are uniquely difficult to enact.

We are certainly not the first to note the challenges of repeals. For example, Bryan Caplan made this very point in a 2021 EconLog post appropriately titled “The Apologies of Repeal.”1 What is novel about our book, however, it that it draws on theoretical work in both political science and economics to understand why this is true. Specifically, our thinking is heavily informed by the public choice tradition (for an overview see James Buchanan, Gordon Tullock, and Rowley 2004) and our theory has three components.

First, enacting a new law gives lawmakers considerable flexibility over the location of the policy outcome, which is advantageous when trying to build a majority to support a bill. Notably, this flexibility allows lawmakers to engage in log rolling—where members trade votes to ensure the passage of their preferred legislation. Simply put, flexibility over the location of the policy outcome and the opportunity to engage in log rolling allows for the passage of legislation by a diverse coalition of lawmakers.

But when it comes to repealing a law, the range of policy choices is limited at the outset. Strictly speaking, a repeal can result in either failed negotiation, which preserves the status quo, or a known reversion point: the policy before the law was enacted. Opportunities to log roll and build a winning coalition are heavily constrained when the vote is essentially take-it-or-leave-it.

Second, laws often exhibit a feature known as “path dependency” (Pierson 1994). Path dependency posits that after a sufficient time elapses, policies become entrenched and thus difficult to undo. Public choice reasoning plays a role here as well. New laws often create interest groups that have a stake in the law’s continuation, resulting in opportunities for rent seeking (for an overview see Tullock and Rowley 2005). Lobbying is an example of rent seeking (Tullock 1967), and in this context, groups that benefit from a new law will work hard to resist repeal efforts. At the same time, new laws often activate citizens that will oppose the “loss” of a government benefit (Tversky and Kahneman 1991). A classic example is social welfare legislation, better known as entitlement programs. House Speaker Tip O’Neill famously called social security the “third rail” of politics saying: “touch it and you die.”

Passing new legislation is made easier because the benefits often accrue to a concentrated group of actors who push hard for the proposal while the costs are distributed widely across society (Olson 1965). Social welfare policy is a classic example yet again—a small subset of the population enjoys substantial benefits while the costs are paid by the population as a whole. Reversing this calculation with a repeal is no recipe for success and can cause a backlash among voters. Indeed, a repeal may result in “concentrated costs and diffuse benefits.”

A third reason why repeals are difficult is party politics and our constitutional system. A canonical view in the literature is that parties work to develop ownership over certain issues (Cox and McCubbins 2005). As a theoretical matter, a party’s “brand” serves as a public good: when one party gains ownership over an issue, every member of the party benefits in the next election from their collective reputation in that domain (Aldrich 1995).

What happens when lawmakers try to repeal part of the other party’s brand? Logically, the party that created the law will resist such efforts, irrespective of whether the policy change will result in better legislation or fix a defective statute. Doing so maintains the party’s commitment to that policy while simultaneously denying the rival party a “win” in the next election. Given that America’s political institutions have a strong status quo bias, the group seeking to block some action have a big advantage.

A simple empirical exercise helps validate our core claim about the challenges of passing repeals. For our research, Nate and I examined every bill introduced in Congress over a 60-year period, classifying each based on whether it was (1) a reauthorization, (2) an amendment, (3) an appropriation bill, or (4) a repeal. Critically, each has some bearing on an existing policy or statute. We then created a final category for bills that have no obvious effect on an existing law; we call this fifth type a “new law” for simplicity. Of the five types of legislation in our sample, repeals are the least likely to pass either chamber and are also less likely to be ultimately enacted into law (controlling for numerous other features of the bill in question).

Repeals Are Partisan

What, then, explains when and why repeals succeed?

Our book proposes that repeals are best explained by partisan theories of lawmaking. As a starting point, it certainly helps if one party has unified control of the federal government. It perhaps goes without saying, but one-party rule removes a key veto point from the legislative process. However, other veto points and obstacles remain, and in our analysis, unified government is only a weak predictor of repeal success.

Far more important are two other factors: (1) whether the party in power is ideologically cohesive and (2) whether the party in power is newly ascendant. By “ideological cohesion,” we mean if the majority has few internal factions. Although there are aways ideological divisions within parties, for example policy differences between conservative Blue Dog Democrats and the progressive wing, some factional policy disputes are more intense than others. Our measure of cohesion is based on how often members of the same party vote against one another over a two year congress.

Ideological cohesion is important for two reasons. First, and most obvious, when the majority is cohesive, less time is wasted managing internal disagreements. Second, with ideological cohesion the caucus can be expected to empower their leaders to set the agenda, exploit the chamber’s institutional rules and procedures, and compel members to support the party’s policy goals (Rohde 1991). When a party is ideologically diverse, however, the rank-and-file will be less likely to delegate power to party leaders.

Our second key partisan factor is whether the majority is newly ascendant. By “newly ascendant” we mean the majority party won control of Congress after a long period out of power. Due to the fact they were in the minority for a considerable length of time, there will be a backlog of policies the new majority wants to reverse (Dodd 1986). Furthermore, newly ascendant majorities often campaign on repealing statutes enacted by their previously entrenched rival which further incentives the rank-and-file to empower party leaders (Rohde, Stigliz and Weingast n.d).

For a good example of when these two conditions are met, consider the three Republican congresses from 1995 to 1999 (the 104th, 105th, and 106th congresses). In the 1994 midterm the GOP won control of both chambers for the first time in nearly 50 years. Not only did the election give Republicans control of Congress, but the caucus shifted sharply to the right after that election. Pundits referred to this era as the “Republican Revolution.” Being newly ascendant and more ideologically conservative, the GOP rank and file empowered Speaker Newt Gingrich and his allies to act decisively on the party’s priorities. In the end, the GOP succeeded in repealing several landmark laws—Glass-Steagall, Aid to Families with Dependent Children, and the National Maximum Speed Law.

A somewhat optimistic view of repeals is that they are sincere efforts to “fix” policies by repealing defective laws. Unlike the partisan factors in our analysis, we find little evidence that repeals are explained by genuine problem-solving efforts. Although lawmakers often say they want to repeal bad legislation, we view these claims as cheap talk designed to obscure their partisan and ideological motivations.

On this last point our results once again fit within the public choice tradition. James Buchanan famously referred to public choice as “politics without romance.” By this he meant that lawmakers, bureaucrats, and other government officials behave just like private citizens when making market decisions (for an overview see Buchanan et al. 1999). Simply put—political actors are self-interested agents focused on their own priorities rather than altruists interested in the greater good. We think this is an apt characterization of when and why repeals occur.

What to Expect in the 119th Congress?

Our book suggests that repeals will be difficult to enact in the 119th Congresses. Although there will certainly be some, it is likely that those repeals will be relatively minor compared to what Republican candidates—including Trump himself—promised during the 2024 campaign.

Let’s start with the Affordable Care Act, better known as “Obamacare.” When the GOP last won unified government after the 2016 election, they failed to repeal the law despite campaigning on the issue for roughly a decade. Instead, Republican lawmakers were able to amend a key element of the law—the individual mandate—making the penalty for not having insurance $0. Although the Republican caucus is probably more ideologically cohesive heading into the 119th Congress, they do not meet the second condition of being a newly ascendant majority. Not only did they have unified control six years ago, but they were already the House majority coming into the 2024 elections.

Equally if not more important is the fact that the ACA is more entrenched now than it was in 2017. No doubt this is why far fewer Republicans are talking about repeal headed into the 119th Congress. However, some commentators have suggested the GOP might repeal a specific aspect of the law: the ACA’s Medicaid expansion. Under the ACA states can expand Medicaid up to 138 percent of the poverty level, with the federal government covering a large portion of the cost. Although repealing the Medicaid expansion is certainly possible, the challenge is that doing so would result in “concentrated costs and diffuse benefits.” Critically, these costs would be paid by residents of several red states that expanded Medicaid in recent years. Since 2020, Idaho, Utah, Nebraska, Oklahoma, North Carolina and South Dakota all expanded coverage. Modest tweaks to the ACA are more likely in the next Congress.

Other possible targets in the 119th Congress are the CHIPS and IRA laws. CHIPS (short for Creating Helpful Incentives to Produce Semiconductors) provides billions in financial incentives for companies that manufacture semiconductors in the United States. On the campaign trail Trump called CHIPS a “disaster” while House Speaker Mike Johnson at one point claimed Republicans “probably will” try to repeal the newly enacted law. With the IRA (short for Inflation Reduction Act), Trump said during the campaign that he would work to “terminate the green new scam,” referring to the law’s subsidies that go toward the domestic production of clean energy technologies. And yet both laws have a good chance of surviving in the next Congress, even though virtually all Republicans voted against them a few years ago. Why?

Unlike the ACA, neither CHIPS nor the IRA are entrenched laws, being only a couple years old. And yet three things make wholesale repeal difficult.

First, both have the backing of powerful interest groups whose supporters stand to lose billions in federal subsidies. For example, Intel is one of the largest beneficiaries of CHIPS financing, receiving an estimated $8.5 billion in federal dollars. Second, beneath the surface both issues divide the GOP on ideological grounds. As a matter of policy, some Republicans support subsidies that bring manufacturing back to the United States, particularly when it involves technology and/or national security. And yet other Republicans are opposed to what they see as wasteful federal spending and a disruption of market incentives. A third factor is the location of the benefits: many Republicans represent districts whose constituents benefit from subsidies in the two laws. For example, last fall 18 House Republicans signed a letter to Speaker Mike Johnson asking him not to “prematurely” repeal energy tax credits in the IRA. Notably, these Republicans represent districts with companies that receive substantial clean energies subsidies under the law. Lawmakers care about reelection above all else, and so some will oppose repeal to ensure their own political survival.

Looking beyond the 119th Congress, if core elements of CHIPS and the IRA do indeed survive, the probability of repeal in the 120th Congress (2027-28) and subsequent congresses drops dramatically. Indeed, our book shows that repeals are most likely within a ten-year window post passage. After this ten-year window closes, however, the probability of repeal drops dramatically as policies become entrenched. In other words, if repeal does not occur in the next Congress, the subsidies and other aspects of these two laws will become extraordinarily difficult to reverse in the future.

One consequence of this policy entrenchment is what many have called layering—the long-term buildup of federal legislation. It is well known that since World War II the national government has expanded its reach into virtually every aspect of American life (Baumgartner and Jones 2015). Although repeals do indeed occur in every Congress, their volume is tiny in comparison to the number of new statutes enacted. Not only has resulted in a complex and inefficient policy environment, but it has caused Congress to delegate its constitutional powers to the executive branch (Jones, Whyman, and Theriault 2019). Both are concerning observers across the political spectrum.

Finally, it is important to offer a key caveat about the above—this piece is about repeals and not other forms of policy change. Needless to say, there are many ways to “undo” laws, programs, and policies. As President, Donald Trump can change policy with administrative action. For example, the “Department of Government Efficiency,” or “DOGE,” headed by Elon Musk may be able to significantly alter national policy through regulatory recissions and a reduction in administrative staff. Likewise, the Trump tariffs and deportation plan would certainly be a reversal in national policy without needing a repeal of existing legislation. Trump may also repeal Biden’s student loan forgiveness program with executive action alone. Finally, the Congress can effectively “repeal” legislation by amending activity, defunding, or failing to reauthorize a program.

But when it comes to formally repealing deeply entrenched federal legislation, the smart money is on these policies continuing in some form.

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