How Can Trump Administration Regulations Be Reversed?
Issue Brief
See generally Congressional Research Service (CRS), Midnight Rulemaking: Background and Options for Congress (Oct. 4, 2016), https://fas.org/sgp/crs/misc/R42612.pdf.
5 U.S.C. § § 551-559.
5 U.S.C. § 553; see also CRS, The Federal Rulemaking Process: An Overview at 5-6 (June 17, 2013), https://fas.org/sgp/crs/misc/RL32240.pdf.
CRS, The Federal Rulemaking Process: An Overview, supra. note 3 at 6.
CRS, The Congressional Review Act: Frequently Asked Questions at 8 (updated Jan. 14, 2020) (citing 5 U.S.C. § 553 (b)(B)), https://fas.org/sgp/crs/misc/R43992.pdf; see generally CRS, The Federal Rulemaking Process: An Overview, supra. note 3.
CRS, Midnight Rulemaking: Background and Options for Congress, supra. note 1 at 6.
For historical use of the latter, see CRS, The Federal Rulemaking Process: An Overview, supra. note 3.
This brief is a general overview and is not intended to be an exhaustive explanation of all technical issues and exceptions.
5 U.S.C. § § 801-808.
5 U.S.C. § 802 (a); see also CRS, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act (Oct. 10, 2001). Regulations subject to the CRA that took effect before Congress disapproved them are “retroactively negated.” CRS, The Congressional Review Act: Frequently Asked Questions, supra. note 1, at Summary page.
The regulations also must be submitted to the Comptroller General (Government Accountability Office). 5 U.S.C. § 801 (a)(1).
Excluding days either chamber is adjourned for more than 3 days during a session. 5 U.S.C. § 802 (a).
Id. at 1.
If an agency does not report an action to Congress as a rule, Congress can ask the GAO for an opinion about whether the CRA applies to that action. CRS, The Congressional Review Act: Frequently Asked Questions, supra. note 1, at 12.
Id. at 7-8.
Id. at 8.
Daniel R. Perez, George Washington Regulatory Studies Center, Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress (Dec. 11, 2019), https://regulatorystudies.columbian.gwu.edu/upcoming-cra-deadline-has-implications-regulatory-oversight-congress.
See generally Curtis W. Copeland and Richard S. Beth, CRS, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress (updated Sept. 3, 2008), https://fas.org/sgp/crs/misc/RL34633.pdf.
George Washington University Regulatory Studies Center, Congressional Review Act (last accessed Jan. 19, 2021), https://regulatorystudies.columbian.gwu.edu/congressional-review-act.
5 U.S.C. § 801 (b)(2).
CRS, The Congressional Review Act: Frequently Asked Questions, supra. note 1, at 14.
Daniel R. Perez, George Washington University Regulatory Studies Center, Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress, supra. note 22.
Subsequently, the CRA was used to nullify a Bureau of Consumer Financial Protection rule in May 2018. For a list of all rules nullified by a CRA joint resolution of disapproval to date, see U.S. Gov’t Accountability Office, Congressional Review Act, FAQs, What congressional resolutions of disapproval have occurred under the CRA? (last accessed Jan. 19, 2021), https://www.gao.gov/legal/other-legal-work/congressional-review-act.
Id.
Id.
5 U.S.C. § 805.
CRS, The Congressional Review Act: Frequently Asked Questions, supra. note 1, at 20-21.
Id. at 21-23.
Ronald A. Klain, Assistant to the President and Chief of Staff, Memorandum for the Heads of Executive Departments and Agencies (Jan. 20, 2021) (Fed. Reg. publication forthcoming), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/.
All actions under this memorandum are subject to exceptions allowed by OMB for emergencies or other urgent circumstances related to health, safety, environmental, financial, or national security matters. Rules subject to statutory or judicial deadlines also are exempt. Id. at ¶ ¶ 1, 4.
Id. at ¶ 2.
Id. at ¶ 3.
Id.
Id.
Id. at ¶ 6.
For additional information, see KFF, The Trump Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA and Current Status (Sept. 2020), https://www.kff.org/racial-equity-and-health-policy/issue-brief/the-trump-administrations-final-rule-on-section-1557-non-discrimination-regulations-under-the-aca-and-current-status/.
President Joseph R. Biden, Jr., Executive Order on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation (Jan. 20, 2021) , https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/.
Id. at § 2.
When revising the Section 1557 regulations, the Trump Administration also eliminated explicit nondiscrimination protections related to gender identity and sexual orientation in 10 other HHS regulations that govern Medicaid managed care entities, state Medicaid programs, PACE organizations, group and individual health insurance issuers, Marketplaces, qualified health plan issuers, agents and brokers that assist with Marketplace applications and enrollment, and education programs that receive federal financial assistance. KFF, The Trump Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA and Current Status, supra. note 36.