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Democrats Seek to Undo Six ‘Midnight’ Regulations

Sunday was the deadline under the Congressional Review Act.   

Democrats initiated the process to undo six last-minute regulations from the Trump administration using a special legislative authority ahead of the Sunday deadline.

The deadline was to introduce resolutions to dismantle last minute or “midnight” regulations issued between August 21, 2020, and January 3, 2021, as allowed by the Congressional Review Act. The estimated date was April 4 and while the parliamentarians are the definitive sources on the deadlines, they typically don’t release public statements on this issue, according to Daniel Perez, senior policy analyst at The George Washington University’s Regulatory Studies Center. Separately, the Senate has until sometime in mid-May to use special fast-track procedures that allow for a simple majority to pass a resolution. This is contingent upon how often they meet from now until then.

The resolutions––introduced between March 23 and April 1–– target regulations at the Equal Employment Opportunity Commission; Environmental Protection Agency; Treasury Department; Securities and Exchange Commission; Health and Human Services Department; and Social Security Administration, as The George Washington University’s Regulatory Studies Center has been tracking.

Lawmakers seeking to unravel the EEOC rule argue that it gives employers an unfair advantage in settling claims. It “harms workers and undercuts enforcement of workplace civil rights laws,” EEOC Spokesperson Christine Nazer previously told Government Executive. “Overturning this rule through the Congressional Review Act would strengthen the federal government’s ability to protect civil rights.”

The HHS rule was part of the Trump administration’s push to require certain regulations to be reviewed every 10 years to see if they are still needed. Deregulation was a major priority for the Trump administration, with which it had mixed success.

The SSA rule changed the process for appeals hearings to “compromise claimants’ and beneficiaries’ due process, potentially limit their access to their earned benefits, and contradict the congressional intent of the law governing such proceedings,” said Reps. John Larson, D-Conn., chairman of the House Ways and Means Subcommittee on Social Security, and Danny Davis, D-Ill., chairman of the Worker and Family Support subcommittee. It “allows SSA to put unqualified agency attorneys in charge of appeals hearings, rather than independent administrative law judges.” 

The other regulations lawmakers are seeking to undo deal with methane emissions from the oil and gas industry, alleged predatory lending and requirements for shareholders to introduce resolutions at corporate meetings. 

Lawmakers were able to start introducing resolutions on February 3 (the 15th legislative day of the new Congress), but had a slow start. Experts attributed the delays to the impeachment hearings, consideration and passage of the $1.9 trillion COVID-19 relief plan and Cabinet confirmations. 

“The Congressional Review Act does not permit filibuster and only requires 51 votes to pass a joint resolution repealing an agency rule. One detractor is that each joint resolution may require up to 10 hours of Senate floor time for debate,” representatives from the law firm Pillsbury Winthrop Shaw Pittman LLP wrote on March 26. “A second issue is that, once a rule is overturned using the Congressional Review Act, an agency needs express authority from Congress to issue another regulation in the future that is ‘substantially the same.’” 

On March 19, Rep. Jamie Raskin, D-Md., chairman of the House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties, asked the Office of Management and Budget to “freeze and repeal” last-minute regulations from the Trump administration that “violate the rights of federal prisoners, LGBTQ+ individuals, and asylum-seekers and do not comply with the requirements of the [Congressional Review Act].” This was following a report Public Citizen issued earlier in the month that found the Biden administration could “freeze” at least 25 more regulations from Trump due to errors by officials in issuing them. 

These regulations “can still be challenged using the [Congressional Review Act], but they are on a separate ‘clock’ from the midnight rules that were carried over from last Congress,” Amit Narang, regulatory policy advocate at Public Citizen, previously told Government Executive. “Any rules that were frozen but not yet repealed by the Biden administration can be challenged under the [review act]. It's not an either/or situation.”

Raskin gave OMB an April 2 deadline to respond. “Subcommittee staff has talked with OMB and they are actively working to address our inquiry,” a committee spokesperson told Government Executive on Monday.

Besides the Congressional Review Act, there are other ways the Biden administration is working to undo the Trump administration’s deregulatory policies, such as the freeze memo issued on day one to pause any pending regulations from moving forward before the Biden administration has a chance to review them. 

Another example is that on March 24, Transportation Secretary Pete Buttigieg “formally deleted many internal departmental rules and policies put in place under his predecessor, Elaine Chao, that were part of the Trump administration’s push to pare back regulations, and in some cases, limit their enforcement,” The Washington Post reported. This furthered two of President Biden’s early executive orders. 

Also, on March 31, the Energy Department issued a notice of proposed rulemaking and request for comment to override a Trump-era rule on energy efficiency standards, The Hill reported

Separately, the Federal Trade Commission established a new rulemaking group on March 25 “to take a strategic and harmonized approach to rulemaking across its different authorities and mission areas,” said a press release. This is part of the agency’s efforts “to prohibit unfair or deceptive practices and unfair methods of competition.” 

The deadline to introduce resolutions under the Congressional Review Act came a few days after the EPA inspector general published a report saying that from fiscal years 2015 to 2019 (which covered the Obama and Trump administrations), there was “wide variation” in the agency’s adherence to its action development process, a framework to ensure that quality science and information are used in developing regulations. 

“The EPA is one of the most active regulatory agencies in the federal government” and fixing issues identified in the report, “could enhance the credibility of the agency’s rulemaking process,” the watchdog stated.

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