Over the past two weeks, I have been asked more times than I can count how the Trump Administration can unravel the Obama Administration’s policies. My answer usually falls into one of three categories.
First, policies that were instituted through guidance documents, such as executive memoranda and “Dear Colleague” letters, which I’ve called Government by Blog Post, can be reversed immediately. Ideally, these documents should be rescinded not only because there has been a change in administration–what DOJ euphemistically refers to as “upon further reflection“– but because the old policy was illegal. For example, it is not enough to simply rescind the DAPA memorandum from the Department of Homeland Security, but to also ask the Office of Legal Counsel to take a second look at it in light of the Supreme Court’s 4-4 affirmance in U.S. v. Texas. This is a much closer issue than the memorandum made it seem, and it is entirely plausible for the Office to conclude that Judge Smith’s decision for the Fifth Circuit was correct. These decisions are not subject to litigation. (Liberals may suddenly have second thoughts about Auer deference).
Second, regulations that were instituted through the notice-and-comment rulemaking process must be rescinded through an additional round of rulemaking. Critically, these reversals must be supported by reasoned decisionmaking. As with interpretive documents, it is important to not only propose to change rules because the policy has changed, but to highlight where the older regulations were in fact determined to be illegal. In the WSJ, David Rivkin and Andrew Grossman write that to rescind the Clean Power Plan,the Waters of the United States Rule, and the FCC’s Open Internet Order, the government should also “reject the assertion of legal authority underlying such a rule is enough to justify a policy change.” They conclude, “if the agency’s view is that it simply lacks the power to carry out a rule, then it follows that the rule must be withdrawn.” Though these changes in policies will still be subject to citizen suits–in the less-than-favorable D.C. Circuit–a confession that the prior rule was illegal would make it much harder for a court to overturn. (Liberals may suddenly have second thoughts about Chevron deference).
Third, laws that were instituted through bicameralism and presentment must be rescinded through bicameralism and presentment. But Congress has an additional tool at its disposal–the Congressional Review Act. Enacted in 1996, the CRA allows Congress to overturn a rule issued in the previous session of Congress, by a previous President. In short, if both houses of Congress pass a resolution opposing a final rule–it is not subject to the filibuster or referral to a committee–and that resolution is then signed by the President, the final rule is rescinded. (This note in the Harvard Law Review from 2009 provides a thorough overview of how the CRA works).
This Act was used once, and only once, in 2001 to reverse the Clinton Administration’s November 2000 final rule on ergonomics. (Sexy, I know). But starting January 2017, the act may receive a newfound vitality, as the House, Senate, and White House are all controlled by the same party. The Congressional Research Service identified nearly 50 “major rules” that were finalized after June 2016, that are subject to repeal under the CRA. Several of these rules may be ripe for repeal:
- Medicare And Medicaid Programs; Reform Of Requirements For Long-Term Care Facilities – “long-term care facilities who receive federal funding are precluded from entering into mandatory pre-dispute resolution agreements with patients, such as arbitration clauses”
- Establishing Paid Sick Leave For Federal Contractors
- Fair Pay and Safe Workplaces – “that prospective and existing contractors [must] disclose certain labor violation and that contracting officers consider the disclosures as part of their decision to award or extend a contract”
- Oil And Natural Gas Sector: Emission Standards For New, Reconstructed, And Modified Sources
- Serving Sizes of Foods That Can Reasonably Be Consumed at One-Eating Occasion; Dual-Column Labeling; Updating, Modifying, & Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; & Technical Amendments
This list was calculated based on CRS’s estimate that regulations submitted to Congress after May 30, 2016, would be subject to review periods in 2017 by the 115th Congress. But with some tweaks, the Senate GOP can actually expand the number of regulations that are subject to the CRA. Follow along–this is tricky.
5 U.S.C. 801(b)(1) provides that:
A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule.
The timing for the disapproval resolution is generally governed by Section 801(a)(3)”
(3) A major rule relating to a report submitted under paragraph (1) shall take effect on the latest of—
(A) the later of the date occurring 60 days after the date on which—
(i) the Congress receives the report submitted under paragraph (1); or
(ii) the rule is published in the Federal Register, if so published;
But there is a significant exception to the timing, known as the “Reset” provision. Section 801(d)(1) provides:
In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report was submitted in accordance with subsection (a)(1)(A) during the period beginning on the date occurring—
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60 legislative days,
before the date the Congress adjourns a session of Congress through the date on which the same or succeeding Congress first convenes its next session, section 802 shall apply to such rule in the succeeding session of Congress.
To grossly oversimplify, if the report about the rule was submitted by the Comptroller General fewer than sixty session/legislative days before the adjournment of a session sine die, the the 60 day clock starts again in new session. The reason for this rule is to ensure that an outgoing administration cannot sneak in “midnight rules.” The new Congress and the new President will have an adequate opportunity to review the final rule, and determine whether it should be disapproved of.
Back to CRS’s estimates:
The estimated start of the reset period for all rules was determined by counting back from the projected sine die adjournment in the respective chambers—60 days of session in the Senate and 60 legislative days in the House—then taking the earlier of the two dates. Under this calculation, it is estimated by CRS that agency final rules submitted to Congress after May 30, 2016, will be subject to renewed review periods in 2017 by President Trump and the 115th Congress. If the chambers deviate from the schedule currently projected for the remainder of 2016 by the party leaders, these estimates will necessarily change.
The House can do just that–deviate from the schedule–to sweep in even more possible regulations under the CRA. As I illustrate in this spreadsheet, the House is currently expected to adjourn on December 16, 2016. If you count backwards sixty legislative days, it brings you to May 31.
- 12 Legislative Days in December: 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, and 16
- 5 Legislative Days in November: 14, 15, 16, 17, 18
- 0 Legislative Days in October
- 15 Legislative Days in September: 6, 7, 8, 9, 12, 13, 14, 15, 19, 20, 21, 22, 26, 27, 28
- 0 Legislative Days in August
- 12 Legislative Days in July: 1, 5, 6, 7, 8, 11, 12, 13, 14, 18, 21, 25
- 14 Legislative Days in June: 3, 7, 8, 10, 13, 14, 15, 16, 20, 21, 22, 23, 24, 28
- 1 (relevant) Legislative Day in May: 31
However, this calculation is not set in stone. (The fact that the House–and not the Senate–is the relevant marker means that the Senate can remain in session to prevent a recess appointment. (Pro forma sessions count for session days under the Senate’s rules).
Currently, the House is expected to hold twelve legislative days in December.
Every December date that is suspended, the CRA reset date is pushed back by a day. Prior to May 31, the House met on May 27, 26, 25, 24, 23, 19, 18, 17, 16, 13, 12, 11, 10, 6, and 3.
I searched the Federal Register for “significant” actions (under EO 12866) published between 5/13/16 and 5/30/16. I’ve flagged with an * the final rules that are worth a careful study.
- May 16, 2016 – National Emission Standards for Hazardous Air Pollutants: Off-Site Waste and Recovery Operations: Action Denying a Petition for Reconsideration (I’m not sure what it would mean to disapprove a petition for reconsideration under the CRA)
- May 16, 2016 – Federal Acquisition Regulation; Basic Safeguarding of Contractor Information Systems
- May 17, 2016 – Medicare Program; Obtaining Final Medicare Secondary Payer Conditional Payment Amounts via Web Portal (“This final rule specifies the process and timeline for expanding CMS’ existing Medicare Secondary Payer (MSP) Web portal”)
- May 17, 2016 – Regulations Under the Americans With Disabilities Act (“guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that ask them to respond to disability-related inquiries and/or undergo medical examinations”)
- May 17, 2016 – Genetic Information Nondiscrimination Act (“This rule addresses the extent to which an employer may offer an inducement to an employee for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of a health risk assessment (HRA) administered in connection with an employer-sponsored wellness program”)
- *May 18, 2016 – Nondiscrimination in Health Programs and Activities (“The final rule clarifies and codifies existing nondiscrimination requirements and sets forth new standards to implement Section 1557, particularly with respect to the prohibition of discrimination on the basis of sex in health programs other than those provided by educational institutions and the prohibition of various forms of discrimination in health programs”)
- May 23, 2016 – Protection of Stratospheric Ozone: Determination 31 for Significant New Alternatives Policy Program (“This determination of acceptability expands the list of acceptable substitutes pursuant to the U.S. Environmental Protection Agency’s (EPA) Significant New Alternatives Policy (SNAP) program”).
- *May 23, 2016 – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees (“will automatically extend overtime pay protections to over 4 million workers within the first year of implementation”)
- *May 23, 2016 – Federal Firearms License Proceedings-Hearings (“persons requesting a hearing will be afforded the opportunity to submit facts and arguments for review and consideration during the hearing, and may make offers of settlement before or after the hearing”)
- May 27, 2016 – Mitigation Strategies To Protect Food Against Intentional Adulteration (“require domestic and foreign food facilities that are required to register under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to address hazards that may be introduced with the intention to cause wide scale public health harm”).
- May 27, 2016 – Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning (“update the regulations governing the development of metropolitan transportation plans (MTP) and programs for urbanized areas, long-range statewide transportation plans and programs, and the congestion management process as well as revisions related to the use of and reliance on planning products developed during the planning process for project development and the environmental review process”)
- May 27, 2016 – Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments
- May 27, 2016 – Food Labeling: Revision of the Nutrition and Supplement Facts Labels (“amending its labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices”).
I’d like to focus on the sixth item listed, the “Nondiscrimination in Health Programs and Activities” (5/18/16). This regulation is currently being challenged in the Franciscan Alliance and State of Texas v. Burwell. The complaint states the somewhat-complicated issue clearly:
The Regulation is not in accordance with Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) or Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Section 1557 does not, on its own terms, prohibit discrimination on the basis of “sex.” Instead, it prohibits discrimination “on the ground prohibited under . . . title IX of the Education Amendments of 1972.” 42 U.S.C. § 18116(a). Title IX, in turn, prohibits discrimination “on the basis of sex . . . except that . . . this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a), (a)(3).
The final rule, citing the Department of Education’s “Dear College Letter,” concluded that “sex” should be interpreted to include gender identity. The rule states:
We proposed that discrimination on the basis of sex further includes discrimination on the basis of gender identity. We noted that like other Federal agencies, HHS has previously interpreted sex discrimination to include discrimination on the basis of gender identity. We also noted that courts, including in the context of Section 1557, have recognized that sex discrimination includes discrimination based on gender identity. Thus, we proposed to adopt formally this well-accepted interpretation of discrimination “on the basis of sex.”
56. See 5 CFR 300.102(c), 300.103(c), 300.103(c), 315.806(d), 335.103(b)(1), 537.105(d), 900.603(e) (U.S. Office of Personnel Management regulations providing that discrimination on the basis of sex includes discrimination on the basis of gender identity); Directive 2014-02, U.S. Dep’t of Labor, Office of Fed. Contract Compliance Programs, § 5 (Aug. 19, 2014), http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html; Statement of Interest of the United States, Jamal v. SAKS & Co., No. 4:14-CV-2782 (S.D. Tex. Jan. 26, 2015) https://www.justice.gov/sites/default/files/crt/legacy/2015/02/27/jamalsoi.pdf; Statement of Interest of the United States, Tooley v. Van Buren Pub. Sch., No. 2:14-cv-13466-AC-DRG (E.D. Mich. Feb. 24, 2015) https://www.justice.gov/sites/default/files/crt/legacy/2015/02/27/tooleysoi.pdf; Memo from Eric Holder, Att’y Gen., to U.S. Att’ys & Heads of Dep’t Components (Dec. 18, 2014), https://www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination; U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence, p. B-2, http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf;Macy, 2012 WL 1435995, at *11.
This is a deference-chimera: stacking Chevron deference (based on notice-and-comment rulemaking) on top of Auer deference (with a “Dear Colleague” letter). It is utterly lawless.
Texas and the Catholic hospitals challenged this rulemaking as arbitrary and capricious. Currently, a motion for a preliminary injunction is pending before the Northern District of Texas. Congress, if it is so inclined, can simply disapprove this final rule, which would moot the case.
Josh Blackman is an Associate Professor of Law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Professor Blackman is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016). This post was originally published on his blog here.