August 30, 2019

Can the Congressional Review Act Be Used for Good?

Icons of Congress and a lightning bolt zapping an agency-issued rule.President Trump has done all he could to turn back and undo much of what a number of his recent predecessors of both parties had put in place. His targets range from the EPA to the ACA. He’s used executive orders, called for legislative actions, and appointed agency heads with views antithetical to an agency’s core purpose. But perhaps most insidious has been the use of regulatory modifications and deletions to undermine and dismantle key federal programs and protections.

This massive rule deletion was characterized as “the most withering, devastating, and trenchant attack on the American administrative state this nation has ever known,” in a November 2017 article in The Guardian. “Far from the public’s gaze,” it went on, in little more than 9 months, “he’s rescinded, rolled backed, and reversed countless environmental, labor, education, transportation, food and drug, and consumer protection rules and regulations.”

“As became clear during Trump’s first 100 days,” observed digital business news service Quartz, “the administration is systematically dismantling consumer, labor, and environmental protections, as well as de-funding studies that might make the case for new rules.”

Lately, we’ve seen attacks through rules. There have been attacks on families by proposing changes to the SNAP program, on immigrants through the public charge rule, on women through the Title X rules, on transgender people, non-English speakers, and people with disabilities through Section 1557 changes with the ACA. It’s honestly hard to keep up. The administration that started out by rolling back regulations, is publishing new ones at a rapid pace with deleterious impacts on our communities.

Seeing these encroachments and full-on acts of destruction – understanding and explaining the looming terrible consequences of the attack by rule from a profoundly uncaring national government – it’s hard, as an advocate, to figure out what to do. There’s lawsuits, of course, and many have been filed; some injunctions have even been won. But lawsuits are slow and expensive, and they can make poor vehicles for effectively seizing attention. And what else is there, besides the public comment period to push for change?

Actually, there is one thing. It turns out that a little-discussed detail of congressional procedure could make at least some difference in the age of attack by rule. The Congressional Review Act provides that regulatory actions of executive agencies are actually subject to review by Congress. The CRA provides a congressional process to repeal executive branch regulations, guidance documents and policy memoranda. Unlike other oversight tools –  hearings, investigations, reporting requirements – which were time-consuming and only served to shed light on an issue, a successful CRA actually repeals the rule, prevents it from being re-issued, and bars judicial review – meaning that a resolution of disapproval cannot be challenged in federal court.

Enacted in 1996, the law was only used once during its first 15 years, to remove a rule on workplace ergonomics. Since then, 16 of the more than 90,000 rules published in the Federal Register have been nullified using this process, and another 13 attempts failed.

All of 16 these congressional actions were carried out by the Republican party and signed – or even sought out – by the current president. One of the first overturned a Social Security Administration rule formalizing a gun control measure issued by President Obama in the wake of the Sandy Hook shooting.

While these rule deletions have been the work of congressional conservatives, that may be changing. In July, Sen. Tom Udall, Democrat of New Mexico, suggested that his party might employ the CRA to block proposed changes to regulations governing the Endangered Species Act that would remove protections from species listed as merely “threatened” rather than fully “endangered.”

Another July CRA move would allow states and local governments to let taxpayers donate more to charity in exchange for paying less in state and local taxes, or SALT. If enacted, it would nullify an IRS regulation meant to keep the lower levels of government from helping taxpayers avoid the SALT deductions set by the Tax Cuts and Jobs Act of 2017.

We can think of several more excellent CRA-action candidates. Basically, as NPR recently noted, “If you’re poor or low-income in the U.S. and use government safety net programs, you could be affected by a number of new rules and actions.” There are plenty of rules especially worthy of repeal.

Housing discrimination. The rule will eliminate the “disparate impact” as a basis for lawsuits alleging discrimination in housing, thus weakening the civil rights-era Fair Housing Act. In a disparate impact lawsuit, you don’t have to show intent to discriminate, just that a policy or practice has an unequal outcome with a discriminatory effect. The concept was upheld by the Supreme Court in 2015. Federal Register August 19: proposed rule.

Public charge. The law has long provided that persons seeking residency may be denied if they are deemed likely to become a “public charge” – which is to say, supported by American taxpayers. This rule as first proposed would have dramatically broadened the definition to include Medicaid and Medicare Part D low-income subsidies, and possibly the Children’s Health Insurance Program. The final rule stopped short of that but still spreads a “far-reaching chill,” as a post on the Health Affairs blog put it. “Most relevant to health,” the post noted, “the rule treats receipt of Medicaid, food stamps, or housing benefits for an aggregate of 12 months out of 36 as a public charge” and “the presence of a medical condition that is likely to require extensive medical treatment alongside the absence of private health insurance as a heavily weighted negative factor. … The rule’s complexity, and the heated environment in which it is being promulgated compound the risk that the rule’s chill will reach far wider than its actual provisions.” Implementation and enforcement are set to start on October 15. Immigrants falling into the public charge group would be denied green cards. More than 60 lawsuits have been filed to block the rule, arguing that it violates equal protection rights and “intentionally discriminates against Latino immigrants and immigrants of color.” Federal Register August 14: final rule.

SNAP.  After failing to restrict food stamps via the farm bill last year, the administration moved to take away states’ ability to offer SNAP to families with income more than 130% of the federal poverty guidelines (generally about $32,600 for a family of four). The U.S. Department of Agriculture estimated the move would cause 3 million people to lose food assistance. The Center on Budget and Policy Priorities noted that it would also eliminate benefits for many seniors and persons with disabilities whose assets exceed $3,500. Currently, 43 states have automatic SNAP eligibility for residents who receive benefits from SSI, TANF or other public aid programs. Federal Register July 24: proposed rule.

Title X. The rule requires “clear financial and physical separation” between Title X-funded clinics and facilities where abortion is performed, and it prohibits staff at these clinics from referring patients for abortion. The referral prohibition has led to it being called a gag rule. Illinois and several other states have announced they would provide state funds to clinics that have chosen to forego federal funding in consequence of the rule. (See our August summary.) Federal Register March 4: final rule.

1332 waivers. The Centers for Medicare & Medicaid Services released guidance last October for use of Medicaid 1332 waivers that expand the agency’s efforts to undermine the Affordable Care Act using the waivers. (See our October summary.) The guidance was deemed to be a rule for the purposes for purposes of the Congressional Review Act; this explainer from Vox shows how, contrary to many observers’ impression that the CRA could only be invoked within 60 days of rule publication, in fact, the 60 day doesn’t start until a rule is submitted to Congress for review – and many have rules have thus far yet to take that step. This Federal Register October 24, 2018: final rule.

The 1332 attacks proved “a bridge too far” for congressional democrats. On July 31, all Democratic senators co-sponsored a Congressional Review Act joint resolution to roll back the changes. “What we’re talking about today is granting waivers to states to offer junk insurance plans,” Sen. Schumer told a press conference. “We don’t have that many opportunities, given Mitch McConnell not putting anything on the floor,” Schumer said. “This is one of the ways, one of the few, that we can overcome this legislative graveyard.” He was joined by several colleagues in a press conference announcing the resolution, including Sen. Ron Wyden, who wrote the waiver language in the 2010 law. A similar resolution had passed the House in May.

Of course, hopes for CRA successes on these fronts are currently slim. The most favorable time for using this tool is in the early days of a new administration, when the previous party has been swept from office and does not control Congress, and when there is a supermajority in Congress. In the current congressional makeup, defenders of the safety net do not have votes for Senate passage, much less veto override.

Even if regulatory action is successfully overturned, it may not be for long. While agencies are barred from reissuing regs struck down via CRA resolutions, the Trump Admiration has already violated that restriction, by bringing back in a tougher form an Obama-era rule on drug testing people without jobs. Moreover, the administration has been known to cast losses as wins. “By the most recent count,” wrote Politico in April, “the administration has either lost or given up in 34 out of 36 deregulatory cases, a win rate of just over 5%” but “has learned to use delaying tactics to undermine and even repeal federal regulations it doesn’t like, even when judges rule against it in court.”

The CRA, nonetheless, could be an avenue for bipartisan action. For example, one could reasonably expect bipartisan support for a resolution against rules that open the door to flagrant human rights violations, like the rule recently proposed that would allow for the indefinite detention of immigrant children; 19 states and DC are suing over that one.

So what will heightened use of CRA accomplish? It’s difficult to know, but its increased use should give the public pause. Clearly, it can be – and has been – used as a weapon by a supermajority to repeal regulations that protect us. But it also gives us an avenue for congressional leadership to pose an actual challenge to administrative rulemaking – and rule deletion – that can raise significant public awareness of an issue. The Congressional Review Act is a tool to hold members of Congress accountable and to serve as a check on excessive use of regulatory authority – and as an advocacy community, we should use all the tools available to us.

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