By Amit Narang & Matt Kent
In its rush to roll back as many regulatory protections as possible following the 2020 election, the Trump Administration violated an obscure regulatory law called the Congressional Review Act, making the last-minute regulatory rollbacks more legally vulnerable to reversal. The Biden administration now has an opportunity to more easily take off the books numerous deregulatory actions that were not properly submitted to Congress in a timely manner.
After the 2020 election, the Trump Administration rushed to complete as much of its regulatory roll back agenda as possible by the end of his term. Having had only one term, President Trump had much less time than most recent Presidents to finish regulatory roll backs that the Administration was hoping to have a second term to complete. This led the Trump Administration to resort to unprecedented and unlawful tactics to prevent the incoming Biden Administration from reversing the last-minute regulatory roll backs rushed out by President Trump.
Trump agencies were keenly focused on insulating their last-minute roll backs from being “frozen” by President Biden on his first day in office. Multiple recent Presidents, both Democrats and Republicans, have issued regulatory “freeze” memos on Day One of their terms in order to pause all pending regulations issued by the previous Administration. The freeze memo gives an incoming President space to block and reverse last-minute regulations from the previous Administration that don’t align with the policy preferences of the new Administration.
But there’s a catch. Presidents can’t “freeze” last-minute regulations from the last President if those regulations have already taken legal “effect.” In other words, if agencies are able to make their last-minute regulations legally effective by January 19th, the day before a new President comes into office, then that President will not be able to “freeze” those regulations. This is a small technical detail that makes a big difference because the process for reversing last-minute regulations that are “frozen” is typically faster and easier than for rules that have already taken legal “effect.”
Thus, it was no surprise that the Trump Administration attempted to make its policy changes permanent before Biden officially took over. Yet, Public Citizen has discovered that in their haste, Trump officials violated an obscure but powerful law called the Congressional Review Act (CRA) by failing to comply with the submission requirements of the CRA – inadvertently opening their moves to quick reversal.
Here’s how it works. Under the CRA, a regulation has not taken legal effect until it has been published in the Federal Register and submitted to both houses of Congress. For a certain category of regulations under the CRA called “major” regulations, the CRA requires agencies to delay the legal effective date of the “major” regulations by 60 days, but again only after the regulation has been published in the Federal Register and submitted to both houses of Congress.
While these technical details usually don’t have much of a practical impact, during transitions from one Administration to another when every day counts for the outgoing Administration to lock in its final regulations that dramatically changes. Again, this matters because a final regulation that is made legally effective on January 19, 2021 is much more difficult for the next Administration to repeal because that regulation can only be repealed through a lengthy full notice and comment process. But a final regulation that is made effective on or after January 20, 2021 can be “frozen” by the next Administration by delaying the effective date and then can be reviewed and potentially repealed more easily through a shorter notice and comment process. Thus, the difference between a regulation that takes legal effect before January 20, 2021 and a regulation that takes effect on or after January 20, 2021 is a critical game-changer.
The primary finding of this report is that President Biden has the ability to “freeze” or pause potentially up to dozens of deregulatory actions that Trump issued at the very end of his term, including some of the most egregious and damaging roll backs of public protections produced during the entire Trump Administration. That’s because even though those roll backs were officially published as final rules in the Federal Register, where agencies officially publish new regulations, many never took legal effect under the Congressional Review Act prior to January 20, 2021 because they were not sent to Congress. This is the case no matter whether agencies made those roll backs effective prior to January 20, 2021 as indicated in the Federal Register. Since many last-minute regulatory rollbacks were never technically on the books when President Biden came into office, they ought to be easier to wipe off the books.
The Biden Administration has already begun “freezing” last-minute roll backs from the Trump Administration and delaying the effective dates for those roll backs. By factoring in CRA submission errors to include roll backs that were not legally in effect, President Biden can expand the scope of his January 20, 2021 regulatory “freeze” to cover many more last-minute Trump Administration roll backs.
Importantly, Biden’s “freeze” memo expressly contemplates expansion of the scope of the memo to cover more last-minute rollbacks, stating “Should actions be identified that were undertaken before noon on January 20, 2021, to frustrate the purpose underlying this memorandum, I may modify or extend this memorandum, pursuant to the direction of the President, to request that agency heads consider taking steps to address those actions.” No prior regulatory “freeze” memo from previous Presidents has contained this provision.
Public Citizen encourages the Biden Administration to use this expanded authority to “freeze” all last-minute Trump regulatory roll backs that did not take legal effect prior to January 20, 2021 under the CRA, many of which will harm consumers, workers, the public’s health and safety, and the environment.
If the Biden Administration was to take this action, not only would it be a natural and non-controversial reading of the scope of Biden’s regulatory “freeze” memo, but it would also rest on the very same interpretation of the CRA that conservatives and Republicans in Congress asserted back in 2017. For example, Sen. Pat Toomey (R-PA) argued that because a guidance document issued by the Consumer Financial Protection Bureau in 2015 had not been submitted to Congress under the CRA, it had never taken legal effect. This allowed Congress to use the CRA to repeal the guidance document in 2018 three years after It was issued. With that backdrop, there is little basis to criticize President Biden for relying on the same interpretation.
Public Citizen has uncovered more than a dozen last-minute Trump regulatory roll backs that remove protections for consumers, workers, immigrants, women’s health, LGTBQ communities, small farmers, and the environment, but which never took legal effect, or did so after the January 20 regulatory “freeze” memo. Yet, this could be just the tip of the iceberg. The Biden Administration should direct agencies to identify any more such examples and Congress should investigate and conduct oversight as well. It is now in the hands of the Biden Administration, with the help of Congress, to “roll back the clock” on some of the worst last-minute Trump regulatory roll backs.
Trump regulatory rollbacks that were not legally in effect prior to Jan 20, 2021 can be broken down into three categories.
- First, there are last-minute roll backs that were either never submitted to Congress under the CRA, or were not fully submitted under the CRA (meaning only submitted to one chamber of Congress but not the other).
- Second, there are other last-minute roll backs that were submitted to Congress under the CRA, but were submitted after January 20, 2021, as well as a handful of roll backs that were submitted before January 20, 2021, but did not take legal effect until after January 20, 2021 due to being “major” rules under the CRA.
- Finally, there are a number of roll backs, particularly from the Environmental Protection Agency (EPA), that were made legally effective immediately in potentially unlawful fashion and would have been subject to the regulatory “freeze” if those roll backs had legally proper effective dates.
The Biden Administration has the authority to “freeze” last-minute roll backs in all three categories and reverse those roll backs more quickly and easily.
Rules Submitted After January 20, 2021
According to Public Citizen’s comprehensive search of the Congressional Record, numerous last-minute Trump regulatory roll backs were submitted to Congress under the CRA after January 20, 2021 and thus can be “frozen” under President Biden’s regulatory “freeze” memo. These include some of the most egregious roll backs of protections for consumers, LGBTQ communities, immigrants, and endangered species.
For example, the Department of Transportation’s (DOT) roll back of consumer protections for airline passengers was submitted to the Senate on February 2, 2021. This deregulatory measure would make it easier for airline companies to reject consumer complaints alleging “unfair or deceptive” practices on the part of airline companies and would make it harder for DOT to adopt strong new consumer protections for airline passengers in the future.
We also found that the roll backs of LGBTQ protections pursuant to an Executive Order President Trump issued in 2018 have not yet been submitted to the Senate despite having been submitted to the House on January 11, 2021. The roll backs were rushed out jointly by nine agencies in an attempt to make all of them legal effective on January 19, 2021, the day before President Biden came into office. However, none of the roll backs, which would lead to more discrimination against LGBTQ individuals, have become legally effective under the CRA.
In addition, numerous protections for immigrants, particularly those refugees seeking Asylum in the US, were rolled back in hurried fashion before President Trump left office. Yet, some of these roll backs have not yet taken legal effect under the CRA. In particular, a new restriction on Asylum seekers was purported to have taken effect on November 20, 2020 but has not yet been submitted to the House of Representatives as required under the CRA. Likewise, another anti-immigrant measure, which was claimed to have taken effect on January 15, 2021, would make it easier for immigration judges to reject applications for immigrants, including Asylum seekers, but was not submitted under the CRA to the Senate until January 28, 2021 and to the House of Representatives on February 2, 2021.
Finally, the Department of Labor’s (DOL) last minute roll back targeting the trend toward increasing investment in environmental, social, and corporate governance (ESG) funds did not take effect until after January 20, 2021 under the CRA, despite DOL’s mistaken claim that it took effect on January 12, 2021. This is because as a “major” rule under the CRA, the rule did not take effect until 60 days from publication of the rule in the Federal Register, or submission to Congress, whichever is later. In this case, DOL’s attack on ESG funds was not submitted to the Senate until December 2, 2020. That means the roll back was not legally in effect until January 31, 2021. There may be numerous other last minute Trump regulatory roll backs that are designated as “major” rules under the CRA which did not take effect prior to January 20, 2021.
Rules Never Submitted
According to Public Citizen’s comprehensive search of the Congressional Record, some of the most damaging last minute regulatory rollbacks from the Trump Administration were never submitted to Congress at all, or were only submitted to the Senate or the House of Representatives, but not both as required under the CRA.
For example, there is no record of the “Alaska Roadless Rule” from the US Department of Agriculture (USDA) being submitted to either the House of Representatives or the Senate. This rule removes protections against logging and deforestation of the pristine Tongass National Forest in Alaska and is one of the most sweeping and harmful roll backs of public lands protections under the Trump Administration. Yet, under the CRA, the rule never took legal effect in the first place.
In the waning days of the Trump Administration, the Department of Interior (DOI) finalized a roll back of protections for endangered species which would make it harder for President Biden’s DOI to restore protections for endangered species that were repealed by President Trump. While DOI claims the rule was legally effective on January 19, 2021, the roll back has not yet been submitted to Congress. Thus, it has never taken legal effect under the CRA.
There are also multiple roll backs of energy efficiency standards from the Department of Energy (DOE) that were never submitted to Congress. These include roll backs of efficiency standards for showerheads, dishwashers, washer/dryers, and procedural changes that will make it more difficult for the Biden Administration to put energy efficiency standards back in place in the future. President Trump boasted about gutting energy efficiency standards in public speeches but many of them have yet to even take legal effect.
Finally, the Trump Administration’s USDA made it harder for small family farms to bring challenges to monopolistic practices by large agricultural corporations, yet that last-minute roll back was also never submitted to Congress, which in turn means it never took legal effect under the CRA.
Rules Made Effective Immediately
Under the Administrative Procedure Act (APA), which is the foundational law that governs agency regulation, most regulations take legal effect at least 30 days after they are published in the Federal Register. However, there is an exception to allow regulations to legally take effect immediately if agencies are able to point to an emergency or urgent circumstance where regulations are needed immediately. This exception, called the “good cause” exception, is rarely used by agencies because courts require agencies to meet a high standard when pointing to emergency or urgent circumstances.
After the 2020 election, when the Trump Administration realized it was running out of time and didn’t have 30 days to wait to make its last minute roll backs legally effective before President Biden came into office, agencies began to frequently rely on the “good cause” exemption to make last minute roll backs effective immediately. The EPA in particular made five of its most important last-minute rollbacks effective immediately under the “good cause” exception, yet none of those roll backs pointed to any urgent or emergency circumstances that would allow EPA to use the “good cause” exception.
Not surprisingly, a court quickly found that EPA’s attempt to make one of its last-minute roll backs, the so-called “censoring science” rule, effective immediately was a patently unlawful usage of the “good cause” exception. Since the other EPA last minute roll backs also relied on virtually the same justification for “good cause” that the court found unlawful in the case of the “censoring science” rule, it is highly likely that those other EPA last minute roll backs also have immediate effective dates that are unlawful and defective.
The Biden Administration is on strong ground if it decides to revisit these EPA last minute roll backs to determine if there was an unlawful abuse of the “good cause” exception. If the Trump Administration’s EPA had followed the law, the last-minute EPA roll backs would certainly take legal effect after January 20, 2021, making them subject to President Biden’s regulatory freeze memo. In certain instances, namely EPA roll backs of air pollution standards, the Congressional record indicates those roll backs were submitted to Congress well after January 20, 2021. Thus, there are multiple grounds for the Biden Administration to claim that these roll backs were both not immediately effective and only took legal effect after President Biden came into office.
Effect on CRA Challenges
If the Biden Administration elects to expand the scope of its regulatory “freeze” to cover the last minute Trump roll backs that did not take legal effect prior to the regulatory “freeze” due to violations of the CRA, it will do nothing to disturb Congress’ ability to repeal the regulation using the CRA.
The only difference is that the CRA “clock” will not start on any potential CRA challenges to last minute Trump roll backs until those roll backs comply with the CRA by being submitted to both chambers of Congress. Thus, it is likely that the window to use the CRA to challenge many of the last-minute Trump roll backs that violated the CRA has not yet opened.
The Biden Administration will be on strong legal ground if it “freezes” last-minute Trump roll backs which violated the CRA. Not only is non-submission of rules under the CRA a clear violation under the law, but the CRA also blocks courts from judicial review under the CRA. Thus, President Biden has ample authority and discretion to “freeze” last-minute Trump roll backs that did not comply with the CRA.
To be clear, Public Citizen is no fan of the CRA. Indeed, Public Citizen has called for the repeal of the CRA because it introduces more political and corporate influence in a regulatory process that should be driven by science, data, evidence, and agency expertise, and also because it is a poorly drafted law that creates significant uncertainty for agencies in numerous respects. The primary function of the CRA is to allow Congress to repeal regulations more easily by creating a mechanism for bypassing the filibuster in the Senate. Yet, it is not at all clear why Congress should have a shortcut to repeal regulations while maintaining the filibuster for most other government actions.
However, the CRA is still the law, and it is quite clear that the last-minute regulatory rollbacks from the Trump Administration violated the CRA in many instances. President Biden can thank the Trump Administration’s sloppiness and incompetence which will allow the current administration to take many last-minute Trump regulatory rollbacks “off the books” since they were never “on the books” in the first place. We hope President Biden exercises this prerogative.
Unsubmitted or Late-Submitted Rule Tables
Category 1 – Submission Error. Rollbacks that were either never submitted to Congress or were not fully submitted under the CRA (meaning only submitted to one chamber of Congress but not the other).
Category 2 – Late Submission. Rollbacks that were submitted to Congress under the CRA, but were submitted after January 20, 2021, as well as a handful of roll backs that were submitted before January 20, 2021, but did not take legal effect until after January 20, 2021 due to being “major” rules under the CRA.
Category 3 – Unlawful Effective Date. Rollbacks, particularly from the Environmental Protection Agency (EPA), that were made legally effective immediately in potentially unlawful fashion and would have been subject to the regulatory freeze if those roll backs had legally proper effective dates.
ENERGY AND ENVIRONMENT
|OCS Oil & Gas Operations||DOI||1||Partial: no Senate submission||Eliminates safety and inspection requirements for offshore oil and gas drilling operations.|
|Appliance Energy Standards Cost-Benefit Analysis||DOE||1||Establishes new industry-friendly economic considerations for selecting energy efficiency standards.|
|Permit Appeals||EPA||1||EPA claims this rule is exempt from the CRA||Inserts changes into the environmental permit appeals process to benefit polluters.|
|EPA Guidance/Public Petitions Procedures||EPA||1||EPA claims this rule is exempt from the CRA||Limits the ability of the EPA to issue legal interpretation and public guidance.|
|AK Roadless Rule Tongass||USDA, Forest Service||1||Opens the North America’s largest temperate rainforest to logging.|
|Dishwasher Energy Standards||DOE||1||Loosens efficiency requirements for dishwashers.|
|NEPA Natural Gas Exemption||DOE||1||Exempts natural gas exports from environmental review.|
|Short Cycle Dishwashers Energy Standard||DOE||1||Creates a new product class for dishwashers, intended to meet Trump request, opposed by industry and environmentalists.|
|Showerhead Rule||DOE||1||Creates a water efficiency exception for showerheads, intended to meet Trump request, opposed by industry and environmentalists.|
|Endangered Species Critical Habitat||Interior, FWS|
|1||Weakens the definition of critical habitat.|
|Timber Sale Process Changes||DOI||1||Removes procedural safeguards in the agency decision process for timber sales and forest management decisions.|
|CAA CBA Rule||EPA||1, 3||EPA claims this rule is exempt from the CRA||Requires industry-friendly economic analyses for clean air rules.|
|Ozone Standards||EPA||2, 3||Maintains weak air quality standards for ozone emissions.|
|Censored Science Rule||EPA||1, 3||Federal court vacates and remands, 2/1/21||Limits agency ability to rely on scientific research to regulate pollution.|
|Airplane GHG emissions||EPA||2, 3||Establishes weak air quality standards for airplane emissions.|
CONSUMER AND CIVIL RIGHTS
|Federal Executions||DOJ||1||Permits federal executions to take place by means beyond lethal injections, including by firing squad and the electric chair.|
|Airlines Unfair and Deceptive Practices||DOT||2||Adopts an airline-friendly consumer protection standard. Weakens agency enforcement of airline passenger protections by adding procedural barriers to any attempt to protect flyers.|
|Faith-based Right to Discriminate (EO 13831)||DOJ, ED, DHS, Ag, USAID, HUD, DOL, VA, HHS||1||Partial: no Senate submission||Shields religious organizations from funding conditions that would prevent discrimination against people based on religious preference, sexual orientation or gender identity.|
|Asylum: Eligibility Restrictions||DOJ|
|1||Partial: no House submission||Narrows asylum eligibility for migrants.|
|Immigration Appeals: Decision Finality Admin Closure||DOJ||2||Allows immigration appeal decisions to be made by political appointees, limits migrant due process.|
|Asylum: Application for Withholding of Removal||DOJ||2||Institutes onerous procedural requirements for asylum applicants.|
|Joint Employer FLSA||DOL||1||Partial: no Senate submission||Protects corporations from liability when franchisees violate labor laws.|
|Overtime Recalculation||DOL||1||Partial: no Senate submission||Watered-down Obama era expansion of income limits for employees eligible for overtime.|
|GIPSA Preferences||USDA||1||Puts small farmers at a disadvantages in dealings with corporate meatpackers and agribusiness.|
|ESG Investing Rule||DOL||2||Major rule designation requires effective date 60 days from Congressional submission||Limits pension fund managers investment decisions to financial, non-social factors only. Discourages the use of sustainable investment strategies, or environmental, social and corporate governance (ESG) investment.|