Did Biden Pull Trans Regs to Head Off Congressional Review?

Will Joe Biden do whatever it takes to throw sand in the gears of the incoming administration? Absolutely, and we’re not just talking about prying the Ws off the White House keyboards. Media outlets have reported that Biden and his team plan to do whatever they can to “Trump-proof” the federal government before Donald Trump’s inauguration. 

For instance, the Biden administration cut a new contract this month with 42,000 government workers that will prevent Trump from forcing them back into the office, as he planned to do, until 2029. What a coincidence! I’m sure that has nothing to do with the end of Trump’s term. Why, there are lots of great reasons why federal government workers should operate from their homes for four more years, long past the pandemic, while taxpayers foot the bill for largely unused offices. And those are … um … I’ll get back to you.

But union contracts aren’t the only place where shenanigans may have taken place. Yesterday, John wrote about the sudden reversal by the White House on transgender rulemaking and regulation, ostensibly because the clock had almost run out on issuing final rules. By reversing rather than freezing the regulatory proposals, the incoming administration would have to start from scratch to create opposing rules and regulations, adding to their processing time — or so the argument goes. And it might be correct, as far as it goes.

But as our astute reader Stephen reminds us, this may be an even smarter tactic to avoid a bigger problem for progressives: the Congressional Review Act (CRA).  

Congress passed the CRA into law in 1996, part of the GOP’s “Contract with America” to get more control of regulatory agencies and their insatiable appetite for expanding jurisdictions and intrusion on American lives. It also includes a lookback period to allow a new session to deal with last-minute rulemaking of an outgoing administration; this year’s window opened roughly at the beginning of August. Until 2017, though, Congress had only successfully repealed a rule or regulation one time — in the first year of the George W. Bush presidency, despite the lack of Ws on the keyboards at the time. 

In 2017, however, Republicans overturned 16 Obama-era rules and regs from the last few months of the previous term under its lookback provisions. Democrats used the CRA three times in the first session of Congress in the Biden term to reverse Trump-era rules, too. Those actions have a time limit — roughly four calendar months into the new session — but that’s generally to introduce the necessary disapproval bills, not for floor votes. Both chambers can initiate such actions under the CRA, and even better, such actions are privileged in the Senate and are not subject to filibuster. They do require presidential signatures once they pass both chambers of Congress, but passage only requires simple majorities.

And here’s the part that would worry progressives if these rules got finalized in this session, as explained by the Congression Research Service, emphasis mine:

A rule that is the subject of an enacted CRA joint resolution of disapproval goes out of effect immediately if the rule has already taken effect when the resolution of disapproval is enacted and “shall be treated as though such rule had never taken effect.” If the rule has not yet gone into effect when the resolution of disapproval is enacted, it will not take effect.

In addition, a rule subject to an enacted joint resolution of disapproval “may not be reissued in substantially the same form, and a new rule that is substantially the same … may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.”

In other words, a CRA repeal of the transgender rules that Biden wanted to implement would prevent them from ever being promulgated out of the executive branch again. To impose such policies, Congress would have to enact them through statute, and that kind of legislation would be subject to a filibuster in the Senate. In this case especially, the policies are unpopular enough now that one can hardly imagine that Democrats would band together to pursue them through legislation seriously, let alone get them passed in both chambers.

And even if the administration hadn’t “finalized” these into rules, the CRA might still apply. The same explainer details how members of Congress can make non-final rules eligible for CRA action during the lookback period:

In some cases, an agency has failed to submit a covered action to Congress, generally because the agency has not considered the action to be a rule under the CRA. On occasion when this has occurred, Members of Congress have asked GAO for a formal opinion as to whether an unsubmitted action satisfies the CRA definition of rule such that the agency would be required to comply with the CRA submission procedures. GAO has issued dozens of opinions of this type at the request of Members. These opinions are available on GAO’s website.

Although the CRA states that a joint resolution of disapproval can be introduced only after Congress receives a rule, Members have sometimes used these GAO opinions to trigger the CRA’s special procedures, even if the agency never submitted the rule to Congress.  Specifically, the Senate has developed a practice in which the publication in the  Congressional Record of a GAO opinion classifying an agency action as a rule can trigger the CRA’s special procedures for a joint resolution of disapproval.

In other words, the Biden administration couldn’t afford to just leave these proposals in the pipeline. The incoming Congress can simply deem these as fully formed rules and repeal them — an action that cannot be reviewed by the courts either, as the CRA makes clear. If the House and Senate do that and repeal these regs, Trump would almost certainly sign the bills — and those regs would be not just mostly dead as they are now, but will have reached the look through its pockets for loose change stage. And since these policies are too unpopular to pass Congress, they will have zero chance of resurrection. Hence, the only way to protect these rules for a future Democrat administration is to withdraw them fully before the next session of Congress starts in two weeks. 

I’d bet dollars to donuts that the CRA is the reason for this action rather than the “rewriting” excuse reported by the media. Republicans made good use of the CRA eight years ago, and it’s one of the strategies that Mike Johnson and John Thune can use to boost unity in their caucuses in the next session of Congress. Don’t be surprised if other rules and regs suddenly disappear out of the pipeline in the next couple of weeks, either.