On March 25 and 26, 2021, U.S. Representative Raja Krishnamoorthi (D-Ill.) introduced a resolution in the U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the U.S. Department of Health and Human Services (HHS) in January 2021.
The rule, published in the Federal Register the day before Joe Biden’s (D) inauguration, set expiration, or sunset, dates for HHS regulations that apply unless the agency reviews those regulations according to the requirements of the Regulatory Flexibility Act (RFA). HHS said the rule would “ensure evidence-based regulation that does not become outdated as conditions change.”
The RFA is a 1980 law that requires federal agencies to consider the effects of regulation on small entities such as small businesses, nonprofit organizations, and local governments. The RFA directs agencies to consider regulatory alternatives for small entities and to consider their input and needs during the rulemaking process.
Opponents of the HHS rule argue that the rule violates the Administrative Procedure Act (APA). According to a lawsuit filed in the U.S. District Court for the Northern District of California, the rule also “creates immediate uncertainty and instability throughout the healthcare system at the very time that the public most needs clear guidelines due to a global pandemic.”
On March 23, HHS issued a new final rule postponing the effective date for the sunset rule in response to pending judicial review.
The Congressional Review Act gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Both houses of Congress have to pass a resolution disapproving the HHS rule and President Biden would then have to sign that resolution into law to block the rule. Since the law’s creation in 1996, Congress has used the CRA to repeal 17 out of the over 90,767 rules published in the Federal Register during that time.
A recent edition of the Congressional Record clarified that Congress has 60 days from February 3, 2021, to use the CRA to block regulatory activity taken near the end of the Trump administration. Rules published by the Trump administration after August 21, 2020 fall within the CRA lookback window.
Rep. Anna Eshoo (D-Calif.) cosponsored the resolution in the U.S. House of Representatives.
To learn more about the Congressional Review Act and its use, see here: https://ballotpedia.org/Congressional_Review_Act
Want to go further? Sign up today for our Learning Journey on the Congressional Review Act: https://ballotpedia.org/Journey:_Congressional_Review_Act
Additional reading:
- Final Rule
- Rulemaking
- Midnight Rulemaking
- Administrative State
- Department of Health and Human Services proposes to sunset regulations (2020)
- Easter deadline to use Congressional Review Act to repeal end-of-term Trump administration regulatory activity (2021)
Link to the U.S. House of Representatives CRA resolution:
Text of the HHS sunset rule:
Text of lawsuit against HHS sunset rule:
Text of the HHS rule postponing the sunset rule:
Link to the Congressional Record:
https://www.govinfo.gov/content/pkg/CREC-2021-02-03/pdf/CREC-2021-02-03-house.pdf