Checks and Balances, January 2025

By

Ballotpedia staff

In this edition of Checks and Balances:

Federal stories:

  • U.S. House passes two administrative state bills. 
  • Republican lawmakers introduce DOGE Acts.
  • EPA grants California’s electric vehicle mandate waiver.
  • Biden signs Chance to Compete Act into law.

State stories:

  • 84 bills on the administrative state pre-filed for 2025 session.
  • Oklahoma Education Department proposes changes to open records procedures.

Commentary:

  • Paul Larkin from The Heritage Foundation published a report on the Congressional Review Act (CRA) and its expected use under the Trump administration.

Regulatory Tally:

  • 163 proposed rules and 390 final rules added to the Federal Register in December.
  • OIRA’s regulatory review activity.
  • Highlighted rule revising the restrictions on food manufacturers labeling products as healthy.

In Washington

U.S. House passes two administrative state bills

What’s the story?

The House of Representatives passed two administrative state bills in December—the Midnight Rules Relief Act and the Prove It Act. The bills proposed (1) allowing Congress to disapprove multiple rules through one joint resolution and (2) establishing avenues for small businesses to challenge certain regulations, respectively. 

The Senate did not vote on the bills before the legislative session ended. The 119th Congress, which convened Jan. 3, may reintroduce the provisions. 

The background: Midnight Rules Relief Act

The Midnight Rules Relief Act would have expanded the Congressional Review Act (CRA), allowing Congress to disapprove multiple rules through one joint resolution of disapproval. Rep. Andy Biggs (R-Ariz.) introduced the bill in the House on Jan. 9, 2023. It passed the House 210-201 on Dec. 17, 2024. 

Brent Gardner, the chief government affairs officer for Americans for Prosperity (AFP), argued the bill “brings much-needed reform to the Congressional Review Act, allowing lawmakers to swiftly repeal harmful regulations that stifle economic opportunity for all Americans.”

The Coalition for Sensible Safeguards (CSS)—an organization opposing federal deregulation efforts—sent a letter to the House of Representatives arguing, “[T]his bill would … greatly expand the CRA’s anti-regulatory force by amplifying the harmful impact of the CRA’s ‘salt the earth’ provision. … [T]he operation of the bill would significantly constrain agencies’ authority to carry out their statutory missions to protect the public.” 

The background: Prove It Act

The Prove It Act would have required agencies to include potential indirect costs to small businesses in regulatory flexibility analyses, allowing small businesses to challenge regulations with an anticipated “significant economic impact on a substantial number of small entities.” Rep. Brad Finstad (R-Minn.) introduced the bill in the House on Feb. 1, 2024. It passed the House 208-196 on Dec. 5. 

Rep. Nathaniel Moran (R-Texas), a co-sponsor of the bill, argued, “We need teeth to that 1980 Regulatory Flexibility Act … and the Prove It Act will do just that. It’ll change what has not been done in the past and it will restore power to small businesses today to push back against new regulations.”

CSS also sent a letter to the House opposing the Prove It Act, arguing, “This bill would slow down the regulatory process and empower an office [the Small Business Administration’s Office of Advocacy] that has been neither appropriately focused on small business concerns nor adequately transparent in how it conducts its actions.”

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Republican lawmakers introduce DOGE Acts

What’s the story?

Sen. Marsha Blackburn (R-Tenn.) and Rep. Claudia Tenney (R-N.Y.) on Dec. 11 announced a package of bills to amend federal agency workforce policies and reduce spending. Blackburn and Tenney called the package the DOGE Acts, aligning with President-elect Donald Trump’s (R) Department of Government Efficiency (DOGE). 

Congress did not vote on the package during the 118th Congress. The 119th Congress, which convened Jan. 3, has reintroduced some of the bills. 

Sen. Blackburn wrote, “The DOGE Acts are the first step to achieving government efficiency by requiring federal employees to get back in the office, moving federal agencies into the heartland of America, cutting bloated federal spending across the board, and freezing federal hiring and salaries until we can rightsize the federal government.”

What’s the background?

The DOGE Acts included the following three new bills introduced Dec. 11. All three were reintroduced in the House Jan. 3:

  • The Federal Freeze Act (S. 5482; H.R. 201) proposed freezing federal employees’ salaries for one year and placing a cap on the number of agency employees.
  • The Commission to Relocate the Federal Bureaucracy Act (S. 5486; H.R. 202) proposed establishing a commission to discuss relocating non-security-related agencies outside of Washington, D.C.
  • The Federal Employee Performance and Accountability Act (S. 5479; H.R. 200) proposed creating a performance-based pay structure for federal employees at higher grades, senior-level positions, or positions with measurable performance criteria.

The package also contained four bills previously introduced in the 118th Congress:

  • Three bills (S. 331; S. 330; S. 327) were introduced Feb. 9, 2023, to establish 1%, 2%, and 5% across-the-board spending cuts (respectively). The bills would have exempted the Department of Defense, the Department of Homeland Security, the Department of Veterans Affairs, and the National Nuclear Security Administration. 
  • The Stopping Home Office Work’s Unproductive Problems (SHOW UP) Act (H.R. 139) was introduced Jan. 9, 2023, to prohibit agencies from expanding telework and “require federal agencies to return to pre-pandemic telework levels within 30 days.” The SHOW UP Act passed the House 221-206 in February 2023 but was not voted on in the Senate.

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EPA grants California’s electric vehicle mandate waiver

What’s the story?

The Environmental Protection Agency (EPA) granted a preemption waiver to California on Dec. 18, allowing the state to enforce its Advanced Clean Cars II (ACC II) regulation. The regulation includes an electric vehicle (EV) mandate prohibiting the sale of new gasoline-powered cars and light trucks by 2035. The ACC II program also requires 35% of new cars to be zero-emission by 2026 and 68% by 2030.

EPA Administrator Michael Regan affirmed California’s authority to address air pollution under the Clean Air Act (CAA). He said, “California has longstanding authority to request waivers from EPA to protect its residents from dangerous air pollution from mobile sources like cars and trucks.”

The Western States Petroleum Association opposed the decision, arguing, “The EPA’s decision to grant California’s waiver ignores the message voters sent loud and clear in November: affordability matters. California’s soaring energy costs and bans on gas-powered vehicles are by design.”

The background

Title II of the CAA requires the federal government to regulate emissions from new vehicles. Section 209(b) of the CAA allows California to set stricter vehicle emissions standards if the EPA grants a waiver. California has received 75 emissions waivers since the CAA’s adoption in 1967.

California began implementing its Advanced Clean Cars I (ACC I) program in 2013 to reduce emissions from light- and medium-duty vehicles. The program established stricter emissions standards, required automakers to sell more zero-emission vehicles (ZEVs), and aimed to lower greenhouse gases and air pollutants from cars and light trucks.

The EPA under Trump withdrew California’s waiver for its ACC I program in 2019, but the Biden administration later reversed that decision. California adopted the ACC II program in 2022.

The Trump campaign said his second administration would undo California’s electric vehicle (EV) mandate, but the process may take several years. It will require a new proposed rule, public comment periods, and likely litigation. 

Eleven other states and the District of Columbia have adopted California’s ACC II rule.

The EPA also approved a waiver for California’s Heavy-Duty Engine and Vehicle Omnibus Regulation on Dec. 18. Five additional California regulations to reduce emissions were waiting for EPA waivers as of Jan. 9.

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President Biden signs Chance to Compete Act into law

What’s the story?

President Joe Biden (D) signed the Chance to Compete Act into law on Dec. 23, requiring skills-based hiring practices for federal agencies. The bill requires technical assessments, instead of self-assessments, for federal job applicants. Proponents argue the changes will improve efficiency in the federal hiring process. 

The bill passed Congress with bipartisan support. 

Rep. James Comer (R-Ky.) wrote in a statement for the House Committee on Oversight and Government Reform the bill “represents one of those rare bipartisan legislative reforms that targets a specific problem, implements tested solutions, and reflects private-sector best practices. The bill codifies and improves upon policy initiatives begun in the Trump Administration and which the Biden Administration is continuing to implement.”

What’s the background?

Sen. Kyrsten Sinema (I-Ariz.) introduced the bill on Jan. 24, 2023. The Senate passed it unanimously on Dec. 12, 2024, and the House approved the bill by a voice vote on Dec. 16.

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In the states

84 bills on the administrative state pre-filed for 2025 session

What’s the story?

Ballotpedia’s Administrative State Legislation Tracker captured 84 bills pre-filed for the 2025 legislative session as of Dec. 31. Legislators in 13 states pre-filed bills, reflecting policy proposals related to oversight of regulations, judicial deference to agencies, agency use of artificial intelligence (AI) surveillance, regulation budgets and limitations, cost-benefit analysis requirements, agency appointment processes, and occupational licensing and permitting.

The 84 bills were pre-filed in the following states:

  • 22 bills in Montana,
  • 17 bills in Maryland,
  • 16 bills in Texas,
  • 10 bills in Missouri,
  • five bills in Florida,
  • three bills in South Carolina,
  • three bills in Washington,
  • two bills in California,
  • two bills in Wyoming, and
  • one bill each in Nevada, New Hampshire, Pennsylvania, and Utah. 

There were 60 bills pre-filed in states with Republican trifectas, 22 in states with Democratic trifectas, and two in states with divided governments.

The pre-filings included the following five noteworthy bills:

  • Missouri SB350: Proposes a REINS-style law requiring the general assembly to approve proposed administrative rules costing $250,000 or more.
  • Montana LC1339: Proposes banning state agencies from using AI to surveil the public.
  • Montana LC1784/HB52: Proposes a state Administrative Procedure Act revision requiring courts to decide cases without deference to an agency’s interpretation of a law.
  • South Carolina HB3021: Proposes:
    • requiring the Small Business Regulatory Review Committee—consisting of 11 business owners—to review regulations pending reauthorization; 
    • requiring agencies to cite specific statutory authority when promulgating regulations; 
    • establishing a regulatory budget requiring agencies to repeal two rules for every rule promulgated; 
    • requiring mandatory cost-benefit analyses for rules; 
    • creating automatic expiration and periodic review processes for agency rules; and 
    • requiring courts to review agency rules without deference to the agency’s interpretation of a statute.
  • Texas HB1259: Proposes establishing the State Agency Rules Review Commission as a legislative committee consisting of eight legislators and three public members to review rules and determine agency rulemaking authority.

The 84 pre-filed bills also included legislation about specific agencies and regulations.

An additional seventy-five bills have been introduced (or carried over) since the beginning of 2025, bringing the total number of administrative state bills to 159 as of Jan. 13.

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Oklahoma Education Department proposes changes to open records procedures

What’s the story?

The Oklahoma State Department of Education (OSDE) on Dec. 17 proposed changes to its procedures regarding official records disclosures. The changes included:

  • removing in-person records requests and inspections from their procedures and requiring requests to be submitted online or through email, fax, or physical mailing;
  • establishing fees for access to records; and
  • removing the requirement for the Department to reply promptly to records requests.

The background

Oklahoma Attorney General Gentner Drummond (R) sent the superintendent of public education and head of OSDE, Ryan Walters (R), a letter in July 2024 that said his office had received complaints regarding how the OSDE handled records requests.

State agencies must follow the Oklahoma Open Records Act but can set rules governing their specific procedures.

Oklahoma subjects all proposed administrative rules to a public comment period and legislative approval before taking effect. OSDE will hold a public hearing on Jan. 17 regarding the proposed open records procedures. 

Following the hearing, OSDE would need approval from the Oklahoma State Board of Education, the Oklahoma Legislature, and the governor before the rule could take effect. In some cases, rules are reviewed and voted on in legislative committees and then sent directly to the governor for approval, bypassing a full legislative vote.

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The CRA and the Trump administration

Paul Larkin, a senior legal research fellow at The Heritage Foundation, published a report about the Congressional Review Act (CRA). The report highlighted the history of the CRA, outlined its use within the Trump administration, and proposed revisions to broaden its scope: 

The Congressional Review Act enables Congress to review the work of the administrative state and, together with the President, expeditiously consider and reject any rule that an agency adopts. Once a new rule has been submitted to Congress, an agency may rely on the rule after the CRA review period has expired, but an agency cannot threaten or take an adverse action against anyone based on the purported authority found in an unsubmitted rule. The CRA’s text and purposes demand that a rule never submitted to Congress cannot yet be deemed “in effect,” regardless of the form that the rule might take. Put differently, an agency cannot run out the clock on Congress’s time to review a rule that never started, because the clock never starts until the agency submits the rule as the CRA requires.

Working together seven years ago, Congress and the first Trump Administration proved that the CRA is a valuable tool with which to restrain the Leviathan. Given the second Trump Administration’s continued interest in restraining improvident actions by unelected agency officials, it is likely that the first two branches will tango again—and perhaps on a grander scale.

Want to go deeper? 

  • Click here to read the full text of “The Return of the Congressional Review Act” by Paul Larkin.

Regulatory tally

Federal Register

The Federal Register publishes proposed and finalized administrative agency rules and regulations, policy statements, and interpretations of existing rules every federal working day. The Federal Register’s December highlights are as follows:

Office of Information and Regulatory Affairs (OIRA)

OIRA reviews all significant actions, defined as rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. Significant regulatory actions also include agency rules that may conflict with other regulations or with the priorities of the president. OIRA’s December regulatory review activity included the following:

  • The agency reviewed 70 significant regulatory actions:
    • three rules were approved without changes, 
    • changes were recommended for 55 rules, 
    • four rules were subject to a statutory or judicial deadline, and 
    • eight rules were withdrawn from the review process.
  • As of Jan. 2, OIRA’s website listed 97 regulatory actions under review.
  • Notable regulation: 
    • OIRA concluded its review of a Food and Drug Administration (FDA) final rule revising the requirements for when food manufacturers can label products as healthy. The FDA said the rule could help people identify nutritious foods based on the agency’s dietary recommendations.
    • The final rule, titled Food Labeling: Nutrient Content Claims; Definition of Term “Healthy,” will take effect on Feb. 25, 2025. 
    • The FDA estimated the rule would provide a net (after-costs) annual benefit of $19 million through an estimated decrease in diet-related chronic illnesses. 
    • The total cost of the rule included reformulating, recordkeeping, and labeling costs for manufacturers, which the FDA estimated at $27 million annually. The rule also discussed the costs of rebranding food. 
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