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Jace Lington

Jace Lington is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Biden signs three Congressional Review Act bills repealing Trump-era rules 

Image of the south facade of the White House.

President Joe Biden (D) signed three Congressional Review Act (CRA) bills on June 30, reversing three administrative rules implemented near the end of the Donald Trump (R) administration. 

Signing these bills brings the total number of rules repealed under the CRA to 20. These CRA bills are also the first Congress has used to reverse regulatory actions taken by a Republican president.

The first bill, S.J.Res.13, reversed a Trump-era Equal Employment Opportunity Commission (EEOC) rule that changed what information the agency would share with companies accused of discrimination. It passed 219-210 in the U.S. House of Representatives with Democrats voting in favor and Republicans voting against it. In the U.S. Senate, the resolution passed 50-48 with 48 Democrats and two independents in favor and 48 Republicans opposed. 

The second bill, S.J.Res.14, reversed a Trump-era Environmental Protection Agency (EPA) methane rule and restored methane emissions standards set during the Barack Obama (D) administration. It passed 229-191 in the U.S. House with 217 Democrats and 12 Republicans voting in favor and 191 Republicans voting against it. In the U.S. Senate, the resolution passed 52-42 with 47 Democrats, three Republicans, and two independents voting in favor while 42 Republicans voted against it.

The third bill, S.J.Res.15, reversed a Trump-era U.S. Comptroller of the Currency (OCC) rule that changed regulations governing banks that give money to third-parties to lend to borrowers. It passed 218-208 in the U.S. House with 217 Democrats and one Republican voting in favor and 208 Republicans voting against it. In the U.S. Senate, the resolution passed 52-47 with 47 Democrats, 3 Republicans, and two independents voting in favor while 47 Republicans voted against it.

The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.

The law defines days under the CRA as days where Congress is in continuous session, so the estimated window to block any end-of-term regulatory activity from the Trump administration was between Feb. 3, and April 4, 2021. Congress had until then to introduce CRA resolutions to block regulatory activity that occurred between Aug. 20, 2020, and Jan. 3, 2021. 

Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 rules published in the _Federal Register_. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules in total using the CRA during the Trump administration.

To learn more about the CRA or its use during the Biden administration see here:

Additional reading:

Link to remarks from the president while signing the bills:



U.S. Supreme Court rules Federal Housing Finance Agency has unconstitutional structure

In Collins v. Yellen, the U.S. Supreme Court held that restrictions on the president’s authority to remove the director of the Federal Housing Finance Agency (FHFA) violated the separation of powers. In its June 23 decision, the court also rejected the argument that the FHFA actions at issue in the case went beyond the agency’s legal authority.

Justice Samuel Alito delivered the opinion of the court, writing that the Housing and Economic Recovery Act (HERA) blocks shareholders from challenging FHFA decisions in court since the agency acted within the bounds of its powers. However, he also wrote that “the Constitution prohibits even ‘modest restrictions’ on the President’s power to remove the head of an agency with a single top officer.” The end of the opinion says that FHFA officers were properly appointed but that lower courts should resolve whether the unconstitutional restriction on the president’s removal power inflicted harm that gives the shareholders a right to request relief in federal court.

Justice Clarence Thomas wrote a concurring opinion arguing that actions taken by federal officials are not necessarily unlawful just because a restriction on the president’s removal power over them is unlawful in the abstract.

Justice Neil Gorsuch wrote an opinion concurring in part in which he argued that the distinction between unconstitutionally _appointed_ officials and unconstitutionally _insulated_ officials should not prevent the court from ruling that an official acted without constitutional authority.

Justice Elena Kagan wrote an opinion concurring in part and concurring in the judgment and Justices Stephen Breyer and Sonia Sotomayor joined part II of her opinion. Kagan agreed with the majority that the FHFA did not exceed the limits of its powers, but she only agreed to hold the agency structure unconstitutional out of respect for precedent. Part II of her opinion agreed with the majority that it would be right to undo the FHFA’s actions only if the president’s inability to fire the director affected those actions.

Justice Sonia Sotomayor wrote an opinion concurring in part and dissenting in part, joined by Justice Breyer. Sotomayor agreed with the parts of the majority opinion upholding the FHFA’s actions under the HERA and discussing potential remedies following remand of the case. Regarding the constitutional question, she argued that the court misapplied the precedent from Seila Law (2020). She wrote, “The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress.”

The court’s decision to hold the structure of the FHFA unconstitutional articulated limits on the kinds of administrative agencies Congress may create and reaffirmed the court’s decision in Seila Law. Each of the Justices’ opinions referenced arguments from the debate surrounding presidential control over administrative officials across the federal government.

The case was consolidated with Yellen v. Collins.

To learn more about the case or executive control of agencies see here:

Additional reading:

Link to the U.S. Supreme Court decision:



U.S. Supreme Court: Constitution requires more supervision over administrative patent judges from Patent and Trademark Office director

In United States v. Arthrex, the U.S. Supreme Court held that the Appointments Clause does not allow administrative patent judges (APJs) to resolve patent disputes without more supervision from higher-level agency officials. In its June 21 decision, the court decided to sever the parts of the patent statute that prevented the director of the Patent and Trademark Office (PTO) from reviewing APJ decisions unilaterally.

Chief Justice John Roberts delivered the opinion of the court. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined parts I and II of his opinion, which held that the director of the PTO improperly lacked direct review power over APJ decisions, giving them power that conflicted with the “design of the Appointments Clause ‘to preserve political accountability.’”

Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett joined part III of Roberts’ opinion and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan concurred with the result. In part III, the court blocked enforcement of the patent statute at issue “to the extent that its requirements prevent the Director from reviewing final decisions rendered by APJs.”

Justice Neil Gorsuch wrote an opinion concurring in part and dissenting in part. He agreed with the majority opinion about the relation of the Appointments Clause to APJs but rejected the idea that the court had the power to sever (remove) portions of statutes when they violate the constitution.

Justice Stephen Breyer wrote an opinion concurring in part and dissenting in part, joined by Justices Sonia Sotomayor and Elena Kagan. Breyer agreed with parts I and II of Justice Clarence Thomas’ dissenting opinion but agreed to go along with the majority’s remedy in the case, to make Patent Trial and Appeal Board (PTAB) decisions reviewable by the director of the PTO.

Justice Clarence Thomas wrote a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in parts I and II, arguing that the court ruled “for the very first time” that “Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department.” Thomas argued that neither court precedent nor the Appointments Clause requires the U.S. Senate to confirm officers inferior to two officers below the president.

The court’s ruling preserved the authority of the secretary of commerce to appoint APJs while increasing the supervision powers of the director of the Patent and Trademark Office. Each of the Justices’ opinions referenced arguments from the debate surrounding presidential control over other administrative officials across the federal government.

The case was consolidated with Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.

Additional reading:

Article II, United States Constitution

Oil States Energy Services v. Greene’s Energy Group

Free Enterprise Fund v. Public Company Accounting Oversight Board

Judicial review

Administrative state

Link to the U.S. Supreme Court decision:

United States v. Arthrex,



Unanimous U.S. Supreme Court rules in favor of pre-enforcement challenge against IRS regulation

The U.S. Supreme Court ruled unanimously in CIC Services v. Internal Revenue Service that CIC Services, a risk management consulting firm, may challenge an IRS records reporting regulation without first violating the new regulation and paying a tax penalty.

At issue was whether the Anti-Injunction Act (AIA), a federal law that bars lawsuits to prevent the assessment or collection of taxes, blocked CIC’s challenge in this case. 

Elena Kagan delivered the opinion of the court on May 17, arguing that a “suit to enjoin a requirement to report information is not an action to restrain the ‘assessment or collection’ of a tax, even if the information will help the IRS collect future tax revenue.” For the court, that distinction meant that the AIA did not block challenges to such reporting requirements.

Justice Sonia Sotomayor wrote a concurring opinion arguing that the ruling in CIC may not apply to cases brought by individual taxpayers. Justice Brett Kavanaugh also wrote a concurring opinion, arguing that the CIC decision narrowed earlier court precedent about the AIA in a way he supported.

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

 To learn more about the case, see here: 

CIC Services v. Internal Revenue Service

Additional reading:

Link to the U.S. Supreme Court opinion:

https://www.supremecourt.gov/opinions/20pdf/19-930_d1o3.pdf



U.S. Supreme Court dismisses case challenging regulations related to abortion under Title X family planning program

The U.S. Supreme Court dismissed American Medical Association v. Becerra in its order list published on May 17. The case concerned whether the U.S. Department of Health and Human Services (HHS) violated the Administrative Procedure Act (APA) and federal healthcare laws when it issued a 2019 rule that placed abortion-related restrictions on healthcare providers receiving federal funds under a Title X family planning program. 

The court’s order dismissing the case stated that the Joe Biden (D) administration had filed a letter saying that it would enforce the challenged regulations outside the state of Maryland while it worked through the notice and comment rulemaking process to override them. The administration said it aimed to have a new final rule published early in the fall of 2021 so that it could go into effect before the 2022 Title X funding announcement.

The court also rejected requests from 19 states and the American Association of Pro-Life Obstetricians & Gynecologists to intervene to defend the rule.

The case was consolidated with Oregon v. Cochran and Cochran v. Mayor and City Council of Baltimore, which were also dismissed. 

To learn more about the case or the Administrative Procedure Act see here:

Additional reading:

Link to the U.S. Supreme Court order:

https://www.supremecourt.gov/orders/courtorders/051721zor_6537.pdf

Link to the docket for _AMA v. Becerra_:

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-429.html

Link to the letter from the Biden administration:

https://www.supremecourt.gov/DocketPDF/20/20-429/177132/20210503144133267_20-429%20Am%20Med%2020-454%20and%2020-539.pdf



U.S. Senate approves resolution to reverse Trump-era rule about how banking laws apply to certain loans

The U.S. Senate passed a resolution under the Congressional Review Act (CRA) on May 11 to block a rule made by the U.S. Comptroller of the Currency (OCC) in Oct. 2020. 

The final vote was 52-47, with three Republicans, Susan Collins (Maine), Cynthia Lummis (Wyo.), and Marco Rubio (Fla.), voting in favor of the resolution. 47 Democrats and the two independent senators, Angus King (Maine) and Bernie Sanders (Vt.), voted in favor of the resolution. Senator Martin Heinrich (D-N.M.) did not vote.

The rule, published in the _Federal Register_ on October 30, 2020, aims to clarify when banks are the true lender in situations where banks provide the money for third-party organizations to extend credit to borrowers.

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 OCC 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 more than 90,767 rules published in the Federal Register during that time.

The OCC rule went into effect on Dec. 29, 2020. According to the _Congressional Record_, Congress has 60 days from Feb. 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 Aug. 21, 2020, fall within the CRA lookback window.

U.S. Representative Jesús “Chuy” García (D-Ill.) introduced a companion resolution in the U.S. House of Representatives on March 26, 2021. 

To learn more about the Congressional Review Act (CRA), see here:

Additional reading:

Link to the U.S. Senate Resolution:

https://www.congress.gov/bill/117th-congress/senate-joint-resolution/15

Link to the OCC rule:

https://www.federalregister.gov/documents/2020/10/30/2020-24134/national-banks-and-federal-savings-associations-as-lenders



U.S. Senate approves resolution to reverse Trump-era methane rule and restore standards set by Obama administration

The U.S. Senate passed a resolution under the Congressional Review Act (CRA) on April 28 to block a rule made by the Environmental Protection Agency (EPA) in Sept. 2020. 

The final vote was 52-42, with three Republicans, Susan Collins (Maine), Lindsay Graham (S.C.), and Rob Portman (Ohio), voting in favor of the resolution. 49 Democrats voted in favor of the resolution. The following 6 senators did not vote: Maria Cantwell (D-Wash.), Kevin Cramer (R-N.D.), Rand Paul (R-Ky.), Mike Rounds (R-S.D.), Richard Shelby (R-Ala.), and Pat Toomey (R-Pa.). 

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 EPA 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 more than 90,767 rules published in the Federal Register during that time.

The EPA rule went into effect on Sept. 14, 2020. According to the _Congressional Record_, Congress has 60 days from Feb. 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 Aug. 21, 2020 fall within the CRA lookback window.

U.S. Representative Diana DeGette (D-Colo.) introduced a companion resolution in the U.S. House of Representatives on March 26, 2021. 

To learn more about the Congressional Review Act (CRA), see here: https://ballotpedia.org/Congressional_Review_Act

Additional reading:

Link to the U.S. Senate Resolution:

https://www.congress.gov/bill/117th-congress/senate-joint-resolution/14?q=%7B%22search%22%3A%5B%22heinrich+S.j.%22%5D%7D&s=1&r=1



Unanimous U.S. Supreme Court: People may raise Appointments Clause challenges in federal court they did not mention during agency proceedings

On April 22, 2021, the U.S. Supreme Court issued a unanimous opinion in Carr v. Saul, ruling that people who were denied Social Security disability benefits by the Social Security Administration (SSA) do not lose the chance to challenge the appointment of SSA administrative law judges (ALJs) in court even if they do not first present Appointments Clause challenges during agency proceedings. 

The court held unanimously that issue exhaustion requirements, which say that people must bring up all legal objections in front of an agency before they can use those objections in federal court, do not apply to these Appointments Clause challenges.

Justice Sonia Sotomayor delivered the opinion of the court, which gave the following three reasons people should be allowed to make Appointments Clause challenges even if they did not raise the issue during SSA proceedings:

*The SSA process at issue was not adversarial enough to require issue exhaustion in the absence of an explicit statutory or regulatory requirement

*Agency adjudicators usually lack the technical expertise to address structural constitutional challenges

*Court precedent says exhaustion requirements do not apply to challenges agency officials lack the power to resolve

Justice Clarence Thomas wrote a concurring opinion, joined by Justices Neil Gorsuch and Amy Coney Barrett, agreeing with the outcome of the case but saying he would have ended his analysis with the first point, that nonadversarial agency processes do not require issue exhaustion.

Justice Stephen Breyer wrote a concurring opinion agreeing with the outcome but arguing that the nonadversarial nature of an agency proceeding “is generally irrelevant to whether the ordinary rule requiring issue exhaustion ought to apply.”

The U.S. Supreme Court sent the case back to the circuit court for further proceedings.

To learn more about the case or agency adjudication, see here:

Additional Reading:

Link to the opinion:

https://www.supremecourt.gov/opinions/20pdf/19-1442_971e.pdf



Congressional resolution would reverse Trump-era rule specifying when Social Security administrative appeals judges would decide cases

On April 1, 2021, U.S. Representative John Larson (D-Conn.) introduced a resolution in the U.S. House of Representatives under the Congressional Review Act (CRA) to block a rule made by the Social Security Administration (SSA) in November 2020. 

The rule, published in the Federal Register on November 16, 2020, aims to clarify when administrative appeals judges on the Social Security Administration Appeals Council may hold hearings and issue decisions.

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 SSA 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.

The SSA rule went into effect on December 16, 2020. 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. Danny Davis (D-Ill.) cosponsored the resolution. 

To learn more about the Congressional Review Act and its use, see here. Want to go further? Sign up today for our Learning Journey on the Congressional Review Act.

Additional reading:



Unanimous U.S. Supreme Court rules that FCC changes to broadcast ownership regulations passed the arbitrary-or-capricious test

On April 1, the U.S. Supreme Court issued an opinion in _FCC v. Prometheus Radio Project_, a case about how courts should review the actions administrative agencies take. The court ruled unanimously that the Federal Communications Commission (FCC) did not violate the Administrative Procedure Act’s (APA) arbitrary-or-capricious test and that the agency properly considered the effects of its orders when it changed certain broadcast ownership rules in 2017.

Justice Brett Kavanaugh delivered the opinion of the court, writing, “Judicial review under [the arbitrary-or-capricious] standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision.”

The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 APA that instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Kavanaugh held that the 2017 FCC order was reasonable and reasonably explained and that the APA requires no more from agencies.

The case came out of 17 years of attempts by the FCC to change regulations that govern ownership of broadcast media and involved whether the FCC adequately considered how its rule changes would affect broadcast media firms owned by women or minorities.

Justice Clarence Thomas wrote a concurring opinion arguing that federal courts do not have legal authority to require the FCC to consider ownership diversity.

To learn more about the case or the arbitrary-or-capricious test, see here:

Additional Reading:

Text of the SCOTUS decision:

https://www.supremecourt.gov/opinions/20pdf/19-1231_i425.pdf