Congressional Research Service memo outlines Obama administration rules eligible for Congressional Review Act

A Congressional Research Service memo released last week found that regulations submitted to Congress after May 30, 2016, would be subject to review under a little-used tool called the Congressional Review Act.

With control of the White House and both chambers of Congress, the GOP has said one of its first priorities will be rolling back regulations affecting labor, finance, the environment, higher education and other policy areas. Republican leaders are examining multiple options to do so, including the Congressional Review Act. The act would provide an expedited path for reconsideration of agency regulations by Congress.

The rule has been used one time in 20 years — in 2001 to block a Department of Labor ergonomics regulation issued by the Clinton administration. The memo released last week identifies nearly 50 Obama administration regulations that would potentially be eligible for disapproval under the Congressional Review Act in the next Congress.

While that list does not include higher ed rules like borrower defense and teacher prep regulations, they were issued well after May 30 and would likely fall under review in a CRA as well. The memo finds that “if introduced and considered at the proper time,” a joint congressional resolution disapproving a rule could not be filibustered by the Senate.

Final rules requiring overtime pay for millions of higher ed workers such as postdocs and many other college employees were issued just before May 30, so it’s less clear whether they would be subject to reconsideration by Congress through CRA.

Terry Hartle, senior vice president for government and public affairs at the American Council on Education, said Congress and the administration of President-elect Donald Trump will have multiple avenues to roll back regulations. The Trump administration could simply decline to enforce regulations or Congress could deny funding to carry out the regulations, he said.

“There’s no question that the Congressional Review Act is a very limited tool,” Hartle said. “But it’s hardly the only instrument that they have available to them.”

But Hartle said it remains extremely early to speculate about what specific steps the next administration or Congress will take.

“The bigger the change in government, the more disorienting it is, and the greater the worry and concern people will have,” he said. “It’s going to be a while before we know what the priorities and policies of the Trump administration will be.”

Representative Virginia Foxx, a North Carolina Republican widely expected to become the next chair of the House Education and the Workforce Committee, said in an interview with Inside Higher Ed last week that her conference would examine all possible options to roll back regulations on any number of industries.

“How we go about doing that is something I’m not sure of yet,” she said. “But that’s going to be the first task is setting some priorities and saying, ‘OK, this can be done through executive order, this will take legislation, this will take the CRA.’”

The Department of Education just last week released earnings data for vocational programs as part of controversial gainful employment regulations finalized in 2014. While department officials acknowledged any number of the rules issued for increased accountability in higher education could be rolled back or defunded by the next administration, Education Secretary John B. King Jr. sounded an optimistic note in a meeting with reporters.

“We can’t really speculate on what the next administration would do,” King said of the Trump administration’s approach. “I would say we are seeing the difference these regulations like gainful employment are making already.”