Trump Can Use Congressional Review Act to Nullify Biden’s Rules

In advanced number theory, there are “countable infinities” (which go on forever),  “uncountable infinities” (which are infinitely larger), and finally, there are the biggest infinities of all, which are called “federal rules.”

In truth, no one knows how many federal crimes and liabilities Americans are subject to because these pseudo-laws are buried in an ever-expanding and unorganized pile of regulations, guidance docs, findings, opinions, and “Dear Colleague” letters issued by unelected bureaucrats.

Unable to get Congress to pass laws too radical for the American people, the Biden administration instead supercharged former President Barack Obama’s infamous “pen and phone” and ordered the administrative state to do the dirty work instead.

With a little creativity, President-elect Donald Trump and the new Republican Congress have a historic opportunity to wipe the slate clean and restore sovereignty to the American people.

It will require Trump to submit to Congress Biden-era guidance that he fully intends to rescind before he rescinds it, to give Congress a chance to essentially guarantee the guidance does not return in a future administration.

Here’s how it works.

As explained by one of us, the Congressional Review Act (CRA) empowers Congress to erase federal regulations and guidance submitted to it by federal agencies within a specific time window. Best of all, once eliminated by Congress, agencies cannot reissue the rules without future congressional approval.

Compared with the large number of one-way ratchets for expanding federal power, this is one of the few that favors limited government.

The Biden administration knew that any “midnight rules” could be CRA-ed in 2025 if the elections went for the Republicans, so they rushed to finalize its more controversial rules outside the Congressional Review Act window.

For example, the Department of Education issued a regulatory “gender identity” mandate under Title IX that required schools to allow biological males in girls and women’s sports, restrooms, locker rooms, dorm rooms, and overnight trips, and mandated coercive pronoun policies.

The rule was finalized and submitted to Congress last April, just outside the Congressional Review Act window, so it appears Congress in 2025 cannot use the CRA to repeal the policy.

Or can it?

The Congressional Review Act  time window is complicated to calculate, but one thing is certain: The clock does not start until the particular federal regulation or guidance in question is submitted to Congress.

The Government Accountability Office has a searchable database of rules and guidance submitted to Congress. It turns out the Biden administration didn’t bother to submit dozens of mandates it issued through guidance documents, including a gender identity mandate applicable to schools.

There are dozens of other unsubmitted guidance documents that the Trump administration will likely rescind, impacting housing, the military, health care, contracting, financial regulation, the environment, grant programs, federally run buildings and facilities (including prisons), and myriad other settings.

Before rescinding any guidance documents that are unlawful, wasteful, or otherwise atrocious, Trump should order federal agencies to submit them to Congress to give the latter the opportunity to nullify the policies under the Congressional Review Act  and take the issue permanently out of the hands of federal bureaucrats absent future specific congressional authorization.

Here are some prime candidates:

• The aforementioned Department of Education’s guidance mandating schools adopt sexual orientation and gender identity policies that would end biologically based girls and boys sports, sex-specific locker rooms, and common pronoun usage by labeling them as discriminatory “sex stereotyping.”
• Health and Human Services’ guidance mandating doctors administer cross-sex hormones and sterilizing surgeries to minors with gender confusion, even where such interventions are illegal under state law.
• Treasury Department’s guidance on “Climate-Related Financial Risk Management” mandating large banks integrate alarmist and indefinite climate fears when making or denying loans.
• The Environmental Protection Agency’s 138-page “Environmental Justice” guidance establishing sweeping new permitting and compliance requirements that Congress never authorized, threatening economic development in communities nationwide.
• Housing and Urban Development’s guidance forbidding the use of certain neutral background checks for rental housing decisions in cases where there is no discriminatory intent.
• The Department of Education’s guidance prohibiting use of artificial intelligence in hypothetical (and often strained) “disparate impact” scenarios that will chill the adoption of new classroom technology that can enhance learning.

The outgoing administration has abandoned the rule of law in favor of rule-by-guidance. The American people deserve better, and this time, the Republicans in power can do more than just say “see you later” to economy-crushing and liberty-trampling mandates.

With a clever assist from Trump, Congress can restore proper constitutional order through the Congressional Review Act.

The only thing needed is the political will to use it.

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