Does the Congressional Review Act Apply to Inaugural Addresses?

One line in particular from President Trump’s inaugural address jumped out at me: “an education system flush with cash [that] leaves our young and beautiful students deprived of all knowledge.”

I’m confident that I read this statement through a different lens than our president as he (supposedly) wrote it, but in many ways President Trump is not wrong. We spend more than almost any developed country on K-12 education – Switzerland, Norway, and Austria are ahead of us – but get middling-to-poor results on international assessments. There are many, many, many intersecting dynamics that contribute to this state of affairs, but there also are many steps the new administration could take to increase opportunity for those left behind by our education system (also outlined in our federal policy agenda):
• Expanding access to transitional jobs, pre-apprenticeships, and other on-ramps to family- sustaining careers;
• Allowing federal financial aid to follow students to non-degree programs offering valuable industry-recognized credentials; and
• Better supporting community-based organizations as they try out new solutions to old problems.

Many of these steps depend on the implementation of the Workforce Innovation and Opportunity Act, whose final regulations were issued last June. The WIOA regulations were included in a long list of “harmful regulations” compiled by Congressman Mark Meadows of North Carolina, the incoming chair of the House Freedom Caucus. Now it’s been reported that they may be included in resolutions of disapproval under the Congressional Review Act introduced as early as next week.

A little-known law, the Congressional Review Act (CRA) was created in 1996 and has only successfully been used once. It allows Congress to repeal federal regulations with resolutions of disapproval, which must be signed by the president. Several features of the law are pertinent: 1) CRA resolutions are accorded privileged consideration in both chambers of Congress, so cannot be filibustered; 2) Congress may only repeal the entirety of a regulation, not individual parts; 3) the regulatory agency may not issue a rule in “substantially the same form” after a resolution is passed; 4) the repealed rule “shall be treated as though such rule had never taken effect;” and 5) each CRA resolution may only target one rule. A detailed report on the CRA from the Congressional Research Service is here.

The only time the CRA has been used to strike down a rule was in March 2001, when Congress undid OSHA’s ergonomics rule. The effects of CRA repeal on a regulation implementing a major piece of authorizing legislation are unclear: If the WIOA final rule were repealed, would DOL and ED be able to implement any regulations, or even guidance, in their place? If the rule must be “treated as though [it] had never taken effect,” are all new state plans, local WDB RFPs, and even new WDB members null and void? The answers to these questions may come only through prolonged litigation. While some parts of the WIOA regulations continue to cause concern – I have a meeting with DOL career staff next week to continue the conversation on areas like procurement and self-attestation – I think it’s clear that we’re better off with regulations and some measure of clarity than without.

It’s too early to know whether a resolution targeted WIOA will be introduced, whether it will get lost among a sea of other Congressional matters, or whether it could pass both houses of Congress, but not too early to learn about a proposed threat to implementation of the act. Look for updates and calls to action, as needed, in future emails.

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