Publication of a new rule governing the divisive issue of sexual misconduct allegations on college campuses has been accelerated just in time to meet an estimated deadline of May 20—a move that could prove significant if Democrats sweep the November elections.
Rules published after the deadline run the risk of being rolled back under the Congressional Review Act, which allows a newly convened Congress to disapprove any rule finalized in the last 60 legislative days of the prior year. Although the Education Department’s motivation wasn’t clear, May 20 would mark the beginning of the “look-back window” if the House adheres to the original calendar Majority Leader Steny Hoyer (D-Md.) released in November.
But the look-back window’s start date, most often set according to the House calendar, is always a moving target at this point in the session, and the coronavirus could scramble scheduling in coming months. That could impact a wide range of regulations in the pipeline, but only if the chips fall the right way for Democrats in November and they choose to use the complicated legal tool, which mostly collected dust before President Donald Trump was elected.
Most members of the House have been home since March and the chamber may spend fewer days in session than expected this year because of social distancing recommendations. If so, the window would open earlier than May 20, putting even more Trump regulations at risk.
But a contrasting scenario is possible, too. House members may have to return for more days in the fall to make up for lost time this spring, particularly to consider government spending bills. If that’s the case, then the window would open later this year.
“Due to the pandemic, the House calendar is expected to change, and members have been advised that days that the House will be in session will be adjusted to accommodate the work that needs to be done before the end of the year,” said Hoyer spokesperson Mariel Saez.
Timing a Gamble
The Education Department’s new Title IX regulations governing how sexual misconduct allegations are handled on college and K-12 campuses were unveiled May 6. The rule, which critics say limits protections for victims’ rights, initially was scheduled to be published in the Federal Register on May 22, before it was moved to May 19.
Whether a final rule meets the deadline depends on when it is “received by Congress,” which is typically when it publishes in the Federal Register.
A spokesperson for the Education Department did not immediately respond to a request for comment on why publication of the rule had been moved up.
History shows agencies will likely have more time, however. In the final year of the Obama administration, the window opened on June 13, 2016.
Since the law’s enactment in 1996, there have been 10 years in which the window opened in July; five in which it opened in May; five others in June; and the rest in August and September, said Daniel Perez, a senior policy analyst at the GW Regulatory Studies Center who has tracked historical data on the act.
The pandemic also has caused some agencies to extend the period during which the public may comment on proposed rules, but doing so at this point makes it far more likely the rule won’t be finalized until after the look-back window has opened.
The Environmental Protection Agency, for example, last month extended the public comment period until May 18 for its proposed rule on Strengthening Transparency in Regulatory Science. When the period closes, the agency must respond to those comments and then submit the rule to the White House Office of Management and Budget for review, a process that can take weeks or months.
Democrats in both chambers of Congress have already passed one Congressional Review Act
A House Democratic proposal to reauthorize the Higher Education Act included a provision blocking the Title IX rule or similar regulations. But a spokeswoman for the House Education and Labor Committee did not respond to a request for comment on whether a Congressional Review Act resolution is being considered.
Law Rarely Works
The Congressional Review Act generally gives Congress 60 legislative days to veto rules issued by the executive branch at any point in the year, but in practice it has only been used successfully in situations shortly after one party gains control of Congress and the White House in a presidential election year. It was used just one time prior to the Trump administration, to overturn an ergonomics regulation in 2001.
After President Trump won the White House and Republicans retained majority control of the House and Senate, the law was used to overturn 16 Obama-era regulations in 2017 and 2018, including a fair-pay and safe-workplaces rule and a stream protection rule.
Another catch is once a rule is overturned, the law prevents agencies from reissuing the rule in “substantially the same form.” Democratic leaders may prefer to revise a rule rather than completely destroy it, even if they are in a position to use the law aggressively next year.
“It’s important to remember that the Congressional Review Act is a fairly weak mechanism for overturning rules,” said James Broughel, a senior research fellow at the Mercatus Center at George Mason University.
But if Democrats are in control of the White House and Congress and could overturn some of the Trump administration’s regulations, “just the political symbolism of that would be very powerful and attractive to them,” Broughel said.