The Congressional Review Act and Freeze on Regulations Give Immigrants Hope for Relief

by


Notwithstanding the debacle in the Capitol this past week and fears that an unstable president will unleash actions to further endanger or divide the country during his last nine days in office, the victory of the Democrats in the two senatorial races in Georgia promises hope to immigrants as well as others affected by the steady parade of regulations that the Trump administration has been marching out in the last months.

Some of the regulations that could be canceled under the Congressional Review Act or an immediate regulatory freeze are the H-1B rule tying lottery selection to highest wages offered (86 FR1676 finalized on 1/8/21 with implementation date of 3/9/21); the no traditional administrative closure rule as used by immigration judges and the BIA despite over 1 million plus pending asylum cases (85 FR 81588 in effect on 1/15/21); the DHS/ EOIR joint rule tying eligibility for asylum to health concerns as affecting the security of the US (85 FR 84160 effective 1/22/21); the DHS/DOJ joint rule barring asylum to those who transit third countries without applying for asylum in one of the countries (85 FR 82260 effective 1/19/21); and the USCIS/EOIR rule imposing seven mandatory bars on asylum (85 FR 67202 effective 11/19/20).

1. The Congressional Review Act:

The Congressional Review Act, established in 1996, allows a joint resolution of Congress to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. Now that the Senate is in the hands of the Democrats, a simple majority of both houses of Congress allows a joint resolution of disapproval to be made and signed by the president. This is the expedited procedure envisioned by Congress in 1996 to cancel midnight regulations of the previous administration.

60 legislative days are not the same as 60 calendar days, and although the author does not have complete calendars of the days that Congress was in session in 2020, the look back conceivably affects all passed regulations since August 2020. In looking forward and seeing the Congressional calendar for 2021, and taking into account that changes can be made and that the counting of the 60 days does not begin until January 15, Congress could conceivably pass joint resolutions through April 2021. An example of the applicable timeline is that on March 27, 2017, a Department of Defense, General Services Administration, and National Aeronautics and Space Administration rule amending the Federal Acquisition Regulation (FAR); Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 ( Aug. 25, 2016)) was overturned (see Pub. L. No. 115-11 (March 27, 2017)).

The Act can also be used to nullify other agency memos, guidance documents, statements of policy, and interpretive rules that are in effect rules but were never submitted to Congress. In such case, the General Accountability Office (GAO) would verify that such qualify as rules, and Congress then has 60 legislative days to pass a joint resolution of disapproval. This is another tool by which agency rulemaking without going through the regulatory process during the Trump years can be further nullified. Since a “rule” is not legally a rule without being submitted to Congress, another choice of the Biden administration in that situation would be to publish a notice that the rule not being in effect is being withdrawn or abandoned.

2. The Regulatory Freeze:

Implementation of a regulatory freeze on January 20, the day of inauguration, would immediately stop whatever regulations have not yet been finalized as of that date. Jen Psaki, a Biden spokesperson, said that the Biden-Harris White House would issue a memo to take effect on the afternoon Eastern time on January 20 to halt or delay midnight regulations, actions taken by the Trump administration that will not have taken effect by Inauguration Day. If it is similar to the memos put out by Rahm Emanuel in January 2009 and Reince Priebus in January 2017, the memo would have three components:

· Subject to some exceptions for emergencies, no regulation should leave the Office of Information and Regulatory Affairs (OIRA) or agencies to be published in the Federal Register.

· For regulations sent for formal publication, they should be withdrawn and reviewed.

· For recent regulations that have been published, temporarily postpone the effective date by 60 days, subject to certain exceptions. In addition, agencies should consider proposing for notice and comment a rule to delay the effective date beyond 60 days.


With reference to published regulations yet not implemented, an agency like DHS could temporarily postpone the effective date of the regulation by 60 days while reopening the regulation for further notice and comment, and upon receiving comments, either withdraw the final rule or extend the effective date of it.

3. The Dawn of a New Day?

Joe Biden and Kamala Harris have great opportunity early in the administration to capture many goals, especially with Republican legislators not so beholden to Trump and his agenda after the bloodshed and violence incited by the president against the Congress on January 6. Memories are short, however, and action should be quick as Republican legislators voicing outrage now may be less inclined to go against the Trump agenda dependent upon time and Trump’s ability to hold onto his base. Also the Democrats’ hold on power in the Congress is tenuous, one vote in the Senate and a few votes in the House. A major difficulty of introducing any bill related to immigration now of course is the pandemic and the ability to move the legislation in the face of an out-of-control pandemic and so many Americans out of work. The question is also whether the Democrats can have a united caucus in both houses of Congress on immigration issues. Added into the mix on employment-based matters is the willingness of the Biden administration to rescind the Trump changes given that Democrats in the past have been the party sounding the clarion call against foreigners taking jobs in this country. The recent designation of Boston mayor Marty Walsh, a former union leader, to become the Secretary of Labor is not inspiring as he has been described as a “lifelong champion of the working people.” The lessons of the past, however, have shown that the best chances for immigration reform success are in the first days of an administration. So we urge the Biden administration to take its cue from history and act accordingly – not just on the huge ticket items of legalization for 11 million undocumented immigrants and a pathway to citizenship for the Dreamers, but also on the smaller items such as outlined above.


About The Author

Arthur Lee, Esq is the associate in the firm of Alan Lee, Esq., and the second generation of Lees to enter the field of law. He graduated from The George Washington University in 2010 with a Bachelor’s degree in Systems Engineering. In 2016, he graduated cum laude from Brooklyn Law School in its inaugural 2-year program in which he was an editor in the Brooklyn Journal of Corporate, Financial & Commercial Law from 2015-2016. He was admitted to the New York Bar in April 2017. He was a part-time and summer intern at Alan Lee, Attorney-at-Law, from 2013 until his 2017 admission. Even before that, he co-authored “Legalization is Alive but has a January 31, 2010, Deadline in Underpublicized ‘Known to the Government’ Settlement”, Alan Lee, Arthur Lee and Melissa Paquette and edited by Robert Pauw in Interpreter Releases, Vol.86, No.47, 12/14/09. He currently works on many of the firm’s complex cases, and has traveled to many states on behalf of its clintele, eg. – Florida, Ohio, North Carolina, Massachusetts and Connecticut. Mr. Lee further earned an MBA from Temple University in May 2019.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.