House Democrats target HHS ‘sunset’ rule with Congressional Review Act

House Democrats are eyeing the Congressional Review Act (CRA) to overturn a controversial Department of Health and Human Services rule passed in the final days of the Trump presidency that would require the agency to review thousands of regulations to prevent them from expiring.

Reps. Raja Krishnamoorthi (D-Ill.) and Anna Eshoo (D-Calif.) on Monday introduced a resolution of disapproval over the HHS “sunset” rule, which requires all 18,000 agency regulations to be reviewed every 10 years, or else they expire.

The resolution is the first step in using the CRA to unwind a regulation. The act allows Congress to nix any regulations finalized between Aug. 21, 2020, and Jan. 20, 2021. 

However, time is of the essence to use the act, as it’s available for only the first 60 legislative days of the new Congress. That end date is likely sometime in April.

The resolution currently has no Senate co-sponsors. A spokesperson for Krishnamoorthi said they have already had conversations with House leadership and are looking for a lead sponsor in the Senate.

The sunset rule was issued on Jan. 19, the final day of the Trump administration. Critics said it would create an immense burden on the agency, as it gives HHS just five years to review every regulation more than 10 years old. Any rule that isn’t reviewed after this five-year period would disappear. 

“If it’s allowed to come into effect, the Trump Administration’s SUNSET rule would force public health officials to divert time, funding, and attention from the current crisis in order to prevent essential public health protections from unnecessarily expiring,” Krishnamoorthi said in a statement first to The Hill. 

“As our country approaches the end of the coronavirus pandemic, our public health agencies need to be able to focus on saving lives, instead of repairing the damage of yet another Trump Administration policy which puts them needlessly at risk,” he said.

A lawsuit filed by several health groups earlier this month argued that the rule was a “ticking time bomb” set to go off unless HHS devotes enormous resources for the task. 

The Biden administration recently delayed the effective date of the rule until 2022, to give the lawsuit time to make its way through the courts. The administration said the lawsuit’s allegations that the rule will be harmful are “credible.”

The CRA was a legislative tool favored by Republicans in the early days of the Trump administration, used by a GOP-led Congress to strike down 16 regulations from the Obama era. Prior to that, the act had only ever been used once since it was first signed into law in 1996 as part of a broader regulatory enforcement bill.

But Democrats have been more reluctant to use it, partly due to concern over statutory language in the CRA that blocks the relevant agency from crafting another rule that’s substantially similar.