The House of Representatives approved two resolutions this week that would roll back regulations in two areas: accountability and State plan rules under the Every Student Succeeds Act (ESSA) and teacher preparation rules under the Higher Education Act (HEA).
These resolutions were filed under the Congressional Review Act (CRA), which permits Congress to pass a resolution which, if approved by both chambers and signed by the President, revokes regulations issued by the executive branch within the last 60 legislative days. The CRA has only been successfully used once, on ergonomics regulations issued by the Department of Labor in the mid 1990’s, so there is little precedent for how such an order would be implemented in the Department of Education. However, it is likely that States would be instructed to rely on the statute alone, as non-regulatory guidance issued by the last administration was largely based on the same regulations being revoked.
Though this administration has made clear its reluctance to issue new regulations, repealing a rule by the CRA hampers its ability to replace those rules. Once regulations are overturned, the agency is barred from issuing “substantially similar” regulations on the same statutory language.
Members of Congress who supported the resolutions said they showed a Department of Education which was overstepping its legal authority and creating new law and requirements through regulations. But opponents urged caution, noting that repeal could create significant confusion and uncertainty as States try to figure out what rules to follow and how to revamp their State plans, already in progress.
The resolutions have been sent to the Senate, where they could be approved as early as next week. The White House issued a Statement of Administrative Policy (SAP) indicating that it would sign both resolutions if they reached the President’s desk.