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May 20, 2024

What to expect in Washington (May 20)

The Senate is back in at 3 p.m. today (May 20) with a confirmation vote on a judicial nomination at 5:30 p.m. Majority Leader Chuck Schumer (D-NY) announced in a Dear Colleague letter that the Senate would consider the bipartisan border security proposal this week. The proposal was originally crafted to be appended to the Senate national security supplemental bill in January but was omitted due to Republican objections.

The House is back on Tuesday (May 21) with votes beginning at 6:30 p.m., including planned consideration under suspension of the rules of the Federal Disaster Tax Relief Act (H.R. 5863), which had been folded into the Tax Relief for American Families and Workers Act (H.R. 7024) that is stalled in the Senate. The House is also scheduled to consider the Financial Innovation and Technology for the 21st Century Act (H.R. 4763), establishing a regulatory framework for cryptocurrency and other digital assets.

Both the Senate and House are scheduled to be out the week of May 27 for the Memorial Day recess.

Hearings scheduled for this week include:

Monday, May 20 - at 4 p.m., House Ways & Means Tax Subcommittee, Field Hearing in Erie, PA on "Creating More Opportunity and Prosperity in the American Rust Belt"

Tuesday, May 21

- at 10 a.m., Senate Finance Committee, "Child Savings Accounts and Other Tax-Advantaged Accounts Benefiting American Children"

- at 2:30 p.m., Senate Finance Subcommittee on International Trade, Customs, and Global Competitiveness, "Examining Trade Enforcement and Entry of Merchandise at U.S. Ports"

Wednesday, May 22 - at 10 a.m., Senate Finance Committee, "The Family First Prevention Services Act: Successes, Roadblocks, and Opportunities for Improvement"

Thursday, May 23

- at 9 a.m., Ways & Means Health Subcommittee, "The Collapse of Private Practice: Examining the Challenges Facing Independent Medicine"

- at 10 a.m., Senate Finance Committee, "Front Lines of the Fentanyl Crisis: Supporting Communities and Combating Addiction through Prevention and Treatment"

Congressional Review Act (CRA) — CRA disapproval resolution season is underway, if the Congressional Record of the past few weeks is any indication. A CRA joint resolution of disapproval must be introduced during a 60-days-of-continuous-session period beginning on the day Congress receives the rule. The 60-day date in advance of the expected adjournment of this session of Congress later this year is approaching soon, in either late May or early June, meaning disapproval resolutions could be considered for rules finalized after that date in the next Congress, when former President Trump could return to office based on the outcome of this year's presidential election.

President Biden would be expected to veto any disapproval of his Administration's rules, either this year or next during a potential second term, as he has previously of resolutions including those dealing with the Commerce Department rule that lifted US tariffs on solar panels from certain nations, and the Department of Labor (DOL) rule on environmental, social, and governance (ESG) factors being allowed to be considered by retirement plan fiduciaries. There was only one successful use of the CRA to overturn rules prior to 2017 (in 2001, addressing a DOL ergonomics program). President Trump signed 16 disapproval resolutions rolling back prior-Administration regulations, and President Biden signed three. The Congressional Research Service has a list available here.

The resolutions proposed now may give some signs of the inclinations Republicans could have for the CRA process in the next Congress, and whether there are issues with bipartisan CRA support. Even in this Congress, a bipartisan resolution could pass the 51-49 Democratic-controlled Senate because CRA resolutions need only a simple majority, not the normal filibuster-proof 60 votes. And, like a discharge petition, a disapproval resolution doesn't need to be brought to the floor by leadership. As CRS said, "Once a CRA joint resolution of disapproval is reported or the relevant Senate committee is discharged, any Senator can then make a nondebatable motion to proceed to consider the joint disapproval resolution."

The most recent high-profile bipartisan example is the May 16 CRA Resolution (H. J. Res. 148, S. J. Res. 87) introduced by Senators Joe Manchin (D-WV) and Deb Fischer (R-NE), and Reps. Carol Miller (R-WV) and Jared Golden (D-ME) that disapproves of Treasury's May 3 Clean Vehicle Credit rulemaking (TD 9995). Another Democratic sponsor, Senator Sherrod Brown (D-OH), expressed concern that the final rules permit the EV tax credit to go toward cars made using a key battery component from certain other nations. (The final May 3 regulations newly permit automakers to source graphite from entities of concern through 2026.) "We created this tax credit for American-made cars, and it needs to stay that way," he said.

"The bipartisan backing for the CRA effort is a big deal. It would likely clear both chambers. Manchin and Brown's votes would be enough for success in the Senate as long as Republican senators are on board," Punchbowl News reported May 16. "Remember: CRA resolutions to overturn agency rulemakings get special treatment in the Senate. Supporters can force a floor vote even if leadership isn't on board."

Beyond the EV resolution, CRA disapproval resolutions introduced in the past two weeks include:

May 1 — H. J. Res. 133, Rep. Russ Fulcher (R-ID), Environmental Protection Agency (EPA), "Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles-Phase 3"

May 7 — H. J. Res. 137, Rep. Keith Self (R-TX), DOL, "Short-Term, Limited-Duration Insurance and Independent, Noncoordinated Excepted Benefits Coverage"

May 10 — H. J. Res. 139, Rep. Michelle Fischbach (R-MN), Centers for Medicare & Medicaid Services (CMS), "Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting"

May 14 — S. J. Res. 78, Senator Steve Daines (R-MT), Bureau of Land Management (BLM), "Fluid Mineral Leases and Leasing Process"

May 15

  • H. J. Res. 142, S. J. Res. 79, Senator Tedd Budd (R-NC)/Rick Allen (R-GA), DOL, "Retirement Security Rule: Definition of an Investment Advice Fiduciary"
  • S. J. Res. 80, Cynthia Lummis (R-WY), Fish and Wildlife Service (FWS), "Endangered and Threatened Wildlife and Plants; Regulations Pertaining to Endangered and Threatened Wildlife and Plants"
  • S. J. Res. 84, Senator Pete Ricketts (R-NE), FWS, "Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat"
  • S. J. Res. 85, Senator Ricketts, National Marine Fisheries Service, "Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat"
  • S. J. Res. 81, Senator Dan Sullivan (R-AK), National Marine Fisheries Service, "Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation"
  • S. J. Res. 82, Senator Rand Paul (R-KY), Food and Drug Administration (FDA), "Medical Devices; Laboratory Developed Tests"
  • H. J. Res. 144/S. J. Res. 83, Senator John Cornyn (R-TX)/Rep. Andrew Clyde (R-GA), Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), "Definition of 'Engaged in the Business' as a Dealer in Firearms"
  • H. J. Res. 140, Rep. Allen, DOL, "Amendment to Prohibited Transaction Exemption 2020-02"
  • H. J. Res. 141, Rep. Allen, DOL, "Amendment to Prohibited Transaction Exemption 84-24"
  • H. J. Res. 143, Rep. Allen, DOL, "Amendment to Prohibited Transaction Exemptions 75-1, 77-4, 80-83, 83-1, and 86-128"

May 16

  • S. J. Res. 86, Senator Sullivan, FWS, "Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation"
  • H. J. Res. 150/S. J. Res. 88, Rep. Kelly Armstrong (R-ND)/Senator John Hoeven (R-ND), EPA, "National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units … "
  • H. J. Res. 145, Rep. Brad Finstad (R-MN), FDA, "Medical Devices; Laboratory Developed Tests"
  • H. J. Res. 146, Rep. Nancy Mace (R-SC), CMS, "Clarifying the Eligibility of Deferred Action for DACA Recipients and Certain Other Noncitizens for a Qualified Health Plan through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reductions, and a Basic Health Program"
  • H. J. Res. 147, Rep. Mary Miller (R-IL), Occupational Safety and Health Administration, "Worker Walkaround Representative Designation Process"
  • H. J. Res. 149, Rep. Dan Newhouse (R-WA), FSW, "Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Grizzly Bear in the North Cascades Ecosystem, Washington State"
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Contact Information

For additional information concerning this Alert, please contact:

Washington Council Ernst & Young