Introduction
One of President Donald Trump’s earliest executive orders prohibited the use of diversity, equity, and inclusion (DEI) preferences in federal government contracting and also instructed the federal government to identify and root out all uses of such factors in the private sector to the maximum extent possible.REF By issuing that order, Trump did an about-face from the policies of the Biden Administration, which treated such considerations as legitimate uses of race and other features to benefit favored constituencies.REF But what one President kills off in an executive order a successor can resurrect in the same manner. The possibility exists, therefore, that Trump’s DEI executive order won’t have much of a half-life if a Democrat occupies the White House after the 2028 election.
Yet there is a way that Trump can increase the durability of his DEI executive order: He can submit to Congress a “rule” adopted by an agency during the Biden Administration creating a DEI policy, and Congress can review and rescind that rule under the Congressional Review Act (CRA).REF The CRA can have a powerful effect on federal governance because it fast-tracks congressional review of a new agency rule. Trump should be familiar with the CRA because he used it with alacrity during his first Administration—more frequently than all of his predecessors put together.REF Given his earlier success with the CRA and his continued belief that the nation is overregulated, there is no reason to believe that he will be reluctant to use the CRA again. This Legal Memorandum explains how he can use it.
The Provenance and Operation of the Congressional Review Act
The CRA is a little-known but powerful act of Congress that can be used to nullify agency rules. Adopted during the Clinton Administration as Title II of the Small Business Regulatory Enforcement Fairness Act of 1996,REF the CRA creates a fast-track procedure that Congress can use to nullify an agency rule that it believes is unlawful or unwise. The CRA was Congress’s attempt to come as close to a “legislative veto” as is constitutionally possible under the ruling of the Supreme Court of the United States in INS v. Chadha that a legislative veto violates Article I of the Constitution.REF
The CRA is most often used at the outset of a new Administration headed by a different party that shares power with a House of Representatives and Senate in the hands of the same political party. Otherwise, there is little likelihood that anyone will invoke the statute. Remember: The White House Office of Management and Budget (OMB) reviews agency rules before they are published in the Federal Register to ensure that (among other things) they are consistent with the Administration’s policies. That pre-issuance review enables the OMB Director to decide whether a rule advances the President’s policies, to allow the rule to go forward if it does, or to scuttle the rule if it does not. If Congress were to pass a resolution of disapproval of a rule approved by OMB, the President would likely veto the resolution because OMB had previously determined that the rule advances policies that he approves. Party loyalty being what it is, Congress is unlikely to review a rule if it was approved by an OMB Director appointed by the same party that holds a majority on Capitol Hill.
The CRA works as follows: It requires every agency to submit every new rule to the Comptroller General, the House of Representatives, and the Senate so that Congress has the opportunity, with the advice of the Comptroller General, to review the rule before it can take effect. Second, it creates a so-called fast-track process enabling Congress to vote up or down on a joint resolution of disapproval of every new rule without the delay occasioned by Senate practices, particularly the filibuster. A joint resolution passed by each chamber then goes to the President for his signature or veto. If the President signs it (or it is repassed by a two-thirds vote of each chamber following the President’s veto), the statute nullifies the rule and bars an agency from later adopting any “substantially similar” rule absent the passage of a new act of Congress.REF
The reason why the CRA is a valuable tool for overseeing the regulatory state is that we have left behind the standard civics description of how the federal government works. That theory teaches that Congress makes the laws, the executive branch executes them, and the judicial branch adjudicates disputes between the government and private parties. In fact, the agencies that occupy the so-called fourth branch of government—sometimes called (and not with approval) the “Deep State”—accomplish all three functions. It is responsible for promulgating more pages of regulations each year than Congress adds to the statutes at large in the same period.REF Agencies also execute most federal programs—the White House may be able to overrule what agencies do, but the federal bureaucracy clearly has what economists call the “first mover advantage”—and agencies also can referee disputes that arise between the federal government and the public. By giving Congress the opportunity to review and rescind an agency rule before it goes into effect, the CRA supplies Congress with the opportunity to save the public the burden and expense of needing to defend itself against a rule that exceeds an agency’s authority or is an improvident exercise of federal power.
The three most important aspects of the CRA are these: (1) the meaning of the term “rule,” (2) the actions taken by Congress once the act is triggered by the filing of a rule, and (3) the effect of Congress’s decision to rescind a rule by passing a joint resolution of approval that the President signs into law.
The Meaning of the Term “Rule.” The CRA uses the definition of the term “rule” found in the Administrative Procedure Act (APA),REF which provides that a “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”REF There is no one format a rule can take, so numerous types of documents qualify as CRA rules. Among them are regulations, guidance documents, manuals, opinions, letters, etc. What matters is not the format of an agency document, but its content. To be sure, not every agency document or position constitutes a CRA “rule.” Nonetheless, numerous parties—including the federal courts, the U.S. Department of Justice, the Government Accountability Office (GAO), the Congressional Research Service, and various scholars—have concluded that the term “rule” should be interpreted broadly to ensure that Congress can review “any generally applicable implementation, interpretation, or prescription of law or policy by unelected agency officials before they can direct others with respect to what federal law prohibits, requires, or allows.”REF
The Operation of the CRA in Congress. The text of the CRA clearly provides that, before an agency “rule” can go “into effect,” the agency must submit it to both the House of Representatives and the Senate, as well as the GAO, to allow the GAO to review the rule and each chamber to review and vote on a bill to rescind it.REF An unsubmitted rule is not yet effective and should not be used by an agency to require private parties to perform or refrain from performing any otherwise lawful conduct or to threaten an enforcement action if someone disagrees with the agency’s position.REF
Once the agency submits the rule, three clocks start running.REF The first one gives the GAO 15 days to review the rule and analyze it for Congress. The second clock gives members 60 days (except in cases of adjournment) to submit a joint resolution of disapproval. And the third clock, which defines the effective date of the rule, states that no rule may take effect for 30 days past its submission.REF
After a rule is submitted, any Member of Congress can introduce a joint resolution of disapproval. That resolution is set for a vote pursuant to a “fast-track” procedure that avoids parliamentary delays, including (particularly) a committee delay or a Senate filibuster.REF If both chambers pass the resolution, it goes to the President for his signature or veto in the same manner as any other “Bill” passed by Congress.REF If the President signs the resolution, it becomes a “Law” for Article I purposes.REF
As noted above, an agency’s failure to submit a rule to Congress, even if the rule is published in the Federal Register, means that the rule has no effect, and the congressional review clock never begins to run for an unsubmitted rule. A consequence, therefore, is that any rule promulgated after the 1996 effective date of the CRA (even one issued years ago) that was never submitted to Congress can still be reviewed and rescinded by Congress even today. That has already happened. In 2018, Congress passed, and the President signed into law, a joint resolution disapproving a guidance documentREF adopted by the Consumer Financial Protection Bureau in 2013.REF Some commentators have estimated that agencies have failed to submit to Congress thousands of rules. Any unsubmitted rule is therefore a potential subject of a CRA nullification, regardless of how long ago the rule was issued.
The Effect of a Congressional Rescission of an Agency Rule. The immediate effect of a disapproval resolution is that the rule is rescinded, but that is not the resolution’s only effect. To avoid an agency playing games by reissuing a disapproved rule with only a slightly revised content or cosmetic changes, the CRA provides that an agency may not readopt a rescinded rule or a “substantially similar” one unless, in the interim, Congress has passed new legislation authorizing that rule.REF Put differently, the disapproval effectively adds a codicil to the underlying statute providing that “Statute A does not authorize the agency to issue Rule X or X1.” By prohibiting an agency from adopting a new rule that is “substantially similar” to the now-invalidated rule, Congress has created a buffer zone around the original rule, a buffer that could also include Rule X2, X3, X4, and so forth, depending on the scope of the original rule. Congress certainly was brooking no gamesmanship.
How to Use the CRA to Eliminate DEI
Trump has rightly made DEI a target for elimination. Its three innocuous-sounding words—diversity, equity, and inclusion—hide a toxic ideology that divides Americans based on their skin color and sexuality and explicitly holds that the government should treat some people better and others worse on those bases.REF The most prominent advocate of this ideology, for example, says that “[t]he only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”REF Under DEI’s auspices, schools have discriminated on the basis of race in admissions and have segregated dorms and graduation ceremonies, private employers have set racial quotas and admitted to giving race-based and sexuality-based hiring preferences, white and Asian employees have been forced to sit through trainings in which they are accused of being “white supremacists” or “assimilationists,” and state and federal governments have doled out benefits on the basis of various identity labels.REF The result has not been harmony, as DEI’s advocates promise, but division, tension, and tribalism.REF It ought to be eliminated for good.
The question is: How should the Trump Administration use the CRA to do so quickly without running into a Senate filibuster? One step is to direct each agency, perhaps through its general counsel’s or regulatory office, to identify every potential rule issued since 1996 that had the effect of adopting DEI policies for the Biden Administration (or earlier ones). The second step is to determine whether those memoranda, documents, or the like were submitted to Congress as the CRA requires. If they were, the time for CRA review has elapsed, and the statute cannot now be used to rescind the rule. If that period has not elapsed, the Trump Administration can rescind the rule itself, even if the agency must complete the notice-and-comment process that the APA requires, which can be a time-consuming matter.REF But if the rule was never submitted to Congress, the CRA remains an available option, as noted above.
A problem remains, however, although it is more a matter of archaeology than law: namely, finding the rules that should be rescinded under the CRA. Agencies issue thousands of documents that could be reviewed by Congress, and not all such documents are in fact submitted. But agencies do not file such memoranda under “Rules that I Should Submit to Congress But Won’t or Didn’t,” so it might take some digging to find them. That could be a time-consuming endeavor, and one month into the new Trump Administration, half of the potential 60-day CRA review period has elapsed. The research needs to be done not only thoroughly, but also quickly. Accordingly, the President should direct his Cabinet officers to require their subordinates to find whatever rules each agency issued that required or authorized DEI policies to be used in hiring, in contracting, or in any other way.
The Department of Defense (DOD) might be a good example of an agency that can and should serve as a model. DOD likely has memoranda from the Biden Administration addressing the use of DEI in government decision-making, because the military issues written orders or memoranda directing subordinates how to manage their responsibilities. Besides, Secretary of Defense Pete Hegseth has made it clear that our military should focus on the defense of the nation, not social politics, and has sworn to eliminate DEI from the military’s business and lexicon.REF He would likely be willing to order someone to do the necessary digging to find the documents that could be submitted now for review by Congress and recission under the CRA. Other agencies should do the same. For example, the Environmental Protection Agency should ferret out its environmental justice memoranda and submit them to Congress for review and recission.
The CRA can be invoked today, tomorrow, or the day after tomorrow for any agency rules that were never submitted to Congress as the CRA demands. But any rule that was already submitted is on a clock that has already expired or that will expire over the next month. Accordingly, the President should act quickly to have the necessary research accomplished.
Conclusion
The CRA offers the Trump Administration an opportunity to work with Congress to permanently rescind prior Administrations’ DEI rules by combining to pass and sign into law a joint resolution disapproving whatever rules an earlier Administration had issued that required or authorized DEI practices by the federal government, parties that contract with the federal government, or private parties in general. Trump used the CRA frequently during his first term in office. He can make even greater use of it now if he directs his Cabinet officials to find whatever rules their predecessors (or other agency officials) issued in this regard. But time is fast running out. It might feel powerful to use executive orders to revoke rules that one disagrees with because it can be done quickly and in front of cameras in the Oval Office, but using the CRA to achieve that result is a wiser, more permanent use of the fleeting power that the act provides.
Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. GianCarlo Canaparo is a Senior Legal Fellow in the Meese Center.
Appendix
Executive Order 14151 of January 20, 2025, Ending Radical and Wasteful Government DEI Programs and Preferencing
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose and Policy. The Biden Administration forced illegal and immoral discrimination programs, going by the name ‘‘diversity, equity, and inclusion’’ (DEI), into virtually all aspects of the Federal Government, in areas ranging from airline safety to the military. This was a concerted effort stemming from President Biden’s first day in office, when he issued Executive Order 13985, ‘‘Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.’’
Pursuant to Executive Order 13985 and follow-on orders, nearly every Federal agency and entity submitted ‘‘Equity Action Plans’’ to detail the ways that they have furthered DEI’s infiltration of the Federal Government. The public release of these plans demonstrated immense public waste and shameful discrimination. That ends today. Americans deserve a government committed to serving every person with equal dignity and respect, and to expending precious taxpayer resources only on making America great.
Sec. 2. Implementation. (a) The Director of the Office of Management and Budget (OMB), assisted by the Attorney General and the Director of the Office of Personnel Management (OPM), shall coordinate the termination of all discriminatory programs, including illegal DEI and ‘‘diversity, equity, inclusion, and accessibility’’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear. To carry out this directive, the Director of OPM, with the assistance of the Attorney General as requested, shall review and revise, as appropriate, all existing Federal employment practices, union contracts, and training policies or programs to comply with this order. Federal employment practices, including Federal employee performance reviews, shall reward individual initiative, skills, performance, and hard work and shall not under any circumstances consider DEI or DEIA factors, goals, policies, mandates, or requirements.
(b) Each agency, department, or commission head, in consultation with the Attorney General, the Director of OMB, and the Director of OPM, as appropriate, shall take the following actions within sixty days of this order:
(i) terminate, to the maximum extent allowed by law, all DEI, DEIA, and ‘‘environmental justice’’ offices and positions (including but not limited to ‘‘Chief Diversity Officer’’ positions); all ‘‘equity action plans,’’ ‘‘equity’’ actions, initiatives, or programs, ‘‘equity-related’’ grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.
(ii) provide the Director of the OMB with a list of all:
(A) agency or department DEI, DEIA, or ‘‘environmental justice’’ positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024, and an assessment of whether these positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024 function;
(B) Federal contractors who have provided DEI training or DEI training materials to agency or department employees; and
(C) Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘‘environmental justice’’ programs, services, or activities since January 20, 2021.
(iii) direct the deputy agency or department head to:
(A) assess the operational impact (e.g., the number of new DEI hires) and cost of the prior administration’s DEI, DEIA, and ‘‘environmental justice’’ programs and policies; and
(B) recommend actions, such as Congressional notifications under 28 U.S.C. 530D, to align agency or department programs, activities, policies, regulations, guidance, employment practices, enforcement activities, contracts (including set-asides), grants, consent orders, and litigating positions with the policy of equal dignity and respect identified in section 1 of this order. The agency or department head and the Director of OMB shall jointly ensure that the deputy agency or department head has the authority and resources needed to carry out this directive.
(c) To inform and advise the President, so that he may formulate appropriate and effective civil-rights policies for the Executive Branch, the Assistant to the President for Domestic Policy shall convene a monthly meeting attended by the Director of OMB, the Director of OPM, and each deputy agency or department head to:
(i) hear reports on the prevalence and the economic and social costs of DEI, DEIA, and ‘‘environmental justice’’ in agency or department programs, activities, policies, regulations, guidance, employment practices, enforcement activities, contracts (including set-asides), grants, consent orders, and litigating positions;
(ii) discuss any barriers to measures to comply with this order; and
(iii) monitor and track agency and department progress and identify potential areas for additional Presidential or legislative action to advance the policy of equal dignity and respect.
Sec. 3. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
