A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Office of the Secretary of the Department of Health and Human Services relating to "Policy on Adhering to the Text of the Administrative Procedure Act".

— 357 — Department of Education NEW EXECUTIVE ORDERS THAT THE PRESIDENT SHOULD ISSUE Guidance Documents l The President should immediately reinstate and reissue Executive Order 13891: Promoting the Rule of Law Through Improved Agency Guidance Documents, 84 Fed. Reg. 55235 (Oct. 9, 2019), and Executive Order 13892: Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Oct. 15, 2019). These executive orders required all federal agencies to treat guidance documents as non-binding in law and practice and also forbade federal agencies from imposing new standards of conduct on persons outside the executive branch through guid- ance documents. They required all federal agencies to apply regulations and statutes instead of guidance documents in any enforcement action. President Biden revoked these executive orders on January 20, 2021, demonstrating that these executive orders effectively restrained the abuses of an expansive administrative state. l Require APA notice and comment. The President should issue an executive order requiring the Office for Civil Rights’ Case Processing Manual to go through APA (Administrative Procedures Act) notice and comment. l Protect the First Amendment. The President should issue an executive order requiring grant applications (SF-424 series) to contain assurances that the applicant will uphold the First Amendment in funded programs and work. l Minimize bachelor’s degree requirements. The President should issue an executive order stating that a college degree shall not be required for any federal job unless the requirements of the job specifically demand it. l Eliminate the “list of shame.” Educational institutions can claim a religious exemption with the Office for Civil Rights at the Department of Education from the strictures of Title IX. In 2016, the Obama Administration published on the Department of Education’s website a list of colleges that had applied for the exemption. This “list of shame” of faith-based colleges, as it came to be known, has since been archived on ED’s website, still publicly available. The President should issue an executive order removing the archived list and preventing such a list from being published in the future. — 358 — Mandate for Leadership: The Conservative Promise NEW AGENCY POLICIES THAT DON’T REQUIRE NEW LEGISLATION OR REGULATIONS TO ENACT Transparency of FERPA and PPRA Complaints l The Department of Education should be transparent about complaints filed on behalf of families regarding the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA). l At the same time, the Department of Education should develop a portal and resources for parents on their rights under FERPA and PPRA. This portal should also contain an explanation of the Health Insurance Portability and Accountability Act (HIPPA) and public school procedures to demonstrate that the law does not deprive parents of their right to access any school health records. The D.C. Opportunity Scholarship Program In 2011, Congress added new requirements to the D.C. Opportunity Scholarship Program stating that participating private schools must submit to site visits by the program administrator, inform prospective students about the school’s accreditation status, mandate that teachers of core subjects have bachelor’s degrees, and require participating students to take some form of nationally norm-referenced test. Notably, the 2011 reauthorization also required, for the first time, that participating private schools be accredited or be on a path to accreditation. The 2017 reauthorization went further, requiring that each participating school supply a certificate of accreditation to the administering entity upon program entry, demonstrating that the school is fully accredited before being allowed to participate. The list of approved accreditors is entirely too small to serve the mission of the diverse schools in the nation’s capital. l Although the accreditation regulations should be removed entirely by Congress, in the meantime, the next President should issue an executive order expanding the list of allowable accreditors. Transparency Around Program Performance and DEI Influence The next President should issue a series of executive orders requiring: l An accounting of how federal programs/grants spread DEI/CRT/ gender ideology, l A review of outcomes for GEAR UP and the 21st Century grants programs,

— 495 — Department of Health and Human Services l HHS should restore OCR authority to review requests for and render opinions on the application of RFRA to requests for religious accommodation of people, families, and doctors who cannot in good conscience take or administer vaccines, including those made or tested with aborted fetal cell lines. l HHS should restore Section 1557, Section 504, and other OCR regulations and fix guidance documents. In 2020, the Trump Administration’s OCR published regulations under Section 1557 of the Affordable Care Act that restored the agency’s enforcement of that law to the limits of its statutory text, deferred to the ACA’s widespread use of a binary biological conception of sex discrimination, and specified that the regulation must comply with the religious exemption and abortion neutrality clauses in Title IX from which it is derived as well as the Religious Freedom Restoration Act and other laws. Courts blocked core provisions of that rule from going into effect. In 2022, the Biden Administration proposed to reinstate a rule contradicting the scope of the statute and imposing nondiscrimination on the basis of sexual orientation and gender identity. It is expected that this rule will be finalized in 2023 even though several courts have issued rulings against the interpretation on which it is based. l OCR should return its enforcement of sex discrimination to the statutory framework of Section 1557 and Title IX. Specifically, it should: 1. Remove all guidance issued under the Biden Administration concerning sexual orientation and gender identity under Section 1557, particularly the May 2021 announcement of enforcement82 and March 2022 statement threatening states that protect minors from genital mutilation.83 2. Issue a general statement of policy specifying that it will not enforce any prohibition on sexual orientation and gender identity discrimination in the Section 1557 regulation and that it will prioritize compliance with the First Amendment, RFRA, and federal conscience laws in any case implicating those claims. DOJ should commit to defending these actions aggressively against inevitable court challenges, including under cases such as Heckler v. Chaney.84 — 496 — Mandate for Leadership: The Conservative Promise 3. Issue a proposed rule to restore the Trump regulations under Section 1557, explicitly interpreting the law not to include sexual orientation and gender identity discrimination based on the textual approach to male and female biology taken by Congress in the ACA, the need to recognize biological distinctions as part of the sound practice of health care, and the need to ensure protections of medical judgment and conscience. DOJ should agree to defend this rule to the Supreme Court if necessary. 4. Issue a general statement of policy announcing that it plans to enforce Section 1557 discrimination bans by refocusing on serious cases of race, sex, and disability discrimination. In particular, OCR should highlight its 2019 investigation and voluntary resolution agreement with Michigan State University based on the sexual abuse of gymnasts by Larry Nassar. OCR should also coordinate with the Department of Education on a public education and civil rights enforcement campaign to ensure that female college athletes who become pregnant are no longer pressured to obtain abortions; pursue race discrimination claims against entities that adopt or impose racially discriminatory policies such as those based on critical race theory; and announce its intention to enforce disability rights laws to protect children born prematurely, children with disabilities, and children born alive after abortions. 5. Issue and finalize the Trump-era draft disability rights regulations concerning crisis standards of care and use of Quality of Life Adjusted Years (QALYs), and reissue and finalize a disability regulation (withdrawn by the Biden Administration) that prohibited discriminatory application of assisted suicide and denial of life-saving treatments for disabled newborns. l OCR should withdraw its pharmacy abortion mandate guidance. OCR should withdraw its “Obligations Under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services” guidance for retail pharmacies,85 which purports to address nondiscrimination obligations of pharmacies under federal civil rights laws and in fact orders them to stock and dispense first-trimester abortion drugs. The guidance invents this so-called requirement and fails to acknowledge that pharmacies and pharmacists have the right not to participate in abortions, including pill-induced abortions, if doing so would violate their sincere moral or religious objections. Moreover, no federal civil rights laws preempt state pro-life statutes.

— 128 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. U.S. Constitution, Preamble, https://constitution.congress.gov/constitution/preamble/ (accessed February 16, 2023). 2. U.S. Constitution, Article I, § 8, https://constitution.congress.gov/constitution/article-1/ (accessed February 16, 2023). 3. U.S. Constitution, Article II, § 2, https://constitution.congress.gov/constitution/article-2/ (accessed February 16, 2023). 4. Established pursuant to S. 1605, National Defense Authorization Act for Fiscal Year 2022, Public Law No. 117-81, 117th Congress, December 27, 2021, Division A, Title X, § 1004, https://www.congress.gov/117/plaws/publ81/ PLAW-117publ81.pdf (accessed February 16, 2023). 5. H.R. 3684, Infrastructure Investment and Jobs Act, Public Law No. 117-58, 117th Congress, November 15, 2021, Division G, Title IX, §§ 70901–70953, https://www.congress.gov/117/plaws/publ58/PLAW-117publ58.pdf (accessed February 16, 2023). 6. S. 2943, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 114th Congress, December 23, 2016, Division A, Title IX, § 901, https://www.congress.gov/114/statute/STATUTE-130/STATUTE-130-Pg2000. pdf (accessed February 16, 2023). 7. H.R. 3622, Goldwater–Nichols Department of Defense Reorganization Act of 1986, Public Law No. 99-433, 99th Congress, October 1, 1986, https://www.congress.gov/99/statute/STATUTE-100/STATUTE-100-Pg992.pdf (accessed February 16, 2023). 8. U.S. Department of Defense, Defense Security Cooperation Agency, Historical Sales Book, Fiscal Years 1950–2021, p. 7, https://www.dsca.mil/sites/default/files/dsca_historical_sales_book_FY21.pdf (accessed February 15, 2023). 9. Paul K. Kerr, “Arms Sales: Congressional Review Process,” Congressional Research Service Report for Members and Committees of Congress No. RL31675, updated June 10, 2022, p. 1, https://sgp.fas.org/crs/weapons/ RL31675.pdf (accessed February 15, 2023). 10. Keith Webster, “How to Reform America’s Military Sales Process,” The Hill Congress Blog, October 6, 2022, https://thehill.com/opinion/congress-blog/3675933-how-to-reform-americas-military-sales-process/ (accessed February 15, 2023). 11. See Thomas W. Spoehr, “The Administration and Congress Must Act Now to Counter the Worsening Military Recruiting Crisis, Heritage Foundation Issue Brief No. 5283, July 28, 2022, https://www.heritage.org/sites/ default/files/2022-07/IB5283.pdf. 12. Ibid. 13. Ronald Reagan Institute, “Reagan National Defense Survey,” conducted November 2021, p. 4, https://www. reaganfoundation.org/media/358085/rndf_survey_booklet.pdf (accessed February 16, 2023). 14. See Paul J. Larkin, “Protecting the Nation by Employing Military Spouses,” Heritage Foundation Commentary, June 6, 2019, https://www.heritage.org/jobs-and-labor/commentary/protecting-the-nation-employing- military-spouses. 15. See Jude Schwalbach, “Military Families Deserve Flexible Education Options,” Heritage Foundation Commentary, April 14, 2021, https://www.heritage.org/education/commentary/military-families-deserve- flexible-education-options. 16. See Chapter 7, “The Intelligence Community,” infra. 17. The Defense Intelligence Agency (DIA); the National Security Agency (NSA); the National Geospatial- Intelligence Agency (NGA); the National Reconnaissance Office (NRO); and the intelligence and counterintelligence elements of the military services: U.S. Air Force Intelligence, U.S. Navy Intelligence, U.S. Army Intelligence, and U.S. Marine Corps Intelligence, which also receive guidance and oversight from the Under Secretary of Defense for Intelligence (USDI). 18. The Office of the Director of National Intelligence (ODNI) and the Central Intelligence Agency (CIA). 19. The Department of Energy’s Office of Intelligence and Counterintelligence; the Department of Homeland Security’s Office of Intelligence and Analysis and the intelligence and counterintelligence elements of the U.S. Coast Guard; the Department of Justice’s Federal Bureau of Investigation and the Drug Enforcement Administration’s Office of National Security Intelligence; the Department of State’s Bureau of Intelligence and Research; and the Department of the Treasury’s Office of Intelligence and Analysis.