Civil Rights Cold Case Records Collection Reauthorization Act

— 66 — Mandate for Leadership: The Conservative Promise 17. President William J. Clinton, Executive Order 13132, “Federalism,” August 4, 1999, in Federal Register, Vol. 64, No. 153 (August 10, 1999), pp. 43255–43259, https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99- 20729.pdf (accessed January 31, 2023). 18. President Ronald Reagan, Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” March 15, 1988, in Federal Register, Vol. 53, No. 53 (March 18, 1988), pp. 8859–8862, https://www.regulationwriters.com/downloads/Executive_Orders/EO_12630.pdf (accessed January 31, 2023). 19. Section 115 in H.R. 4577, Consolidated Appropriations Act, 2001, Public Law No. 106-544, 106th Congress, December 21, 2000, https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf (accessed January 31, 2023). 20. H.R. 6410, Paperwork Reduction Act of 1980, Public Law No. 96-511, 96th Congress, December 11, 1980, https:// www.congress.gov/96/statute/STATUTE-94/STATUTE-94-Pg2812.pdf (accessed January 31, 2023). 21. S. 3418, An Act to Amend Title 5, United States Code, by Adding a Section 552a, to Safeguard Individual Privacy from the Misuse of Federal Records, to Provide that Individuals Be Granted Access to Records Concerning Them Which Are Maintained by Federal Agencies, to Establish a Privacy Protection Study Commission, and for Other Purposes (Privacy Act of 1974), Public Law No. 93-579, 93rd Congress, December 31, 1974, https://www.congress.gov/93/statute/STATUTE-88/STATUTE-88-Pg1896.pdf (accessed January 31, 2023). 22. Office of Management and Budget, “Guidance for Grants and Agreements,” Final Guidance, Federal Register, Vol. 85, No. 157 (August 13, 2020), pp. 49506–49582, https://www.govinfo.gov/content/pkg/FR-2020-08-13/ pdf/2020-17468.pdf (accessed January 31, 2023), and “Guidance for Grants and Agreements,” Correcting Amendments, Federal Register, Vol. 86, No. 33 (February 22, 2021), pp. 10439–10440, https://www.govinfo. gov/content/pkg/FR-2021-02-22/pdf/2021-02969.pdf (accessed January 31, 2023). 23. H.R. 5, Regulatory Accountability Act of 2017, 115th Congress, introduced January 3, 2017, https://www. congress.gov/bill/115th-congress/house-bill/5 (accessed January 31, 20/23), and S. 951, Regulatory Accountability Act of 2017, 115th Congress, introduced April 26, 2017, https://www.congress.gov/bill/115th- congress/senate-bill/951 (accessed January 31, 2023). 24. S. 2314, Social Media Addiction Reduction Technology Act (SMART Act), 116th Congress, introduced July 30, 2019, https://www.congress.gov/bill/116th-congress/senate-bill/2314/text (accessed January 31, 2023). 25. H.R. 1605, Guidance Out of Darkness Act (GOOD Act), 117th Congress, introduced March 8, 2021, https://www. congress.gov/bill/117th-congress/house-bill/1605 (accessed January 31, 2023). 26. S. 2804, Early Participation in Regulations Act of 2021, 117th Congress, introduced September 22, 2021, https:// www.congress.gov/bill/117th-congress/senate-bill/2804 (accessed January 31, 2023). 27. S. 170, Unfunded Mandates Accountability and Transparency Act, 117th Congress, introduced February 2, 2021, https://www.congress.gov/bill/117th-congress/senate-bill/170 (accessed January 31, 2023). 28. H.R. 277, Regulations from the Executive in Need of Scrutiny Act of 2023 (REINS Act), 118th Congress, introduced January 11, 2023, https://www.congress.gov/bill/118th-congress/house-bill/277/all-info?r=217 (accessed January 31, 2023). 29. Subtitle E, “Congressional Review,” in H.R. 3136, Contract with America Advancement Act of 1996, Public Law No. 104-121, 104th Congress, March 29, 1996, https://www.govinfo.gov/content/pkg/PLAW-104publ121/pdf/ PLAW-104publ121.pdf (accessed January 31, 2023). 30. H.R. 115, Midnight Rules Relief Act of 2023, 118th Congress, introduced January 9, 2023, https://www.congress. gov/bill/118th-congress/house-bill/115/text?s=1&r=18 (accessed January 31, 2023). 31. See Federation of American Scientists, Intelligence Resource Program, “Presidential Directives and Executive Orders,” https://irp.fas.org/offdocs/direct.htm (accessed February 1, 2023), and Library of Congress, Researchers, Newspaper and Current Periodical Reading Room, “Presidential Directives and Where to Find Them,” March 30, 2022, https://www.loc.gov/rr/news/directives.html (accessed February 1, 2023). 32. President Donald J. Trump, Executive Order 13803, “Reviving the National Space Council,” June 30, 2017, in Federal Register, Vol. 82, No. 129 (July 7, 2017), pp. 31429–31432, https://www.govinfo.gov/content/pkg/FR- 2017-07-07/pdf/2017-14378.pdf (accessed February 1, 2023).

— 494 — Mandate for Leadership: The Conservative Promise provide a private right of action that would allow victims to seek legal redress in court. At the same time, when it continues to fund governmental and private enti- ties that violate these laws, HHS is spending taxpayer funds unlawfully. Under liberal Administrations, OCR has amassed a poor record of devoting resources to conscience and religious freedom enforcement and is often complicit in approving or looking the other way at the Administration’s own attacks on religious liberty. Congress should pass the Conscience Protection Act so that victims can pursue redress through courts without having to depend exclusively on OCR. In addition: l OCR should return to Trump Administration policies that initiated robust enforcement of these conscience laws. It should restore and fully fund the Office of the Deputy Director for the Conscience and Religious Freedom Division (CRFD) and ensure that it has the necessary delegations from the Secretary to enforce these laws. The Secretary should give adequate delegations to OCR to pursue enforcement of conscience laws, including RFRA, and require all HHS components that provide funding or grants to cooperate with OCR CRFD investigations. The Secretary, the Deputy Secretary, and principals in other HHS divisions should endorse the remedial measures recommended by OCR CRFD and limit territorial objections and slow-down attempts by other divisional officials including OGC. HHS should withdraw funding from any violating entities that refuse to correct their behavior, and OCR CRFD should work with ASFR to ensure that all grant announcements and instruments inform grantees and applicants of their obligations to comply with federal health care conscience laws specifically as a condition of obtaining or maintaining their funding. l A draft OCR RFRA and religious freedom rule from the Trump Administration should be issued and finalized. These regulations would provide a clear process for OCR’s enforcement in coordination with other HHS divisions and existing HHS grants regulations. l HHS should reestablish waivers for state and child welfare agencies for religious exemptions, especially for faith-based adoption and foster care agencies. It should also rescind subjective case-by-case eval- uations for religious and faith-based organizations that request religious exemptions. These case-by-case determinations are currently coordinated with ACF and OCR. The recommended waivers should be granted to all states and agencies that request them, and OCR memos finding that RFRA would be violated if the waivers are not granted should be restored. — 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