Republicans will soon find themselves in in control of the entire federal government—the White House, the Senate and the House of Representatives—for the first time since 2018. This new power dynamic in Washington has already generated some discussion about how a law known as the “Congressional Review Act” may be used to undo at least some of what the Biden administration accomplished during its four years in power. But what exactly does this law allow, how does it work in practice, and how might it be used when the new Congress is sworn in next January?
The Congressional Review Act (CRA) was enacted as part of the Small Business Regulatory Enforcement Fairness Act of 1996 and essentially allows Congress to legislatively undo certain actions by federal agencies. Under the CRA, all new agency rules must be formally submitted to Congress, which then has a specific number of days within which to adopt a joint resolution of disapproval that has the effect of overturning the rule. If both chambers of Congress pass such a resolution and the president signs it, the rule is effectively invalidated. Alternatively, the president may veto such a resolution, in which case the Congress may vote to override as with any presidential veto. Once such a joint resolution of disapproval is enacted, it has the effect of not only invalidating the rule in question, but also bars the subject agency from issuing another rule in “substantially the same form” as the disapproved rule unless, of course, Congress authorizes the agency to do so in a subsequently enacted law.
The CRA adopts the definition of “rule” contained in the Administrative Procedures Act—“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”—but includes three exceptions: (1) rules of particular applicability; (2) rules relating to agency personnel; and (3) rules that relate to internal matters only. Otherwise, the CRA applies to all other final rules and regulations, including agency guidance and policy memoranda. It is also important to note that language of the CRA makes clear that the enactment of a joint resolution of disapproval is not subject to judicial review, leaving any potential remedial efforts up to the political branches.
Since its enactment in 1996, the CRA has been used to overturn exactly 20 rules or regulations: one by President George W. Bush, 16 by President Trump during his first term in office and three by President Biden. Each of these successfully enacted resolutions concerned a rule that was issued by the prior administration. Ordinarily, enactment of a CRA joint resolution of disapproval is unlikely simply because a president would be expected to veto any such resolution that would have the effect of rejecting a rule issued by the president’s own administration. Indeed, so far in the 118th Congress, even though 39 CRA resolutions were introduced, only 10 have passed in both chambers, and all were vetoed by the president.
However, following an election that results in a change in the presidential administration and a new Congress controlled entirely by the new president’s own party, the CRA is a potentially potent tool to undo actions taken by the former administration. This is made possible by the CRA’s “look back” provision whereby a new Congress has additional time to review rules enacted by the prior administration late in its term. Specifically, while the CRA normally allows for 60 days (“session” days in the Senate and “legislative” days in the House) after a rule is submitted for Congress to act, if Congress adjourns sine die before this time period expires, the clock is reset in the next session of Congress, beginning on the 15th day (again, session days in the Senate and legislative days in the House) of the new session. Based on the expected Senate and House calendars for the remainder of 2024 and the anticipated Jan. 3 opening day of the next Congress, the consensus projection of the last day a new rule could have been submitted to Congress and not be potentially subject to the CRA was on or about Aug. 1, 2024. Therefore, any rule submitted after that date is potentially fair game for review and recission by the new Congress and new president under the CRA.
The potential threat posed by the CRA leading up to a potential presidential transition typically causes an administration to make its most important, and potentially most controversial, new rules “CRA-proof” by ensuring that they are issued and submitted to Congress well before the anticipated CRA lookback deadline. During the 118th Congress, such rules arguably included the Environmental Protection Agency (EPA) rules on PFAS contamination and electric vehicles, and the Consumer Finance Protection Bureau (CFPB) rule prohibiting excessive credit card late fees. But for many other Biden-era rules, the CRA threat remains, and this threat is not just theoretical. As noted above, during President Trump’s first term, Congress passed and the president signed 16 CRA resolutions to overturn Obama administration actions. During candidate Trump’s recent successful campaign to reclaim the White House, he repeatedly promised to reverse various Biden administration actions and, with new GOP majorities in both the Senate and the House of Representatives, President Trump is clearly poised to do just that. With an expected lookback date of on or about Aug. 1, more than 800 new rules could be subject to CRA action in the next Congress. Beyond this, during the previous Trump administration, Congress also overturned guidance documents as well, in addition to final rules. In fact, the Office of Management and Budget stated, “The CRA applies to more than just notice-and-comment rules; it also encompasses a wide range of other regulatory actions, including, inter alia, guidance documents, general statements of policy, and interpretive rules.”
Against this backdrop, it is interesting to predict where the potential CRA action may be. More than 60% of the rules issued since Aug. 1 have come from just a handful of departments and agencies—the Department of Transportation (DOT), the Department of Homeland Security (DHS), the Department of Commerce (DOC) and the Environmental Protection Agency (EPA)—and most of these rules pertain to routine matters and are not likely to be targeted. However, many other new rules could be on Congress’s radar for potential CRA action, including the following:
Methane Emissions – The EPA issued a rule that implements part of the Inflation Reduction Act, a Biden-era law that Trump promised to repeal.
Tobacco Sales – The Food and Drug Administration (FDA) issued a rule that prohibits the sale of tobacco products to persons under 21 years of age, something that some conservatives have identified as federal agency overreach.
Head Start Program – The Department of Health and Human Services (HHS) issued a new rule that raises salaries for certain teachers. This move has been criticized by some in Congress, including, most notably, the incoming chair of the Senate Committee on Health, Education, Labor, and Pensions, Sen. Bill Cassidy (R-LA).
Drinking Water – The EPA just recently issued a rule that requires U.S. water systems to replace all lead pipes within 10 years at an estimated cost of at least $20 million.
Social Security – The Social Security Administration issued a rule that expands the definition of “public assistance household” to reduce the administrative burdens on low-income households benefiting from public assistance programs.
Food Labeling – The Department of Agriculture issued a rule that sets standards for labeling meat and poultry products produced using animal cell culture technology.
Financial Services – Active financial regulators finalized multiple controversial rules and pieces of guidance since August that could be challenged. As recently as this weekend, Trump allies criticized recent actions from the CFPB such as the open banking final rule, and more final rules are expected this month.
Finally, for opponents of a rule, the CRA provides a potentially effective way of undoing the rule without the need for administrative litigation. Of course, even where a new Congress may be time-barred from utilizing the CRA, or where slim majorities in one chamber or the other don’t provide the requisite votes to pass such a joint resolution, other tools remain available to Congress to revisit a prior administration’s rulemaking, including Congress’s broad power to simply undo the legislation that gave rise to the offending rule. Moreover, the new administration always has the ability to undo the rule administratively. And, of course, outside interested parties always have the option of attacking a rule through litigation, an especially appealing option in the new post-Chevron era. Whether through the CRA or these other mechanisms, the new Congress, the Trump administration and other interested parties are sure to be focused on attacking the Biden administration’s perceived regulatory overreach however they can in the months ahead.
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