The 2020 election gave Democrats control over the White House and both chambers of Congress – but just barely. While the Senate debates the future of the filibuster, Congressional Democrats have another tool available that requires a simple majority and offers a fast track to undoing regulations issued by the Trump Administration: The Congressional Review Act (CRA). This post summarizes how Congress may take a page out of Republicans’ 2017 playbook and use the CRA in coming weeks to nix regulations without going through the standard notice and comment rulemaking.
Congress passed the CRA in 1996 as part of the Small Business Regulatory Enforcement Fairness Act, 13 years after the Supreme Court overturned the legislative veto – where a single chamber of Congress overturned executive actions – because such vetoes violated the Constitution’s requirement of bicameralism and presentment. Because the CRA requires approval from both chambers of Congress and provides the president an opportunity to veto the measure, it remedies the constitutional deficiencies of the legislative veto.
Prior to the 115th Congress, Congress had rarely taken advantage of this tool, largely because the administration that issued the rule itself is unlikely to sign a bill overturning it, which essentially guarantees the need for a supermajority to override a veto. What this means in practice is that use of the CRA is often limited to when there is a change in administration in which the new president’s party also controls Congress. In 2017, during the first year of the Trump Administration, Congress passed and President Trump signed 14 CRA resolutions, undoing a number of Obama Administration policies such as the Department of Interior’s Stream Protection Rule and the Securities and Exchange Commission’s Resource Extraction Payments Rule.
How the CRA Works
The CRA provides a procedural fast track in the Senate: when a joint resolution of disapproval meets certain requirements, it is not subject to the filibuster and provides for limited floor debate. Additionally, the joint resolution can be discharged out of committee if 30 senators file a petition, which can also lead to expediated floor consideration.
According to the Congressional Research Service, the CRA applies to most rules under Section 551 of the Administrative Procedure Act, including certain guidance documents and interim final rules, but not proposed rules.
After Congress receives a final rule, and, if applicable, it is published in the Federal Register, members have 60 “days of continuous session” to introduce a joint resolution (essentially the “60 days” gets paused when either chamber is gone for more than three days). The CRA also authorizes a new Congress to review rules issued in the last 60 legislative days of the previous Congress. For the purposes of calculating the time window, all rules are treated as they were submitted to Congress or published in the Federal Register on the 15th legislative day of the new Congress.
After a president signs a resolution of disapproval (or Congress overrides the president’s veto), the rule is nullified and either does not take effect or is discontinued. Further, the rule cannot be “reissued in substantially the same form.”
Rules That Could be Undone
In short, Congress can use the CRA to quickly undo a number of regulatory actions issued on or after August 21, 2020, or 60 “days of continuous session” of the 116th Congress. According to the George Washington University Regulatory Studies Center, more than 1,455 rules could be subject to CRA resolutions at the beginning of the 117th Congress, including numerous controversial environmental and immigration rules. For example, the Environmental Protection Agency’s (EPA) rule on improving transparency in data underlying particular EPA actions could be subject to the CRA. As explained below, because certain documents that are not published in the federal register are also subject the CRA, the number may be even higher.
Because the CRA stipulates that a rule does not go into effect until it has been submitted to Congress, unsubmitted rules are also vulnerable to congressional review. For example, in 2018 Congress (and then-President Trump) overturned the Consumer Financial Protection Bureau’s (CFPB) 2013 “bulletin” regarding third-party auto lenders after the GAO found that the guidance was subject to the CRA. Because the CFPB failed to submit the rule to Congress in 2013, Senators Pat Toomey and Jerry Moran introduced a resolution of disapproval following the GAO decision, ultimately leading to its nullification.
In the event that the Trump Administration failed to submit anything that would qualify as a rule under the CRA to Congress, such policies could be vulnerable to congressional review. However, following the GAO determination, in April 2019, the Office of Management and Budget (OMB) directed executive agencies that the CRA applies to all guidance documents and non-notice-and-comment rules. Accordingly, any such policies would only be subject to the CRA during the 60 day statutory review period, provided the agencies submit them to Congress. If an agency failed to comply with the OMB directive and did not submit a rule to Congress, it could be vulnerable. The Trump Administration previously faced numerous challenges in court for failing to comply with the APA, so it wouldn’t be the first time the administration’s policies were tripped up by procedural requirements. But because such efforts are not subject to notice and comment, the Biden Administration may also be able to quickly change the policy without any help from Congress.
While there may be some ambiguity as to which rules are subject to the CRA, Congress gets the last word. The CRA includes a jurisdiction stripping provision, prohibiting judicial review of any “determination, finding, action, or omission” of the law. Accordingly, the 9th, 10th, and DC Circuits have all concluded that they were precluded from reviewing agency compliance with the law.