Manuel Balce Ceneta/AP Photo
President Joe Biden speaks at Prince William Forest Park on Earth Day, April 22, 2024, in Triangle, Virginia. Biden is announcing $7 billion in federal grants to provide residential solar projects serving low- and middle-income communities and expanding his American Climate Corps program.
Nearly every day for the past month, the Biden administration has made an announcement about a finalized regulation. They have completed a minimum staffing ratio for nursing homes, conserved 13 million acres in the Alaskan Arctic, designated “forever chemicals” as hazardous substances, invested in rooftop solar panels in low-income communities, banned most noncompete agreements at U.S. businesses, directed federal agencies to purchase sustainable products, and closed the “gun show loophole,” to name just a few.
Why has April been a month of regulatory action? The administration surely wants to show key constituencies that they have made progress. But policymakers are also racing to get regulations done to protect them from being overturned in the next Congress.
The threat depends on the outcome of the 2024 election. If Donald Trump and the Republicans sweep back into power, they would have the ability to use the Congressional Review Act (CRA), a 1996 law that allows Congress to overturn federal agency rules through a streamlined process. Unlike most legislation, CRA resolutions can pass with a simple majority in the Senate, giving a future Republican majority a path to quickly show progress early in 2025.
But because of the timeline outlined in the CRA, any rule finalized before late May (roughly speaking; this is a moving target) is safe from being reversed by Congress. So agencies have clearly been told to get their most important rules out the door now.
In other words, the CRA is so powerful that it virtually shuts down executive branch rulemaking authority, months before the end of a presidential term.
A BY-PRODUCT OF NEWT GINGRICH’S ANTI-REGULATORY Contract with America, the CRA was intended to give Congress another tool to check the executive branch. It had bipartisan support, with the late Sen. Harry Reid (D-NV) lauding the CRA during his farewell remarks to Congress.
“The President promulgates a regulation and Congress has a chance to look it over to see if it is too burdensome, too costly, too unfair. We have done that quite a few times,” Reid said. “That was legislation that I did, and it was great when we had Republican Presidents, not so great when we had Democratic Presidents, but it was fair.”
But after its enactment in 1996, the CRA was only used once in its first 20 years of existence. In March 2001, President George W. Bush signed into law a resolution to overturn an OSHA ergonomics rule from the Clinton administration, designed to protect workers from musculoskeletal disorders. Barack Obama never signed a CRA resolution.
“I think most people on the Hill at the time viewed it as a bit of a nuclear bomb,” said Craig Segall, vice president of the climate advocacy group Evergreen Action.
Democratic Congresses are unlikely to overturn rules from Democratic presidents, and the same with Republicans. So the CRA is only useful when a president from the opposite party comes into power with a unified Congress to reverse their predecessors’ rules. During their presidencies, Bush and Obama showed little interest in using that power.
CRA resolutions can pass with a simple majority in the Senate, giving a future Republican majority a path to quickly show progress early in 2025.
It took Donald Trump to break this reluctance. As president, Trump signed 16 CRA resolutions overturning Obama administration rules, 15 of them in his first year in office. “This is Newt Gingrich’s knife against the throat of the administrative state that Trump weaponized,” said Segall.
The axed regulations ranged from an OSHA rule forcing businesses to maintain accurate records of workplace injuries (which OSHA could then use for a national database), an SEC rule to deter corruption among resource extraction companies, two Department of Interior rules to safeguard the environmental integrity of wildlife on public lands, and a Health and Human Services rule to expand access to health care for low-income women.
A May 2018 report from the Center for Progressive Reform, which called the CRA a “legislative gimmick,” pointed out the connection between corporate special interests and legislators who’ve sponsored CRA resolutions.
For example, Sen. Mitch McConnell (R-KY), who sponsored a successful CRA resolution to overturn the Department of Interior’s rule to protect waterways in the Appalachian Mountains from harmful mining practices, received $335,000 from the mining industry between 2013 and 2018. While not an explicit quid pro quo, the role of corporate campaign contributions “is enough to create a strong appearance of impropriety,” the report states.
A report released earlier this year by George Washington University’s Regulatory Studies Center notes that the CRA is not “inherently deregulatory,” pointing out how Biden and the 117th Congress worked together to overturn a Trump-era EPA rule that loosened emissions standards for oil and gas. But that was a rare event; to date, Biden has signed only three CRA resolutions into law.
Segall sees the CRA as “an ideological attack on how the government works,” disrupting the usual process by which Congress writes the laws and executive branch agencies execute them. He questioned Congress’s power to intervene in regulatory decision-making, noting that it doesn’t have the staff or expertise to address agency rules.
“People have this sort of canard about faceless bureaucrats, but actually the administrative state is really, really transparent,” Segall said. “Every single comment they receive they have to respond to, they have to do all these economic analyses, all these environmental analyses. It works well when they’re allowed to do their job.”
UNDER THE CRA, AGENCIES SUBMIT THEIR FINALIZED RULES to both chambers of Congress for review. While there’s no stipulation as to when an agency needs to submit these rules, they’re generally sent after a rule is published in the Federal Register. The House and the Senate then have 60 legislative days after submission to file a joint resolution of disapproval, which is quite simple: “That Congress disapproves the rule submitted by the [agency] relating to [name of the rule], and such rule shall have no force or effect.”
In the Senate, CRA resolutions are offered luxuries not afforded to other bills, including the prohibition on adding amendments, debate capped to ten hours, and a simple majority vote, making them immune from the filibuster.
Any rule submitted to Congress within 60 legislative days of a congressional adjournment is eligible to fall under a “lookback period,” giving that rule a full 60 legislative days of review in the new Congress. So that gives a new president and their political party a significant amount of time to target their predecessor’s regulations.
“Legislative days” only refers to days where Congress is in session. In election years, Congress isn’t in session much in the fall. So the current lookback period, based on the congressional calendar, is expected to begin May 22, meaning any rules submitted to Congress after that date are eligible for review under the CRA next year. Historically, the lookback date has been anywhere between June and September.
A successful CRA resolution, once passed by both houses and signed by the president, is particularly powerful.
The exact date won’t be known until Congress actually adjourns this year and 60 days are counted back, and experts warn it is likely to change. “This is where Republican dysfunction in the House comes back and bites them,” said James Goodwin, senior policy analyst for the Center for Progressive Reform. “Republican dysfunction is going to translate to more legislative days at the end of the congressional session, and with each added day to the legislative calendar that cutoff date gets pulled further and further into the future.”
But the Biden administration is taking no chances with that lookback date, instead finalizing as many rules as possible now. That’s because a successful CRA resolution, once passed by both houses and signed by the president, is particularly powerful.
New rules disapproved under CRA are not only prevented from taking effect, but they “may not be reissued in substantially the same form” unless granted permission from Congress, a provision known by advocates as “salt the earth.”
Critics have long been infuriated by this provision. “The language itself, ‘substantially the same,’ is about the worst legislative drafting as there could be. It’s just a word salad, frankly. Nobody knows. It’s really vague,” said Amit Narang, a consultant for consumer rights group Public Citizen. The wording has yet to be challenged in court. But agencies have generally been reluctant to pursue any rules resembling ones overturned. So the CRA can have the effect of permanently making areas of regulation off-limits.
A SECOND TRUMP ADMINISTRATION MAY TAKE THE OPPORTUNITY to be even more aggressive at using the CRA. In fact, there was a preview of this in Trump’s previous term.
While the traditional understanding of the CRA only allows Congress to overturn recently submitted regulations, it can in fact be used to target an older regulation that’s been published in the Federal Register but never submitted to Congress. In fact, a 2018 article published in The Georgetown Journal of Law & Public Policy by Paul J. Larkin, a fellow with the Heritage Foundation, argued that the Trump administration could aggressively utilize the CRA by searching for rules that had not been submitted to Congress before. Since rules were not routinely submitted prior to the 1996 enactment of the CRA, this could open up all kinds of rules to resolutions of disapproval next year.
The Trump administration acted on a version of this when, on May 1, 2018, it repealed Consumer Financial Protection Bureau guidance issued in 2013 to deter discriminatory lending practices. Because the CFPB issued this as a bulletin rather than a full rule, the agency never submitted it for review under the CRA.
If Trump and the Republicans expand their search for regulations to knock out through CRA resolutions, protections for workers and the environment as well as consumer safety standards are expected to be targeted.
“The Trump administration in 2017 was doing the bidding of corporations when they used the CRA to target Obama regulations that protected the public. And that will certainly be the case again if Trump is elected,” Narang of Public Citizen said. “Corporations will have a wish list.”
There have been various efforts to either repeal or amend the CRA, most notably the Stop Corporate Capture Act, introduced in the House in 2021 and sponsored by Rep. Pramila Jayapal (D-WA). Under this proposed legislation, rules repealed by the CRA would be reinstated and the “substantially the same” clause would be struck. Yet this measure, introduced to the House’s Judiciary and Oversight committees, will not pass as long as Republicans are still in control.
Really the two best ways to avoid Congressional Review Act destruction of agency rules are to either win the 2024 election, or to finalize rules so early that a future Congress cannot reach them in the lookback period. That accounts for the flurry of action, significantly truncating the time a president has to get things done in their first term.
Goodwin, of the Center for Progressive Reform, said that the CRA has also contributed to increased polarization among the two political parties. Congress always had the ability to axe regulations prior to the CRA through the standard legislative process, which entailed coalition building and reaching across the aisle to seriously consider the implications of gutting a regulation. But the CRA, with its majority-vote option, “takes that all away,” Goodwin said. “There’s no incentive to reach across the aisle, no incentive to build compromise, there’s no incentive to build a coalition. It’s basically just strong-arm politics at its most brutal.”
