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A law that gives Congress and the president the power to nullify federal regulations will almost certainly be part of Donald Trump’s strategy to overturn policies set by the Biden administration. The Congressional Review Act (CRA) is a Newt Gingrich–era law passed in 1996 to empower congressional oversight of federal rulemaking. Crucially, the law contains provisions that allow it to speed through Congress, eliminating barriers like the Senate filibuster. That makes it an attractive option for Republicans to make progress on a deregulatory agenda.
“It gets Congress out of Congress’s own way,” said James Goodwin of the Center for Progressive Reform in a webinar discussing the CRA.
Any regulation put forth by a federal agency in the final 60 legislative days is fair game for Congress to slash—whether it be an Environmental Protection Agency (EPA) rule about methane emissions or a Consumer Product Safety Commission rule that sets standards for infant support cushions. Spoiler alert: Both of those rules could be on the chopping block in the early weeks of the Trump administration.
Once signed, regulations that were subject to resolutions of disapproval under the CRA are not only null and void, but the federal government is also prohibited from publishing rules that are “substantially similar” in the future, unless specifically charged with doing so by Congress. So the power of the CRA is significant.
Since the CRA requires passage by both chambers of Congress and the signature of the president, it is rarely used to nullify rules in the middle of an administration—that would mean a president would have to nix one of the rules put in place by their own government. But the CRA has a “lookback period” of 60 congressional working days. Any federal regulations announced in those prior 60 days are subject to congressional review. This makes the CRA a useful weapon for the early days of a new Congress and new presidential administration, allowing them to slash some of the final rules passed down by the last government.
It’s not yet clear which dates and thus which regulations will be included in this year’s lookback period. The answer depends on when this Congress decides to adjourn, since the 60-day period is measured by days that Congress is in session. Groups like Public Citizen estimate that the period likely began on August 1, 2024. If that date is correct, dozens of federal regulations could be subject to the CRA. Public Citizen lists them here.
In 2017, Trump and the Republican Congress made good use of the CRA for the first time since the law passed. That Congress brought forth 67 resolutions of disapproval under the CRA, 16 of which were eventually passed and signed by Trump. Before that, only one CRA resolution had ever been signed into law, nullifying a Clinton administration ergonomics rule in 2001. Joe Biden only signed three CRA resolutions nullifying Trump-era rules in 2021.
During his first administration, Trump and Congress used the CRA to nullify an Occupational Safety and Health Administration rule that required employers to maintain records of workplace injuries and a Department of the Interior rule that protected streams and wildlife from the environmentally devastating effects of surface coal mining, among many others.
Congress’s margins are tight this time around. House Republicans will hold 220 seats to the Democrats’ 215, and three seats will be vacant for a few months due to Trump cabinet selections. For House Republicans to pass a resolution of disapproval, they can’t afford to lose more than a handful of votes, assuming Democrats would vote uniformly against them. That’s a much narrower majority than Republicans had at the start of Trump’s first term, when there were 241 Republican representatives to 194 Democratic representatives.
That will slow down Republicans, but in general all of them share a passion for weakening agency rules, particularly ones that shackle business. So there’s sure to be early activity on CRA resolutions.
Among the Biden administration regulations that Congress could come after: a Department of Health and Human Services rule banning the sale of tobacco products to those under 21 years of age; an EPA rule that regulates methane emissions and creates an incentive program for petroleum waste reduction; a Consumer Financial Protection Bureau rule that protects personal financial data; and another EPA rule that improves regulation of lead and copper in water.
According to Robert Weissman, co-president of Public Citizen, the CRA is primarily used as a way to empower corporations to take on the regulatory power of the federal government. In a survey of resolutions of disapproval brought forth under the CRA, the Regulatory Studies Center at George Washington University found that the Environmental Protection Agency and the Department of Health and Human Services were the agencies most targeted by the law. Unsurprisingly, Republicans brought far more resolutions of disapproval against these agencies than their Democratic colleagues.
Though the CRA predates Trump’s political career, it fits in neatly with his brand of deregulatory, anti–administrative state politics. Federal agencies have already lost power as a consequence of Trump: This year, the Supreme Court struck down its 1984 decision that established “Chevron deference,” which gave federal agencies wide latitude over the interpretation of an ambiguous statute. Both the CRA and the overturning of Chevron erode the power of the administrative state to make informed decisions based on years of expert research.
If Trump and his allies get their way over the next four years, we can expect to see more of this erosion, whether through the CRA or the defunding of federal agencies. The grifters will step in for the experts.
