Michael Brochstein/Sipa USA via AP Images
Senate Majority Leader John Thune (R-SD) speaking at a press conference at the Capitol last week
The Congressional Review Act (CRA) is a sort of legislative loophole that gives Congress the power to nullify recent federal regulations by a majority vote. Because CRA resolutions avoid the legislative filibuster, it’s one of the few types of congressional actions that can regularly pass in this polarized era. Of the four pieces of legislation Donald Trump has signed into law this year, two have been CRA resolutions, and another six, including two involving Consumer Financial Protection Bureau regulations, are on the verge of passage.
Perhaps for this reason, Republicans are looking to expand the types of agency actions they can put up for CRA review, a move that would massively expand the scope of the law. But if Republicans follow through with this, it could actually backfire, handing Democrats leverage and allowing liberals to use the law for their own policy goals whenever they get back into power.
The CRA was passed in 1996 to empower congressional oversight of federal rulemaking, and is currently being used by Republicans to overturn Biden-era rules on the environment, banking, and more. Once a federal regulation is overturned by a CRA resolution of disapproval and receives the president’s signature, it is gone for good: The rule becomes null and void, and the government is prohibited from publishing any “substantially similar” rule in the future. What’s more, the CRA bars judicial review, giving Congress the final word in a rule’s overturning.
It’s really only a factor during a change in presidential administrations, when the new president can nullify a previous president’s rules. Donald Trump signed 16 CRA resolutions in his first term, and has already signed two in this one, with more to come.
Republicans’ latest efforts are chipping away at the law’s few restraints. When they drafted the CRA, its authors clearly specified that resolutions of disapproval can only be brought against federal “rules,” as defined by the Administrative Procedure Act. That means that the law cannot be leveraged against “adjudications,” regulations that typically pertain to just one set of facts and one identifiable entity.
This should be seen as a benefit of the law—rules are much broader than adjudications and apply across the board. But now, Republicans are trying to use the CRA to bring down an adjudication, opening a Pandora’s box that could lead to all constraints on the CRA evaporating.
Republicans are looking to expand the types of agency actions they can put up for CRA review, a move that would massively expand the scope of the law.
On February 14, Environmental Protection Agency (EPA) administrator Lee Zeldin asked Congress to review waivers issued by Biden’s EPA, suggesting to congressional Republicans that they should be the subject of a CRA resolution of disapproval. The waivers allow California to set its own pollution standards for certain vehicles under the Clean Air Act (CAA) without being preempted by the EPA’s national standards.
While the automotive industry has mostly conformed to California’s pollution standards without complaint, oil and gas companies are keen to repeal the waiver, which would make cars more fuel-efficient and less reliant on their products. Republicans, in lockstep with the oil and gas industry, argued that the waiver is a rule rather than a law, since auto companies largely adjust their pollution standards to California’s standards across the board. They argue that California’s standards have an implicitly nationwide effect, which would make the waiver look more like a broad rule than a narrow adjudication.
To settle the rule-vs.-adjudication debate, the Government Accountability Office (GAO) stepped in and said that the waiver is not, in fact, a rule. But Republicans responded by seeking records from the GAO and criticizing it for offering its opinion.
“The auto industry is just like: ‘Give us a set of damn standards, we will meet them.’ But it’s the oil and gas industry that has the most to lose. Because that’s ultimately what this [waiver] is about: using less gas, less petroleum to power cars,” said James Goodwin of the Center for Progressive Reform. “That is who has the most to lose from it, particularly as electric vehicles ramp up.”
If Republicans move forward with this resolution of disapproval, Goodwin explained, it could eventually blow up in their faces. If the waivers are successfully repealed, both parties might look to the CRA as a tool to attack other non-rule orders.
In a letter urging congressional leadership not to abuse the CRA in this way, 80 advocacy groups including the AFL-CIO and the Coalition for Sensible Safeguards wrote that this could open the door to resolutions of disapproval against “energy infrastructure permit approvals, approvals of corporate mergers, or approvals of particular drugs … This means open season on the commonsense safeguards that keep us safe and healthy.”
The advocacy groups’ warning is not frivolous. “A lot of things Democrats don’t like are adjudications,” explained Goodwin. “Certain approvals for pipelines, for example, would now be eligible. Under federal law, agencies can grant states waivers from Medicaid requirements to let states do different things that basically make it harder for poor people to access Medicaid. These waivers are now fair game.”
Democrats could also use this abuse of the CRA as a reason to get rid of the filibuster. If Republicans pass the resolution of disapproval, a piece of legislation that doesn’t meet the requirements of the CRA, and also don’t abide by the filibuster, Democrats could “treat that as tantamount to blowing up the filibuster,” said Goodwin.
Democrats will likely be under a lot of pressure the next time they have a governing majority to end the minority veto on legislation. A charge that Republicans degraded the filibuster first sounds merely rhetorical, but it’s the kind of thing cautious Democrats often need to make a bold change from institutional tradition.
“Republicans may regret setting this precedent for expanding the CRA,” he added.
At the end of the day, despite that leverage that Democrats could take advantage of—if they have enough courage to do so—moving forward with this resolution of disapproval would be a dangerous overreach. If Republicans choose not to abide by the CRA’s definition of a rule, there’s nothing stopping them from also sidestepping the law’s 60-day time limit or its one-rule-at-a-time provision.
That would give Congress even more power than the CRA already allows, putting all types of federal rulemaking at risk.
