The Application of the Congressional Review Act to Recent Trump Administration Rulemakings
Congress can fast-track reversal of rulemakings from the Trump Administration under the Congressional Review Act. However, only certain rules are eligible for this process, and Congress has a narrow window to use it. Moreover, the Congressional Review Act includes a prohibition on the promulgation of rules that are substantially similar to those that are overturned through the Congressional Review Act process. Therefore, whether to deploy the Congressional Review Act in any individual case calls for careful consideration.
Created in partnership with the Congressional Progressive Caucus Center (full report .pdf)
History of the CRA
The Congressional Review Act (CRA) was enacted in 1996 as a component of the Small Business Regulatory Enforcement Fairness Act. Under the CRA, agencies are required to submit to Congress and the Government Accountability Office (GAO) notice of a finalized rule. Once notified, Congress has the option of passing a joint resolution of disapproval (JROD) to overturn the rule. If the JROD passes both chambers of Congress and is signed into law by the President, the rule is immediately overturned and has no effect both proactively and retroactively. Importantly, the JROD need only pass by a simple majority in both chambers.
Since its enactment, the CRA has been used by Congress to overturn 17 rules total: one in 2001 (107th Congress) and 16 in 2017 (115th Congress). In the 107th Congress (under Republican control and with President George W. Bush in office), the CRA was used to reverse a Clinton Administration rule issued by the Occupational Safety and Health Administration (OSHA) to implement ergonomic standards to reduce workplace injuries.
In 2017, President Trump and the Republican Congress overturned 16 rules issued by the Obama Administration, including rules regarding labor protections, ensuring internet users’ privacy is protected from marketing companies, safe drinking water regulations, and oil and natural gas production leak abatement, among others
For the purposes of overturning Trump Administration rules, Congress has a limited period to pass and enact joint resolutions under the CRA. If a rule was submitted to Congress or published in the Federal Register within 60 legislative days before the 116th Congress adjourned sine die (at the beginning of January 2021), then the 117th Congress now has an opportunity to review those rules.
Under the CRA, rules submitted to the 116th Congress on or after 60 legislative days prior to adjournment will be eligible for Congressional action in the new Congress. This is also known as the “lookback period.” In the first months of the 117th Congress, rules that were sent to Congress or published in the Federal Register on or after August 21, 2020 will be eligible for consideration under the CRA. Resolutions overturning CRAs in the lookback period can be filed starting on the 15th legislative day of the new Congress and up to 60 calendar days thereafter. Congress will then have 60 legislative days to act on a JROD once it is filed.
The CRA provides Congress with special procedures to consider JRODs to overturn a rule eligible for consideration. Any sitting member is able to introduce a JROD, yet the CRA dictates that the legislative text must adhere to the following language: “That Congress disapproves the rule submitted by the [agency] relating to [name of the rule], and such rule shall have no force or effect.”
While the House considers a JROD similar to other legislation, the CRA permits “fast track” procedures in the Senate. If the JROD is acted upon within the 60 legislative day period of review in the Senate, then it cannot be filibustered. A JROD must be reported from the relevant Senate committee if at least 30 Senators sign a discharge petition 20 calendar days after a rule has been submitted. After the JROD has been reported by committee, any Senator can make a non-debatable motion to proceed to consider the JROD on the Senate floor with a vote occurring after 10 hours of debate. All votes taken under CRA procedures only require a simple majority.
Once passed by both chambers of Congress, the JROD is signed or vetoed by the President. Given that a President is unlikely to veto his own Administration’s rules, the CRA usually comes into play only when at the beginning of a new Administration when both chambers of Congress are also controlled by the President’s party (e.g. 2001 and 2017).
Disadvantages of Using the CRA
Policy experts have been critical of the CRA, and many have argued that the law should be repealed altogether. If a rule is successfully overturned using the CRA, the statute also prevents the agency from reissuing a rule in “substantially the same form.” In effect, once a rule is repealed using the CRA, the agency cannot issue similar rules in perpetuity. For example, since the OSHA standard on ergonomics was overturned using the CRA, OSHA has not issued a similar rule for ergonomic worker safety standards. Therefore, some scholars argue that it is better to use the rulemaking process to overturn rules rather than using the CRA.
Section 830 of the CRA also prohibits judicial review: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” This means that courts generally are unable to take up cases that are based on the interpretation or enforcement of the CRA, though there is some debate to the scope of the Section 830 language.
Lack of judicial review has implications for determining which rules are considered substantially the same. Because courts are unable to make rulings on matters under the purview of the CRA, the authority to conclude what constitutes a substantially similar rule may fall to Congress and federal agencies. In effect, deeming rules substantially the same may be left to discretion of the party in power.
Trump Administration Rules Subject to CRA
The Trump administration issued a significant number of rules toward the end of its term that are now subject to the CRA. Under the “lookback” rule, any rule issued by the executive branch on or after August 21, 2020, is eligible to be overturned using the CRA. List of rules issued by the Trump administration that could be subject to the CRA under the lookback period.
Glossary of Agency Acronyms
CFPB – Consumer Financial Protection Bureau
CFTC – Commodity Futures Trading Commission
DHS – Department of Homeland Security
DOE – Department of Energy
DOI – Department of the Interior
DOJ – Department of Justice
DOL – Department of Labor
DOT – Department of Transportation
ED – Department of Education
EPA – Environmental Protection Agency
FWS – Fish and Wildlife Service
HHS – Department of Health and Human Services
HUD – Department of Housing and Urban Development
NOAA – National Oceanic and Atmospheric Administration
OCC – Office of the Comptroller of the Currency
OIG – Office of Inspector General
OSHA – Occupational Safety and Health Administration
SEC – Securities and Exchange Commission
SSA – Social Security Administration
USAGM – United States Agency for Global Media
USAID – United States Agency for International Development
USDA – Department of Agriculture
VA – Department of Veterans Affairs