The Congressional Review Act is a little-known legislative mechanism that could come into extensive use for undoing Biden administration rules if Republicans win the November elections.
The law creates a special process for allowing quick votes to strike down regulations with simple majority votes in both chambers of Congress. Republicans are hoping to gain control of the presidency, Senate, and House of Representatives and use Congressional Review Act resolutions to cancel rules implemented by federal agencies under the Biden administration.
Here’s what to know about the CRA.
What is it?
The CRA was enacted as part of the Contract with America Advancement Act of 1996, which passed with overwhelming support and was signed into law by then-President Bill Clinton.
The CRA is a powerful deregulatory tool when used in the right context. It allows Congress to easily vote to cancel recent rules through a joint resolution of disapproval. In order to rescind the rule, the resolution needs a simple majority vote in both the House and the Senate and then needs to be signed by the president. The rule is then canceled and cannot be enforced.
Critically, CRA resolutions can be brought up for a vote on an expedited basis in the Senate by any member. Generally, legislation requires 60 votes in the Senate to advance, because of the filibuster, which allows a minority of 40 or more to hold up bills. CRA resolutions, though, bypass the filibuster.
If the president vetoes the resolution, Congress can still roll back the rule if two-thirds of lawmakers vote to override the veto.
One limitation of the CRA, though, is that a lawmaker has to file the resolution within 60 working days of the rule being reported. That means that Congress can cancel only relatively recent rules.
The 60 days end up being a much longer time period than just two months, though, because it only counts days that lawmakers are in session and not when the House or Senate is in recess, in district work periods, or off for federal holidays.
Accordingly, using the CRA as a tool is typically only successful after a change of presidents. That is because rulemaking comes from executive branch agencies, which are directed by the president, so the president is likely to veto CRA resolutions undoing any major rules implemented by his administration. Finding bipartisan opposition to overturn that veto would be a very heavy lift.
But a new president from the opposing party has the opportunity to churn out CRA resolutions and efficiently reverse as many rules as he can get the votes for — which could be a lot, if the House and Senate are controlled by the same party.
“The stars need to align in terms of the election outcome,” Alex Conant, a GOP strategist and a partner at Firehouse Strategies, told the Washington Examiner. “It has to be a scenario where you have a significant majority taking power and looking to overturn the previous administration.”
So rulemaking at the tail end of the president’s term, the last six months or so, is tricky because, depending on who wins the election, those rules might be quickly reversed.
When has it recently been used?
When Trump entered office in 2017, he and Republicans used the power of the Congressional Review Act to reverse more than a dozen regulations promulgated during the waning months of the Obama administration.
Biden, who was elected alongside a Democratic-controlled House and Senate, also used the CRA to overturn three Trump-era rules after he was sworn into office in 2021.
Since then, there hasn’t been a successful rollback of a rule using the Congressional Review Act’s power. Republicans, with help from some centrist Senate Democrats, have passed some successful resolutions of disapproval, but all of them have been vetoed by Biden.
In fact, Biden’s first veto of his presidency was a CRA resolution that would have overturned a Labor Department rule that allows retirement plan managers to weigh environmental and social matters when making investments.
In that case, the Senate voted 50-46 to rescind the Labor Department rule, with backing from centrist Sens. Joe Manchin (D-WV) and Jon Tester (D-MT). The House voted 216-204 to pass the rollback, with Jared Golden (D-ME) as the sole Democratic defector in the lower chamber.
Since then, Congress has passed other resolutions that would have undone Biden administration rules. Because they faced vetoes, they mostly served as messaging efforts. They did succeed, though, in forcing members of the Senate to go on record voting in favor of or in opposition to the rules.
The coming election
The coming election will afford Republicans an opportunity to reverse some of Biden’s policies immediately. The GOP will need to win the presidency and majorities in both chambers.
The Biden administration is working hard to push through as many rules as possible to stop Trump from undoing them through the CRA. Team Biden is trying to get a litany of rules finalized before the end of the month, because, after that, the regulations might be subject to CRA cancellation.
Before the CRA gained popularity over the past decade, Conant said, presidential administrations used to rush out rulemakings right before the transfer of power. But that leaves them vulnerable to having their rulemaking overturned in the early days of a new administration.
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Even if Biden is able to finalize a lot of rules before that critical deadline when the 60-day look-back period begins, Trump and Republicans would still work hard to undo them. It would just be more difficult, requiring lengthy rulemaking efforts or the passage of legislation.
“I think the longer the regulations are on the books, the harder they are to get rid of,” Conant said.
