In response to the unprecedented use of the Congressional Review Act (“CRA”) by the 115th Congress and the Trump Administration, the Center for Biological Diversity (“Center”), a nonprofit dedicated to wildlife conservation, filed a lawsuit in an Alaska federal court challenging the constitutionality of the Act.

The CRA is a statute that requires federal agencies to submit new regulations to Congress before those rules can take effect. As we have previously explained, the Act also, significantly, gives Congress the opportunity to pass a joint resolution of “disapproval,” which nullifies the entire regulation at issue, leaving the rule with “no force or effect.” The agency is also prohibited from later promulgating any rule that is “substantially the same” as the rejected rule.

The Center’s lawsuit concerns the Federal Wildlife Services “Refugees Rule,” 81 Fed. Reg. 52,247 (Aug. 5, 2016), which, according to the complaint, protects certain wildlife from “cruel and ecologically harmful predator control practices.” The Refugee Rule was promulgated by the Obama Administration, and, because it was issued within 60 legislative days of the end of the 114th Congress, is subject to CRA review by the 115th Congress.

The lawsuit attacks the CRA on two fronts. First, it broadly challenges the “substantially the same” prohibition, arguing that Congress violated the constitutional separation of powers between the Executive and Legislative Branches by revoking a properly promulgated rule without amending the underlying statute through the legislative process.  In other words, because Congress has delegated to the Department of the Interior the power to make certain regulations, Congress cannot, without amending the Department’s substantive authorities, alter or revoke an action taken by the Executive Branch.

Second, the lawsuit argues that Congress lacks the power to revoke the Refugee Rule because the Rule falls under a specific exception, found in 5 U.S.C. § 808, to the CRA’s requirement that regulations be submitted to Congress before they take effect: rules that concern a “regulatory program for a commercial, recreational, or subsistence activity related to hunting” do not require submission to Congress, and may take effect “at such time as the agency . . . determines.” Thus, the Center argues, because no submission to Congress was required, the Rule was not subject to disapproval.

This argument that Congress cannot revoke rules subject to Section 808 would also apply to regulations “for which an agency for good cause finds . . . that notice public procedure are impracticable, unnecessary, or contrary to the public interest,” and thus do not require a submission to Congress under the CRA.

While it is too soon to determine whether this novel legal case has merit, a constitutional challenge to the CRA is significant. If federal courts determine that the “substantially the same” prohibition in the CRA is unconstitutional, many federal agencies would be free to reenact nullified rules in a similar fashion.  Such a ruling would also likely trigger litigation to determine the meaning of “substantially the same,” as well as a flurry of lobbying efforts to encourage (or discourage) agencies to re-promulgate rules similar to those overturned by Congress.

This is one of the first legal challenges to the CRA, since the statute, historically, has been rarely used: until the Trump Administration and the 115th Congress, only one rule had ever been nullified under the CRA.  This Congress and Administration have made frequent and significant use of the CRA to reverse Obama Administration rules:  56 disapproval resolutions, affecting 32 rules have been introduced in Congress, and 15 resolutions have passed in at least one chamber.  President Trump has already signed ten resolutions of disapproval into law.

While the 60-day window (“continuous session”) since January 30 to introduce new CRA resolutions has passed for this Congress, each chamber has an ongoing window from the date of introduction to act on the dozens of CRA resolutions still pending. Pending resolutions that have not passed both chambers include resolutions concerning:

  • the privacy rights of broadband customers
  • requirements for offshore drilling off the Alaska coast
  • the EPA’s cross-state pollution rule and air quality initiatives
  • endangered and threatened species policy
  • emissions standards for the oil and natural gas sector
  • IRS treatment of certain interests in corporations as stock or indebtedness
  • rules governing drug testing for unemployment compensation applicants

The ongoing use of the CRA to overturn these and other regulations will be of interest to companies that support or oppose these rules or other rules facing congressional scrutiny.

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Photo of Holly Fechner Holly Fechner

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of…

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of the Covington’s Technology Industry Group and a member of the Covington Political Action Committee board of directors.

Holly works with clients to:

  • Develop compelling public policy strategies
  • Research law and draft legislation and policy
  • Draft testimony, comments, fact sheets, letters and other documents
  • Advocate before Congress and the Executive Branch
  • Form and manage coalitions
  • Develop communications strategies

She is the Executive Director of Invent Together and a visiting lecturer at the Harvard Kennedy School of Government. She serves on the board of directors of the American Constitution Society.

Holly served as Policy Director for Senator Edward M. Kennedy (D-MA) and Chief Labor and Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee.

She received The American Lawyer, “Dealmaker of the Year” award. in 2019. The Hill named her a “Top Lobbyist” from 2013 to the present, and she has been ranked by Chambers USA – America’s Leading Business Lawyers from 2012 to the present.

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Matthew Shapanka

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes…

Matthew Shapanka draws on more than 15 years of experience – including on Capitol Hill, at Covington, and in state government – to advise and counsel clients across a range of industries on significant legislative, regulatory, and enforcement matters. He develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies, many with significant legal and political opportunities and risks.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters within the Committee’s jurisdiction, including federal election law and campaign finance, and oversight of the Federal Election Commission, legislative branch agencies, security and maintenance of the U.S. Capitol Complex, and Senate rules and regulations.

Most significantly, Matt led the Rules Committee staff work on the Electoral Count Reform and Presidential Transition Improvement Act – landmark bipartisan legislation to update the antiquated process of certifying and counting electoral votes in presidential elections that President Biden signed into law in 2022.

As Chief Counsel, Matt was a lead attorney on the joint bipartisan investigation (with the Homeland Security and Governmental Affairs Committee) into the security planning and response to the January 6, 2021 attack on the Capitol. In that role, he oversaw the collection review of documents, led interviews and depositions of key government officials, advised the Chairwoman and Committee members on two high-profile joint hearings, and drafted substantial portions of the Committees’ staff report on the attack. He also led oversight of the Capitol Police, Architect of the Capitol, Senate Sergeant at Arms, and executive branch agencies involved in implementing the Committees’ recommendations, including additional legislation and hearings.

Both in Congress and at the firm, Matt has prepared many corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at legislative, oversight, or nomination hearings before congressional committees, as well as witnesses appearing at congressional depositions and transcribed interviews. He is also an experienced legislative drafter who has composed dozens of bills introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, as well as the election and political laws of states and municipalities across the country.

Before law school, Matt worked as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on all aspects of state-level policy, communications, and compliance for federal stimulus funding awarded to Massachusetts under the American Recovery & Reinvestment Act of 2009. He has also worked for federal, state, and local political candidates in Massachusetts and New Hampshire.

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