The nullification of recent Trump Administration regulations is yet another item on the busy agenda for congressional Democrats in the 117th Congress.  With Democrats holding both the presidency and narrow majorities in both chambers of Congress, some Democrats have advocated using the Congressional Review Act (CRA) to repeal Trump-era rules finalized after August 21, 2020, some of which could include:

  • A Department of Transportation rule raising the reporting threshold for gas pipeline property damage reports.
  • An Environmental Protection Agency (EPA) rule requiring the agency to rely more heavily on publicly available data.
  • An EPA Clean Air Act rule requiring the agency to focus only on the direct, rather than indirect, benefits of a given rule when conducting a cost-benefit analysis.
  • A Department of Justice rule changing evidentiary standards and shortening deadlines for asylum applications.
  • A Department of Housing and Urban Development rule raising the threshold required to prove a disparate impact claim under the Fair Housing Act.
  • A Securities and Exchange Commission rule amending procedural requirements for a shareholder to submit proposals at annual shareholder meetings.

The CRA creates expedited procedures that allow Congress to revoke certain agency rules by joint resolution.  A rule nullified under the CRA is treated “as though such rule had never taken effect,” and the agency is barred from reissuing a rule that is “substantially the same,” unless authorized by future law.  Because the president must sign a joint resolution of disapproval under the CRA, the statute is ordinarily only invoked when one party wins unified control of Congress and the White House from the opposing party.

Under the CRA, all executive branch agencies, as well as independent agencies and commissions, must submit a report to Congress before any new rules may take effect.  Once a rule is submitted, Congress generally has 60 legislative days in the House, or 60 session days in the Senate, to introduce and pass a joint resolution disapproving of the rule before it takes effect.

This 60-day period counts every calendar day, including weekends and holidays, but excludes days that either (or both) chamber is out of session for more than three days pursuant to an adjournment resolution.  Importantly, however, the CRA provides for a “lookback” period, which resets the 60-day deadline for rules submitted to Congress within 60 days of adjournment.  While the Senate and House Parliamentarians officially determine whether a rule is subject to disapproval under the CRA, we expect that any rules submitted after August 21, 2020 will likely fall within the lookback period and thus be subject to CRA disapproval in the new Congress.

One major advantage to using the CRA to revoke an undesirable regulation is the expedited procedures that it provides, particularly in the Senate.  Notably, Senate consideration of a joint resolution of disapproval is debate limited and not subject to filibuster.  Additionally, if it has been more than 20 calendar days since Congress’ receipt of the final rule, and a joint resolution has not been reported out of the appropriate jurisdictional committee, a group of 30 Senators can file a petition to force a floor vote on the petition.

Prior to the Trump Administration, the CRA had been successfully used once to revoke the outgoing Clinton administration’s final ergonomics regulations; however, the 115th Congress (2017-2018) overturned a total of 16 Obama-era rules using the CRA.

While the CRA is not the only tool that Congress can use to shape agency action, it offers a powerful, streamlined mechanism to revoke recently enacted rules issued by the previous administration.