With the 119th Congress now assembled, Republicans control both the House and Senate, and will control the White House starting on January 20^th.  If history is any guide, this change in party control of the White House, plus unified control of Congress by the president’s party, will pave the way for Republicans to deploy the Congressional Review Act (CRA) to overturn a number of regulations issued by the Biden Administration.  When President Trump first took office in 2017, congressional Republicans used the CRA to overturn more than a dozen rules promulgated by the Obama Administration.   

The CRA mandates federal agencies to submit all final rules to Congress before the rule takes effect.  Then, Congress has 60 days to overturn a rule by enacting a joint resolution of disapproval that withdraws the rule and prohibits the agency from issuing a rule that is “substantially the same.”  However, if a rule is submitted to Congress within 60 days before adjournment, the CRA’s “lookback period” allows additional time—a new 60-day period—for the new Congress to review the rule and introduce a resolution of disapproval.  If a rule has already taken effect when a CRA resolution is signed into law, the rule “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f). 

Although the House and Senate parliamentarians make the official determination of whether a particular rule falls within the lookback period when a disapproval resolution is introduced, the Congressional Research Service estimates that rules submitted to Congress on or after August 1, 2024 are likely subject to possible nullification. The CRA allows members of Congress to introduce resolutions of disapproval starting on the 15^th day of the new session. Under the current congressional schedules, Senators may introduce CRA resolutions starting around January 23, 2025, and Representatives may introduce CRA resolutions starting around February 5, 2025.

Many federal agencies operated under an earlier deadline and thus prioritized finalizing and submitting high-priority rules this spring—including those “significant rules” defined in Executive Order 12866, as amended by Executive Order 14094, that are predicted to have an annual impact of $200 million or more on the economy.  Because these rules were submitted earlier, they will likely fall outside the CRS’s estimated CRA lookback window.  The George Washington University Regulatory Study Center estimates approximately 100 of these significant rules may fall into the CRA window, which is likely fewer than in prior changes in administrations, in part due to early agency action.  However, there are more than 1,000 rules that could ultimately be subject to disapproval under the CRA in the new Congress.    Continue Reading Biden Administration Rulemakings at Risk for Congressional Review Act Cancellation in New Congress