The Implications of the Latest Congressional Review Act Disapprovals
The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama Administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA’s period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, 2021, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.
This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is “substantially the same” as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA’s anti-circumvention clause means, the resulting uncertainty may have skewed the CRA’s use in interesting ways.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Johan Verheij Memorial Professor of Law, Director of the Coleman P. Burke Center for Environmental Law
Case Western Reserve University School of Law
Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers
Pacific Legal Foundation
Federalist Society’s Administrative Law & Regulation Practice Group