Why the Congressional Review Act May Play a Major Role in Early Weeks of the Trump Administration

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The CRA, 5 U.S.C. § §801-808, is essentially a legislative veto of agency action. Pursuant to the CRA, if both chambers pass a joint resolution disapproving an agency rule or other covered action, the resolution is sent to the president for signature. If the president signs the disapproval resolution, the rule no longer has effect and is treated as though it were never in place. Additionally, the issuing agency is prohibited from issuing a rule that is "substantially the same" as the voided rule.

Since Republicans will hold the majority in both chambers of Congress in 2025, Congress can substantially assist the new Administration with its deregulatory agenda through CRA procedures to undo agency actions taken by the Biden Administration.

What Types of Agency Actions Are Covered by the CRA?

The CRA's definition of "rule" includes both substantive rules and guidance. The US Government Accountability Office (GAO), which issues legal opinions regarding the applicability of the CRA, has concluded that although the CRA only applies to final rules, nonbinding guidance documents, including general policy statements, can qualify as rules subject to the CRA.[1] In other words, agency interpretive rules, policy statements, and guidance documents that are not subject to notice-and-comment rulemaking procedures may be considered rules under the CRA and could be overturned using the CRA's procedures.

Three categories of agency action are expressly beyond the reach of the CRA:

• Any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing.
• Any rule relating to agency management or personnel.
• Any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

How Does the CRA Process Work?

When issuing a new rule, agencies are required by the CRA to submit to both houses of Congress and to the GAO a copy of the rule, a summary of the rule, whether the rule qualifies as a "major" rule, and the rule's proposed effective date.[2] The rule may not take effect before its submission to Congress.

During the 60 calendar days after a rule has been submitted (excluding days either house of Congress is adjourned for more than three consecutive days), any US House or US Senate member may introduce a joint resolution that simply states, "That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect." As is apparent from the prescribed language, the joint resolution applies to the entire rule. After introduction, the joint resolution is referred to the appropriate committee of jurisdiction.

The CRA includes procedures for expedited consideration by the Senate, but only during the initial sixty-day period following the rule's submission to Congress or its publication in the Federal Register, whichever is later. Under these procedures, if the committee to which the joint resolution was referred has not reported on the joint resolution within 20 calendar days from the date of submission or publication, the committee may be discharged from further consideration of the resolution upon submission of a written petition joined by 30 senators. The joint resolution is then placed on the floor calendar. At this time, any senator may move to proceed to consider the joint resolution. The motion to proceed is nondebatable, all points of order are waived, and no amendments, postponements, or motions to recommit are allowed. If a simple majority votes to proceed, there can be up to 10 hours of debate, subject to a nondebatable motion to further limit debate, but no amendments, motions to postpone, or motions to proceed to other business may be offered. A simple majority is required to pass the disapproval resolution, and judicial review of any "determination, finding, action, or omission" under the CRA is prohibited.[3]

Which Actions by the Current Administration Could Be Disapproved Under the CRA?

As noted above, Congress generally has 60 calendar days to review a new rule, beginning on the date the rule is published in the Federal Register or is submitted to Congress, whichever is later, but the statute also specifically allows an incoming Congress to review the last 60 days of rules issued during the previous Congress.[4] The lookback period counts "session" or "legislative" days, not calendar days, and the parliamentarian of each chamber determines when that period begins, once the Congress has adjourned sine die (effectively ending the legislative session). The Congressional Research Service currently estimates that the lookback period will enable review of covered agency actions taken on or after August 1. For purposes of the CRA, all of those actions would be deemed to have been taken on the 15th session or legislative day of the new session of Congress. In other words, using the August 1 start date and the schedules released by Speaker Mike Johnson and incoming Senate Majority Leader John Thune, members of the 119th Congress, which will begin work on January 3, 2025, will have 60 calendar days (excluding days either chamber adjourns for more than three days) from January 24 in the Senate and from February 5 in the House to introduce resolutions of disapproval for covered agency actions that took place on or after August 1.

In order to use the CRA with regard to agency actions taken on or after August 1 that were never submitted to Congress, members of Congress can request a legal opinion from the GAO addressing whether the specific action in question is covered by the CRA's definition of "rule" and therefore should have been submitted for congressional review. If the GAO determines that an agency action should have been submitted under the CRA, the member submits that opinion for publication in the Congressional Record, and the publication date serves as the starting date for the CRA's timelines.

According to one tally, 874 rules were issued between August 1 and November 19, but the Biden Administration certainly will have promulgated many more before it turns over the reins of government on January 20. The number of rules must be increased by the universe of guidance, policy statements, and the like that could be reviewed under the CRA.

Prior to 2017, the CRA had been used only once to overturn a rule. In January 2017, when President Trump was inaugurated, the Republican-controlled Congress invoked the CRA to negate more than a dozen agency rules finalized under President Obama, including the US Department of the Interior's Stream Protection Rule, the Bureau of Land Management's Resource Management Planning Rule, and a US Fish and Wildlife Service rule related to closure procedures on national wildlife refuges in Alaska. In 2021, when President Biden was inaugurated, the CRA process was invoked to repeal three rules, including a US Environmental Protection Agency rule related to emission standards for new, reconstructed, and modified sources.

We expect that the President-elect's team has been preparing comprehensive lists of rules and other agency actions that the incoming Administration intends to reverse, and that the list is not limited to rules that qualify as "major" or "significant." The CRA is one of several methods the incoming Administration may use to undo Biden Administration agency actions. If you or your company is interested in further information about the potential reversal of a particular agency rule, guidance, or other action, please reach out to members of the firm's Government Relations, Agricultural Technology, or Environmental teams.

• Cissy Jackson

  Counsel
• J. Michael Showalter

  Partner
• Mattie Bowden

  Associate
• Rebecca W. Foreman

  Associate
• Karen Ellis Carr

  Partner and FDA Practice Leader