Congressional Review Act During the 2024 Election
This week, the Biden administration faced pressure to finalize several rules in time to avoid the Congressional Review Act (CRA) deadline that would allow lawmakers to overturn them. Here is an overview of several proposed rules, as well as an explanation of the Congressional Review Act.
Some of the rules in question include setting minimum staffing levels at nursing homes, expanding anti-discrimination laws, protecting abortion data, and banning menthol cigarettes. Others include the Environmental Protection Agency's (EPA) standards for power plants' greenhouse gas emissions, the Bureau of Land Management's proposal to update oil and gas royalties, and the Energy Department's energy efficiency regulations for water heaters and distribution transformers. In the event that Donald Trump beats President Joe Biden in November, these rules would likely be some of the first for a Republican Congress to target.
The CRA allows lawmakers to easily undo rules adopted 60 days before the end of a congressional session (the "look-back" window), which will likely be summer. However, it is unclear since we do not know when exactly Congress plans to adjourn for the year. According to an analysis by E&E News, the estimated deadline is May 22nd, based on the House calendar. However, based on the Senate calendar, the estimate is June 7th. Others commented that agencies will likely have until late June to finalize rules. Regardless, deadlines are fast approaching, and agencies are feeling the pressure. In order to avoid this massive amount of rule turnover during the next administration, Biden must sign any bills that would overturn rules under the CRA so that no matter what happens with the Congressional elections in November, it is highly likely that President Biden's regulations would be secure.
The CRA has been used 20 times over the years, including when Donald Trump took office in 2017. The Trump White House, along with a Republican House and Senate overturned 16 of President Obama's rules, including HHS regulations around family planning grants. The Biden administration and a Democratic Congress overturned three of the Trump administration's rules in 2021, including a rollback of methane emissions standards.
What is the CRA?
The Congressional Review Act (CRA) is a tool Congress can use to overturn certain federal agency rules. The CRA was first enacted as part of the Small Business Regulatory Enforcement Fairness Act in 1996 and requires agencies to report new rules to Congress, along with special procedures and reports in the form of a joint resolution of disapproval. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the President, or if Congress successfully overrides a presidential veto, the rule at issue cannot go into effect or continue in effect.
What is a Rule Under the CRA?
The Administrative Procedure Act (APA) defines a rule as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." The Congressional Review Act applies to all final rules, including major rules, nonmajor rules, and interim final rules. For as broad a spectrum as the CRA covers, it has only been used to overturn a total of 20 rules. This occurred during the 107th Congress (2001-2002), 16 in the 115th Congress (2017-2018), and three in the 117th Congress (2021-2022).
Current Movement on Proposed Rules
As many agencies operate under a potential May deadline, many regulations have come out. On Wednesday, April 3rd, the EPA's tailpipe emissions limits for cars were launched, which follows the agency announcing new rules for dangerous chemicals that came out last week. The Securities and Exchange Commission (SEC) also finalized its rule requiring companies to disclose new climate change-related information. It is likely that several other rules will come out before May 22nd and likely into the look-back window as well.