In the two decades after President Bill Clinton signed a law making it easier for lawmakers to repeal federal agency rules, the Congressional Review Act was used successfully just once.
But since the start of the first Trump administration, Republicans have not only been using the CRA a lot more, they’ve also been expanding its reach in unprecedented ways, with deep impacts on how Congress operates and how it oversees the bureaucracy.
Democrats and progressive advocacy groups have warned about the far-reaching consequences of using the law against almost any administration action, but critics seem to be powerless to curb the GOP’s ambition.
Senate Majority Leader John Thune (R-S.D.), celebrating last year’s accomplishments, said lawmakers moved to “repeal rules, regulations, and mandates that were creeping into seemingly every facet of Americans’ lives.”
One prominent Democrat has a starkly different take. “Republicans don’t want our agencies to work,” said Massachusetts Sen. Elizabeth Warren.
To date, President Donald Trump has signed more CRA resolutions of disapproval than any other president — 16 during his first term and 22 last year. In contrast, former President Joe Biden only signed three and former President Barack Obama none.
House Majority Leader Steve Scalise (R-La.) used a December public letter to highlight Trump “setting the record for most CRAs signed into law by any Congress.”
It’s not only the number of CRA resolutions Republicans are passing that’s unprecedented but the type of administration actions being targeted and when.
Broadly, the CRA gives lawmakers and the president power to scrap a rule by simple majority within 60 legislative days. In other words, rules released during the final weeks of a president’s tenure would be in most jeopardy if the opposing party takes control of Washington.
But Republicans have been deploying the CRA against administration decisions that have not been traditionally considered rules or submitted to Congress as such. In fact, the Trump administration has been packaging and submitting Biden-era actions as rules specifically so they can be overturned.
In December, Trump signed four resolutions of disapproval against resource management plans affecting Alaska, North Dakota, Montana and Wyoming. Critics say the plans were too restrictive against mining and drilling. A fifth resolution scrapped drilling limits in parts of the Arctic National Wildlife Refuge.
Now the Republican-controlled Congress is in the process of undoing a Biden-era ban on new mining near the Boundary Waters Canoe Area Wilderness — more than a million acres of forests, lakes and streams along the border with Canada.
In all these cases, Democrats have argued the CRA is the wrong tool for Congress to use, in part because the law prohibits agencies from issuing a similar rule or action in the future.
“This Congress and the Trump administration and Republicans in both chambers have been using the CRA to overturn public lands protections that have never been considered rules in the past,” said Natural Resources ranking member Jared Huffman (D-Calif.) on the Boundary Waters measure.
“In an entirely unprecedented move, they’re moving forward even though the Governmental Accountability Office has not yet ruled on whether they believe this public land order … would be subject to the CRA,” he added.
Firing back, Rep. Pete Stauber (R-Minn.), sponsor of the pro-mining resolution, echoed other Republicans in saying a GAO ruling isn’t necessary to determine what can be repealed under the CRA.
“They didn’t do it the proper way. They didn’t send it to the House and Senate,” Stauber said about the Biden-era mining limits in his state.
‘Genie is out of the bottle’
The biggest CRA fight so far came after Republicans moved to scrap Biden-era EPA waivers for California vehicle emissions standards, which they called a “radical EV mandate.”
The GOP acted even though the GAO and the Senate parliamentarian said the waivers were not rules under the CRA.
Democrats accused Republicans of threatening the Senate filibuster, which has for decades effectively required 60 votes to advance bills in the upper chamber. Improper use of the CRA to make policy by simple majority would amount to going “nuclear,” Democrats contended.
“We have just opened an entirely new avenue for mischief,” said Senate Environment and Public Works ranking member Sheldon Whitehouse (D-R.I.).
“We just opened the gate so that every executive action ever taken can now be considered a rule, no matter, whether it is or not, for the purposes of the Congressional Review Act.”
Asked about the repercussions of an expansive interpretation of the CRA, Environment and Public Works Chair Shelley Moore Capito (R-W.Va.) said she wasn’t too worried about creating a dangerous precedent for future misuse.
“We looked at every angle of it. I mean, I think there could be instances in the future where these circumstances exist, but I think it would be very, very rare,” Capito said.
California is suing the administration for EPA’s decision to submit the waivers to Congress as rule. It appears unlikely the courts will reinstate the waivers.
James Goodwin, who follows regulations policy at the Center for Progressive Reform, expects lawmakers to keep expanding the CRA’s reach.
“This CRA loophole is just going to go bigger and bigger and bigger until it functionally becomes lawmaking,” Goodwin said. “In all practical matters, as long as you are creative, you can basically nullify the filibuster.”
He said, “The genie is out of the bottle.”
Conservative activists have been plotting the expanded use of the CRA for years, but many observers never imagined it would go so far.
Joe Luppino-Esposito, federal policy director for the right-leaning Pacific Legal Foundation, said the organization has been lobbying on this topic since 2017.
Instead of threatening the filibuster, he sees expanded use of the CRA as a way to keep agencies accountable to lawmakers on a range of actions.
“These things should be submitted to Congress,” Luppino-Esposito said. “From the PLF perspective, it’s our MO. The executive can’t be overreaching. This is obviously a very robust way of looking at it, but I think it’s the only way of ensuring the only democratically elected people are held accountable to these changes.”
Outlook
Republicans signaled their intentions for a second Trump administration by introducing a barrage of CRAs when Biden was still president.
They succeeded in getting some resolutions of disapproval to his desk with help from moderate Democrats or those wary of the Biden agenda ahead of tough elections. The former president vetoed them all, including concerning water and endangered species rulemaking.
Twenty-five years ago, former President George W. Bush signed the first successful CRA resolution of disapproval against a Clinton ergonomics rule for workers. It took 16 years for a president — Trump — to sign another one.
And if congressional Republicans and the administration have their way, he will sign many more. But the upcoming midterms could change the dynamic.
Rep. Kevin Hern (R-Okla.), chair of the House Republican Policy Committee, said last month, “We’re going to unleash the American economy, and if it takes CRAs to do it, we’re going to do it.”
But Hern added that the midterms could limit the number of CRAs they are able to bring to the floor. That’s because some Republicans in tight races may become wary of undoing Biden actions that may be popular in their home states.
“It seems like obviously every one will pass, but you want to look at the politics around them, as well,” he said. “There may be some that will pass that seems obvious to a very conservative person like myself that maybe cannot happen in an election year.”
Senate Environment and Public Works ranking member Sheldon Whitehouse (D-R.I.) and others have been trying to give Republicans a taste of their own medicine by making them vote on resolutions against Trump rules. They have yet to succeed in passing one.
But if Democrats win one or both chambers this November, they may force Trump to veto resolutions of disapproval just like Republicans did to Biden.
