Republicans work to expand Congressional Review Act’s scope

By Kelsey Brugger | 06/28/2024 06:30 AM EDT

Many lawmakers want to use the law to kill administration actions beyond formal rulemaking.

Sen. Ted Cruz speaks and holds out a paper at a desk.

Sen. Ted Cruz (R-Texas) is among the lawmakers taking an expansive view of the Congressional Review Act. Francis Chung/POLITICO

Lawmakers are increasingly testing the customary bounds of a law that allows Congress to undo administration regulations.

Once rarely used, the Congressional Review Act has become a favored tool by Republicans to attack President Joe Biden’s agenda.

And administration critics are not only filing CRA resolutions against countless administration rules. They’re also going after actions like transportation grants


“The Congressional Review Act is an incredibly important tool for reining in abuses from the regulatory state,” Sen. Ted Cruz (R-Texas), ranking member of the Commerce, Science and Transportation Committee, said during an interview.

Last fall, Cruz asked the Government Accountability Office whether lawmakers could use the CRA to kill a $5.5 billion transportation funding notice because of provisions related to climate change and historically disadvantaged communities.

The government watchdog gave the go-ahead, and Cruz’s office issued a press release urging senators to join him in blocking the Biden effort to “tie up federal funding with radical environmental and racial equity requirements.”

“President Biden and [Transportation] Secretary [Pete] Buttigieg should allocate grant funding by implementing the law as written instead of trying to direct taxpayer money to favored projects and constituencies,” Cruz said in October.

Cruz has not yet introduced the CRA resolution, but his inquiry is part of a trend of Republicans asking GAO to approve the law’s use to disapprove of all kinds of government actions — beyond what are traditionally considered “rules.”

Last month, Sen. Thom Tillis (R-N.C.) asked about a CHIPS and Science Act funding requirements not specified in law. (GAO’s answer: Yes.) A group of House Republicans asked about a 2023 canceled oil lease sale in the Arctic National Wildlife Refuge. (GAO’s answer: No.) And Sen. Roger Marshall (R-Kan.) asked about a Department of Agriculture sex discrimination memo. (Answer: Yes.)

The inquiries come as Republicans push a flurry of resolutions. According to a tally by a group called the Coalition for Sensible Safeguards, lawmakers have introduced at least 50 resolutions against Biden environmental actions in the past two years. In all, lawmakers have introduced more than 100 resolutions this Congress — nearly half of all the CRA resolutions ever filed.

While Democrats and environmental advocates call the resolutions a threat to public health and the fight against climate change, Republicans say their blitz is necessary because of the Democrats’ unforgiving regulatory agenda.

“We have to because these agencies are a mess,” said Rep. Byron Donalds (R-Fla.). “And they’re doing stupid things, and frankly the agencies are pushing through agendas that Congress never contemplated.”

Restarting the clock

Sen. Elizabeth Warren (D-Mass.).
Sen. Elizabeth Warren (D-Mass.) has complained about expanded use of the Congressional Review Act. | Jacquelyn Martin/AP

Biden has vetoed every CRA resolution that has made it to his desk, as moderate lawmakers like West Virginia independent Joe Manchin helped Republicans get enough votes on Capitol Hill. Measures have targeted Endangered Species Act designations, transportation emissions mandates and Clean Water Act rulemaking.

Agencies have been working to release rules before they become vulnerable to being scrapped in the event of a second Trump presidency. During the first, Republicans killed 16 rules from the Obama administration.

But even though lawmakers have 60 legislative days to oppose a rule by simple majorities, a GAO determination that an old government action amounts to a rule restarts the clock.

“I think it’s GAO that’s overreaching here in response to Republican political pressure,” said Sen. Elizabeth Warren (D-Mass.).

She specifically took exception to GAO determining a years-old government action could be considered a “rule” subject to the CRA. Warren separately complained last month about the Senate voting on a 2022 bulletin that “doesn’t even have the force of law.”

“The CRA has a time limit for a reason — so that settled law is settled law, something that everyone can count on,” she said on the Senate floor.

“And the CRA is limited to agency rules so that a single member of Congress can’t tie up agencies and Congress with expedited procedures raking over the details of every agency action.”

Warren said: “We should not be holding this vote.”

Shirley Jones, managing associate general counsel at GAO, said the agency had noticed an uptick in requests for CRA determinations. Of the 58 decisions the agency has issued in the last three decades, 34 were in the last five years, she said.

“GAO does not issue any CRA decisions on its own initiative and also accepts all requests received with very limited exceptions as set out in GAO’s Protocols for Legal Decisions and Opinions,” Jones said in a statement.

‘Fishing expedition’?

Democrats have similarly submitted inquiries, including on a Trump administration health care guidance, but they’ve done so less often.

“There’s zero cost for going on these fishing expeditions,” said James Goodwin, a senior policy analyst at the Center for Progressive Reform.

Matthew Davis, vice president of federal policy at the League of Conservation Voters, said “extreme MAGA Republicans” are “desperately grasping at straws” to benefit “Big Polluter donors to strip away protections for workers, families, communities and our environment.”

Davis says public support for Biden administration regulations may temper Republicans’ use of the CRA as the November elections draw closer.

But Environment and Public Works ranking member Shelley Moore Capito (R-W.Va.) said it’s right for Republicans to treat the Congressional Review Act expansively because of the administration’s use of guidance to set policy.

She pointed to a Transportation Department memo on bipartisan infrastructure law implementation. Capito accused the administration of including recommendations rejected during the legislative process.

After GAO determined the document was subject to CRA scrutiny, the department changed course and issued a revised memo last year.

Sen. James Lankford (R-Okla.), ranking member of the Senate Homeland Security and Governmental Affairs Subcommittee on Government Operations, which has jurisdiction on regulations, also blamed Biden.

“More and more, the administration is saying, ‘Hey, we’re doing this action separate so it’s not subject to CRA.’” So lawmakers are looking for clarity from GAO, he said.

Tillis, who supported CHIPS and Science Act semiconductor funding, said his GAO request was routine and something he’s done during both Democratic and Republican administrations.

“It’s really more of an oversight function,” he said. “Sometimes we just want it for information purposes, but we try to keep the administration in check. In fact, we even did this during the Trump administration when we [thought] the administration was moving ahead with policy that should be subject to the rulemaking process.”

Sen. Thom Tillis (R-N.C.).
Sen. Thom Tillis (R-N.C.). | Francis Chung/AP

Outlook under Trump

Paul Larkin, a fellow at the Heritage Foundation, said a future Trump administration could use the CRA to cancel funding contracts if the money hadn’t been doled out.

At the same time, he said a Washington controlled by Republicans may limit its use to pursue other priorities. That happened in 2017 when Trump was in the White House and Kentucky Republican Mitch McConnell ran the Senate.

“Mitch McConnell in 2017 had priorities other than doing a lot of CRAs,” Larkin said. “He could have done a lot more, but he had other uses for his time. He didn’t want to keep the Senate in five days a week. There’s a limited amount of time.”

Both Tillis and Donalds said to expect Republicans to keep finding novel ways to deploy the CRA against Democratic actions if Trump takes power.

“I think it’s going to be much more active, and I think it’s going to continue,” Donalds said.

As Marshall put it: “Joe Biden is the GOAT of rulemaking — greatest of all time for rulemaking. It gives us more of an opportunity for these Congressional Review Acts.”