Congressional Review Act and the 2020 Election

By: Christine Wyman and Brittney Justice

As the 2020 election quickly approaches and with the outcome far from certain, Democrats are considering what tools may be on the table to advance their agenda, including the reversal of the Trump Administration’s regulatory agenda. If the Democrats are able to take control of the White House and Congress there will be significant attention paid to those Trump Administration rulemakings that are vulnerable to disapproval under the Congressional Review Act (CRA), made infamous by Republicans’ historic use in 2017.

The CRA was enacted in 1996 to enhance congressional oversight of federal agency rulemaking. One important provision of the Act allows a new Congress to quickly invalidate federal regulations issued in the last 60 working days of the previous session of Congress. Until 2017, the CRA remained a relatively obscure statute that had only been used by Congress one time. However, after Republicans took control of both the White House and Congress in 2017, the Republican Congress worked with the Trump Administration to overturn1 16 regulations promulgated in the final months of the Obama Administration.

Because of its design, the CRA provides an important consideration for the executive branch in setting the timeline to finalize regulations in an election year and can have a lasting impact on regulatory policy.  Should the Democrats take control of both Houses of Congress and the White House, the CRA could be used to reverse certain regulations issued by the Trump Administration this year.  For this reason, attention should be paid to the process of reversing agency regulations under the CRA.

The CRA Basic Framework

• The CRA allows Congress to issue a joint resolution of disapproval of an agency rule within 60 days of receiving the rule. The date a rule is considered to be received by Congress is set by taking the later of “its receipt in the Office of the Speaker of the House, its referral to Senate committee, or its publication in the Federal Register.”2 It is also possible that a new Congress could reconsider what it means for a rule to be received by Congress in an attempt to consider more rules under the CRA.
• Only a simple majority vote is required in both chambers to pass the resolution. If each chamber of Congress approves the resolution, the resolution is then sent to the president for signature or presidential veto. 
• If a disapproval resolution is enacted and the rule is nullified, it cannot be reissued in “substantially the same form” without subsequent congressional statutory authorization.

 

Although the basic process for issuing a resolution of disapproval is relatively straightforward, uncertainties still exist due to the timing of the lookback period, as Congress’s schedule varies from year to year, and a lack of clarity on whether a new regulation takes “substantially the same form.”

What Is the Timing of the Lookback Period?

• The most important component of the CRA in an election year is the “lookback period” provision.  This sets the date by which regulations must be submitted to Congress to avoid the new Congress’ CRA review.  Unfortunately, the exact start date for the lookback period cannot be conclusively determined until the House and Senate have adjourned for the calendar year. 
• As noted above, Congress has 60 days to issue a joint resolution of disapproval.  If Congress adjourns sine die within 60 days of a rule being submitted (“session days” in the Senate and “legislative days” in the House), the CRA clock restarts.  This restart gives the new Congress an additional 60-day lookback period designed to scrutinize so-called “midnight rules” put forward at the end of an administration.
• Because the restart only applies to those regulations where the 60-day review period has yet to expire when Congress adjourns, knowing the adjournment date for each Chamber is required in order to determine the first day of the 60-day period.   
• The House calendar has historically determined the start date of the lookback period because the Senate typically convenes more than the House. Thus, 60 days back from when the Senate adjourns sine die is typically later in the year than the House, and the CRA uses the earlier of the dates to calculate the lookback period.
• A review of adjournment dates in previous years can provide insight as to when the lookback period may begin.  For example, four years ago, the lookback period began June 10, 2016. However, given the events of 2020 thus far—the COVID-19 pandemic and a potential Supreme Court confirmation—past estimates may not be as useful.
• As of October 7, there are 28 scheduled session days remaining in the Senate and 13 scheduled legislative days remaining in the House. This means that we are well within the lookback period unless either chapter adds a significant number of legislative days to its calendar.
• As the calendar currently stands and each chamber adjourns sine die on the last day of the published legislative calendar, the start of the lookback period could begin on June 25.  However, the congressional calendar is in significant flux as the Senate considers the nomination of Judge Amy Coney Barrett, more lawmakers test positive for COVID-19, and government funding expires on December 11.  If additional days are added to the legislative calendar to address legislative priorities, the date would be later. 

 

What Is a “Substantially the Same” Regulation?

• If a joint resolution of disapproval is submitted within the CRA deadline, passed by Congress, and signed by the President, the disapproved rule becomes nullified. The CRA also provides that once a joint resolution of disapproval is enacted, the rule may not be issued in “substantially the same form” as the rejected rule unless specifically authorized by a subsequent law.
• The CRA does not define “substantially the same.” Nor does post-enactment legislative history clarify the meaning of “substantially the same.”
• Adding to the uncertainty, the CRA contains a provision barring judicial review of any “determination, finding, action, or omission” under the CRA.  Courts have not addressed whether this judicial bar extends to the question of whether a new regulation is “substantially the same,” and some have suggested that under a more narrow reading judicial review would be appropriate to allow courts to determine whether a new regulation is “substantially the same.”  
• This uncertainty, and the potential to limit future regulatory action, will be a key factor in Democrats’ consideration in using the CRA.  

 

Should the 2020 election result in the Democrats in control of Congress and the White House, Democrats will be eyeing the Trump Administration’s recent environmental regulations as candidates for CRA action, weighing their desire to invalidate the Trump-era regulations against the limitation of promulgating similar regulations. 

As noted above, the 60 days runs from when Congress is in receipt of the rule.  For rules that require publication in the Federal Register, the Senate considers the date received to be the date published in the Federal Register.  It is also possible that a new Congress could reconsider what it means for a rule to be received by Congress in an attempt to consider more rules under the CRA.

Some of the more politicized environmental regulations that could fall within the CRA window include the following: