After 20 years of limited use, the Congressional Review Act has been rediscovered as a powerful tool to overturn the worst “midnight” regulations issued at the end of the Obama Administration. But its full potential to kill even older rules and guidance documents is just now being understood.
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Find and report rules that were never submitted to Congress.
About the Congressional Review Act
The Congressional Review Act (CRA) requires agencies to submit every rule they issue to Congress for its review. The CRA defines “rule” broadly to sweep in every regulation, policy memoranda, or guidance document an agency issues. Until an agency submits a rule, including informal memoranda or guidance, the statute forbids the agency from implementing it.
Once a rule is submitted, Congress may pass a resolution of disapproval during any of the next 60 legislative days with streamlined procedures. For example, a Senate filibuster is prohibited and a simple majority of Senators may limit the time for debate as they see fit, up to a maximum of 10 hours. If both houses of Congress pass a disapproval resolution and the President signs it, the rule is void and the agency is forbidden from ever issuing a “substantially similar” rule in the future.
Congressional Review Act 2.0 & 3.0
The Wall Street Journal’s Kimberley Strassel called the new idea for Congress to fully utilize the CRA, advocated by Pacific Legal Foundation’s Todd Gaziano, a “regulatory game changer.” Ignoring the CRA’s requirements, agencies have failed to submit many thousands of rules to Congress.
The window for Congress to disapprove a rule using expedited procedures is triggered by the later of the rule’s submission to Congress or publication in the Federal Register. Thus, for all the many rules that agencies failed to submit, the time for Congress to disapprove them has not yet begun to run. The Trump administration can go back over all the unsubmitted, burdensome rules issued since 1996 and belatedly submit them to Congress for its disapproval. That would allow the President and Congress to effectively block any substantially similar rule in the future.