The Georgia Senate races have (finally) concluded, officially ending the 2020 election cycle; Rev. Raphael Warnock (D) has been declared the winner over Sen. Kelly Loeffler and Jon Ossoff (D) has a likely insurmountable lead of more than 16,000 votes over Sen. David Perdue. Senate Democrats will seize the narrowest possible control of the chamber once Vice President-elect Harris is sworn in as the tiebreaking vote on January 20. Looking forward, Congressional Democrats will likely look to pass a joint resolution of disapproval under the Congressional Review Act (CRA) to overturn some administrative rules passed in the last 60 legislative days of the Trump Administration.In anticipation of this possibility, we thought it was important to walk you through what is reviewable under the CRA; why the Biden Administration would favor its use; and the procedure for invoking the CRA.
The CRA is an oversight tool that Congress may use to pass legislation overturning a rule issued by a federal agency. Passed in 1996 as part of the Small Business Regulatory Enforcement Fairness Act, the CRA mandates that, before a rule can take effect, an agency must submit the rule to each chamber of Congress and the Government Accountability Office (GAO). Once received by Congress, Members then have 60 legislative days during which to submit and take action on a joint resolution disapproving the rule. If passed by both houses and signed by the president, the resolution is enacted, either taking the rule out of effect or preventing it from going into effect. Furthermore, if the resolution of disapproval is enacted, the CRA bars the agency from issuing a rule that is “substantially the same” without further authorization from Congress.
Despite the CRA's immense power as a regulatory tool, the CRA has, historically, been utilized very infrequently. Before being used 16 times in the 115th Congress to overturn rules issued by the Obama Administration, the CRA had only been used once prior. The reason for this is simple; it is difficult to the pass a CRA resolution of disapproval if a majority party does not control both chambers of Congress, as well as the Presidency. In fact, the CRA has never been used successfully in a divided government. Furthermore, it is unlikely to be used unless the previous Administration was a different party than the current majority party.
There are three major advantages to using the CRA to overturn an issued rule. First, the CRA provides an avenue for expedited consideration and passage in the Senate. Therefore, when a joint resolution of disapproval meets certain criteria, it cannot be filibustered in the Senate. In addition, once 20 calendar days have passed after the receipt and publication of the final rule, the Senate committee to which a joint resolution disapproving the rule has been referred to can be discharged of further consideration if 30 Senators sign and file a petition.Second, the CRA resolution of disapproval allows for a rule to be eliminated without the current Administration having to go through the often-onerous notice-and-comment rulemaking procedures under the Administrative Procedure Act (APA).Finally, the CRA contains a provision barring judicial review, stating that “no determination, finding, action, or omission under this chapter shall be subject to judicial review.” Courts have generally, but not universally, interpreted this provision to mean that they may not consider any claims alleging that an agency has failed to comply with the CRA.
For a rule to be eligible for review under the CRA, it must be reviewed within 60 “working days,” which means either 60 legislative days in the House or 60 session days in the Senate. Notably, the CRA adopts the broadest definition of rule contained in the APA, which is broader than the category of rules subject to the APA’s notice-and-comment rulemaking procedures.The CRA adopts the definition of rule that appears in Section 551 of the APA, with three minor exceptions. Section 551 of the APA defines 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 or describing the organization, procedure, or practice requirements of an agency.” This broad definition means that the CRA can review final rules, interim final rules, and guidance documents.
The CRA lookback date for the 117th Congress – the last date rules will be reviewable in the new session - is August 21, 2020. In practical terms, all rules submitted to Congress on that date or afterward will be eligible for Democrats to review under the CRA.
The CRA contains “fast track” procedures for both committee consideration and floor consideration of a CRA disapproval resolution in the Senate but does not contain “fast track” procedures for committee and initial floor consideration of a joint resolution of disapproval in the House. The House’s omission of “fast track” procedures is hardly noteworthy, as in every case in which the House has considered a CRA disapproval resolution on the floor, it has done so under the terms of a closed special rule reported by the Rules Committee and adopted by the House.Once a CRA joint resolution of disapproval is reported or the committee of jurisdiction discharged, any Senator may make a nondebatable motion to proceed to consider the disapproval resolution on the floor. This motion to proceed requires a simple majority for adoption. If the motion to proceed is successful, the CRA disapproval resolution would be pending and subject to up to 10 hours of debate. A nondebatable motion to limit debate below 10 hours is in order. No amendments are permitted. Upon the use or yielding back of the allotted time, the Senate would vote on the measure. A CRA disapproval resolution requires a simple majority in order to pass. Because the measure is debate-limited, cloture (and its accompanying requirement for supermajority support) is not necessary. CRA disapproval resolutions cannot be packaged together and must be voted on individually.The CRA “fast track” procedures governing each chamber’s consideration of a joint resolution of disapproval are considered to be rules of the House and Senate, despite being enacted in law. As such, the chambers may suspend these procedures in whole or in part by unanimous consent, suspension of the rules, or special rule.If both chambers pass the resolution, it is sent to the President for signature or veto. If the President were to veto the resolution, Congress could vote to override the veto with a two-thirds vote like typical legislation. However, for political reasons, this scenario is unlikely.
We encourage all of our clients to look over this list published by the American Action Forum that details the costliest Final Rules, the Final Rules with the highest potential savings, and agencies whose rules may be targeted.