The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Biden Administration is working quickly to undo the regulatory policies of the Trump Administration. Through a torrent of Executive Orders, President Biden has shifted the federal government's regulatory priorities and instructed agencies to evaluate which Trump Administration agencies need to be rescinded or revised. Yet unwinding Trump Administration regulations will take time--generally as much time as it took to adopt such regulations in the first place--and the new administration is in a hurry.
The Congressional Review Act offers one means through which the Biden Administration, with the cooperation of Democrats in Congress, may undo Trump regulations without having to go through administrative rulemakings. The CRA may only be used on those regulations adopted at the tail end of the prior Administration. Nonetheless, there are literally hundreds of vulnerable Trump Administration regulations.
Enacted in 1996, the CRA creates an expedited procedure for congressional repeal of recently adopted regulations through the passage of a joint resolution in both houses of Congress. CRA resolution are subject to bicameralism and presentment, like normal legislation, but are much easier to enact. Under the CRA's express terms, resolutions to repeal a regulation are not subject to filibusters or extended floor debate, and final votes cannot be blocked by the Senate leadership. Indeed, even had Democrats not prevailed in the Georgia Senate races, Democrats could have used the CRA to force Republicans to vote on the advisability of controversial Trump policies.
The CRA was only used successfully to repeal one federal regulation in its first twenty years on the books--the Clinton Administration's 2000 ergonomics rule. Four years ago, however, the GOP used the CRA to eliminate over a dozen Obama regulations early in Trump's term. This year, Democrats cold use the CRA to eliminate an even greater number of Trump rules, if they so choose.
What regulations are vulnerable to CRA repeal? Any regulation finalized on or after August 21, 2020, according to the folks at the GW Regulatory Studies Center. As it turns out, this is a good amount of regulations. Indeed, nearly 1,500 final rules were finalized in that time period, including over 150 from the Environmental Protection Agency. In short, there are plenty of potential CRA targets, several of which are profiled here.
Not only is using the CRA much quicker than repealing rules through the regulatory process, it is less risky too. Repealing a regulation and promulgating a replacement is not only lengthy processes. They are also subject to judicial review under the Administrative Procedure Act. CRA resolutions, on the other hand, are not subject to judicial review. Congress need not go through a notice-and-comment period, nor need it construct a rulemaking record for a court to review. If Congress wants a regulation subject to the CRA gone, Congress may use the CRA to repeal it.
One potential catch is that if a CRA resolution passes and is signed by the President, agencies are barred from reissuing the rejected rule or its equivalent, absent subsequent Congressional authorization. This means that a Trump rule nixed now could not be re-adopted by Ha(w)ley administration in the future. This also means Biden administration can't simply re-issue Obama rules nixed by CRA in 2017. But the scope of this prohibition has yet to be tested, and it's unclear how different a new rule needs to be. Courts have yet to confront this.
Some skeptics of the CRA fear that using this method to repeal Trump Administration rules would prevent the Biden Administration from adopting more stringent replacements. Despite the lack of judicial guidance on this question, I think these fears are overstated.
The text of the CRA bars federal agencies from promulgating regulations that are "substantially the same" as those repealed through the CRA. The idea is that if Congress disapproves of a rule, it would be improper for an agency to act contrary to congressional intent. The disapproval resolution, in effect, eliminates any delegated authority the agency might have to adopt that rule.
Yet the CRA's language is not that of a broad preemption provision. It does not bar agencies from regulating on the same subject. Rather it bars agencies from re-adopting an equivalent rule. Applied sensibly, this limitation may prevent the Biden Administration from adopting a marginally more stringent variant of a repealed Trump rule, but would not prevent the Biden Administration from adopting a new regulation representing a different set of policy priorities or regulatory philosophy. It is not enough that the old and new rule have some similarity or overlap. They must be "substantially the same."
While the current focus is on how the CRA could be used to undo Trump regulations, it is important to note that the CRA could also be used by Republicans to challenge controversial Biden Administration regulations. Given the tight margins in both the House and Senate, a particularly progressive regulatory measure (or simply one opposed by West Virginia Senator Joe Manchin and similarly situated members of the House) could be subject to a CRA resolution. Such a resolution would not be enacted, as President Biden would almost certainly veto it, but it would be an opportunity for Republicans to force Democrats to take a vote on a controversial rule.
For much of its existence, the CRA was an an afterthought, a scarcely invoked statute. Republicans unearthed the CRA to undo late Obama rules in 2017, and it is quite possible that Democrats will do the same to undo Trump rules in 2021. It is a quick and relatively easy way to undo regulations adopted by the prior administration. And if Democrats are insistent on de-Trumpifying federal regulatory policy, I would expect them to use it.