Though the Congressional Review Act has existed since 1996, it’s been a rarely used check on the regulatory power of the Executive branch.
According to a frequently asked questions document on the Congressional Review Act (CRA) maintained by the Congressional Research Service (CRS), the CRA has been used to overturn just 17 rules. The 115th Congress, seated in 2017 with Republican majorities in both chambers, overturned 16 rules created by the Obama Administration, heralding a new partisan application of the CRA.
Democrats in the House have opened a new chapter in using the CRA to express opposition to regulations passed by the White House. In January 2020, the U.S. House of Representatives passed a resolution (H.J. Res. 76) to block the implementation of Secretary DeVos’s revised borrower defense rule under the Congressional Review Act (CRA). While many bills that pass the House have frequently languished without consideration in the Senate, under the CRA, Senate Democrats can force a vote on the resolution, which only requires a simple majority to pass the chamber. Six Republican members voted in favor of the measure, signaling that it might pull some support from Senate GOP members as well. The Senate is expected to vote on H.J. Res. 76 following the current Congressional recess.
The emergence of the CRA as the latest tool to limit regulatory power is notable, and because it has been so rarely used, it’s worth exploring how it works.
What is the Congressional Review Act and what does it cover?
The CRA, part of the Small Business Regulatory Enforcement Fairness Act enacted in 1996, created reporting requirements for federal executive agencies to notify Congress when they issue certain types of regulations or rules. While not all rules are subject to review, the CRA adopts the broad definition of what constitutes a rule used in the Administrative Procedures Act (APA), the law that governs which rules require public notice and comment periods and sets other guidelines for the regulatory process. The CRA adds three exceptions relating to whether the rule relates to a) wages or corporate reorganizations and accounting practices, b) agency management or personnel, or c) whether the rule does not substantially affect the rights or obligations of non-agency parties. Even with these exemptions, the CRA covers a broader range of rules than those subject to the APA’s public notice-and-comment requirements.
Agencies are required to submit rules specified in the CRA to Congress before they can take effect. In their March 2019 report The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress, the CRS outlined which rules and actions were taken by Executive Agencies are subject to possible review under the CRA. Because the definition of a rule under the CRA is so broad, there have been times when a rule has not been submitted for the required notification. In such an instance, Congress and the Government Accountability Office have developed an ad hoc process for Members to initiate reporting of a rule and allow Congressional action to proceed.
Congressional Action under the CRA
Upon notification, Congress may take advantage of special procedures to consider legislation that would overturn the rules before they go into effect. Resolutions under the CRA must be passed by both chambers, but require only a simple majority to pass. While resolutions can begin in either chamber, in a divided Congress where one party holds the White House and the Senate, members of the House can pass a resolution first to open procedures included in the CRA to force Senate action. These fast-track procedures allow Senators to force consideration of the joint resolution out of the committee with jurisdiction over the rule by submitting a petition signed by at least 30 Senators after a 20-day review period. The petition forces the joint resolution to the floor for a vote. There are no similar fast-track procedures in the House for resolutions that are first passed by the Senate, however, limiting the use of the CRA in partisan applications where one party only controls the Senate.
To become effective, joint disapproval resolutions must either be signed by the President or Congress must vote to override a veto. This requirement makes use of the CRA in the middle of a sitting administration, as in the joint disapproval resolution passed by the House to overturn Secretary DeVos’s borrower defense to repayment rule, unlikely to succeed. It does, however, provide an option for members of one party to force votes on potentially controversial rules for a political advantage during re-election years.
Consequences of successful joint disapproval resolutions
In a 2018 document describing the effect of a resolution of disapproval under the Congressional Review Act, the CRS notes two primary effects of successful joint resolutions. The first is that the entire rule is not allowed to go into effect, or if it has already gone into effect, is treated as though it had never taken effect. Congress is not allowed to disapprove only some portions of regulation and leave others in place. The second effect limits Executive power considerably, however, as it prevents the agency from reissuing another rule that is substantially similar to the disapproved rule without express authority from Congress.
Using H.J. Res 76 as an example, the second, more limiting effect of successful passage would prevent not just Secretary DeVos, but all future Secretaries of Education from issuing a rule like the current borrower defense to repayment rule. Because the use of the CRA has been so limited, there is little precedent about what constitutes a rule that is substantially similar. For instance, in the current borrower defense to repayment rule, ED introduced regulations that would allow for partial relief, instead of absolute relief, for some borrowers. If H.J. Res 76 passes, it’s unclear whether any future rule might also be prohibited from considering a partial relief option, even if it uses a different formula or set of criteria.
There is no judicial review of CRA disapproval resolutions, so once a joint disapproval resolution is passed, only Congress can remove the prohibition on Executive agencies’ rule-making authority. This puts substantial power in the hands of the Legislative branch that may have long-reaching - and as-yet-unforeseen - effects years or decades in the future.
The far-reaching and permanent nature of joint disapproval resolutions is worth noting as policymakers in the House consider additional applications of the CRA. For instance, it has been discussed that House Democrats may initiate a joint disapproval resolution related to the forth-coming Title IX rule. Advocates should consider the unknown implications of such an action if the final rule includes options for informal dispute resolution, incorporation of dating and domestic violence and stalking, or other provisions they might wish to see available in future regulations.
Whether the 2020 election heralds a new administration in the White House in January, it’s likely partisan use of the CRA to overturn regulations passed by previous administrations will become more common. The bluntness of the tool and the limitations on future rulemaking, however, stand as cautions to applying it too freely without consideration of the possible effects.