Congressional Review Act votes could claw back some of Biden’s regulations

As the Biden-Harris baton-passing administration approaches the final stretch of its first term, a critical deadline has passed that could render subsequent major federal rules vulnerable to reversal depending on what happens in this presidential election.

The Congressional Review Act, a bipartisan law passed in 1996, empowers Congress to overturn federal regulations through resolutions of disapproval. Biden would never overturn one of his own agencies’ pet rules, but a new administration might roll some of them back if the coming months reveal they were not finalized before the final 60 legislative days of the 118^th Congress.

While the exact cutoff date for is yet to be determined (the George Washington University has a dashboard for enthusiasts to monitor), it will likely fall between late spring and early summer of 2024.

While the CRA has rarely been used to eliminate rules – fewer than two dozen times in its history – it remains a potent tool, particularly in times of political transition. When the Trump administration arrived in 2017, it revoked more than a dozen Obama rules. That’s not much in the scheme of things given that over 3,000 rules are issued every year, but it’s not nothing.

As I discuss in my recent Forbes article, “A Glide Path for Overturning Biden Rules in the 119^th Congress,” the CRA’s effectiveness is limited, but it has been successfully employed, as the GWU Regulatory Studies Center notes, as a messaging tool and as a mechanism to influence agency behavior.

Reinvigorating the CRA is especially important given the Biden administration’s ambitious and ill-advised regulatory pursuits. This year’s Spring Edition of the Unified Agenda of Regulatory and Deregulatory Actions revealed a significant surge in major rules completed by the Biden administration, increasing from 53 in the fall 2023 edition to 97 in spring 2024.

Major rules, which typically have economic effects exceeding $100 million, are the juicy ones spotlighted as potential targets for CRA resolutions of disapproval. The Forbes pieces lists them all for policymakers to ponder.

Interestingly, as the CRA deadline passes, the Biden administration may continue to issue rules, betting these will be difficult to overturn even if the presidency changes hands. While one would anticipate a tailing off of major rules in election years, such years tend to be relatively high given a late midnight rule push as an incumbent administration packs up to leave.

Another less-used avenue for addressing major rules lies in the CRA’s stipulation that for any rule to be considered effective, it must have been properly submitted to the Government Accountability Office and both houses of Congress. Not all rules meet these requirements, and there may be grounds to challenge their validity in novel ways in a new Congress.

While the CRA’s resolution of disapproval process offers an opportunity to reverse some of Biden’s regulatory actions, it is no silver bullet. Regulatory reforms that actually shrink the scope of the federal government will require more foundational changes, such as shifting from congressional disapproval to congressional approval of major rules.

For a deeper dive into this topic, check out my full article on Forbes here.