President Joe Biden’s withdrawal from the presidential race confirms that the coming months will be his administration’s last. While Biden’s agency nominees will ostensibly continue working to advance his agenda until the very end, a presidential election year introduces new uncertainties for the future of Biden’s regulatory imprint.
Originated as part of the 1996 Small Business Regulatory Enforcement Fairness Act, the the Congressional Review Act (CRA) is a congressional oversight instrument that allows for the striking down and overturning of rules made by federal agencies. In short, under the CRA, federal agencies must submit a report to both houses of Congress and the comptroller general for review when making a new rule. Then, members of Congress have 60 days of continuous session to review the rule wherein they can submit a “joint resolution of disapproval” which is sent to the president for signature or veto. If that resolution is signed by the President, the rule will be struck down and any new rules may not be issued that are “substantially the same form” as the overturned rule. This power prevents the incumbent administration from locking in new agency rules at the eleventh hour that may potentially hamstring or undermine the policy agenda of the next administration.
While the CRA is a powerful tool in narrow circumstances, more often than not, it acts as a signal of disapproval rather than actually reversing a regulation. It requires unified party control—a joint resolution passed in a divided government scenario would not make it to the President’s desk for signature or would be vetoed upon arrival. Since its enactment, the CRA has successfully been used to overturn just 20 rules, while Congress has introduced more than 200 joint resolutions of disapproval.
The CRA’s most powerful provision kicks in at the beginning of a new Congress. The CRA contains a “lookback” provision that allows for a new Congress to consider rules that were issued in the last 60 session days of the previous Congress. When a party gains simultaneous control of both Congress and the presidency, the CRA becomes a strong vehicle for removing regulatory obstacles enacted by the previous administration. 16 of the 20 instances of the CRA overturning rules were in the 115th Congress (2017-2018) when Republicans controlled the White House, the House of Representatives, and the Senate.
The Trump administration did not hesitate to use the CRA to throw Democrat-controlled agency regulation into reverse, and there is realistic potential for a repeat scenario should Trump prevail in the 2024 election, as Trump has frequently criticized Biden administration rules on the campaign trail. The Trump administration overturned 16 rules in total, including one FCC rule that stripped the Federal Trade Commission (FTC) of its authority over internet service providers (ISPs). In overturning the rule, former FCC Chair Ajit Pai “[returned] jurisdiction over broadband providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”
The CRA prohibits the creation of new rules that are “substantially the same” as the overturned rule. However, the need to protect broadband privacy has been a cited justification as the FCC tries to claw back broadband oversight from the FTC and reclassify internet broadband providers as common carriers under Title II of the Communications Act. But because of the “substantially similar” restriction, the FCC, in reality, lacks the authority to issue new broadband privacy rules and risks creating a broadband privacy gap by attempting to reclaim this authority from the FTC.
Republicans have already signaled disapproval of numerous agency rules under the current administration, such as the FCC’s digital discrimination order. However, without holding trifecta party control, such resolutions of disapproval lack teeth to implement change.
In a scenario where Republicans regain control of the White House and both chambers of Congress, they would have “lookback” authority (and procedural viability) to reverse rules issued after late May 2024. In anticipation of that deadline, contentious FCC rulemakings such as net neutrality and EEO Form 395-B were finalized before that deadline and therefore will not be subject to CRA review.
The coming months will reveal the extent of the FCC’s determination to finalize any controversial rules before the end of the year, but there are plenty of rulemakings from other agencies that could be targeted under a new administration. Rules that may well be challenged in such a scenario include recent actions on denial of contraceptives, action plans, environmental standards, and more.
President Trump and the 115th Congress were historic in their use of the CRA to repeal Obama-era regulations, with 80 percent of all CRA overturn taking place under the Trump administration. While the outcome of the 2024 election remains to be seen, its potential to strike down any new regulation is certainly looming large over current federal agencies as the Biden administration closes out its final months.