January 19, 2021

Potential Use of the Congressional Review Act in President Biden's First 100 Days

4 min

The Congressional Review Act (CRA) is a 1996 law that grants Congress the ability to void federal agency rulemakings. Prior to 2017, the CRA had been used only once to overturn a regulation, but it was used 16 times by the Republican-controlled Congress under President Trump to overturn Obama-era regulations. Given this, it is being eyed more carefully than in the past by the incoming Democratic-controlled Congress under President-elect Biden as a tool to reverse certain of the Trump-era rules.

The CRA sets forth a process by which Congress can disapprove a "major rule"1 and, once signed by the president, eviscerate the regulation. The Act gives Congress 60 days to review rules, but the CRA also permits Congress to look back and disapprove rules enacted during the final 60 working days of the previous Congress. While the House and Senate parliamentarians have yet to make an official ruling on the precise length of the most recent lookback period, the consensus estimate is that the lookback period for the new Congress extends back to approximately August 21, 2020.

Rules falling into the lookback period qualify for special procedural treatment in the Senate. For example, the rules become privileged resolutions and can be taken up on an expedited basis, and the resolutions are not subject to a filibuster. Upon passage in both chambers and being signed by the president, the rule is overturned, and the agency is prohibited from issuing a new regulation that is "substantially the same as [the rescinded] rule."

What constitutes a "substantially the same" rule is undefined. Courts have yet to rule on whether a subsequently promulgated rule is "substantially the same" as a disapproved rule. Because a regulation must be disapproved in total, this future prohibition on substantially similar rules makes the CRA a blunt instrument. Congress and the administration must carefully weigh the merits of invoking the CRA, because overturning an existing rule could lead to the creation of a regulatory dead zone where future policymakers are barred from regulating. Highlighting the potential risks that the CRA poses could be one approach for advocates seeking to preserve the regulatory status quo.

The following are examples of rules that a Democratic majority may consider for disapproval under the CRA include the following:

  • Grandfathered Group Health Plans and Grandfathered Group Health Insurance Coverage 85 Fed. Reg. 81097 (Dec. 15, 2020) (allows grandfathered group health insurance plans to impose higher cost-sharing requirements)
  • Transparency in Coverage, 85 Fed. Reg. 72158 (Nov. 11, 2020) (requires health insurers and self-insured health plans to disclose price and cost-sharing information)
  • Fraud and Abuse; Removal of Safe Harbor Protection for Rebates Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection for Certain Point-of-Sale Reductions in Price on Prescription Pharmaceuticals and Certain Pharmacy Benefit Manager Service Fees, 85 Fed. Reg. 76666 (Nov. 30, 2020) (passes along drug company rebates to patients at the point of sale)
  • Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 84,130 (Dec. 23, 2020)
  • Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 4, 2021) (limits EPA to consideration of only publicly available scientific research)
  • Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act, 85 Fed. Reg. 73,854 (Nov. 19, 2020) (withdraws the once in, always in policy)
  • Regulations Governing Take of Migratory Birds, 86 Fed. Reg. 1134 (Jan. 7, 2021) (MBTA applies only intentional, not incidental injuring or killing of birds under the Act)
Financial Services
  • Fair Access to Financial Services, ___ Fed. Reg. ___ (Jan. 13, 2021) (seeks to stop banks from terminating services to an entire category of customers absent individual risk assessments)
  • Independent Contractor Status under the Fair Labor Standards Act, 86 Fed. Reg. 1,168 (Jan. 7, 2021) (expands the definition of an independent contractor)
  • Qualifying Facility Rates and Requirements Implementation Issues Under the Public Utility Regulatory Policies Act of 1978, 85 Fed. Reg. 54,638 (Sep. 2, 2020) (calculates energy rates pursuant to the Public Utility Regulatory Policies Act)

[1] Importantly, the CRA empowers the Government Accountability Office to determine whether a federal policy constitutes a rule for the purposes of the Act. See, e.g., Department of Housing and Urban Development—Applicability of the Congressional Review Act to Fair Housing Act Guidance on Assistance Animals. B-331171: December 17, 2020 (concluding that the HUD Reasonable Accommodation Guidance is a rule for purposes of CRA because it meets the APA definition of a rule and no exceptions apply).