The Congressional Review Act Could Be Put to Positive Short-Term Use, but It Should Still Be Repealed

The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

First things first, though: The CRA only becomes viable if the Democrats sweep the presidential election and secure majorities in both chambers of Congress. Some polling suggests that the stars appear to be aligning in this fashion, just as they did at the beginning of the Trump administration when the full aggressive force of the CRA was first deployed. If this happens, that means any rules issued “late enough” in the Trump administration would be fair game for repeal thanks to the CRA’s “carryover provisions.” Because the cutoff date for whichever rules ends up being “late enough” has to do with congressional session days, it will be impossible to predict until the final calendar for Congress has been set – an unknowable unknown even in the best of times, let alone now in the midst of the COVID-19 pandemic when everything has been thrown into disarray. The best guess is that the cutoff date will fall sometime between late April and mid-May. Any rules issued by the Trump administration after that date would be eligible for repeal through the CRA in the next Congress.

Not all of the Trump administration’s anti-safeguard policies that would be eligible for repeal would make good candidates for repeal through the CRA. Given the fundamentally anti-safeguards orientation of the CRA, its use carries some potential pitfalls that lawmakers should be wary of. Moreover, even given the CRA’s expedited legislative procedures in the Senate, practical time constraints likely mean that it could only be used around a dozen or two dozen times before those expedited procedures expire (which would likely occur sometime in mid-May 2021, depending on the congressional calendar).

The following framework outlines some factors that could be used for determining which of the Trump administration’s rules might be good candidates for repeal through the CRA:

• The rule’s harmful impacts. Most obviously, the CRA would best be used to repeal those rules that have the worst impacts on health, safety, and the environment. Many of the Trump administration’s anti-safeguards policies amounted to partial or complete rollbacks of previously existing rules that delivered significant benefits for people and the environment. Repealing those rollbacks would reinstate those rules and the benefits they delivered. The more benefits reinstated, the better.
• The effect of the CRA’s “salt the earth” provision. According to the prevailing understanding, what gives the CRA much of its anti-safeguards force is that for any rule that is repealed using its procedures, the relevant agency is also prohibited from issuing a replacement rule that is in “substantially the same form.” For example, many cite this provision as the reason that the Occupational Safety and Health Administration (OSHA) has never sought to address the problem of workplace ergonomics injuries after the original rule on the subject was repealed nearly 20 years ago. In theory then, Democrats could inadvertently shoot themselves in the foot by repealing a Trump rollback, since any stronger replacement might be deemed to be substantially the same, and thus illegal. Some examples of Trump administration rules that might raise this concern are the Environmental Protection Agency’s (EPA) rollbacks of methane standards for oil and gas facilities and greenhouse gas standards for automobiles.

I tend not to put much stock in this concern, since it seems pretty obvious that a stronger replacement would not be substantially the same as a repealed Trump rollback. Of greater significance, the CRA also seems to prohibit courts from weighing in on the question of whether a replacement rule is substantially the same. That would leave Congress to resolve this question and ultimately to enforce its decision. An agency could issue a replacement and wait to see whether and how Congress reacts. Developing a rule is a very resource-intensive process and carries great opportunity costs. So, agencies might understandably be leery of taking this risk. But, if Democrats control at least one chamber of Congress at the time the replacement is issued, then it seems likely that the replacement will be permitted to stand.

Significantly, though, this “salt the earth” provision can also work in the favor of progressive policy goals. The Trump administration has issued several dangerous policies that progressives very well might want to prevent a future administration from issuing a replacement for. In the environmental realm, this might include the EPA’s “censored science” and “benefits-busting” rules. In other policy milieus, the Trump administration’s regulatory attacks on immigrants and the LGBTQ+ community might seem to be particularly attractive candidates for CRA repeals given the “salt the earth” provision.

• Likelihood of successful legal challenge. Let’s not kid ourselves. The Trump administration’s record of defending its anti-safeguards agenda in the courts so far is not good. Many of the big ticket rules it’s cranking out in the rush before the election also seem unlikely to survive judicial scrutiny given their obvious legal and policy flaws. Some good examples here are the EPA’s rollback of greenhouse gas standards for automobiles and the Council on Environmental Quality’s gutting of the analysis requirements for the National Environmental Policy Act. Given that the next Congress may only be able to take on a few CRA repeals, it makes sense to let the courts do some of the work for them wherever possible. Of course, this carries the risk that somehow, some conservative judges might actually uphold those rules. But this might still be a risk worth taking for the Trump administration’s most outlandish rules.
• Value of using the rulemaking process instead. One of the major reasons I oppose the CRA is that it is often simply better to replace a bad rule with a good one. This approach carries risks of course – namely, that a good replacement might get struck down in the courts. And it is also costly and time-consuming; for a Biden administration facing so many policy challenges with a hollowed-out government in the midst of a pandemic, replacement rules may require the expenditure of resources it doesn’t have. By that same token, though, the Biden administration can make this work easier on itself by, for example, overhauling the role of the White House Office of Information and Regulatory Affairs (OIRA). In any event, the Biden administration might find that there are some policy issues that require more far-reaching responses than what would be accomplished by simply repealing a Trump administration rollback and reinstating the previously existing policy. For example, this might be the case with the EPA’s greenhouse gas standards for automobiles; the Obama-era standard seems a far cry from what is needed to achieve Biden’s climate change goals.
• Politics, politics, politics. Many of the Trump administration’s rollbacks are unpopular with a broad swath of the American public, regardless of their party affiliation. Democrats have already demonstrated that they know how to use CRA to force Senate Republicans to put themselves on the record casting difficult votes, even while holding a minority in the Senate. Democrats may want to take this into account when deciding which rules to repeal using the CRA. For example, the Trump rollback of EPA’s methane standards for oil and gas facilities is not even uniformly supported by the oil and gas industry. Holding a CRA vote on that would force oil state Republicans to choose one side of the industry over the other, which could carry significant political consequences.

The above framework suggests that the CRA offers some utility to supporters of regulatory safeguards in the next Congress. And while I don’t endorse the use of the CRA in this manner, I can certainly understand why supporters of safeguards might reject unilateral disarmament and fail to take full advantage of the powers that the law offers.

On balance, though, I think supporters of regulatory safeguards would do better to focus their energies on repealing the CRA. While it can offer a few “wins” in the short term, the CRA is inherently stacked against protective safeguards and will produce a lot more losses over the long run. For progressives, the CRA is a fool’s game they cannot win.

But the question of repealing the CRA itself raises an interesting dilemma. It seems unlikely that legislation to repeal the CRA could ever pass as long as the Senate filibuster is in place. So, if Democrats make good on their growing threat to abolish the Senate filibuster, would repealing the CRA itself even still make sense? After all, one of the main procedural advantages the CRA offers is to briefly insulate legislation to repeal rules from the Senate filibuster. The answer is yes.

Even in a world without the Senate filibuster, progressives should remain committed to repealing the CRA. That’s because the CRA contains other procedural shortcuts, including measures to bypass committee consideration, limit Senate floor debate, and avoid conference committees. All these shortcuts would still exist, and they would be available to benefit legislation that is uniquely designed to attack regulatory safeguards. Indeed, these additional legislative procedures – most notably committee consideration and conference committees – would become all the more valuable in the absence of the Senate filibuster because they would provide the strongest barriers against reckless efforts to repeal existing agency safeguards. Whether or not the Senate filibuster remains, privileged procedures for legislation that has the sole purpose of putting narrow corporate interests ahead of public protections should not exist.