Trump 2.0: White House and Congressional Republicans Poised to Use the Congressional Review Act for Swift Regulatory Rollback

Following inauguration, the focus on reducing federal regulation will take many forms, including early-term Executive Orders pausing late-stage Biden-era agency action and directives, kickstarting the formal processes to rescind and suspend regulations. Down Pennsylvania Ave., the White House’s Republican allies in Congress, who will control both the U.S. Senate and House of Representatives at the start of the next congressional term in January, are primed to use their own legislative tool—known as the Congressional Review Act (CRA)—to swiftly overturn regulations promulgated in the final months of the Biden Administration.

The CRA, a federal law enacted in 1996, allows Congress to review and vote to overturn new federal regulations. Between 1996 and 2017, the start of President-elect Trump’s first term, the CRA was used only once. However, in 2017, during the early months of the first Trump Administration when Republicans controlled both the U.S. House of Representatives and Senate, the CRA became a powerful tool for regulatory rollback and was successfully used to revoke a wide range of regulations issued during the final months of the Obama Administration.

Now, in the waning days of 2024, what was old is new again: President-elect Trump is again preparing to assume the presidency; come January, Republicans will control the House and Senate; and plans are in place to use the CRA to repeal a host of Biden-era rules. In this alert, we examine the CRA and the expected impact on federal regulations.

What Is the Congressional Review Act?
The CRA, enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act, is a U.S. federal law designed to allow Congress to review and potentially overturn new federal regulations issued by executive branch agencies. The CRA establishes a streamlined process for Congress to disapprove regulations, particularly those deemed burdensome or controversial. Here’s how it works:

• Agency Reporting Requirements: The CRA requires federal agencies to submit any new regulation to Congress and the Government Accountability Office (GAO) before it can take effect. The report includes the rule’s text, purpose and estimated economic impact;
• Congressional Review Period: Congress has a limited window—60 legislative days (a period that accounts only for days that Congress is in session)—to review the rule and decide whether to act on it;
• Resolution of Disapproval: During the review period, Congress can pass a “joint resolution of disapproval” to nullify the regulation. If both the House and Senate approve the resolution and the president signs it, the regulation is invalidated;
• Expedited Senate Consideration: To prevent gridlock, the CRA allows for expedited procedures in the Senate, including a bypass of the filibuster, so disapproval resolutions can be brought to a vote, and ultimately passed, with a simple majority; and
• Prohibition on Reissuing the Rule: If a regulation is disapproved, the issuing agency cannot reissue the rule in substantially the same form without explicit authorization from Congress.

The CRA is seldom used when different parties control the two chambers of Congress and the White House, because passing a joint resolution of disapproval requires majority approval in both the House of Representatives and Senate and the president’s signature. Bipartisan control makes this challenging. Rather, following an election, the CRA is more often used to overturn regulations issued by a previous administration of the opposing party.

How Is the CRA Used During Presidential Transitions?
The CRA includes a “lookback” provision that allows a new Congress to review and potentially overturn regulations issued during the final 60 legislative days of the previous Congress. This feature makes the CRA particularly potent during transitions of power, especially when a new party takes unified control of the White House and Congress.

The lookback provision empowers Congress to target “midnight regulations,” or rules issued in the final weeks of an outgoing administration. By giving the new Congress and president an opportunity to review late-term rules, the CRA ensures that regulations issued by an outgoing administration can be reversed quickly, without requiring the lengthy rulemaking process to rescind the regulations.

What Biden Administration Regulations Are Subject to CRA Rollback?
The CRA specifies that any regulation issued in the final 60 legislative days of a session of Congress can be subject to review by the next Congress. Based on the current congressional calendar, the expectation is that Biden agency regulations issued after early August 2024 will be subject to review in the next Congress.

Many of the major rules promulgated during the Biden Administration are likely to fall outside of the CRA “lookback” window, having taken effect earlier in Biden’s term. Indeed, the Biden Administration sped up its rulemaking processes to shield its rules from CRA review, with Executive Branch agencies finalizing 66 “significant” regulations (i.e., those subject to CRA repeal) in April 2024 alone.

Nevertheless, there are still many new and pending agency rules that will become subject to the CRA. According to reports published by the Columbian College of Arts & Sciences Regulatory Studies Center at George Washington University, there have been more than 900 rules finalized by the Biden Administration after August 1, 2024.

Further, as of mid-November 2024, there were more than 40 regulations still in the rulemaking process, including rules implementing Biden’s signature legislative accomplishment, the Inflation Reduction Act, which, if promulgated, would most certainly come under CRA scrutiny.

Which Rules Are Likely to Be Prioritized for Repeal Under the CRA?
Rules that are likely to be targeted for repeal typically meet one or more of the following criteria:

• Rules Issued Very Late in the Previous Administration: Regulations finalized in the very last weeks and days are likely to be identified for repeal under the CRA;
• Controversial or Politically Sensitive Rules: Rules that align with the outgoing administration’s priorities but clash with the ideology or policy goals of the new administration and Congress are prime targets;
• Rules with High Economic or Compliance Costs: Rules imposing significant costs on businesses, industries or state governments are often criticized and repealed under the CRA;
• Rules Issued Without Bipartisan Support: Regulations passed through agency authority, particularly those issued under disputed interpretations of existing statutes, are more vulnerable. This is especially true in the wake of the Supreme Court’s decision in Loper Bright v. Raimondo (overturning the long-standing Chevron decision holding that federal courts must defer to an agency’s interpretation of statutes); and
• Weak Public or Stakeholder Support: Rules that face substantial opposition from influential stakeholders, such as industry groups or state governments, as well as those viewed as lacking key support of the general public, are more likely to be repealed under the CRA.

The expectation is that Biden-era environmental rules, which have been widely criticized by President-elect Trump and congressional Republicans, are particularly vulnerable to repeal under the CRA. For example:

• The EPA’s proposed rules on “high priority chemicals,” which would limit the use of such chemicals and products containing them under the Toxic Substances Control Act (TSCA);
• The EPA’s Lead and Copper Rule Improvements (LCRI) for clean drinking water, which requires lead pipes to be replaced within 10 years, was finalized on October 8, 2024. However, the rule was not published in the Federal Register until October 30, 2024, which would render it subject to clawback under the CRA; and
• Finalized on November 18, 2024, the EPA’s rule to facilitate compliance with the requirements of the Waste Emissions Charge in the Clean Air Act's (CAA) Methane Emissions Reduction Program (MERP). This rule was enacted as part of the IRA and requires the EPA to impose and collect an annual charge on methane emissions that exceed waste emissions thresholds specified by Congress.

Congressional Republicans are also likely to pursue rescission of rules pertaining to immigration and migrant workers, as well as rules relating to diversity, equity and inclusion in the workplace and higher education, all of which drew the ire of President-elect Trump during the presidential campaign.

Challenges in Using the CRA
Under the CRA, Congress has only 60 legislative days to act on eligible rules, so priorities must be carefully selected. Not only will the new Congress have to address pressing legislative issues (like passing a government funding bill to cover the remainder of the fiscal year), but congressional leaders will be eager to advance signature Republican legislative priorities—like a massive tax reform package to extend and expand expiring tax cuts originally enacted during the first Trump Administration. These competing priorities may leave little time to consider numerous CRA resolutions come January.