The Case for Repealing the Congressional Review Act

The Congressional Review Act (CRA) is often cited as a once-obscure law, but during the first four-and-a-half months of the 115th Congress, it was used to rescind fourteen administrative rules. Under the CRA, agencies are required to submit rules to Congress for review and, upon receipt, Congress has sixty legislative days to issue a joint resolution disapproving the rule. If the resolution is signed by the President, the rule is overturned. The lookback period is extended at the end of a legislative session. Trump’s Office of Management and Budget expanded the CRA by interpreting it to apply to any agency guidance that had been approved since the law’s inception in 1996 if that guidance had not been reviewed by Congress. Repealing the CRA would address several problems created by the law including its impact on rulemaking efficiency, waste of federal resources created by revoking rules that were years in the making, and regulatory uncertainty. Most importantly, it would take away a quick and dirty means to strip American citizens of the environmental, health and safety, consumer, and workplace protections administrative rules are generally designed to provide. Finally, it would avoid the possibility that vetoed rules may not be replaced due to the CRA’s prohibition on substantially similar rules. The Sunset the CRA and Restore American Protections (SCRAP) Act was introduced in 2017 and could be re-introduced by the 117th Congress. The SCRAP Act is found to be a sound policy option with no fiscal burden, but it has the potential to create political friction both with Republicans who are committed to “Congressional oversight of the Administrative State” and Democrats who are eager to use the CRA to unwind Trump-era rules. Democrats can use the CRA through the end of May 2021 and some resolutions have already been introduced. Democrats have other options to get rid of problematic rules from a prior administration. Ultimately, this analysis recommends the administration pursue a new SCRAP Act