The Congressional Review Act (CRA) is a bad law and should be repealed.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:
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in this concern, since it seems pretty obvious that a stronger replacement would not be substantially the same as a repealed Trump rollback.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.
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.