“Right now, I feel like I could take on the whole empire myself,” Dak declared shortly before the Battle of Hoth. Though Luke Skywalker’s co-pilot did not mean American federal bureaucracy, the United States Congress shared a similar disdain for growing executive power when it passed the Congressional Review Act (CRA) in 1996. Little did Congress know, it would take twenty years to actually take on the executive branch. However, in the past five years, the CRA has become a critical congressional tool for both Republicans and Democrats.
Republicans started using the CRA more frequently during the Obama Administration—a product of their congressional majorities and skepticism for new regulation. But, without the White House, they could do little to check new regulations promulgated by President Obama’s Administration.
Following the election of President Donald Trump, Republicans felt they finally could tackle the administrative state that their progressive opponents spent decades building through legislation, court cases, and countless major regulations. Republicans acted swiftly to strike down Obama-era regulations using the CRA. Few on Capitol Hill or in the conservative policy community expected this many successful CRA actions. Many noted the Republican Senate majority was thin and floor time would be consumed with health-care repeal votes, nominations, and possible votes on tax reform.
The policy community doubted that a majority of Senate Republicans would agree on more than eight to ten resolutions to disapprove. Furthermore, many were certain that Democrats would almost universally oppose Republican attempts to undo President Obama’s environmental and labor standard accomplishments. However, according to some scholars, Congress exceeded expectations and nullified sixteen regulations using the CRA’s provisions.
Moreover, the decision of Senate Democrats to wield the CRA to press for a vote to overturn the Federal Communications Commission’s net neutrality repeal showed the CRA has become more than a partisan cudgel. The CRA is now an institutionalized tool of the legislative branch to check the executive power. Democrats shifted from arguing that the CRA was an extreme mechanism to undermine President Obama’s accomplishments to employing the CRA to advance their own agenda.
Additionally, Congress has found new and innovative ways to employ the CRA to overturn executive branch actions. At first, only the province of a widely dismissed 2017 Wall Street Journal editorial, Congress asked the Government Accountability Office (GAO) about the Consumer Financial Protection Bureau’s (CFPB’s) auto-lending guidance document. The GAO ruled the guidance constituted a rule under the CRA, even though it was issued beyond the sixty-legislative-day-review window outlined in the CRA. The use of the CRA to nullify past guidance documents is profound and has significant potential ramifications.
Congress can now go back years, even decades, to strike down past administrative guidance. Although a new president could unilaterally rescind the guidance issued by a previous administration, the CRA provides an added layer of protection by ensuring that a future executive cannot reissue the rule “in substantially the same form.” There has not yet been any litigation surrounding this ambiguous statement since many agencies shy away from reissuing the rule, leaving the nullified policy in regulatory purgatory. However, now that sixteen additional rules have been nullified, it is more likely that a previously rejected rule might rise from the grave— creating the possibility of litigation over the “substantially the same form” language.
This article argues that the CRA has played a role rebalancing power between the executive and legislative branches. Congressional use of the CRA by both parties—on major rules and guidance—has put every future executive on notice that Congress will scrutinize the process (regardless of whether rules are submitted to Congress in the correct manner) and the substance of future executive action.
Part II offers a history of the CRA from its beginnings as part of a unicameral legislative veto to the modern CRA in 1996, including the limited debate surrounding CRA passage. The article also surveys the relevant dormancy period of the CRA from 1997 to 2016. Part III describes the current environment, including the reemergence of the CRA after the 2016 election. Part IV discusses bipartisan use of the CRA to strike down agency action and the institutionalization of the CRA. Part V surveys the CRA’s future and examines how the past few years might influence future executive action.