by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
The New York Times this week shrieked about congressional Republicans using what it called “an obscure law” and “a little-known statute” to rescind regulations adopted at the end of the Biden administration.
The article refers to the Congressional Review Act (CRA), which is neither “obscure” nor “little known,” though the reporter might be forgiven for not knowing about it. She has only been out of college three years and was still in high school when the CRA last made headlines. But it has been on the books for 30 years (part of famous 1994 “Contract with America”) and has been used by Congress to overrule regulatory agencies 30 times.
Under the CRA, agencies must send new “major” rules (those costing more than $100 million or causing major price increases) to Congress before they can take effect. Congress has 60 days to rescind the rule; otherwise it goes into effect. To rescind a rule, both chambers must pass a joint resolution, which the president must sign like any other law. The CRA was used once to overrule a Clinton-era regulation, 14 times rescinding Obama-era rules, three times overruling Trump, and 10 overturning Biden regulations (so far). It has been used by majorities of both parties, and is a useful tool for Congress because the CRA resolutions require only simple majorities and are not subject to filibuster in the Senate. It’s still a daunting process, considering that 17 resolutions were vetoed by presidents, 23 failed to get majority votes in one house and 20 others failed in both houses. Hardly a “little known” or rarely used process.
Nevertheless, some reports quote minority party leaders expressing outrage that the CRA process is being used to cancel regulations and circumvent the partisan gridlock that has brought Congress to a virtual standstill on most issues. They howl that this process is “upending longstanding policies” and undermining ordinary congressional procedures. But what is more “ordinary” than Congress making the laws? Isn’t that what the Constitution requires? That ignores the reality, of course, that in recent decades Congress has delegated much of its legislative authority to executive branch agencies. Regulations today far outnumber laws, both in number and economic impact.
