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Quick thread on the Congressional Review Act, because lots of folks seem to misunderstand how it works and how the elections affect the potential for its use. 1/
The CRA creates an expedited procedure for congressional repeal of recently adopted regulations. As such, it's an effective way to eliminate "midnight" regulations of prior administration because CRA resolutions aren't subject to filibuster, etc. 2/
The GOP used the CRA to eliminate over a dozen Obama regulations, and Dems may seek to use it to eliminate Trump regulations adopted within past few months (within the CRA window). 3/
The GA election may make CRA resolutions more likely, but not as much as people think. This is because Senate control is not necessary to bring up CRA resolutions. Senate Maj. Leader cannot block votes on CRA resolutions. Dems could have forced votes even had they lost in GA 4/
The GA election results make CRA resolutions easier to pass by increasing the number of likely votes to repeal regulations, to be sure, but that's a small effect b/c any CRA resolutions Sen Manchin would support likely draw a few Republicans. 5/
Bottom-line (and what too many political commentators don't understand) is that (unlike with, say, nominations) you don't need party control of the Senate to use the CRA. If you have the votes, you have the votes. 6/
A few other tidbits: The Biden administration will want Congress to use the CRA where possible because it is MUCH quicker than repealing regs through the administrative process, and it's not subject to judicial review under the APA. 7/
Also, if a CRA resolution passes and is signed by the President, agencies are barred from reissuing the rejected rule or its equivalent. So Trump rule nixed now could not be re-adopted by Ha(w)ley administration in the future. 8/
This also means Biden administration can't simply re-issue Obama rules nixed by CRA in 2017. But the scope of this prohibition has yet to be tested, and it's unclear how different a new rule needs to be. Courts have yet to confront this. 9/
One last point: If Biden administration adopts regs opposed by moderate Dems (e.g. Manchin), they might be vulnerable to CRA resolution in Congress, but Biden could veto any such resolution, b/c they're subject to bicameralism and presentment. /10
Here again, though, it's important to remember that Dem control of Senate would not stop Republicans from forcing a vote on a CRA resolution to repeal a Biden regulation, but WH could still veto. 11/11
Some added notes. Those Trump rules which are vulnerable are those adopted after August 21, 2020. https://twitter.com/PerezDRPerez/status/1346526079150940161
So, if a rule was not published in the Federal Register by August 21, it can be targeted under the CRA.
For an idea of which rules this covers, this reporting is helpful: https://projects.propublica.org/trump-midnight-regulations/
For an idea of which rules this covers, this reporting is helpful: https://projects.propublica.org/trump-midnight-regulations/
The folks at the GWU @RegStudies center have more background and good info on the CRA here: https://regulatorystudies.columbian.gwu.edu/congressional-review-act
