“A Very Powerful Weapon”

The CRA gives lawmakers the power to overturn new final rules from regulatory agencies — including environmental standards, labor protections, and antitrust guidance. From the time a rule is put on the books, lawmakers have sixty business days to pass a bill to overturn the rule, and then sign the bill into law.

Lawmakers have the power to simply repeal the law behind the rule itself, of course, by passing additional legislation. But the CRA, which is not subject to a filibuster, helps cut the red tape in the legislative process, providing a simpler, more expedited way to kill new rules.

The law “gets Congress out of Congress’s own way to repeal regulations. That is the Congressional Review Act in a nutshell,” Goodwin said.

There are also lasting implications from the law’s use. Once a rule is repealed under the CRA, the agency is largely prohibited from issuing a similar rule in the future.

“It has this nuclear fallout quality to it,” Goodwin said — potentially keeping the agency from touching similar subject matter once a rule is repealed under the law. This is not the case when a rule is overturned through other means, such as through a second rule-making process at the agency.

In 2001, for example, the CRA was used to repeal an Occupational Safety and Health Administration rule protecting workers from ergonomic hazards — the musculoskeletal dangers that workers face when doing manual labor, like back injuries. Ever since, there have been virtually no federal standards on ergonomic injuries.

Under the Biden administration, Republicans have had little opportunity to use the CRA. Bills to overturn a rule Biden issues must currently make it through a Democrat-controlled Senate and be signed by the president himself. So each attempt to overturn rules has eventually died at Biden’s desk, if it managed to get there at all.

But that could all change if Trump comes into power in January.

Due to a sixty-day “lookback” provision in the law, rules that are finalized close to the end of a legislative session can still be reviewed — and repealed — when Congress returns to session next year in January 2025.

This means that if Trump wins the presidency, and the GOP flips the Senate and retains control of the House, securing a Republican trifecta of power, they would be able to quickly overturn any rules that were finalized in the final days of the current Congress.

If the “stars align” for the GOP, Goodwin said, “then the Congressional Review Act becomes a very powerful weapon for all those rules that happen to fall in the sixty-day period.”

It’s still unclear what rules those may be. The lookback period depends on how many days Congress is in session before January, which is still undetermined, and the way these days are counted is set through opaque and complicated rules laid out in the law.

Balla, the George Washington professor, said he believed that the lookback period was most likely to start “about right now,” at the end of July. This means that “any move that’s finalized in the period from now until the end of the Congress — those would be the ones vulnerable to being overturned by the Congressional Review Act, should Trump win the election,” he said.

Dan Goldbeck, the director of regulatory policy at the American Action Forum, a right-leaning think tank that tracks regulatory developments, agreed with Balla that this date was a “reasonable guess.”

Key pending Biden rules — the Consumer Financial Protection Bureau (CFPB)’s proposal to ban “non-sufficient funds” fees, some of the Environmental Protection Agency’s still-pending rules to limit PFAS exposure and Federal Trade Commission rule banning subscription traps and junk fees — may be vulnerable to being quickly overturned if they are issued in the coming months, since they have not yet been finalized.

The looming deadline was a likely factor in a slate of major Biden rules coming down this spring: the major crackdown on PFAS contamination; regulations to promote electric vehicles; and the CFPB’s landmark rule banning excessive credit card late fees, among many others.

“Because [the CRA deadline] is such a moving target, it’s tough to say if that was the main motivation to release the rules when they did,” Goldbeck said, but added that there was likely at least some consideration of the deadline.

These rules might be safe from a quick reversal under the CRA, should Republicans sweep the elections in the fall.

But as Balla emphasized, there are other ways for a new administration to undercut a predecessor’s policies. “The [CRA] is only one tool that a second Trump administration would use, or could use,” he said.

And Vance’s voting record on CRA proposals may predict what that could look like.

Vance’s Industry Backing

Vance was elected to the Senate in 2022, armed with a Trump endorsement, and took office in January 2023. Over the last two years, he has taken aim at a crucial slate of Biden regulations under the CRA. Many of the twenty-four resolutions Vance cosponsored also won the robust support of the Republican Senate minority. Some even made it to Biden’s desk.

Many of the rules that Vance took aim at were the Biden administration’s environmental policies: the new emissions standards for heavy-duty trucks, a suite of new greenhouse gas emissions requirements, and rules on energy conservation for gas furnaces.

And he also cosponsored a resolution that would have overturned a Securities and Exchange Commission rule requiring public companies to disclose their emissions and climate-related risks to investors. That rule is now on hold as a legal battle brought by the US Chamber of Commerce, the nation’s largest corporate lobbying group, plays out in the courts.

Vance once spoke of his concerns around climate change and of the importance of “clean energy,” but as Politico reported this spring, he has reversed course on environmental issues as an influx of oil and gas industry cash has come his way.

The fossil fuel industry was one of Vance’s biggest supporters during his Senate bid, giving more to his campaign than to those of many other Republican lawmakers.

But it’s not only environmental protections that Vance has tried to overturn during his time in the Senate. He also cosponsored bills to overturn Biden administration rules that require additional transparency from companies around cybersecurity incidents; a Department of Education rule that protects trans students from discrimination; and a gun control rule from the Department of Justice.

These rules, though, were finalized far enough in advance that they will likely not be able to be overturned by the CRA, even if Trump takes power in November.