Why You Should Care: The Congressional Review Act

The tool that could be used to dismantle the Biden Administration’s wildlife protections.

The Congressional Review Act is a lesser-known law enacted in 1996 that allows Congress 60 legislative days to use an expedited process to reject and invalidate certain federal regulations, even ones that have been in effect for months. Because of the way legislative days are calculated, current rules going back to August 16, 2024, may be on the chopping block.  

Under the CRA, a regulation can be invalidated through a joint resolution in the House and Senate and with the President’s signature. The CRA provides expedited procedures for passage in Congress, including a Senate filibuster bypass. Once a CRA resolution becomes law, the effected rule is immediately invalidated, and federal agencies are barred from enacting any regulation that is substantially the same as the regulation that was disapproved.  

Why You Should Care

If a rule is rejected under the CRA, the issuing agency – such as the Department of the Interior or the U.S. Fish and Wildlife Service – cannot issue a new rule that is substantially the same as the rejected rule. It’s unclear what exactly “substantially the same” means. At a minimum, the substantial sameness bar has the potential to create a significant chilling effect. Agencies will be less likely to take on a multi-year rulemaking process while facing the prospect it could be rejected given its relationship to a rule that was rejected via a CRA resolution.

Using this law to strip away needed regulatory protections for wildlife, public lands or energy projects would be extremely damaging. For example, a CRA on a species listing under the Endangered Species Act has potentially dire effects, as it could discourage or even thwart later efforts to provide the species with much-needed Endangered Species Act protections in the event of continued decline.

What Could Be Next?

There were over 1,000 rules finalized between August 16 and the end of the Biden Administration. Some organizations have narrowed down that list in an attempt to identify the more expensive or more politically contentious rules, which might be targeted during the beginning of this Congress.

Defenders of Wildlife is deeply concerned a CRA could be used strike down vital Endangered Species Act rules, putting some of America’s most iconic wildlife at risk and subverting environmental laws that guide the management of public lands and waters across the country. Congress is also considering a variety of new harmful legislation, like the misleadingly named Fix Our Forests Act, and planning to quickly pass legislation through budget reconciliation, which takes a substantial amount of attention and floor time. These priorities could limit the time and resources Congress can devote to targeting rules for CRA, particularly since President Trump can accomplish similar rollbacks of these rules through regulatory action.

After the lookback period for Biden era rules ends, the CRA could be one of the only processes available to Democrats to force votes in the Senate on the most controversial rules the Trump Administration promulgates. With President Trump likely to veto any CRA resolutions Congress sends him, there is little hope most CRA resolutions will become law. However, Democrats may use CRA resolutions to demonstrate a lack of support in Congress for some of the most controversial ideas coming from the White House.  

Without procedural power to push an agenda in either the House or the Senate, the CRA could also be one of the only outlets for Democrats to force a vote or control floor time during this session. Without a doubt, this procedural tool will be in play in the coming months, and possibly for the duration of this Congress.

This blog was updated from a 2017 story to reflect current events.