Democrats can use the Congressional Review Act to force votes on Trump’s regulatory actions. A decision by Senate Republicans could widen the opportunity.
How many times have you anxiously followed the work of Congress in constructing important pieces of legislation? Remember how Democrats handled “pending legislation” during Trump’s first term? It seemed to take millennia to get to a vote — every time!
I griped constantly about the obvious use of legislative powers to slow-play any actions on Trump’s proposed bills unless, of course, Democrats wanted those bills to be passed. For that reason, I was thrilled at Trump’s major victory in November. “Surely,” I thought, “Congress will jump on legislation to get as much accomplished as quickly as possible.” Anything but that is happening right now!
What’s going on?
It’s called the “Congressional Review Act.” GOP leaders in both Houses are considering using the same tool Democrats used to thwart important issues in Trump’s first term!
Senate Republicans are about to make a terrible decision while highlighting a tool Democrats can use to promote legislative accountability. News reports indicate that Majority Leader John Thune (R-SD) is prepared to overturn Senate Parliamentarian Elizabeth MacDonough’s ruling that the Senate may not use the Congressional Review Act (CRA) to overturn Biden-era waivers allowing California to ban the sale of gas-powered cars.
But there’s a silver lining here. If Republicans take this step, Senate Democrats could force Republicans to vote on a myriad of the Trump administration’s unpopular actions, while stymying the Republican agenda—legislation and judicial appointments included. So if Republicans push forward and accomplish a short-term goal, they open the door to even more difficult votes in the future.
Enacted in 1996 as part of Newt Gingrich’s Contract With America, the CRA allows legislators to nullify government regulations before they become effective. Most importantly, the fast-track procedure for CRA prevents such efforts from being filibustered in the Senate.
Before any regulation becomes effective, the promulgating agency must submit it to each chamber of Congress and the Government Accountability Office. For so-called “major rules,” this submission starts a 60-legislative-day clock during which Congress may enact a “joint resolution of disapproval” to overturn it. Resolutions are limited to the following format so that they cannot be used for other purposes: “That Congress disapproves the rule submitted by the [agency] relating to [topic], and such rule shall have no force or effect.”
In the Senate, the CRA imposes strict procedures governing consideration of these resolutions. Within the 60-legislative-day window, senators have a path to force resolutions to the floor, with debate on each resolution limited to ten hours and a final vote at the debate’s conclusion. In short, filibusters are prohibited.
Thanks to a 1983 Supreme Court decision, resolutions only become effective if also signed by the president. Because the president’s administration likely wrote the rule, the CRA has only been useful at the beginning of new presidents’ terms, when a president may be willing to overturn his predecessor’s regulations. As of today, the CRA has been used to overturn regulations 23 times, and never to disapprove of a policy enacted by a sitting president’s administration. So far in President Trump’s second term, three CRA resolutions have been signed, and another five are awaiting the president’s signature, with more on the way before a May 12 deadline for the fast-track procedure.
These votes put all senators on the record as supporting or opposing discrete executive branch activities.
Despite the likelihood of Republicans opposing and Trump vetoing any challenged rules of his administration, the CRA gives an enormous amount of power to Senate minorities by allowing them to use up floor time on resolutions that have no chance of passage. Because the Senate must consider and approve both legislation and presidential nominations, floor time is considered the most precious resource in Washington.
Under the Senate rules, 30 Senate Democrats can sign a discharge petition to place a CRA resolution on the Senate calendar, and any senator can then make a motion to proceed to debate, with all points of order waived. This means that CRA resolutions are considered before other Senate business, and this is possible for any regulation promulgated by the Trump administration, using up to ten hours of floor time for each resolution in which Republican priorities cannot be debated or receive a vote. Moreover, these votes put all senators on the record as supporting or opposing discrete executive branch activities.
The only limitation to this tactic is the number of rules promulgated by the administration, and the definition of “rule” is broad, with Republicans straining to broaden it even further. For the CRA’s purposes, rules are general statements by government agencies “designed to implement, interpret, or prescribe law or policy” that do not relate to managing agency processes or staff, and include both notice-and-comment regulations and guidance documents.
Executive orders and memoranda issued by the president are not considered rules, nor are agency orders defined in the Administrative Procedure Act as “matters other than rule making.” For example, the Environmental Protection Agency’s (EPA) guidance loosening emissions standards for data centers counts as a rule. Still, the president’s executive order does not make it easier to fire probationary employees.
But that still leaves a lot of raw material for Democrats to eat up the entire Senate calendar, ten hours at a time. This makes Republicans’ decision to overrule the parliamentarian odd because it would give Democrats even more actions to challenge, opening the door to additional difficult votes and further stymying Senate Republicans’ agenda.
AT ISSUE ARE WAIVERS ISSUED BY President Biden’s EPA allowing California to ban the sale of gas-powered cars. The federal Clean Air Act prevents most states from adopting or enforcing their emission control standards. Still, it provides a carve-out for California thanks to its long history of addressing air pollution at the state level. California may enact its standards so long as the EPA administrator determines that its standards (1) are not “arbitrary and capricious,” (2) are needed “to meet compelling and extraordinary conditions,” and (3) are consistent with the EPA’s regulations. At the end of the Biden administration in January, the EPA approved two waivers that allow California to enforce its regulations, rather than the EPA’s own rules.
The EPA’s waivers are not rules; one need not take my word for it. The Senate parliamentarian came to that conclusion, and the Government Accountability Office (GAO) determined that these waivers are “inconsistent with” what makes a rule a rule. As the GAO explained, an “order is a case-specific, individual determination of a particular set of facts that has immediate effect on the individual(s) involved,” whereas “a rule is a broad application of general principles that is prospective in nature” and broadly applicable. These waivers apply to California alone and adjudicate whether the state’s regulations are consistent with the Clean Air Act.
Nevertheless, Senate Republicans appear ready to declare the waiver rules that can be overturned.
Elected Republicans have not offered legal rationales for deeming the EPA’s waivers to be rules, but their allies have. In one opinion piece, a pair of conservative lawyers argue that Congress should consider the waivers to be rules partly because they “have ‘prospective effect’” because California’s rules “do not require compliance until years later.” However, the CRA looks at whether the federal agency’s action has immediate effect, and in this case, the waivers certainly do—they allow California’s rules to become effective, even if their full force will not be felt for several years.
Separately, the American Fuel & Petrochemical Manufacturers argues that “California’s policy provides all 50 states an alternative to federal vehicle emissions standards” such that it has “nationwide scope or effect,” rather than applying just to California; that is, automakers are loath to create a set of cars for California and a set for the rest of the nation. However, this argument is, again, beside the point—how automakers develop products based on economics does not change the fact that the EPA’s adjudication applies to a single state.
These arguments, plus another untested legal theory that Congress, not GAO, the parliamentarians, or the courts, determines whether an agency action is a rule, appear to have been enough to sway the House of Representatives, which voted to pass the CRA resolutions last Thursday.
If the Senate follows suit, it may allow Democrats to force votes on a wide range of government actions that Republicans may not want to be on the record for or against. The Senate runs on precedent, and if these waivers are considered “rules” for purposes of the CRA, many other actions could be as well. Democrats could force votes on, for example, state Medicaid waiver requests granted or denied by the Department of Health and Human Services, seabed mining licenses by the Department of the Interior, and grants of military-grade weapons to local police departments by the Department of Justice. This decision could allow the Senate to review Defense Department decisions to award or deny billion-dollar contracts—does Congress want to be on the record for one company and against another as they vie for the same contract?—as well as DOGE’s decisions to cut grants to a South Dakota farmer, North Carolina educators, researchers at universities, and state K-12 schools and health departments across the nation.
On Monday, Senate Majority Leader Chuck Schumer and 19 colleagues subtly warned Senate Republicans along these lines. “If the current Senate Majority were to open this door, the CRA could be weaponized to invalidate decades of agency actions retroactively,” the Senate Democrats wrote, “and effectively hijack the Senate floor.”
Even if Senate Republicans don’t go forward with overruling the parliamentarian, they even considered doing so demonstrates the CRA’s power. This should encourage Democrats to use the law to force votes on unpopular rules and guidance documents. Republicans in the Senate seem content to let the executive branch make difficult decisions. Democrats should use the CRA to put them on the record.
