Use It or Lose It
The Congressional Review Act Window is Closing
By Amit Narang & Matt Kent
Democrats must act in the coming weeks if they intend to successfully use the Congressional Review Act (CRA) to repeal parts of Trump’s deregulatory legacy.
The CRA allows Congress by a majority vote in both chambers – with limited debate, no possibility of a filibuster, and the president’s signature – to strike down rules issued by the last administration. Congress is time-limited in its ability to disapprove Trump-era rules finalized after August 21, 2020 (a.k.a. the lookback period).
There are two major deadlines at play:
- The Introduction Period: Members of Congress have until April 4, 2021 (estimated) to introduce a resolution to undo a specific regulatory action finalized during the lookback period.
- The Action Period: Special fast-track legislative procedures that enable a Senate majority to approve a CRA resolution on a Trump rule issued during the lookback period expire sometime between May 10 – May 21, 2021 (estimated).
Regulatory actions submitted to Congress after the adjournment of the 116th Congress on January 3, 2021 are subject to standard CRA deadlines, not the above timelines applicable to rules finalized during the lookback period. Recently, Public Citizen documented Trump rules that were submitted late to Congress.
The Coalition for Sensible Safeguards has developed a list of notable rules eligible for repeal under the CRA.
| Rule | Agency | Publication |
|---|---|---|
| Fair Housing Disparate Impact | HUD | 09/24/2020 |
| Grants Rule (LGBTQ discrimination) | HHS | 01/12/2021 |
| Commission Conciliation Procedures | EEOC | 01/14/2021 |
| Oak Flat/Resolution Copper Mine Environmental Impact Statement | USDA: Forest Service | 01/15/2021 |
| Alaska Tongass Roadless Rule | USDA: Forest Service | 10/29/2020 |
| Designating Critical Habitat for Endangered Wildlife | Interior - FWS | 12/18/2020, 12/16/2020 |
| Clean Air Act “Once In, Always In” | EPA | 11/19/2020 |
| Methane Review Rule | EPA | 09/14/2020 |
| Clean Air Act Cost-Benefit Analysis | EPA | 12/23/2020 |
| True Lender Rule | Treasury - OCC | 10/30/2020 |
| Cross-border Swaps | CFTC | 09/14/2020 |
| Proxy Advisor Rule | SEC | 09/03/2020 |
| Shareholder Proposal Procedures | SEC | 11/04/2020 |
| Proxy Advisor Rule | DOL | 12/16/2020 |
| ESG Investing | DOL | 11/13/2020 |
| SUNSET Retrospective Review | HHS | 01/19/2021 |
| Asylum Eligibility (Third Country Transit Ban) | DHS/DOJ | 12/17/2020 |
| Pandemic-Related Security Bars | DHS/DOJ | 12/23/2020 |
| H-1B Wage Based Selection | DHS | 01/08/2021 |
| Asylum Procedures and Withholding of Removal | DOJ | 12/16/2020 |
| EOIR Appellate Procedures and Decision Finality; Admin Closure | DOJ | 12/16/2020 |
| Asylum Credible Fear and Reasonable Removal | DHS/DOJ | 12/11/2020 |
| EOIR Organization | DOJ | 11/03/2020 |
| Airlines Defining Unfair and Deceptive Practices | DOT | 12/07/2020 |
| Driver Hours of Service: Ag Commodities | DOT | 11/24/2020 |
| Driver Hours of Service: Pilot Program Pause | DOT | 09/03/2020 |
| 18 – 20-Year-Old Drivers Pilot Program | DOT | 09/10/2020 |
| Mine Inspection Ten Day Notice Rule | Interior - OSMRE | 11/24/2020 |