This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.

The Congressional Review Act is a congressional eraser that wipes agency rules clean—and prevents their future reenactment. President Trump is wielding the Act more effectively than ever before, with a Republican trifecta in control of the Presidency and both houses of Congress. The unique opportunity exists to reject administrative rules outside the normal (and limited) window and to inoculate current rules from future rejection. Senator Eric Schmitt’s Senate Post-Chevron Working Group Report highlights the opportunity to make the most of the Act as enacted and suggests modifications for the law going forward.

Indeed, the Report suggests ways to upend the administrative status quo that “only unaccountable bureaucratic elites possess the skill and expertise to create the rules of the game for a modern state.” That status quo is ripe for disruption in the “wet cement” moment following Loper Bright Enterprises v. Raimondo. That Loper Bright decision, abrogating the longstanding Chevron doctrine, embodied a power shift from agencies to Congress. Skillful use of the Act will enhance the effect of that decision.

Even as enacted, the Report recognizes that the Act is one of the most powerful tools in the Loper Bright era to deregulate. Signed into law by President Clinton, the Act has a bipartisan pedigree that empowers Congress and the political branches. It does so by allowing simple majorities of both houses of Congress to pass a disapproval resolution that, upon signing by the President, erases a rule. Thus, deregulation by Congress rather than by agency process. And congressional disapproval has teeth—the Act prohibits later agencies from reenacting substantially similar rules. Both expanding use of the Act and challenges to its aftereffects are percolating in the courts.

Indeed, expanding use of the Act is in line with President Trump—who has used the law about as many times as every other President since its enactment combined. Both developments could lead to potentially monumental changes for agencies.

One approach that the Report suggests will dramatically expand the scope of Congressional Review Act actions is to apply the Act to “regulations finalized but never officially submitted to Congress.” Those rules never-before-submitted could be called “forgotten rules.” Congress normally has around 60 days of continuous session to disapprove of a rule. That timer runs from when the agency submits its final report to Congress and the rule is published in the Federal Register. The forgotten rules were never submitted to Congress—and thus remain eligible for congressional action today.

When a forgotten rule is sent to Congress, it starts the eligibility timer for the Congressional Review Act. One set of forgotten rules that Congress passed disapproval resolutions regarding are the three EPA waivers issued under President Biden that attempted to eventually eliminate gas-powered cars and trucks. None of those waivers were earlier submitted to the Act’s process and thus were eligible for fresh submission and then consideration by Congress. Congress disapproved the resolutions, and the President signed that disapproval.

Responding to that straightforward use of the Congressional Review Act, California sued. California’s lawsuit accused President Trump and the EPA of acting ultra vires, and, among other alleged violations, of violating the Act. While the lawsuit faces hurdles, especially as the D.C. Circuit and Ninth Circuit consider parallel actions, attempts to challenge the use of the Act and maneuver around the Act are a likely font of future litigation.

Along with applying the Congressional Review Act to forgotten rules, there are new challenges to the Act’s aftereffects. Using the Act is intended to preclude future agency action without Congress acting. But what if agencies could avoid that future-action bar with one simple trick?

We may soon find out if a recent Sixth Circuit decision remains precedential. The Sixth Circuit authorized the Federal Communications Commission to issue a rule substantially similar to a part of an earlier rule that had been disapproved under the Act. Ohio Telecom Association v. Federal Communications Commission undermines the Act’s bar on future agency action. The two-to-one decision held that the FCC’s reissuing of a 2024 data breach rule—substantially like a part of a 2016 FCC privacy rule—does not violate the Congressional Review Act’s future-action bar. The majority explained that because the 2024 rule only addressed part of the 2016 rule’s content, they were not substantially similar. Congress did not specifically authorize the 2016 Rule—or any of its parts—to be repromulgated. This decision will likely invite an attempt for en banc—or even Supreme Court—review.

Judge Griffin’s dissent highlighted the problems with limiting the Congressional Review Act’s effects in that way. As one commentator put it, if Congress disapproves of a rule that includes parts A, B, C, and D, the best reading of the Congressional Review Act is that any seriatim or combination of A, B, C, and D are prohibited. For the Congressional Review Act to retain its power and muscular assertion of Congress over unelected bureaucrats, further review of the Sixth Circuit’s decision—and ideally a better textual interpretation of the Act that is reflected in Judge Griffin’s dissent—will prevail. Otherwise, if a future President disapproves of the EPA waiver rescission, he could try to reimpose the disapproved rules piecemeal.

Courts are facing unique challenges brought under and brought against congressional review action. And the Report highlights both new applications for the Act as well as modernization efforts to amend the Act. As litigation broods, the Report recognizes that the Congressional Review Act could redefine congressional oversight in a post-Loper Bright era.

Eric Wessan serves as Iowa’s Solicitor General.