On June 12, 2025, President Trump signed three resolutions of disapproval in an effort to block California’s current air pollution emissions standards for cars and trucks. California and ten other states immediately filed suit in federal court, citing a number of statutory and constitutional claims in arguing that the resolutions were unlawful and asking a federal court to declare them to have no effect. As this litigation begins to play out in court, it is a timely moment to take stock of the Congressional Review Act (CRA), the law which made the federal government’s attack on state emissions laws purportedly feasible. This essay explains the history of CRA actions and the asymmetrical threat it has posed and continues to pose to regulatory safeguards, and concludes by suggesting that this latest unprecedented use of the CRA may well lay the foundation for Congress to revisit or repeal the CRA.

Three Decades of the Congressional Review Act

The CRA is a 1996 statute that creates an expedited process for Congress to nullify an executive branch agency rule. The CRA requires federal agencies to notify Congress upon finalizing a CRA-covered rule. Congress can then pass a resolution of disapproval during a statutorily-prescribed window of time after the agency action was taken. Importantly, this resolution enjoys a privileged status that avoids the filibuster and allows it to be passed by a simple majority. If the President signs the resolution, the agency rule is nullified, and the agency is prohibited from taking a future action that is “substantially the same.”

The Congressional Review Act was passed by a Republican Congress in 1996 but has a bipartisan pedigree. Throughout his career, now-deceased Sen. Carl Levin (D-MI) was a champion of the concept of congressional review of agency rules. In 1979, shortly after joining the Senate, Sen. Levin introduced legislation to establish a legislative review of agency rules.  In 1985, after the Supreme Court found legislative vetoes unconstitutional, Sen. Levin introduced revised legislation that proposed the resolution of disapproval approach ultimately enacted by the CRA. Sen. Levin’s proposals had enjoyed a measure of bipartisan support, and his 1985 bill was cosponsored by Senate Majority Leader Bob Dole (R-KS).

While Sen. Levin’s bill was not enacted, Congress ultimately passed the CRA more than a decade later as part of a larger legislative package. Due to a popular provision that effectively increased Social Security benefits, the legislation had overwhelming bipartisan support in the House and passed unanimously in the Senate. When Democratic President Bill Clinton signed the CRA into law, he said he had long supported the concept.

Still, there were concerns on the Democratic side about the CRA. Noting estimates that 4,000 rules are issued each year, Sen. Levin was concerned that, as drafted, the CRA applied to too many rules. Levin said that the text was “not exactly what I would have chosen to support, but it’s close enough.” President Clinton was concerned that the review process could drag on too long.

Perhaps because of this history of bipartisanship, Democratic politicians have been slow to articulate concerns that the CRA is a significant problem for Democratic – as opposed to Republican – governance. In fact, the CRA has had much more effect on curbing the actions of Democratic administrations over the years than those of Republican administrations.

The CRA was first used by Congress and President George W. Bush in 2001 to negate a Clinton regulation related to ergonomic injuries. It wasn’t successfully used again until 2017 when President Trump and a Republican Congress used it to undo sixteen rules finalized by the Obama Administration. These included measures to protect streams from coal mining, to keep firearms from the mentally ill, to protect consumers’ privacy, to promote women’s health, and to discourage U.S. companies from bribing foreign officials.

In President Trump’s second term, in addition to the California emissions waivers discussed above, the CRA has been used to rescind thirteen Biden Administration rules. These rules include a rule that imposes a fee on emitted methane in order to discourage waste and pollution, a rule that limits the use of off-road vehicles in Glen Canyon National Recreation Area, rules that set efficiency standards for gas water heaters, walk-in coolers and freezers, and commercial refrigerators and freezers, a rule that reduces toxic emissions from tire manufacturing, a rule that protects marine archeological resources, an IRS rule regarding reporting of digital asset sales, two rules issued by the Consumer Financial Protection Bureau, a rule that revises the process of considering bank mergers, and a rule that limits emissions of persistent and bioaccumulative hazardous air pollutants.

There is only one example of a Democratic Congress and Democratic President using the CRA to nullify a rule issued by a Republican administration. In 2021, Congress passed a resolution to nullify an EPA deregulatory rule. In 2020, the Trump Administration had promulgated a rule to deregulate methane emissions from the oil and gas sector, and Congress used the CRA to nullify that action. President Biden signed that resolution into law. The result was that methane continued to be regulated under the Clean Air Act, and the CRA would appear to bar such a deregulatory action in the future.

The CRA has seen its most use during periods of presidential transition, when a new President has the opportunity to undo some of the last actions of the former President. But the CRA has also served as an important cudgel against Democratic administrations outside of those transition periods. Mere introduction and consideration of a CRA resolution can serve as a tool to build and demonstrate opposition to executive action. President Obama was forced to veto five resolutions of disapproval during his presidency relating to labor protections, protections against financial conflicts of interest, pollution controls for new and existing power plants, and rules limiting water pollution. President Biden vetoed ten resolutions of disapproval relating to the domestic content of electric vehicle chargers, small business lending, endangered species protections for certain bats and birds, consumer protections relating to cryptocurrency, labor rules, student loans, emissions standards for heavy-duty vehicles, Labor Department rules that address climate change-related fiduciary duties, and the scope of the Clean Water Act.

By contrast, Congress never sent President George W. Bush a resolution of disapproval for actions of his administration. Congress sent President Trump only a single resolution of disapproval relating to an action of his administration. In 2020, Congress disapproved of a rule relating to student loans, but President Trump vetoed the resolution.

The CRA undoubtedly also has a pernicious, yet unquantifiable, effect on the rulemaking process. Seeing agency rules challenged or even nullified by the CRA, agency regulators craft regulations with the specter of the CRA hanging over their heads. It can’t be known how many changes are made in contemplation of the possibility of having to defend a regulation against a majority vote in the Senate, but there can be little doubt that the CRA has a chilling effect on agency rule writers.

Additionally, the CRA has come to be understood to apply to executive actions well beyond what was contemplated on the Senate floor back in 1996 – beyond notice and comment rulemaking, and even including agency actions that have no binding effect. The CRA provides that the Government Accountability Office (GAO) has the role of determining whether federal agencies have followed the proper procedure when the agencies report their CRA-eligible rules to Congress. Even though the CRA does not require it, the GAO has also accepted the role of issuing decisions regarding agency compliance with the CRA when Congress requests their view. These legal decisions have endorsed the view that a broad scope of actions are eligible for CRA review.

For example, in 2022, the GAO determined that a Department of Transportation memo which sought to merely encourage states to maintain existing roads prior to building new roads was subject to the CRA. Republicans in Congress threatened to use the CRA to nullify the memo, and in response the Department revised their policy to placate congressional opposition. That episode not only demonstrates the expansiveness of actions potentially eligible for CRA review but illustrates how the CRA has forced a Democratic administration to change its policy even without the passage of a resolution of disapproval.

On top of all of this, the expanding understanding of CRA eligibility means Congress could review countless federal actions previously not submitted to Congress because submittal was not understood to be required. In 2017, the GAO issued a legal decision addressing 2013 Consumer Financial Protection Bureau (CFPB) guidance. The GAO determined that the CFPB guidance was indeed a rule even though the CFPB had argued it was not a rule and had not submitted it to Congress. Despite the rule having been finalized four years previously, the CFPB rule then became eligible for congressional review. Congress subsequently nullified the rule in 2018. Because the breadth of CRA eligibility has only become understood in the last decade, there are doubtless many federal actions taken after enactment of the CRA in 1996 that Congress could now review if it elected to do so.

The three-decade history of implementation of the CRA demonstrates that the law has had a disproportionate effect on efforts undertaken by Democratic administrations as compared to Republican administrations. To date, the CRA has nullified 33 rules issued by Democratic administrations and only one rule by a Republican administration. Additionally, the CRA has been used to effectively demonstrate congressional opposition to the agenda of Democratic administrations far more than Republican administrations. While facially neutral, the CRA is inherently deregulatory in practice and therefore has an asymmetrical effect on proposals to address problems through regulation. Because the policy goals of the Democratic Party can often be achieved through regulation and the policy goals of the Republican Party are often associated with deregulation, the CRA is a tool that serves Republican legislators far more than Democratic ones.

Despite this history of implementation, Democratic legislators have not unified around the need to revisit the CRA. That may change with Congress’ recent extremely aggressive uses of the CRA and the new precedent the Senate set to use the CRA on EPA’s waivers of preemption on California emissions standards.

Using the CRA to Overturn State Regulation

On May 21, 2025, Senate Majority Leader John Thune offered two points of order on the floor of the U.S. Senate to set a new precedent that will guide future utilization of the CRA. This precedent gained attention like few procedural votes in the Senate do. The precedent allowed the CRA to be used to undo a category of agency actions that have never been subject to the CRA before and it could fundamentally change the scope of what the CRA applies to going forward, ushering in a new era of implementation for the law.

For the first time, Congress used the CRA to review the EPA’s issuance of a waiver of preemption regarding California’s pollution requirements. Since enactment of the Congressional Review Act in 1996, EPA has taken nearly 150 actions under that authority and until 2025 no one, including the George W. Bush Administration, had ever considered them to be “rules” subject to the CRA. EPA’s California waivers do not fall into the definition of a rule according to the GAO or the pre-2025 EPA (Clinton, Bush, Obama, Trump). The GAO has explained that the waiver is an “order,” not a “rule,” because the waiver was particular to California, based on consideration of particular facts, and had immediate effect in California. The GAO concluded that even if the waiver was a rule, it is a rule of particular applicability because it “concerns a specific entity—California—and addresses a statutory waiver specific to California’s Advanced Clean Car Program.” The CRA specifically excepts rules of particular applicability from being subject to CRA review.  

When the Trump EPA submitted the waivers to Congress pursuant to the CRA they offered no explanation to counter the GAO’s analysis or EPA’s former position and provided no information that could be used to distinguish California waivers from any other executive action not subject to review under the CRA. The Senate, for its part, articulated no rationale to explain why approvals of the California waivers would be subject to the CRA, but other orders, adjudications, or excepted actions like contracts, leases, and permit approvals would not be. (Several weeks after the Senate vote, the White House has attempted to provide a rationale for why the waivers should be considered rules subject to the CRA.)

In short, the CRA has entered a phase of implementation where Congress is willing to defer completely to the executive branch regarding which actions are eligible for CRA review. This precedent in effect says that the Senate will now just take the executive branch’s word on whether an action is subject to the CRA – even when that action is on its face at odds with the CRA statutory language and no justification or argument for applicability is even offered. An administration that is willing to recategorize orders, adjudications, and excepted actions as “rules” subject to the CRA can now achieve privileged consideration in the Senate, contrary to the original intent of the CRA.

The Senate has therefore engineered a path for a one-party government to bypass the filibuster when seeking to eliminate virtually any previously unreviewed agency action. This opens the door to abuse of the CRA and would allow for enormous and unpredictable policy shifts that disproportionately favor anti-regulatory advocates, polarizing the CRA in a way that hasn’t been seen previously.

A Foundation for Revision or Repeal

During the Senate floor debate establishing the new CRA precedent, Democratic senators made clear that they understood the gravity of what was happening. Senate Minority Leader Chuck Schumer said that the Senate Republicans were “going nuclear” and setting a precedent “that cannot likely be reversed.” “Moving forward,” Senator Schumer said, “Congressional Review Acts will be weaponized like never before.” Senator Durbin said the use of the CRA was “a dramatic break from Senate precedent with profound consequences.”

Democratic senators demonstrated an understanding that notwithstanding the statute’s definition of a rule and the statutorily prescribed time periods for review, the new precedent creates vast new opportunities for abuse. Senator Schumer said that with this precedent the Trump Administration would be able to “choose an Agency action or policy [they don’t] like, stamp it with a label ‘CRA,’ send it over to the Congress, and Republicans will … repeal it at a simple majority threshold.” Senator Whitehouse explained, ”Essentially, any Executive decision since the passage of the Congressional Review Act can now be brought here on a purely political basis and—boom—blown up.” Senator Padilla agreed: “Under this logic, the Trump administration can send an endless stream of nonrule actions to Congress going back to 1996, including vaccine approvals.” Indeed, recent reporting indicates that EPA may now be searching for additional “older rules” that can be sent to Congress for CRA review.

It appears that Democratic legislators understand the threat the CRA now poses to Democratic policy priorities. This precedent could be a catalyst to accelerate the Senate towards majoritarian rule. A key argument for retention of the filibuster is the policy stability the filibuster promotes. Yet with this precedent, the filibuster has diminished value at providing that stability. A filibuster might stop a repeal of a statute, but the CRA would now allow any effort to implement that statute to be overturned by Congress. Additionally, overcoming a filibuster to enact a reform would also be of more limited value if an agency action is required to carry out that reform and those actions are threatened by a majority vote under the CRA. Still, retention of the filibuster would maintain a measure of stability, especially where agency implementation is limited or unnecessary.

Setting aside the larger discussion of filibuster reform, Democratic legislators have at least three alternatives to respond to the new CRA precedent.

First, Democratic legislators could attempt to operate under the current precedent and exploit it to their advantage during the next Democratic administration. Current policies relating to scientific research, reproductive health, fossil fuel permitting, and agency management could all presumably be undone with a Democrat in the White House and a willing Congress. Democratic senators raised that specter during the floor debate. Senator Schumer observed, “What goes around comes around,” and Senator Schiff raised the possibility that a Democratic majority could use the CRA to focus on state rules regarding mifepristone or federal licenses to export liquid natural gas.

But realistically, this new precedent – just like previous use of the CRA – will likely disproportionately impact Democratic administrations. Because of the CRA’s inherently deregulatory nature, there may be fewer targets of interest for Democratic policymakers. Additionally, the CRA’s prohibition on future agency actions that are “substantially the same” as a rescinded rule might impact Democratic policies more than Republican ones. The prohibition is vague and likely weak, but Democratic legislators might consider the uncertainty it creates as a disincentive for action under the CRA.

Second, Democratic legislators could seek legislative amendments to the CRA to reform the law or even to repeal it. To date, amendments to the CRA have not sought to meaningfully affect the scope or function of the Act. A 2023 amendment required additional analysis by the GAO and a 2024 amendment established a reporting and database requirement. Attempts to modify or repeal the CRA when it has become such a useful tool for their opposition may be difficult, but Democratic agreement that the CRA poses asymmetrical risks to Democratic governance is the first step. Identification of a revision that can more fairly serve all parties would be a difficult next step.

Finally, Democratic legislators could adopt chamber-specific reforms to how the CRA is used. In enacting the CRA, Congress recognized the unique space in which it was legislating. A Congress has very little ability to bind the process used in a future Congress. Therefore, Congress included a provision in the CRA to recognize the constitutional right of both chambers of Congress to change their rules “at any time, in the same manner, and to the same extent as in the case of any other rule of that House.” This means that at the beginning of a Congress that Democrats control, a legislative majority could decide to establish rules governing consideration of CRA resolutions that differ from those dictated by statute. This would be permissible under the CRA and warranted given the recent turn of events in the Senate. Such a rule change might limit or remove the privileged status of a resolution of disapproval. While such a change would not fix the precedent of May 21, 2025, it could limit the ability of a minority to hamper the governance of a Democratic President during that President’s term. Other creative options could certainly be developed.

The Senate’s new precedent allowing the CRA to be used to overturn EPA’s waivers of preemption for California emissions standards is another significant step in the long saga to reduce carbon pollution from the transportation sector. However, it is an even more important moment in the governance of the U.S. Senate. Perhaps it lays the foundation for a significant reconsideration of the Congressional Review Act.

Greg Dotson is an Associate Professor of Law at the University of Oregon School of Law and served as Chief Counsel to the U.S. Senate Environment and Public Works Committee in 2021 and 2022.