Notice & Comment

Why the Congressional Review Act May Still Be Important, Even If Republicans Win the Senate

If current election results hold, it looks like Democrats will win the presidency, hold the House of Representatives, but lose the Senate (pending potential Georgia Senate runoff(s)). When the presidency most recently switched parties, congressional Republicans and President Trump extensively used the Congressional Review Act (CRA) to dissaprove Obama administration rules. Although Democrats may not be able to use the CRA as extensively if Vice President Biden wins the presidency, even if Democrats lose the Senate, they could still use the CRA to dissaprove Trump administration rules.

As many other authors on this blog have extensively discussed the CRA, I will not describe its full details. In short, the CRA provides special procedures for Congress to consider a joint resolution to disapprove a major rule that an administration recently promulgated. Specifically, the CRA limits debate in the Senate on such a joint resolution to 10 hours, effectively preventing a filibuster. Additionally, the CRA provides special procedures for 30 Senators to bring a CRA joint resolution to the Senate floor. Once the joint resolution reaches the Senate floor, any senator can require a vote on a motion to proceed to the consideration of the joint resolution. Thus, even in the minority, Senate Democrats could force a vote on any major rule promulgated near the end of the Trump administration. For instance, during the 116th Congress (2019-2020) Senate Democrats have already used these special procedures to force a successful CRA vote in the Senate on a Department of Education rule—however, President Trump vetoed the joint resolution.

Senate Democrats, even in the minority, could again use the CRA’s special procedures to force Senate votes to disapprove Trump administration rules. Without the threat of a presidential veto, as long as Senate Democrats can peel off enough Senate Republican vote(s) to get a simple majority, Democrats could use the CRA to successfully disapprove major rules promulgated near the end of the Trump administration.