Why is the Biden Administration is pushing out so many new regulations? Blame the CRA.

In Congress, there exists a powerful but often overlooked tool wielded by Congress to review and potentially remove regulations enacted by federal agencies. This tool, known as the Congressional Review Act (CRA), is top of mind as we approach a critical point in time where deployment of this tool becomes more likely.

Enacted in 1996, the Congressional Review Act provides Congress with the authority to review, through an expedited legislative process, new federal regulations issued by government agencies. This act was designed to enhance congressional oversight of regulatory actions and to ensure agencies were enacting regulations as Congress intended.

The CRA establishes a streamlined procedure for Congress to consider a joint resolution of disapproval to nullify a recently issued regulation. Once the resolution is introduced and passed by both chambers of Congress, it is sent to the President for approval. If signed, the regulation is effectively removed, and the agency is prohibited from reissuing a substantially similar rule without new authorization by Congress. While the rollback is impactful the moratorium on any subsequent regulation in this policy space can have the longest lasting impact.

The CRA possesses a unique feature that makes it particularly impactful at certain points in time. Specifically, the CRA allows Congress to review regulations issued within the previous 60 legislative days. Given that legislative days do not necessarily align with calendar days, this window can be longer or shorter than the typical 60-day period.

With each new Congress, the clock effectively resets for the purposes of CRA review. This means that regulations issued toward the end of a presidential term become susceptible to CRA scrutiny by the incoming Congress. We see the largest wave of CRA resolution when the administration changes over and both the House and Senate are controlled by the same political party. 

While the process of counting backwards to the 60-day period can be more of an art not a science, the Biden Administration is looking at May as its cutoff as a conservative estimate.

That’s why so many agencies are pushing out their most significant regulatory reforms now, rather than waiting until later in the year. While lawsuits and congressional oversight will be expected regardless of timing, agencies know they can reply on President Biden’s veto should a CRA pass the House and Senate this year.

Expect the conversation around the CRA to continue to bubble up as we get closer to the election as is the case every presidential election.