January 25, 2021

What Is The Congressional Review Act, And How Will The Biden Administration Use It?

In their final weeks in office, presidential administrations almost always issue last-minute rulemakings that would radically alter federal policy. Former President Donald Trump was no different. He issued dozens of rules over the last several months on issues ranging from labor to energy policy. Last-minute rules, also referred to as midnight regulations, often never take effect.

In fact, there actually is a mechanism – the Congressional Review Act (CRA) – that allows Congress to rescind any regulations finalized in the previous 60 legislative days through a majority vote of lawmakers. That period of time – 60 legislative days, or days Congress was in session – stretches all the way back to mid-August, which means there are a host of rulemakings Congress and the Biden administration could undo. These include:

  • An Environmental Protection Agency (EPA) rule that blocked future administrations from setting greenhouse gas regulations on many industries, including the industrial metals sector. Click here (for Connecting the Dots’ explanation of this rule.)
  • An EPA rule that affects how the agency will weigh scientific data to support a regulatory action, requiring researchers to disclose raw data involved in public health-related studies before the agency can rely on the studies’ conclusions. (Click here for Connecting the Dots’ explanation of this rule.)
  • A U.S. Department of Labor rule that clarified the independent contractor test under the Fair Labor Standards Act. This rule reaffirmed the two core factors for determining whether a worker is economically dependent on a business or in business for themselves: the degree of control over work and a worker’s opportunity for profit or loss. (Click here for Connecting the Dots’ explanation of this rule.)

Congress, which is now fully in Democratic control, is expected to review these regulations.

Additionally, as one of his first acts in office, President Biden issued an executive order that paused federal rulemakings, rescinded Trump-era executive orders on the regulatory process, and set a framework for “modernizing” review of regulatory actions. Click here to read more about that order.

In related news: as The New York Times reported, the U.S. Court of Appeals for the District of Columbia blocked the Trump administration’s attempt to relax power plant emission restrictions, calling the Affordable Clean Energy rule a “fundamental misconstruction” of the country’s environmental laws. While the appeals court did not reinstate an Obama-era rule that would have forced utilities to move away from coal and toward renewable options, the ruling clears the way for President-elect Joe Biden to enact stronger restrictions.