'Review' time: Congress looks to its own regulatory veto process

It may seem that President Trump and billionaire Elon Musk are solely responsible for dismantling the federal bureaucracy while Congress sits idly by cheering (or jeering) them on. The dynamic duo is often credited for wielding such metaphorical demolition devices as chain saws, sledgehammers, wrecking-balls and wood-chippers.

For instance, when President Trump, took office Jan. 20, he signed one executive order repealing 78 regulations promulgated during the Biden presidency, and another order requiring agencies to repeal 10 regulations for every new one they propose.

But Congress has a more targeted process available — less divisive and less subject to court challenges. It is called the Congressional Review Act of 1996. It was the brainchild of former House Speaker Newt Gingrich (R-Ga.) and pert of his Contract with America in the 104th Congress.

Perhaps ironically, Democratic President Bill Clinton signed the measure into law, even though his regulations would most immediately be on the chopping block. He dodged that bullet — the act was never used successfully against any Clinton regulations.

Under the Congressional Review Act, any proposed federal regulation must be published in the Federal Register at least 60 legislative days in advance. If, during that review period, both houses pass disapproval resolutions and the president signs them into law (or his veto is overridden), the regulations are blocked and the administration may not propose a similar regulation.

Prior to 2017, the law had only been used successfully once, when Congress blocked a regulation being proposed by President George W. Bush in 2001. When President Donald Trump took office in 2017, the Republican-controlled 115th Congress passed a flurry of 14 disapproval resolutions of proposed regulations left pending from the Obama administration. A 15th resolution passed the House but failed to pass the Senate.

Data compiled by Sarah Hay with the Regulatory Studies Center at George Washington University, covering the 115th Congress (2017-2018) through the 118th Congress (2023-2024), shows that 368 disapproval resolutions were introduced over that eight-year period, but only 31 passed Congress and only 19 became law. The remaining 12 were vetoed by the president and not overridden. In the most recent 118th Congress (2023-24), 11 disapproval resolutions cleared both houses of Congress, but all were vetoed by Biden. The success rate corresponds to periods when both houses of Congress and the president belong to the same party.

At the beginning of the current 119th Congress, the new Republican-controlled House, anticipating a spate of proposed last-minute Biden administration regulations, passed a measure titled, The Midnight Rules Relief Act. The bill provided that either house could bundle multiple proposed regulations into a single disapproval resolution to expedite their consideration and floor votes. While the House passed the measure, 212-208 on Feb. 12, it has been reposing in the Senate Committee on Homeland Security and Governmental Affairs ever since.

In the meantime, the House passed two disapproval resolutions of Biden administration regulations last week, dealing with water heater standards and waste emission charges. Three other disapproval resolutions are scheduled for House consideration this week. They cover proposed Biden administration regulations on marine archaeological resources, rubber tire manufacturing emissions and appliance standards.

While the president is taking victory laps for the regulations he supposedly deep-sixed on his first day of office, as well as his other dramatic orders, the background noise of various court challenges to those and other matters persists. The president surely recognizes that, to the extent that some of his initiatives will be tossed-out by the courts either on constitutional or statutory grounds, the day will come when he must turn to Congress for essential backup for achieving his 100-day policy agenda.

The Congressional Review Act is a limited tool for curbing excessive regulations. However, a Government Accountability Office opinion in 2017, backed by the Senate parliamentarian, concludes that even decades-old-regulations that were never published in the Federal Register also qualify for CRA treatment as proposed regulations subject to disapproval resolutions. Moreover, Congress can always enact bills that repeal longstanding regulations.

As previous presidents have lost much of their popular support, and that of Congress, in the second half of their four-year terms, they tend to turn to executive orders to circumvent the Hill. Trump has turned that operating model on its head by gambling on the riskier, faster approach up-front. If that back-end-first approach meets with only partial success, he is hoping to retain sufficient sway with his party in Congress to enact most of what remains. It’s called leading from behind.

Don Wolfensberger is a 28-year congressional staff veteran, culminating as chief-of-staff of the House Rules Committee in 1995. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays (2018).

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