The Congressional Review Act is a reckless tool

A new Congress and president have always had the power to repeal regulations enacted by prior administrations. Elections, after all, have consequences, and changes in policy are one of those consequences. A new Congress can pass legislation directing federal agencies to repeal and replace an offending rule, and once signed into law by the president, the agency must do so.

That’s the process our Founding Fathers designed and how things work normally. But the Congressional Review Act of 1996 changed the rules of the game. Though used only once before President Trump took office in 2017, he embraced the CRA to repeal 16 regulations during his first term. He is likely to turn to it again.

Most of the time, resolutions of disapproval under the CRA are more political theater than substantive lawmaking, because the president can simply veto the legislation. The 118th Congress, for example, introduced 117 CRA disapprovals and not one became law.

But when a single political party controls the presidency and both houses of Congress, the CRA becomes a weapon capable of causing vast and indiscriminate damage. That’s because the law creates an expedited process to claw back regulations finalized during the last 60 session days of the prior Congress, and for a new Congress and president to do so without the normal legislative safeguards.

Resolutions of disapproval fast-track decisions by limiting public hearings and debate. A resolution of disapproval is literally a blank form where members of Congress need only fill in the name of the regulation to be abolished and the agency that issued it. Resolutions do not explain the reason for the repeal or tell an agency how to proceed following the repeal. They are subject to limited Senate debate and cannot be filibustered or amended. The abbreviated process leaves both agencies and the public groping for answers.

The CRA compounds these problems by telling agencies not to issue a rule that is “substantially the same” as a repealed rule. But the CRA fails to define what “substantially the same” means. This absence of direction is a problem when an agency has a continuing obligation to address a pressing issue, which most do.

Congress told the EPA to take lead and copper out of our water when it passed the Safe Drinking Water Act, which the EPA did in drinking water standards issued on Oct. 30, 2024. This rule protects up to 900,000 infants, and the rule’s benefits outweigh the costs by a factor of 13 to 1.

The EPA also finalized a rule ensuring that methane, a valuable commodity and potent greenhouse gas, reaches the market instead of escaping into the atmosphere. The rule reduces methane waste by 1.2 million metric tons through 2035 — the equivalent of taking nearly 8 million gas-powered cars off the road for a year — and will have cumulative climate benefits of up to $2 billion.

The Department of Health and Human Services administers Head Start, a program helping more than a million low-income children and their families each year. The department issued a final rule raising salaries for Head Start teachers and making other needed program improvements on Aug. 21 of last year.

These are just three examples of rules that are vulnerable to CRA resolutions of disapproval.

If the Trump administration targets rules like these, which it promises to do, agencies will remain obligated to act without knowing how, or how much, a new rule must depart from the disapproved version. Few agencies rise to such a challenge, opting instead to dedicate their limited resources to other, less perilous tasks. Absent clear standards, people who count on clean water and air, early childhood education and many other important goods and services are left worse off than they were under the vanquished rules.

Reasonable people can disagree about the wisdom of individual regulations, and reasonable people should vigorously debate how to regulate effectively and efficiently. But the CRA stifles discussion precisely when we need it the most. The law’s resolutions of disapproval are the tool of lawmakers more interested in making headlines than in solving problems.

We need legislators to do the hard work of building a better union, not to recklessly destroy rules drafted through a lengthy and public process. Congress, please don’t salt the earth by using the CRA.

John C. Ruple is a research professor of law at the University of Utah’s S.J. Quinney College of Law, and director of the Law and Policy Program at its Wallace Stegner Center for Land, Resources and the Environment. He served as senior counsel in the White House Council on Environmental Quality during the Biden administration.

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