With the 119th Congress now assembled, Republicans control both the House and Senate, and will control the White House starting on January 20th.  If history is any guide, this change in party control of the White House, plus unified control of Congress by the president’s party, will pave the way for Republicans to deploy the Congressional Review Act (CRA) to overturn a number of regulations issued by the Biden Administration.  When President Trump first took office in 2017, congressional Republicans used the CRA to overturn more than a dozen rules promulgated by the Obama Administration.   

The CRA mandates federal agencies to submit all final rules to Congress before the rule takes effect.  Then, Congress has 60 days to overturn a rule by enacting a joint resolution of disapproval that withdraws the rule and prohibits the agency from issuing a rule that is “substantially the same.”  However, if a rule is submitted to Congress within 60 days before adjournment, the CRA’s “lookback period” allows additional time—a new 60-day period—for the new Congress to review the rule and introduce a resolution of disapproval.  If a rule has already taken effect when a CRA resolution is signed into law, the rule “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f). 

Although the House and Senate parliamentarians make the official determination of whether a particular rule falls within the lookback period when a disapproval resolution is introduced, the Congressional Research Service estimates that rules submitted to Congress on or after August 1, 2024 are likely subject to possible nullification. The CRA allows members of Congress to introduce resolutions of disapproval starting on the 15th day of the new session. Under the current congressional schedules, Senators may introduce CRA resolutions starting around January 23, 2025, and Representatives may introduce CRA resolutions starting around February 5, 2025.

Many federal agencies operated under an earlier deadline and thus prioritized finalizing and submitting high-priority rules this spring—including those “significant rules” defined in Executive Order 12866, as amended by Executive Order 14094, that are predicted to have an annual impact of $200 million or more on the economy.  Because these rules were submitted earlier, they will likely fall outside the CRS’s estimated CRA lookback window.  The George Washington University Regulatory Study Center estimates approximately 100 of these significant rules may fall into the CRA window, which is likely fewer than in prior changes in administrations, in part due to early agency action.  However, there are more than 1,000 rules that could ultimately be subject to disapproval under the CRA in the new Congress.    

Some rules that may be targets for congressional disapproval include:

  • Several rules issued under the Inflation Reduction Act (IRA), including:
    • A Department of Treasury rule that implements Section 45X of the IRA providing a tax credit for advanced manufacturing facilities.  In November, members of the House introduced a disapproval resolution as to this rule, focusing on concerns that the rules permitted entities affiliated with China to claim the credit.
    • A Department of Treasury rule that implements Section 48 of the IRA providing a tax credit for investment in energy property placed in service on or before December 31, 2024.
    • A Department of Treasury rule that implements Sections 45Y and 48E of the IRA, which provide technology-neutral tax credits for clean electricity investment and production, respectively.  The rule applies to facilities placed in service on or after January 1, 2025.
    • A Department of Treasury rule that implements Section 45V of the IRA providing a tax credit for the production of qualified clean hydrogen.
  • A Health and Human Services (HHS) rule that raises wages for teachers in the Head Start program.
  • A Food and Drug Administration rule that prohibits the sale of tobacco products to persons under 21 years of age.
  • A Consumer Financial Protection Bureau (CFPB) rule that carries out the personal financial data rights established by the Consumer Financial Protection Act of 2010, including requiring banks, credit unions, and other financial service providers to make consumers’ data available upon request; setting privacy protection standards for third parties accessing consumer data; and promoting fair, open, and inclusive industry standards.
  • A CFPB rule that prohibits creditors from obtaining and using information on medical debts in credit eligibility determinations.  The rule also prohibits consumer reporting agencies from providing consumer reports containing such information on medical debts to creditors.
  • A Federal Trade Commission (FTC) rule that prohibits selling or purchasing fake consumer reviews or testimonials, buying positive or negative consumer reviews, creating company-controlled review websites that falsely provide independent reviews, or selling or purchasing fake indicators of social media influence.
  • An EPA rule that finalizes requirements for drinking water systems to replace lead and certain galvanized service lines.
  • An FTC rule that requires parties to transactions that are reportable under the Hart-Scott-Rodino Antitrust Improvement Act to provide documentary material and information for the FTC and DOJ to determine whether the transaction may violate antitrust laws.
  • A Department of Labor rule that revises personal protective equipment standards in construction to explicitly require that the equipment must fit properly. 
  • A Department of Treasury rule that sets anti-money laundering regulations for residential real estate transfers, including requiring certain persons involved in real estate closings and settlements to submit reports and keep records on non-financial transfers of residential real property to specified legal entities and trusts nationwide.
  • An Internal Revenue Service rule that requires brokers to file information returns and furnish payee statements reporting gross proceeds on dispositions of digital assets, including cryptocurrency sales. 

In support of President Trump’s campaign promise to slash regulations and federal bureaucracy, congressional Republicans are reportedly preparing to use the CRA to “rein in Washington bureaucrats’ expensive interpretation of the powers over working Americans.”  Senate Majority Leader John Thune reported that congressional Republicans are “talking through what some of the eligible CRAs might be.”  Senator John Cornyn said that the current CRA conversations between Republican party leaders are focused on “prioritization,” explaining “it would be good to have some initial successes.” 

Given President Trump’s agenda and the Republican party’s history of using the CRA, we will likely see a flurry of resolutions of disapproval by the end of the month. However, not all CRA resolutions become law.  In the 115th Congress—at the start of the first Trump Administration—a record 67 CRA resolutions were introduced, but only 16 became law.  While CRA resolutions are not subject to the Senate filibuster, in light of other legislative priorities, the availability of floor time to debate and vote on CRA resolutions limits the number Congress can consider as a practical matter.

Tags: congressional action, Congressional Review Act
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Photo of Holly Fechner Holly Fechner

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of…

Holly Fechner advises clients on complex public policy matters that combine legal and political opportunities and risks. She leads teams that represent companies, entities, and organizations in significant policy and regulatory matters before Congress and the Executive Branch.

She is a co-chair of the Covington’s Technology Industry Group and a member of the Covington Political Action Committee board of directors.

Holly works with clients to:

  • Develop compelling public policy strategies
  • Research law and draft legislation and policy
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  • Advocate before Congress and the Executive Branch
  • Form and manage coalitions
  • Develop communications strategies

She is the Executive Director of Invent Together and a visiting lecturer at the Harvard Kennedy School of Government. She serves on the board of directors of the American Constitution Society.

Holly served as Policy Director for Senator Edward M. Kennedy (D-MA) and Chief Labor and Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee.

She received The American Lawyer, “Dealmaker of the Year” award in 2019. The Hill named her a “Top Lobbyist” from 2013 to the present, and she has been ranked by Chambers USA – America’s Leading Business Lawyers from 2012 to the present. One client noted to Chambers: “Holly is an exceptional attorney who excels in government relations and policy discussions. She has an incisive analytical skill set which gives her the capability of understanding extremely complex legal and institutional matters.” According to another client surveyed by Chambers, “Holly is incredibly intelligent, effective and responsive. She also leads the team in a way that brings out everyone’s best work.”

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Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka practices at the intersection of law, policy, and politics. He advises clients before Congress, state legislatures, and government agencies, helping businesses to navigate complex legislative, regulatory, and investigations matters, mitigate their legal, political, and reputational risks, and capture business opportunities.

Drawing…

Matthew Shapanka practices at the intersection of law, policy, and politics. He advises clients before Congress, state legislatures, and government agencies, helping businesses to navigate complex legislative, regulatory, and investigations matters, mitigate their legal, political, and reputational risks, and capture business opportunities.

Drawing on more than 15 years of experience on Capitol Hill and in private practice, state government, and political campaigns, Matt develops and executes complex, multifaceted public policy initiatives for clients seeking actions by Congress, state legislatures, and federal and state government agencies. He regularly counsels and represents businesses in legislative and regulatory matters involving intellectual property, national security, regulation of critical and emerging technologies like artificial intelligence, connected and autonomous vehicles, and other tech policy issues. He also represents clients facing congressional investigations or inquiries across a range of committees and subject matters.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration, where he advised Chairwoman Amy Klobuchar (D-MN) on all legal, policy, and oversight matters before the Committee, particularly federal election and campaign finance law, Federal Election Commission nominations, and oversight of the legislative branch. Most significantly, Matt led the Committee’s staff work on the Electoral Count Reform Act – a landmark bipartisan law that updates the procedures for certifying and counting votes in presidential elections—and the Committee’s bipartisan joint investigation (with the Homeland Security Committee) into the security planning and response to the January 6th attack.

Both in Congress and at Covington, Matt has prepared dozens of corporate and nonprofit executives, academics, government officials, and presidential nominees for testimony at congressional committee hearings and depositions. He is a skilled legislative drafter who has composed dozens of bills and amendments introduced in Congress and state legislatures, including several that have been enacted into law across multiple policy areas. Matt also leads the firm’s state policy practice, advising clients on complex multistate legislative and regulatory matters and managing state-level advocacy efforts.

In addition to his policy work, Matt advises and represents clients on the full range of political law compliance and enforcement matters involving federal election, campaign finance, lobbying, and government ethics laws, the Securities and Exchange Commission’s “Pay-to-Play” rule, and the election and political laws of states and municipalities across the country.

Before law school, Matt served in the administration of former Governor Deval Patrick (D-MA) as a research analyst in the Massachusetts Recovery & Reinvestment Office, where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also staffed federal, state, and local political candidates in Massachusetts and New Hampshire.

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Photo of Abby Rickeman Abby Rickeman

Abby Rickeman is an associate in the firm’s Washington, DC office. She practices in the employment, institutional culture and social responsibility, and public policy groups. She also maintains an active pro bono practice.

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