Congress Reclaims Constitutional Powers Using CRA

Published May 18, 2017

Using procedures in the Congressional Review Act of 1996 (CRA), Congress and President Donald Trump are rolling back executive actions taken by the Obama administration shortly before President Barack Obama left office.

Lawmakers have used the CRA to undo 13 Obama-era rules so far this year, which the White House says will save taxpayers $10 billion over the next 20 years.

“Congress is the only branch of government tasked with passing laws,” said James Valvo, counsel at the Cause of Action Institute (COA). “So, when agencies seize that power, it is incumbent on Congress to reassert its constitutional role. Congress has the right to step in whenever an executive branch regulation strays beyond the agency’s authority or ignores congressional intent.”

The CRA allows Congress to overturn regulations through a simple majority vote, though the president has veto power, which has historically stopped CRA resolutions from becoming law.

Trump’s commitment to remove regulatory barriers to economic growth opens a whole new ballgame for CRA action.

“Unprecedented,” said Jeffrey McCoy, an attorney with the Pacific Legal Foundation (PLF). “Prior to this year, the CRA has only been used to overturn one rule: an OSHA ergonomics rule adopted late in the Clinton administration.” 

Early Focus on Land Use

With 47 percent of all land in the western United States owned by the federal government and countless livelihoods depending on that land for ranching, mining, logging, oil and gas production, and fishing, the most significant regulation reversals to date have targeted land use.

These include the “Stream Protection Rule,” which regulates coal mining waste; the “Resources Management Rule,” expanding federal authority over state and local land use decisions; and the Alaska Wildlife Refuges Rule, all of which were implemented by Obama.

McCoy says these rules would have made it harder to manage natural resources on federal lands and with “little to no corresponding benefit,” McCoy said.

“These industries are already heavily regulated, by both state and federal governments, to ensure that their operations are conducted safely, so additional regulations add to the costs but usually do not make operations any safer,” McCoy said.

U.S. Sen. Dan Sullivan (R-AK) sponsored the CRA resolution to remove the Alaska Wildlife Refuges Rule restricting certain forms of hunting as a way to manage wildlife populations, saying the Obama administration’s action usurped legal state authority.

“Not only was it a major violation of laws passed by Congress, it undermined years of scientific and peer-reviewed game management in Alaska and falsely vilified the people of my state,” said Sullivan in a news release.

Alaska will never be subjected to a similar regulation without Congress’ approval, because the CRA prohibits the executive branch from introducing any rule similar to one overturned.

Extending CRA’s Reach

Nearly 600 major regulations implemented by the Obama administration, imposing almost $750 billion in projected compliance costs, remain in place.

McCoy says because CRA can be used only within 60 legislative days of when an agency reports a rule to Congress, the conventional interpretation is it extends back only to rules established in the final months of the Obama administration, but the CRA could reach much further back in cases where federal agencies did not report their rules to Congress, McCoy says.

“The 60-day clock starts running on the day Congress receives the report from the agency,” said McCoy. “If an agency has not sent a report, the review clock has not started to run. Therefore, if the new administration decides to send a previously unreported rule to Congress, Congress would have 60 legislative days to review that rule and overturn it.”

As a result, the number of remaining regulations subject to the CRA axe depends on how diligent agencies were in reporting them to Congress.

To help find unreported regulations or guidance memos in need of congressional review, PLF and COA partnered with several other organizations to create “Red Tape Rollback,” an online project enabling the public to suggest rules still open for CRA removal. So far, 800 rules have been identified as possible candidates for removal under the broader interpretation of the CRA.

“We’ve unearthed hundreds of rules that Congress should examine to determine whether they should be invalidated,” said Valvo.

Kathy Hoekstra ([email protected]) is a regulatory policy reporter for