The Congressional Review Act and the 118th Congress

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Abstract

The 118th Congress was incredibly busy with the Congressional Review Act. Members introduced more resolutions of disapproval than any other Congress since the CRA’s enactment in 1996. Despite the historic number of introductions, none of them became law. The 118th Congress introduced resolutions targeting a similar mix of agencies compared to Congress from 1996-2022.

Introduction

From 2023-2024, members of the 118th Congress introduced 208 resolutions of disapproval (RDs) targeting 122 unique regulations, using their authority from the Congressional Review Act (CRA). Members introduced 50 RDs in 2023, and 158 in 2024. The targeted regulations cover a variety of policy issues, from Endangered Species Act designations, to Medicare and Medicaid regulations, to guidance documents governing the treatment of cryptocurrency. This Insight explores the 118th Congress’s CRA actions and provides some commentary on what it means for the CRA as a whole and for the 119th Congress. 

What the Data Show

Total Number

The 118th Congress introduced significantly more RDs than any prior Congress since the CRA’s enactment in 1996. Figure 1 shows the number of RDs introduced by session of Congress from 1996 to 2024.

Figure 1. 118th Congress Introduces Over 200 Resolutions of Disapproval

The previous highwater mark of RDs introductions occurred in the 115th Congress, with 77 RDs introduced at the beginning of the first Trump administration in 2017. The 115th Congress made history for using the CRA to overturn regulations for the first time since 2001; in total, that Congress overturned 16 Obama-era regulations.

The number of introductions in the 118th Congress is particularly remarkable because this Congress did not have a policy-relevant “lookback window,” or an opportunity to overturn regulations from a prior presidential administration. To date, the only RDs that have successfully overturned regulations originated in congresses at the beginning of presidential administrations.

Somewhat surprising is that a number of RDs passed both chambers of Congress and made it to the president’s desk, despite Democrats maintaining a narrow majority in the Senate. Figure 2 shows the number of RDs that made it through each stage in the legislative process, broken out by the 118th Congress and the earlier Congresses since the CRA’s inception in 1996.

Figure 2: 118th Congress Introduces Nearly as Many Bills as 104th-117th Congresses

As I wrote in 2023, one theory about why so many RDs passed in the 118th Congress, despite it not following a presidential transition, is due to the narrow Democratic Senate majority held by moderate Democrats facing tough reelection campaigns. Moderate Democrats occasionally voted with the Republican Senate minority as a way to distance themselves from the Biden administration without meaningfully threatening the administration’s policy priorities, knowing that the president would veto any resolution that would overturn a regulation issued by their own administration.

Outside of the 118th Congress, only a handful of Congresses have ever successfully passed RDs. Table 1 shows the number of RDs Congress passed, and the number of those that either became law or were vetoed.

Table 1.

Aside from the 115th Congress, the 118th Congress successfully passed the most RDs. Other non-transition Congresses, such as the 114th and 116th, passed fewer RDs than the 118th. Of the six congresses that have ever passed RDs, five of them have occurred in the past decade, showing that the CRA is becoming more common as a congressional tool.

Agency Actions

The agency targeted most by RDs from the 118th Congress was the Environmental Protection Agency (EPA). Congress introduced 32 RDs targeting EPA rules, which represents about 15 percent of all RDs from the 118th Congress. The next-most-frequently targeted agencies were the Departments of Labor (DOL), Interior (DOI), Health and Human Services (HHS), and Treasury (TREAS). Figure 3 shows the number of RDs introduced by agency in the 118th Congress.

Figure 3: Environmental Protection Agency Rules Most Common CRA Target
 

These five agencies were also the most frequent targets of RDs for the 104^th through 117^th Congresses, though the order was slightly different. The earlier Congresses targeted the agencies in the following order: EPA (42 RDs), HHS (34), DOI (29), DOL (28), and TREAS (18). This comparison shows that the policy areas targeted by CRA RDs in the 118^th Congress—revealed by targeted agency—are not new, but the sheer number of CRA resolutions introduced in this Congress is new.

One common trend in targeted regulations—particularly regulations against which multiple members of Congress introduced RDs—across agencies in the 118^th Congress was a focus on environmental and climate regulations. Some EPA regulations in this category include the waste emissions charge on methane emissions, emissions standards for coal and oil electric generating plants, levels of particulate matter for the National Ambient Air Quality Standards, and multi-pollutant emissions standards for light-, medium-, and heavy-duty vehicles. Multiple RDs targeted Internal Revenue Service (categorized under TREAS) regulations that implement Inflation Reduction Act tax credits for clean vehicles and green infrastructure, like solar and wind components. Still other RDs were introduced against the Department of Transportation’s updated corporate average fuel economy standards. 

Which Rules Were Targeted the Most?

Some rules were subject to multiple RDs. Three rules were targeted by four separate RDs:

• Consumer Financial Protection Bureau (CFPB), "Small Business Lending Under the Equal Credit Opportunity Act (Regulation B)," 88 Fed. Reg. 35150;
• Jointly issued by Depts. of Interior and Commerce (DOI; DOC), "Endangered and Threatened Wildlife and Plants; Regulation for Interagency Cooperation." 89 Fed. Reg. 24268, and 
• DOI; DOC, "Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat," 89 Fed. Reg. 24300.

Moving Forward

The magnitude of resolutions introduced in this Congress is noteworthy. These resolutions had vanishingly small chances of actually becoming law and succeeding in their policy objectives: it is simply unlikely for a president to sign a law overturning a regulation issued by their own administration. Given that the only rules available to overturn in the 118th Congress were Biden administration rules, Biden was never going to sign these resolutions into law.

The open question right now is how the 119th Congress will use the CRA to overturn Biden-era regulations. At the end of January, the House Parliamentarian published the House calculation of the lookback window in the Congressional Record: rules submitted to Congress from August 16, 2024 through January 3, 2025 are subject to congressional review by the 119th Congress. That means that members of Congress are now able to introduce resolutions to overturn regulations the Biden administration issued during that time period.

While this is a remarkable opportunity for an incoming administration, the Biden administration’s springtime regulatory rush kept many of its highest-priority rules out of reach for this Congress. Last fall, we highlighted some rules that could yet be targets for disapproval. Congress will need to balance the CRA’s  statutory time constraints, which limit how long members have to introduce RDs and how long the Senate has to use its fast-track powers, with its other responsibilities, such as confirming cabinet members and pursuing the president’s legislative priorities.

The 118th Congress made history with its extensive use of the CRA. The Regulatory Studies Center will continue monitoring developments in CRA activity in the 119th Congress.