The Congressional Review Act Carryover Period Ends May 8. Will Congress Follow the Law?

WASHINGTON, D.C. – The Congressional Review Act’s (CRA) carryover period ends on Thursday, May 8. In practical terms, the end of the carryover period means that Congress will no longer be able to use the CRA’s expedited procedures to repeal dozens of health, safety, worker, consumer, and environmental protections issued by the Biden administration since mid-August 2024 after the May 8 deadline.

The CRA allows Congress by simple majority vote in both chambers – with limited debate, no possibility of a filibuster, and the president’s signature – to overturn recently issued regulations. The agency that issued the rule is then prohibited from issuing a new one that is “substantially the same,” but the scope of this prohibition has never been tested in court. The CRA’s carryover period allows a new Congress to strike down rules issued in the final months of the previous administration.

However, there is a chance that Congress may ignore the carryover period’s May 8 end date and continue to use the CRA to strike down rules that by law are no longer eligible to be targeted. Congress has already shown that it is willing to ignore the CRA’s list of statutory requirements about when and how it may be used, as well as neutral arbiters of the meaning of that law.

Last week, the House passed three CRA resolutions targeting California’s Clean Air Act waivers. The Government Accountability Office, the neutral arbiter in disputes over the CRA, twice determined that California’s waiver is not a rule, and is thus ineligible to be targeted using the CRA’s expedited procedures. That judgement was affirmed by the Senate parliamentarian in early April. In addition, the Coalition for Sensible Safeguards and 80 groups urged Congress to reject this unlawful and illegitimate use of the CRA. The House ignored this. It is now up to the Senate.

The Coalition for Sensible Safeguards maintains a tracker of CRA resolutions, updated weekdays, and has already discovered instances of resolutions introduced and acted upon in ways that defy the plain text of the law. For example, a CRA resolution removing endangered species protections for the San Francisco Bay-Delta longfin smelt falls outside the lookback period of rules that are eligible to be repealed.

The rule listing the fish under the Endangered Species Act was issued on July 30, 2024, received by the House on August 9, and received by the Senate on August 15. All three dates fall before August 16, 2024, which marks the start of the CRA’s lookback period during the previous administration. Despite being ineligible for repeal through the CRA, the House voted to repeal the rule using the CRA process last week. Experts are virtually certain this species will go extinct without protections.

Public awareness is critical to ensuring Congress follows the law and respects the May 8 deadline. Congress ignoring legal requirements in its own statutes is a Pandora’s Box that, once opened, may be impossible to close. The threat this poses to our system of health, safety, worker, consumer, and environmental protections cannot be overstated.

To speak with a coalition expert on the CRA and these breaches of the law, please contact David Rosen at drosen@citizen.org.