Volume 16
Issue 2
Summer '18

The Trump Administration and the Congressional Review Act

Written By: Paul J. Larkin, Jr.

Abstract

The Congressional Review Act (CRA) gives a new Administration and a new Congress with a majority of members from the President’s party the opportunity to invalidate “midnight rules” promulgated by an outgoing Administration and to reject rules that an agency never submitted to Congress. Taking advantage of that opportunity requires internal analysis by the new Administration of the rules subject to the CRA and coordination with Congress. The President must identify the particular rules that he wishes to see held invalid; the Speaker of the House and Senate Majority Leader must ensure that there are sufficient votes to invalidate the rules to which the President objects; and both branches must ensure that the CRA process is conducted in an orderly and expeditious manner. In the first half of 2017, the Trump Administration and Congress vigorously used the CRA to eliminate unlawful or unwise agency rules. Until recently, however, the CRA review process has largely gone quiet. The interesting question is why. There are additional opportunities for use of the CRA. Whether President Trump and Congress will make use of those opportunities is likely more a matter of politics than law.

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