Over the last few weeks, lawmakers in Washington — mostly but not exclusively Republicans — have abetted President Donald Trump’s campaign to consolidate power in the executive branch. Most notably, legislators have stood by as the administration usurped Congress’ power of the purse, refused to spend billions of dollars of appropriated funds, and let Elon Musk’s so-called Department of Government Efficiency dismantle entire agencies without any pretense of legal authority.
Now some Republican members of Congress, facing growing public outcry over their inactivity, are eager to demonstrate that they take seriously their responsibilities to check the executive branch and, to paraphrase Federalist 51, counteract ambition with ambition. One way they will attempt to do that is by turning to a fairly obscure law called the Congressional Review Act.
Congressional Republicans have to act fast, since the CRA puts a time limit on these procedures.
While the Constitution establishes the minimal requirements for how a bill becomes a law, Congress has added its own procedural hurdles — notably the Senate’s 60-vote “filibuster” requirement for moving to a final vote. The CRA creates a special form of legislation called a “resolution of disapproval” that gets a free pass through these hurdles. But it can only be used for one purpose: to repeal a recently issued agency rule — say, a new pollution standard from the Environmental Protection Agency. If Congress repeals a rule using the CRA, the law also bars the agency from issuing a “substantially” similar replacement.
The CRA derives much of its power from its “lookback” provision. Under ordinary circumstances, presidents won’t sign into law bills that repeal their own rules. The lookback provision creates a mechanism for a new president to sign off on resolutions for rules that were released late in their predecessor’s administration. If that president happens to be from a different party, they will likely be happy to work with Congress to repeal those late-issued rules using the CRA.
But congressional Republicans have to act fast, since the CRA puts a time limit on these procedures. The exact length of time depends on Congress’ schedule and other factors, but is likely to run out in mid-May.
It’s tempting to interpret the aggressive use of the CRA as Congress asserting its position as the main policymaking body within our constitutional framework. This perspective would also mean that congressional Democrats’ criticisms of the CRA put party politics ahead of checks and balances.
That interpretation would be mistaken. The CRA is a fake expression of congressional power; even worse, it hobbles legitimate efforts at leveraging the powers the Constitution already gives the legislature to check the executive branch.
The bitter partisanship that now prevails leaves the first branch too debilitated to defend its institutional prerogatives against presidential encroachment.
Recall from above that the CRA doesn’t give Congress new powers. Congress has always had the duty and responsibility of ensuring that any authorities it grants to the executive are used properly. That includes taking away authorities that aren’t used properly, as was the case, most famously, with airline industry deregulation in the 1970s. The only thing stopping Congress from doing so is, well, Congress.
One reason they are not doing so is that lawmaking via regular order has become too difficult. The bitter partisanship that now prevails leaves the first branch too debilitated to defend its institutional prerogatives against presidential encroachment. Thus, legislative gimmicks like the CRA, which cut through those hurdles, are increasingly attractive. Precisely because the CRA facilitates voting along party lines, its aggressive use risks reinforcing this disabling polarization. But the CRA’s fundamental flaw is what it doesn’t do: By design, CRA resolutions offer the executive branch no substantive guidance on what the vetoed regulation should have looked like instead. Only by offering such guidance can Congress reassert its primacy in policymaking, as our Constitution envisions. Yet, because the CRA offers lawmakers a way to score easy — albeit superficial — wins, it disincentivizes them from taking just these kinds of steps. The CRA could strengthen Congress as an institution — but it would need to be drastically reformed. For instance, an improved CRA could require sponsors of a resolution to identify specific objections to the targeted rule and articulate criteria for a replacement. And instead of barring a replacement rule that is too similar, the resolution should require the agency to issue a replacement within a set time frame, such as two years from the resolution becoming law. If the sponsor doesn’t want a replacement, they would have to give evidence-based reasons for why none is needed, such as the problem addressed by the rule no longer exists or other mechanisms can fix the problem better. An effective Congress is possible. But its members need the right legislative tools. The CRA is not one of these.
James Goodwin
James Goodwin is policy director at the Center for Progressive Reform. 
