Deadline approaching for new federal regulations that a hostile Congress could quickly overturn

Sometime in late May, the U.S. will pass a deadline that could have major repercussions for new administration rules, depending on the outcome of the 2024 federal elections. In effect, rules finalized before late May would be overturned only by going through a new, full rulemaking process, which can be a lengthy process. Rules passed after that date, however, could be overturned relatively quickly by Congress if control of the branches changes.

Each new federal rule is subject to the Congressional Review Act, a piece of legislation passed in the mid-1990s that saw relatively little use until 2017. In brief, the law allows Congress to pass a resolution of disapproval against any new rule, which not only nullifies that rule but also prevents the agency from passing a similar regulation without congressional action. Because such a resolution must be passed by both chambers of Congress and signed by the president, the law does not see much use outside of sessions in which party control of one or both branches changes.

According to the Congressional Research Service, the law was used to overturn only one law until 2017, when the 115th Congress introduced more than 200 resolutions and overturned 16 rules set in place by the Obama Administration. In 2021, three rules established by the Trump Administration were overturned.

An analysis by George Washington University’s Regulatory Studies Center finds that the Environmental Protection Agency and the Departments of Health and Human Services, Interior, and Labor are the most frequent targets for resolutions of disapproval.

Late May (May 22, based on the current legislative calendar) is significant because rules approved within 60 legislative session days of the end of a session may be subject to a resolution of disapproval that is not subject to the filibuster (i.e., does not need 60 votes to end debate and proceed to actual vote).

A review of the Federal Register shows nearly 500 proposed rules filed by agencies from January 1-April 9. The agencies will need to complete their comment period, revisions, and final publication in just a few weeks to ensure their applicability, regardless of electoral outcomes, beyond the early part of next year.