The Congressional Review Act of 1996 is a “sleeper statute” (aka, a secret weapon) in that its practical application took 20 years to enter the realm of viable possibility. The CRA allows Congress to overturn executive regulations by a simple majority—and this is the moment it’s been waiting for.
Before this year, all but one executive agency regulation repeal effort under the CRA have failed. In order for a CRA action to be worth the trouble, one party needs control of both Congress and the White House—and a foundational respect for congressional authority.
The Republican-controlled House and Senate want to reclaim theirs from the ghost of the Obama era. So far, 13 deregulatory resolutions have passed the House, three through both chambers of Congress, and two received President Trump’s signature. The activity could spook regulators and Democrats in the coming years, who appear to have little recourse to combat a successful CRA measure.
For example, the Federal Communications Commission’s recent rule tightening oversight of broadband Internet providers—a controversial power grab by the FCC—could fall to the CRA. A flurry of 29 deregulatory resolutions and counting has come from the House in a matter of weeks, but not a one targets FCC rules. The stakes are high for supporters of the rule’s strict oversight: A similar rule would be barred from replacing it. The Congressional Review Act prohibits the subsequent issue of any regulation “substantially the same” as a rule it’s overturned.
The only way to oppose a deregulatory CRA action against an FCC policy that guards user data from monetization, and makes your Internet bill higher? “We will rally millions of Americans to this cause,” said Massachusetts senator Ed Markey on a call with reporters Monday afternoon. “If the Republicans think they’re going to be able to roll back all these protections without a huge fight, they are sadly mistaken.” But, grassroots protests notwithstanding, Republicans have the means to roll them back. The sleeper statute is awake, and regulators are right to be on guard.