Stephen Santulli
86 Geo. Wash. L. Rev. 1373
Once regarded as a legislative dead letter, the Congressional Review Act (“CRA”) gained new vitality in 2017 as President Trump and Republicans in Congress used the Act to veto more than a dozen regulations issued late in the Obama Administration. The reemergence of the CRA renewed debate over a vague provision at the heart of the Act: its prohibition against agencies reissuing regulations in “substantially the same form” as those regulations Congress vetoes.
This Essay analyzes the congressional debate over two CRA vetoes at the start of the Trump administration against existing hypotheses about the “substantially the same form” prohibition. Both of these vetoed regulations—one nullifying a Securities and Exchange Commission disclosure requirement for resource extraction companies and another nullifying a Department of Labor definition of jobs categories for which states can require drug testing of unemployment recipients—were issued pursuant to statutory mandate. The Essay concludes that these vetoes will likely force the courts to construe the meaning of “substantially the same form” and considers the factors that courts may weigh to determine the phrase’s meaning.
