{"id":4771,"date":"2026-06-07T21:39:37","date_gmt":"2026-06-08T01:39:37","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4771"},"modified":"2026-06-07T23:16:47","modified_gmt":"2026-06-08T03:16:47","slug":"the-congressional-review-act-congresss-new-favorite-tool-for-restoring-its-constitutional-authority","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2026\/06\/07\/the-congressional-review-act-congresss-new-favorite-tool-for-restoring-its-constitutional-authority\/","title":{"rendered":"The Congressional Review Act: Congress\u2019s New Favorite Tool For Restoring Its Constitutional Authority"},"content":{"rendered":"

Senator Kevin Cramer[*]<\/a><\/span><\/strong><\/p>\n

To Dick Armey, native North Dakotan, my political mentor, friend of my father, and architect of the Contract with America. Congress must heed his warning and use our Congressional Review Act powers to overturn improper rules. If we don\u2019t, the bureaucracy may decide our silence constitutes approval.<\/em><\/p>\n

Abstract<\/span><\/h4>\n

Recent Supreme Court decisions have reined in the runaway bureaucracy by reasserting the authority of the legislative branch, the first of three coequal branches of government created by our Constitution. One opinion after another has asserted a common refrain: all\u00a0power possessed by federal agencies is derived from laws passed by Congress and they must operate within the confines of this authority. When agencies color outside the lines, Congress can check the executive branch through the\u00a0Congressional Review Act (\u201cCRA\u201d)\u00a0by overturning rules issued by federal agencies. Congress recently made history in this arena with a novel use of the law to overturn overbearing Bureau of Land Management Resource Management Plans (\u201cRMPs\u201d) for North Dakota, Montana, and Alaska. This approach marked\u00a0the first time a\u00a0CRA\u00a0resolution was used to overturn an RMP, creating a roadmap for expanded use of the CRA authorities to check expansive bureaucracy operating outside the scope of Congress\u2019s intent.\u00a0With the courts reaffirming the need for a legislative course correction, Congress is\u00a0taking back control by making it clear these types of rules are out of bounds.\u00a0The use of the CRA for an RMP is a case study on expanded opportunities to use CRA\u00a0authority and the legislative and judicial willingness\u00a0to rightsize Congress\u2019s coequal status.<\/em><\/p>\n

I. Introduction<\/span><\/h4>\n

In 2025, Congress passed historic legislation to overturn three Bureau of Land Management (\u201cBLM\u201d) Resource Management Plans (\u201cRMPs\u201d) in North Dakota, Montana, and Alaska.1<\/a><\/sup>See <\/em>Press Release, Sen. Kevin Cramer (R-N.D.), Senate Passes ND Delegation Resolution to Overturn Biden-Era North Dakota RMP (Oct. 8, 2025), https:\/\/www.cramer.senate.gov\/news\/press-releases\/senate-passes-nd-delegation-resolution-to-overturn-biden-era-north-dakota-rmp [https:\/\/perma.cc\/H36Q-X67T]; The White House, Congressional Bills H.J. Res. 104, 105, 106, 130, and 131 Signed Into Law (Dec. 11, 2025), https:\/\/www.whitehouse.gov\/briefings-statements\/2025\/12\/congressional-bills-h-j-res-104-105-106-130-and-131-signed-into-law\/ [https:\/\/perma.cc\/P8X8-QQ3D].<\/span> This landmark effort was a response to the BLM violating a clear legislative mandate set by the Federal Land Policy and Management Act to preserve multiple uses of public lands and ignoring input from North Dakotans and others who actually live near and use the land.2<\/a><\/sup>See id.<\/em> (\u201c[The] final RMP for North Dakota in August 2024 [was passed] and adopted . . . in January without incorporating changes the State of North Dakota and its Congressional delegation requested.\u201d).<\/span><\/p>\n

The North Dakota congressional delegation embarked on a novel strategy beginning with an opinion from the Government Accountability Office (\u201cGAO\u201d) to overturn the state\u2019s RMP via the Congressional Review Act (\u201cCRA\u201d). The CRA was a bipartisan effort led by Republicans in Congress as part of their Contract with America pledge and was signed into law by President Bill Clinton.3<\/a><\/sup>See<\/em> President William J. Clinton, Statement on Signing the Contract With America Advancement Act of 1996<\/em>, THE AM. PRESIDENCY PROJECT (1996), https:\/\/www.presidency.ucsb.edu\/documents\/statement-signing-the-contract-with-america-advancement-act-1996# [https:\/\/perma.cc\/7QTS-XBA9]; Contract with America, The American Presidency Project, https:\/\/www.presidency.ucsb.edu\/documents\/the-republican-contract-with-america [https:\/\/perma.cc\/VBZ7-QJ7A].<\/span> The statute allows Congress to check an ever-expanding executive branch bent on governing by unauthorized regulation.4<\/a><\/sup>See<\/em> Adam M. Finkel & Jason W. Sullivan, A Cost-Benefit Interpretation of the \u201cSubstantially Similar\u201d Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again?<\/em>, 63 ADMIN. L. REV. 707, 715 (2011) (\u201cWhen the Republicans in the 104th Congress first began drafting the Contract with America, they intended to stop the regulatory process in its tracks by imposing a moratorium on the issuance of any new regulations.\u201d). <\/span> Under the expedited terms embedded in the CRA, Congress can overturn final rules and prohibit any substantially similar rule from respawning.5<\/a><\/sup>See<\/em> Congressional Review Act, 5 U.S.C. \u00a7\u00a7 801\u201308. <\/span><\/p>\n

The CRA is a blunt instrument and looming threat meant to remind the executive of its constitutional duty to operate within the bounds and intent of the legislation Congress enacts.6<\/a><\/sup>See<\/em> 142 CONG. REC. S3684 (daily ed. Apr. 18, 1996) (statement of Senators Nickles, Reid, and Stevens) (\u201cRules can be surprisingly different from the expectations of Congress or the public. Congressional review gives the public the opportunity to call the attention of politically accountable, elected officials to concerns about new agency rules. If these concerns are sufficiently serious, Congress can stop the rule.\u201d).<\/span><\/p>\n

In terms of legislative mechanics, Congress may use the CRA to nullify a rule\u2013\u2013\u00e5typically a final regulation reported to Congress.7<\/a><\/sup>See<\/em> 5 U.S.C. \u00a7 801. <\/span> When a regulation has not been sent to the legislative branch as a rule, the GAO can determine upon request from a member of Congress whether the executive action qualifies.8<\/a><\/sup>See<\/em> VALERIE C. BRANNON & MAEVE P. CAREY, CONG. RSCH. SERV., R45248, THE CONGRESSIONAL REVIEW ACT: DETERMINING WHICH \u201cRULES\u201d MUST BE SUBMITTED TO CONGRESS 1 (2024), https:\/\/www.congress.gov\/crs-product\/R45248#ifn10 [https:\/\/perma.cc\/SE3Z-Z5YZ].<\/span> RMPs are supposed to be relatively routine administrative actions and have not been delivered to Congress as rules.9<\/a><\/sup>Letter from Robert T. Anderson, Solic. of the U.S. Dep\u2019t of the Interior, to Rep. Jared Huffman (D-Cal.) (Jan. 15, 2025), https:\/\/democrats-naturalresources.house.gov\/download\/doi-response-rep-huffman-rmp [https:\/\/perma.cc\/XGJ7-SFCQ].<\/span><\/p>\n

President Joe Biden\u2019s administration built on President Barack Obama\u2019s restrictive environmental land use policies, finalizing RMPs in North Dakota, Alaska, and Montana that substantially reduced natural resource output.10<\/a><\/sup>See <\/em>Press Release, H. Comm. on Nat. Res., President Trump Signs Legislation to Unleash American Resources and Unlock Public Lands (Dec. 11, 2025), https:\/\/naturalresources.house.gov\/news\/documentsingle.aspx?DocumentID=418511 [https:\/\/perma.cc\/AFE3-H8JL]; Zack Colman & Ben Lefebvre, Biden Pitching a Much Vaster Climate Plan Than Obama Ever Attempted<\/em>, POLITICO (Jan. 27, 2021) https:\/\/www.politico.com\/news\/2021\/01\/27\/biden-climate-orders-energy-463051 [https:\/\/perma.cc\/SKG8-LGX4]; Peggy Otum, Public Lands Management in the Biden Era, <\/em>WilmerHale (Nov. 16, 2020), https:\/\/www.wilmerhale.com\/en\/insights\/client-alerts\/20201116-public-lands-management-in-the-biden-era [https:\/\/perma.cc\/8W44-3VXK].<\/span> This was contrary to the multiple use doctrine enshrined by Congress and harmed state and local budgets and economic output.11<\/a><\/sup>See<\/em> Press Release, Kelly Armstrong, N.D. Gov., Armstrong: BLM\u2019s Finalized Resource Management Plan is Bad for North Dakota, should be repealed (Jan. 14, 2025), https:\/\/www.governor.nd.gov\/news\/armstrong-blms-finalized-resource-management-plan-bad-north-dakota-should-be-repealed [https:\/\/perma.cc\/V893-7HWM] (\u201cFor example, the anticipated loss in State revenue from royalties and taxes for oil

\nand gas alone is estimated to be $34 million per year.\u201d). <\/span> During the Obama administration, the Department of Interior finalized an RMP for the Eastern Interior of Alaska.12<\/a><\/sup>Press Release, Bureau of Land Mgmt., BLM Approves Management Plan for Alaska\u2019s Eastern Interior, https:\/\/www.blm.gov\/press-release\/blm-approves-management-plan-alaskas-eastern-interior [https:\/\/perma.cc\/FGF9-G2RT]. <\/span> It was never sent to Congress, so in 2017 the Alaska congressional delegation requested a review by the GAO, which found the RMP was eligible for action under the CRA.13<\/a><\/sup>U.S. GOV\u2019T ACCOUNTABILITY OFF., B-329065 EASTERN INTERIOR RESOURCE MANAGEMENT PLAN 7 (2017), https:\/\/www.gao.gov\/assets\/b-329065.pdf [https:\/\/perma.cc\/9DQP-TFAG].<\/span> Seizing on this momentum, I led the North Dakota delegation\u2019s request to the GAO asking it to review President Biden\u2019s North Dakota RMP and determine if it was subject to reversal under the CRA.14<\/a><\/sup>See <\/em>Press Release, Sen. Kevin Cramer (R-N.D.), Senate Passes ND Delegation Resolution to Overturn Biden-Era North Dakota RMP (Oct. 8, 2025), https:\/\/www.cramer.senate.gov\/news\/press-releases\/senate-passes-nd-delegation-resolution-to-overturn-biden-era-north-dakota-rmp [https:\/\/perma.cc\/PNH5-A4AF].<\/span> The GAO agreed, allowing me to submit a Joint Resolution of Disapproval to formally revoke the North Dakota RMP in Congress.15<\/a><\/sup>See id. <\/em><\/span><\/p>\n

This was a novel use of the CRA, but it was exactly what the law was meant for: to provide Congress with a check on an agency coloring outside the lines of its authority, to enforce congressional intent, and to redirect the bureaucracy.16<\/a><\/sup>See<\/em> id.<\/em><\/span><\/p>\n

Although the courts have started to restore balance, Congress needs to reassert the authority it surrendered. We must reassess the tools we have to exert our constitutional authority in the face of a runaway bureaucracy with a near evenly divided Congress.<\/p>\n

North Dakota\u2019s RMP CRA is a case study in the untapped possibility of the CRA and offers a glimpse at the potential restoration of the checks and balances.<\/p>\n

Understanding the necessity of North Dakota\u2019s CRA to overturn the RMP begins with the rise of the administrative state and the ever-expanding bureaucracy.<\/p>\n

II. The Rise of the Administrative State<\/span><\/h4>\n

While the modern administrative state began its growth during Woodrow Wilson\u2019s presidency, it rapidly expanded as a result of President Franklin Delano Roosevelt\u2019s New Deal.17<\/a><\/sup>Joseph Postell, From Administrative State to Constitutional Government<\/em>, THE HERITAGE FOUNDATION, https:\/\/www.heritage.org\/political-process\/report\/administrative-state-constitutional-government [https:\/\/perma.cc\/EP3Y-9CDY].<\/span> As Congress passed sweeping legislation, it outsourced expansive authority to the bureaucracy, believed to be better suited to making technical decisions than Congress.18<\/a><\/sup>See <\/em>John Yoo, Franklin Roosevelt and Presidential Power<\/em>, 21 CHAPMAN L. REV. 205, 206, 224 (2018). <\/span> The less prescriptive Congress was, the more leeway agencies had to interpret the new laws.19<\/a><\/sup>See <\/em>Elena Kagan, Presidential Administration, <\/em>114 HARV. L. REV. 2245, 2255 (2001) (\u201cFrom the beginning of the twentieth century onward, many statutes authorizing agency action included open-ended grants of power, leaving to the relevant agency\u2019s discretion major questions of public policy.\u201d). <\/span><\/p>\n

When it comes to Congress\u2019s power, this expansive legislation was a hard turn down the wrong path. Instead of prescriptive legislating, Congress opened a can of worms by delegating away its own authority. Rather than clearly delineating black and white boundaries, vague statutes created massive amounts of gray area for bureaucratic mischief.20<\/a><\/sup>See, e.g.<\/em>, H.R. 6518, 88th Cong. (1963) (enacted) (\u201cThe Secretary may recommend to such air pollution control agencies and to other appropriate organizations such criteria of air quality as in his judgement may be necessary to protect the public health and welfare.\u201d).<\/span> It was during this era that Congress created the Federal Register to compile and centralize the flurry of new regulations from agencies.21<\/a><\/sup>See <\/em>Harold C. Relyea, The Federal Register: Origins, Formulation, Realization, and Heritage<\/em>, 28 GOV\u2019T INFO. Q. 297 (2011); Nat\u2019l Archives & Recs. Admin., The Federal Register: A Brief History<\/em>, https:\/\/www.archives.gov\/files\/federal-register\/the-federal-register\/history.pdf [https:\/\/perma.cc\/FE5L-WD7A]; see also <\/em>Joel S. Nolette, Towards an Administrative Rule of Lenity: Restoring the Constitutional Congress by Reforming Statutory Interpretation<\/em>, 19 FEDERALIST SOC\u2019Y REV. 16, 16\u201317 (2018) (\u201c[When] Congress passes vague or broadly worded statutes . . . the agency will begin implementing the law in ways Congress never intended or authorized.\u201d). <\/span><\/p>\n

In the intervening ninety years, Congress made many attempts at defining the limits of executive agency power, and it will likely do so for the next ninety years. After the passage of the New Deal, Congress spent the next decade considering a procedural framework for agency rules. A House Judiciary Committee report describes the process as \u201cpainstaking and detailed study and drafting.\u201d22<\/a><\/sup>H.R. Rep. No. 79-1980, at 241 (1946), https:\/\/www.justice.gov\/sites\/default\/files\/jmd\/legacy\/2014\/06\/09\/houserept-1980-1946.pdf, [https:\/\/perma.cc\/HCA8-88A9].<\/span><\/p>\n

In response to the increase in administrative activity, Congress passed the Administrative Procedure Act (\u201cAPA\u201d) in 1946.23<\/a><\/sup>See<\/em> 5 U.S.C. \u00a7\u00a7 551\u201359.<\/span> The APA defined what makes up a \u201crule,\u201d defined specific types of rulemakings, and standardized the rulemaking process.24<\/a><\/sup>5 U.S.C. \u00a7\u00a7 551, 553\u201357. <\/span> There are a variety of rulemaking types, but the most common is an informal rulemaking, also known as notice-and-comment.25<\/a><\/sup>See generally<\/em> TODD GARVEY, CONG. RSCH. SERV., R41546, A BRIEF OVERVIEW OF RULEMAKING AND JUDICIAL REVIEW (2017), https:\/\/www.congress.gov\/crs-product\/R41546 [https:\/\/perma.cc\/ZGG7-K73M] (\u201cThe Administrative Procedure Act (APA), which applies to all agencies of the federal government, provides the general procedures for various types of rulemaking.\u201d).<\/span> These rules begin with a notice of proposed rulemaking, public comment period for an \u201cadequate\u201d amount of time, and then finalization.26<\/a><\/sup>Id. <\/em>at 2\u20133. <\/span><\/p>\n

While the APA was essential to creating these parameters, it does not constrain bureaucratic outcomes or the gradual accumulation of deference to the executive branch.27<\/a><\/sup>Id. <\/em>at 14\u201317. <\/span> Instead, it merely outlines the process for regulatory action.<\/p>\n

Over time, the courts were also involved in this shift as they increasingly used the doctrine established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.28<\/a><\/sup><\/em>467 U.S. 837 (1984).<\/span> <\/em>As the Supreme Court subsequently described:<\/p>\n

[W]ithin a few years [after Chevron<\/em>], both the [Supreme] Court and the courts of appeals were routinely invoking its two-step framework as the governing standard in such cases . . . . Eventually, the Court decided that Chevron<\/em> rested on \u201ca presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.\u201d29<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2264\u201365 (2024).<\/span><\/p>\n

Yet, as Chief Justice John Roberts explained in Loper Bright Enterprises v. Raimondo<\/em>:<\/p>\n

the APA specifies that courts, not agencies, will decide \u201call <\/em>relevant questions of law\u201d arising on review of agency action . . . \u2014even those involving ambiguous laws\u2014. . . . And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential.30<\/a><\/sup>Id.<\/em> at 2261.<\/span><\/p>\n

Over the coming decades, Congress proceeded to allow agencies to determine policy details of its imprecise legislation out of a desire for efficiency and political expediency.31<\/a><\/sup>See Does Congress Delegate Too Much Power to Agencies and What Should Be Done About It?: Hearing Before the H. Comm. on Gov. Reform,<\/em> 106th Cong. 8\u20139 (1999) (statement of Rep. Dennis J. Kucinich (D-Ohio)) (\u201cthis process can be abused by both the Congress and the agencies. Congress can duck politically difficult issues by passing broad legislation that sets politically popular goals, and blame the administration when agencies make the tough decisions about who will bear the burden of reaching those goals. Similarly, agencies can overstep their authority and pass regulations which are not authorized by the underlying statutes.\u201d); Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (describing separation of powers as adopted \u201cnot to promote efficiency but to preclude the exercise of arbitrary power\u201d and \u201cto save the people from autocracy\u201d).<\/span> But in doing so, Congress either failed to see or did not care how this slowly chipped away at its own power over relevant questions of law.32<\/a><\/sup>See <\/em>Reeve Bull, Congress Should Stop Passing the Buck to the Bureaucracy, <\/em>NAT\u2019L REV. (Nov. 12, 2025, at 06:30 ET), https:\/\/www.nationalreview.com\/2025\/11\/congress-should-stop-passing-the-buck-to-the-bureaucracy\/ [https:\/\/perma.cc\/5XUR-VDQP] (\u201cSo here\u2019s the bumper sticker Congress should live by: Make the rules of the road before handing over the wheel [to the courts].\u201d).<\/span> The result has been a failure of transparency and democratic principles. Agencies were handed authority without accountability, and challenging the rule in court was generally the only recourse to prevent a runaway bureaucracy. Each time Congress passes legislation directing the agencies to engage in rulemaking, it places itself out of the picture to some degree.33<\/a><\/sup>See <\/em>Michael Macagnone, Supreme Court\u2019s \u2018<\/em>Chevron\u2019 Ruling Means Changes for Writing Laws, <\/em>ROLL CALL (June 28, 2024, at 18:34 ET), https:\/\/rollcall.com\/2024\/06\/28\/supreme-courts-chevron-ruling-means-changes-for-writing-laws\/ [https:\/\/perma.cc\/6965-Y9KD].<\/span><\/p>\n

However, in recent years, the tide has turned against unchecked bureaucratic authority as evidenced by several landmark Supreme Court rulings. Whether regarding the Clean Water Act (\u201cCWA\u201d) or agency deference, the Supreme Court in these last several years has reined in overzealous agencies.34<\/a><\/sup>See <\/em>Phil Cha, David Amerikaner & Lindsay Ann Brown, The New (De)Regulatory Era: what Recent Supreme Court Decisions and Federal Policy Shifts Mean for Regulated Industries, <\/em>DUANEMORRIS (July 22, 2025), https:\/\/www.duanemorris.com\/articles\/new_deregulatory_era_recent_supreme_court_decisions_federal_policy_shifts_mean_industries_0725.html [https:\/\/perma.cc\/7M5G-MDXW] (\u201c[The regulatory] era is ending. The United States has entered a new phase\u2014one of deregulatory momentum\u2014driven by recent U.S. Supreme Court decisions and an aggressive reorienting of executive and agency policy.\u201d).<\/span><\/p>\n

Beginning in 2022 with West Virginia v. EPA<\/em>, Chief Justice Roberts emphasized \u201c[a]gencies have only those powers given to them by Congress, and \u2018enabling legislation\u2019 is generally not an \u2018open book to which the agency [may] add pages and change the plot line.\u2019\u201d35<\/a><\/sup>142 S. Ct. 2587, 2609 (2022).<\/span> Rather, \u201c[t]he agency instead must point to \u2018clear congressional authorization\u2019 for the power it claims.\u201d36<\/a><\/sup>Id.<\/em> <\/span> Under the major questions doctrine, the Court established that major policy questions are not for agencies to decide but are squarely for Congress to debate and legislate. As Justice Gorsuch explained in his West Virginia <\/em>concurring opinion:<\/p>\n

administrative agencies must be able to point to \u201cclear congressional authorization\u201d when they claim the power to make decisions of vast \u201ceconomic and political significance.\u201d . . . These rules assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds.37<\/a><\/sup>Id. <\/em>at 2616 (Gorsuch, J., concurring).<\/span><\/p>\n

The Supreme Court again curtailed agency overreach less than a year later. <\/em>In Sackett v. EPA<\/em>, the Court restrained the EPA\u2019s Waters of the United States (\u201cWOTUS\u201d) rule, clarifying the scope of the Clean Water Act\u2019s authority.38<\/a><\/sup>143 S. Ct. 1322, 1344 (2023).<\/span> The decision reined in bureaucratic expansionism. Specifically, the Court held \u201cthat the CWA extends to only those \u2018wetlands with a continuous surface connection to bodies that are \u201cwaters of the United States\u201d in their own right,\u2019 so that they are \u2018indistinguishable\u2019 from those waters.\u201d39<\/a><\/sup>Id<\/em>.<\/span> It said what bureaucrats were unwilling to see: only bodies of water which are actually bodies of water\u2014not subsurface, not potholes, not ditches\u2014can be defined as WOTUS.<\/p>\n

In 2024, the Court rejected the Chevron <\/em>doctrine, reinforcing the separation of powers and reining in expansive agency power. As famously stated by Chief Justice Marshall in Marbury v. Madison<\/em>, \u201c[i]t is emphatically the province and duty of the Judicial Department to say what the law is.\u201d40<\/a><\/sup>Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).<\/span> In Loper Bright Enterprises v. Raimondo<\/em>, the Supreme Court significantly limited courts\u2019 deference to agency expertise when interpreting a statute by reimplementing both the plain text of the APA and the foundational power of Article III courts.41<\/a><\/sup>See Loper Bright<\/em>, 144 S. Ct. at 2273 (\u201cCourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.\u201d).<\/span> Specifically, Chief Justice Roberts stated:<\/p>\n

Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.42<\/a><\/sup>Id. <\/em><\/span><\/p>\n

This monumental decision took executive power out of the driver\u2019s seat and reasserted the law and judges\u2019 responsibility to do their job in interpreting it. While the courts have done excellent work in turning the ship, Congress\u2019s greatest tool to reclaim its authority is a newly-embraced, yet decades-old law: the CRA.<\/em><\/p>\n

III. The Congressional Review Act<\/span><\/h4>\n

U.S. Senator Christopher Bond (R-Mo.) introduced the Small Business Regulatory Enforcement Fairness Act (\u201cSBREFA\u201d) in 1995 to assist small businesses with regulatory compliance.43<\/a><\/sup>Small Business Regulatory Enforcement Fairness Act of 1996, S. 942, 104th Cong. (1996).<\/span> While the legislation focused on small businesses, Title V of the bill outlined a process for congressional review of the final rules from executive agencies.44<\/a><\/sup>Id.<\/em><\/span><\/p>\n

After passing the Senate unanimously, SBREFA was folded into then-Speaker of the House Newt Gingrich (R-Ga.) and North Dakota native and Majority Leader Dick Armey\u2019s (R-Tex.) marquee agenda, the Contract with America.45<\/a><\/sup>Id.<\/em>; Contract with America Advancement Act of 1996, H.R. 3136, 104th Cong. (1996).<\/span> Its intent was to provide for congressional review of final rules from executive agencies. Specifically, it mandated that agencies submit final rules, including proposed implementation dates and \u201ca concise general statement relating to the rule, including whether [it] is a major rule\u201d to Congress and the Comptroller General.46<\/a><\/sup>Id. <\/em><\/span><\/p>\n

Building on the SBREFA effort to implement congressional review of agency rules,47<\/a><\/sup>Small Business Regulatory Enforcement Fairness Act of 1996, S. 942, 104th Cong. (1996).<\/span> the CRA within Contract with America established a more generous timeline for Congress to pass legislation overturning those rules.48<\/a><\/sup>Contract with America Advancement Act of 1996, Pub. L. No. 104-121, \u00a7 251, 110 Stat. 847, 868 (1996) (enacted in 5 U.S.C. \u00a7\u00a7 801\u201308).<\/span> It increased the amount of time Congress has to pass a CRA resolution from forty-five days to sixty days, eliminated the ability to pursue a discharge petition in the House, and prohibited rules which are \u201csubstantially the same\u201d from replacing overturned rules.49<\/a><\/sup>5 U.S.C. \u00a7 801.<\/em><\/span><\/p>\n

The CRA defers to the APA definition of a rule,50<\/a><\/sup>Id.<\/em> \u00a7 804(3) (\u201cThe term \u2018rule\u2019 has the meaning given such term in section 551.\u201d).<\/span> which is \u201cthe whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy . . . .\u201d51<\/a><\/sup>Id.<\/em> \u00a7 551(4).<\/span><\/p>\n

The three types of rules exempt from the CRA include:<\/p>\n

any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing; any rule relating to agency management or personnel; or any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.52<\/a><\/sup>Id. <\/em>\u00a7 804(3) (headings omitted).<\/span><\/p>\n

The CRA clearly prescribes the process by which Congress can overturn a rule. Per the CRA, senators can skip the committee process and bring the CRA resolution directly to the floor after twenty days, so long as thirty members sign a discharge petition.53<\/a><\/sup>Id.<\/em> \u00a7 802(c).<\/span> It restricts floor debate in the Senate to ten hours, divided equally between the supporting and opposing members.54<\/a><\/sup>Id. <\/em>\u00a7 802(d)(2).<\/span> The Senate then proceeds immediately to final passage after debate has expired, requiring only a quorum or simple majority to pass.55<\/a><\/sup>Id.<\/em> \u00a7 802(d)(3). <\/span> As with any law, once a CRA resolution is passed by the House and Senate, it is transmitted to the President for his signature or veto.<\/p>\n

Perhaps most importantly, the CRA includes a prohibition on the reincarnation of similar rules.<\/p>\n

A rule that does not take effect (or does not continue) . . . may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.56<\/a><\/sup>Id.<\/em> \u00a7 801(b)(2).<\/span><\/p>\n

The CRA is clear: once a rule is overturned, future rules must be significantly different unless Congress passes legislation otherwise authorizing the rule after the successful CRA resolution.<\/p>\n

Interestingly, the CRA does not define \u201csubstantially the same,\u201d leaving each administration, and potentially the courts and Congress, to decide how similar is too similar. Under the CRA, a resolution signed into law is not judicially reviewable, but a replacement rule could be challenged in court on the grounds that it mimics what was revoked. Alternatively, Congress can determine that enough substantive changes have been made. Congress must decide its own tolerance for reissued rules and whether it is willing to expend the time and energy to overturn them. There have only been two attempts at finalizing rules previously repealed by CRA resolutions, and Congress did not introduce or pass CRA resolutions to overturn them, suggesting the most significant flaws were alleviated.<\/p>\n

Given the immense resources and tradeoffs required to develop a rule, the \u201csubstantially similar\u201d prohibition serves as a practical deterrent to regulatory overreach even if its enforceability is in doubt.<\/p>\n

Every time Congress passes a CRA resolution, it is a stop sign to the bureaucracy. If the bureaucracy colors so far outside the lines that Congress passes and the President signs a successful CRA, the result is not just a repudiation of the present, but also a warning to future efforts of a similar nature.<\/p>\n

In a statement submitted to the Congressional Record after its initial passage, then-U.S. Senators Don Nickles (R-Okla.), Harry Reid (D-Nev.), and Ted Stevens (R-Alaska) described their intent behind the CRA and explicitly outlined how they envisioned its future interpretation.57<\/a><\/sup>See generally <\/em>142 CONG. REC. S3683\u201387 (daily ed. Apr. 18, 1996) (statement of Sens. Nickles, Reid & Stevens) (providing a \u201cdetailed explanation and a legislative history for the congressional review title of H.R. 3136\u201d). <\/span> Before submitting the statement, Nickles explained: \u201cThis joint statement is intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act\u2019s terms.\u201d58<\/a><\/sup>Id.<\/em> at S3683.<\/span><\/p>\n

The lawmakers said the CRA was intended to \u201chelp . . . redress the balance [between Congress and the Executive Branch], reclaiming for Congress some of its policymaking authority, without at the same time requiring Congress to become a super regulatory agency.\u201d59<\/a><\/sup>Id. <\/em><\/span><\/p>\n

Their statement offers tough but fair criticism of Congress and the executive, faulting both branches: \u201cAs the number and complexity of federal statutory programs has increased over the last fifty years, Congress has come to depend more and more upon Executive Branch agencies to fill out the details of the programs it enacts.\u201d60<\/a><\/sup>Id<\/em>. <\/span><\/p>\n

Giving agencies the difficult job of determining what Congress intended is a catch-22. As Senators Nickles, Reid, and Stevens explain, \u201c[b]ecause Congress often is unable to anticipate the numerous situations to which the laws it passes must apply, Executive Branch agencies sometimes develop regulatory schemes at odds with congressional expectations . . . . Rules can be surprisingly different from the expectations of Congress or the public.\u201d61<\/a><\/sup>Id.<\/em> at S3684. <\/span><\/p>\n

A. The Evolving Uses of the CRA<\/em><\/p>\n

Once the CRA passed the Senate and was signed into law by President Clinton, it lay dormant for nearly half a decade. For many years, CRA procedure was widely regarded as \u201ctoothless\u201d in large part because of the very narrow and specific circumstances necessary for a CRA effort to succeed.62<\/a><\/sup>See <\/em>Stuart Shapiro, The Congressional Review Act, Rarely Used and (Almost Always) Unsuccessful<\/em>, THE HILL (Apr. 17, 2015), https:\/\/thehill.com\/blogs\/pundits-blog\/lawmaker-news\/239189-the-congressional-review-act-rarely-used-and-almost-always\/ [https:\/\/perma.cc\/6WL4-BHNX] (explaining why Congressional Republicans would likely fail in their attempt to stop Obama regulations). <\/span><\/p>\n

As long as the president who promulgated the rule was still in office, he would have the ability to veto it, leaving Congress to attempt a veto override. A president would rarely overturn his own administration\u2019s rule, so any CRA effort would likely be doomed from the start.<\/p>\n

The genius of the CRA would be revealed the very first time it was used. Five years after its passage, Congress successfully overturned a Clinton administration-era Occupational Safety and Health Administration (\u201cOSHA\u201d) ergonomics rule.63<\/a><\/sup>See <\/em>S.J. Res. 6, 107th Cong., 115 Stat. 7 (2001).<\/span> OSHA\u2019s rule was intended to reduce repetitive stress injuries in the workplace by requiring employers to educate employees on injuries, track injuries, and modify work environments to prevent injuries.64<\/a><\/sup>Ergonomics Program, 65 Fed. Reg. 68262 (Nov. 14, 2000) (to be codified at 29 C.F.R. pt. 1910) (overturned). <\/span><\/p>\n

The rule was finalized in November 2000, exactly a week after President George W. Bush was elected.65<\/a><\/sup>Id.<\/em><\/span> President Bush prepared to assume the presidency as Republicans maintained their control of the House and Senate, forming a trifecta.66<\/a><\/sup>Party Government Since 1857<\/em>, U.S. HOUSE OF REPS.: HIST., ART & ARCHIVES, https:\/\/history.house.gov\/Institution\/Presidents-Coinciding\/Party-Government\/ [https:\/\/perma.cc\/XTE5-8HYK].<\/span> Congressional Republicans began working to overturn the rule,67<\/a><\/sup>See <\/em>Nick Anderson, Senate Overturns Ergonomics Rules on Worker Safety<\/em>, L.A. TIMES (Mar. 7, 2001, at 00:00 PT), https:\/\/www.latimes.com\/archives\/la-xpm-2001-mar-07-mn-34317-story.html [https:\/\/perma.cc\/6D45-L8K6] (detailing a \u201cRepublican-led [vote] to kill new rules\u201d).<\/span> which President Bush described as \u201ca bureaucratic one-size-fits-all solution to a broad range of employers and workers\u2014not good government at work.\u201d68<\/a><\/sup>A Statement on Signing Legislation To Repeal Federal Ergonomics Regulations, 37 WEEKLY COMP. PRES. DOC. 477 (Mar. 20, 2001).<\/span><\/p>\n

The U.S. Chamber of Commerce warned of the strain this would place on employers, from skyrocketing costs to malicious, frivolous lawsuits.69<\/a><\/sup>Dana Bash & Trish Turner, Senate Fight Brews Over Ergonomic Regulations<\/em>, CNN: INSIDE POLITICS (Mar. 2, 2001), https:\/\/www.cnn.com\/2001\/ALLPOLITICS\/03\/02\/gop.job\/index.html [https:\/\/perma.cc\/3S46-B76F].<\/span><\/p>\n

Senator Nickles introduced the CRA resolution to overturn the rule, referring to it as \u201cthe most expensive, intrusive regulations ever promulgated, certainly by the Department of Labor and maybe by any department in history.\u201d70<\/a><\/sup>Anderson, supra <\/em>note 67; see also<\/em> id. <\/em><\/span><\/p>\n

After signing the CRA resolution into law, Bush described the overturned rule as \u201cunduly burdensome and overly broad.\u201d71<\/a><\/sup>Bush, supra <\/em>note 68.<\/span> He further explained, \u201cin exchange for uncertain benefits, the ergonomics rule would have cost both large and small employers billions of dollars and presented employers with overwhelming compliance challenges.\u201d72<\/a><\/sup>Id. <\/em><\/span><\/p>\n

In addition to noting the historic nature of the repeal, Bush highlighted the role of the CRA in ensuring accountability within the executive agencies. He argued the \u201cresolution is a good and proper use of the [Congressional Review] Act because the different branches of our Government need to be held accountable.\u201d73<\/a><\/sup>Id. <\/em><\/span><\/p>\n

Despite the successful use of CRA powers, it was dismissed as a one-off event without much future utility. As a Congressional Research Service report from 2008 describes:<\/p>\n

In the view of some observers, the OSHA action was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing Administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President.74<\/a><\/sup>MORTEN ROSENBERG, CONG. RSCH. SERV., RL30116, CONGRESSIONAL REVIEW OF AGENCY RULEMAKING: AN UPDATE AND ASSESSMENT OF THE CONGRESSIONAL REVIEW ACT AFTER A DECADE (2008).<\/span><\/p>\n

After the successful overturn of the ergonomics rule, Congress gradually introduced more CRA resolutions of disapproval. Fourteen years after the first CRA resolution, President Barack Obama vetoed a CRA to overturn his administration\u2019s rule allowing streamlined union elections.75<\/a><\/sup>Representation-Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014) (to be codified at 29 C.F.R. pts. 101\u201303) (overturned); see<\/em> Peter Baker, Obama Rejects Republican Bid to Overturn New Union Rules<\/em>, N.Y. TIMES (Mar. 31, 2015), https:\/\/www.nytimes.com\/2015\/04\/01\/us\/obama-rejects-republican-effort-to-tighten-union-rules.html [https:\/\/perma.cc\/2GAP-T6D9] (discussing President Obama\u2019s veto of the resolution).<\/span> President Obama vetoed four additional CRA resolutions, and no CRA attempt by Congress successfully passed during his entire eight years in office.76<\/a><\/sup>See Federal Agency Rules Repealed Under the Congressional Review Act<\/em>, BALLOTPEDIA, https:\/\/ballotpedia.org\/Federal_agency_rules_repealed_under_the_Congressional_Review_Act [https:\/\/perma.cc\/ZWQ8-8JMC].<\/span><\/p>\n

In February 2017, the CRA forever changed the way Congress interacts with the Executive Branch. Republicans in Congress and newly inaugurated President Donald Trump leveraged the statute for a campaign to overturn sweeping Obama administration rules passed in the final months of his presidency. President Trump signed fifteen CRA resolutions into law within the first year of his administration, followed by one signed CRA resolution in 2018 and one presidential veto of a CRA in 2020.77<\/a><\/sup>Id.<\/em><\/span><\/p>\n

After the Republican-controlled 115th Congress\u2019s use of the CRA, there was no longer any doubt about the power it holds to reshape the bureaucracy and reduce the impact of a president\u2019s predecessor.78<\/a><\/sup>See <\/em>Michael D. Shear, Trump Discards Obama Legacy, One Rule at a Time<\/em>, N.Y. TIMES (May 1, 2017), https:\/\/www.nytimes.com\/2017\/05\/01\/us\/politics\/trump-overturning-regulations.html [https:\/\/perma.cc\/TA66-SJ83].<\/span><\/p>\n

Four years later, President Joe Biden and a Democrat-controlled Congress overturned three Trump administration rules. Despite bipartisan support, President Biden vetoed most of the fourteen CRAs passed by Congress during his administration.79<\/a><\/sup>See generally Federal Agency Rules Repealed Under the Congressional Review Act<\/em>, supra <\/em>note 76.<\/span><\/p>\n

During the second Trump administration, Congress has dusted off its CRA playbook and passed twenty-two CRA resolutions. They cover everything from RMPs to bank mergers and a wide swath of environmental regulations.80<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The power of the CRA lies in its permanence. A freshly sworn-in president has a variety of tools to roll back the work of his predecessor. But unlike an executive order to repeal another executive order or a freeze on rulemaking, a successful CRA is the equivalent of playing both offense and defense at the same time. It eliminates a finalized rule and significantly reduces the likelihood of similar rules all in a single legislative act.<\/p>\n

A successful CRA resolution of disapproval requires the near-perfect set of circumstances of a president aligned with a simple majority in Congress, a rule finalized in the eleventh hour of an administration, and members of Congress willing to convince their colleagues to get the CRA across the finish line. They must meticulously plan, introduce their resolution, and lobby colleagues within the sixty-day window for passage.<\/p>\n

As of April 2026, only sixty CRA resolutions of disapproval have been passed by Congress.81<\/a><\/sup>Id.<\/em><\/span> Of those efforts, seventeen were vetoed and forty-three were signed by the president to successfully repeal rules.82<\/a><\/sup>Id. <\/em><\/span> The CRA is no longer an obscure tool from 1996 and is now a key to Congress taking back control of its authorities and safeguarding congressional intent.<\/p>\n

The recent overturning of the North Dakota RMP is a case study in the previously untapped power of the CRA and the ability of Congress to ensure agencies act within the confines of their authority and in line with congressional intent. We were confident the RMP violated the Federal Land Policy and Management Act (\u201cFLPMA\u201d) and multiple use, and we were determined to use the tools at our disposal to overturn it.<\/p>\n

IV. The Federal Land Policy and Management Act<\/span><\/h4>\n

Amid ongoing concern over outdated public lands laws in the 1950s and 1960s, President Lyndon B. Johnson and Congress agreed on the need for a commission to study existing laws and propose new ones to better manage public lands across America.83<\/a><\/sup>Milton A. Pearl, The<\/em> Public Land Law Review Commission: An Overview<\/em>, 6 LAND & WATER L. REV. 7, 12 (1970).<\/span> In 1964, Congress passed legislation establishing the Public Land Law Review Commission.84<\/a><\/sup>Act of Sep. 19, 1964, Pub. L. No. 88-606, 78 Stat. 982. <\/span> The Commission was made up of representatives appointed by Johnson, along with bipartisan members of the Senate and House Committees on Interior and Insular Affairs. It was also assisted by representatives of all fifty governors and an advisory council of federal agency and various industry leaders.85<\/a><\/sup>PUB. LAND L. REV. COMM\u2019N, ONE THIRD OF THE NATION\u2019S LAND: A REPORT TO THE PRESIDENT AND TO THE CONGRESS BY THE PUBLIC LAND LAW REVIEW COMMISSION ix\u2013x (1970).<\/span><\/p>\n

The Commission released its report in June 1970 recommending several changes to how the United States manages public lands.86<\/a><\/sup>Id.<\/em> at iii.<\/span> These recommendations included altering land disposal policy, consolidating management of public lands into a single agency, and supporting states and communities with payments in lieu of taxes.87<\/a><\/sup>Id. <\/em>at 1\u20137.<\/span><\/p>\n

Two key recommendations stood out, laying the groundwork for the multiple use mandate and FLPMA.<\/p>\n

First, the Commission recognized the need for public lands to have \u201ca combination of many uses\u201d in order to produce the \u201cfood, fiber, and minerals\u201d the country needed.88<\/a><\/sup>Id. <\/em>at 3.<\/span> The report recommended that \u201cconsideration should be given to all possible uses and the maximum number of compatible uses permitted.\u201d89<\/a><\/sup>Id. <\/em><\/span><\/p>\n

The second recommendation proposed requiring agencies to create \u201clong range, comprehensive land use plans for each state or region.\u201d90<\/a><\/sup>Id. <\/em>at 52.<\/span> This recommendation would form the foundation of modern RMPs.<\/p>\n

Congress took these recommendations and spent the next few years crafting FLPMA, which was signed into law on October 21, 1976.91<\/a><\/sup>Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2743 (1976) (codified as amended at 43 U.S.C. \u00a7\u00a7 1701\u201387).<\/span> As Representative John Melcher (D-Mont.) explained:<\/p>\n

Congress has enacted thousands of public land laws. Some of them are still viable. However, in many instances they are obsolete and, in total, do not add up to a coherent expression of congressional policies adequate for today\u2019s national goals. The executive branch has tended to fill in missing gaps in the law. This has not always been done in a manner consistent with a system balanced in the best interests of all the people. This bill, the Federal Land Policy and Management Act, represents a major step in modernizing the public land laws.92<\/a><\/sup>122 CONG. REC. 23434 (1976). <\/span><\/p>\n

Representative Joe Skubitz (R-Kan.) stressed the need for FLPMA, particularly for reasserting congressional oversight on the BLM, which he described as an \u201cagency which, at present, is free to act mostly of its own accord.\u201d93<\/a><\/sup>Id. <\/em>at 23436\u201337.<\/span> The prescriptive nature of FLPMA and its clear multiple use mandate for public lands should have been enough to rein in the BLM, yet as our CRA resolution indicates, little has changed in the intervening decades.<\/p>\n

Almost as applicable today as then, Representative Skubitz expressed concern for domestic energy development on public lands:<\/p>\n

It seems inconsistent for some to decry our country\u2019s increasing energy dependence on foreign imports, and yet, at the same time to continue restricting the development of more and more of our Federal lands. Why, for example, do we continue to so severely restrict the discovery and mining of valuable minerals or energy resources available to us within the United States?94<\/a><\/sup>Id. <\/em>at 23437. <\/span><\/p>\n

The ability to develop energy near BLM lands would later become the central issue within the North Dakota RMP CRA resolution.<\/p>\n

Even with FLPMA, the challenge of managing resources without completely withdrawing them for preservation only would remain a challenge for decades to come.<\/p>\n

RMPs are the core element of FLPMA. The Act requires the Secretary of the Interior to create land use plans in partnership with the states for managing the public lands across western states, including North Dakota.95<\/a><\/sup>FLPMA was amended by the Public Rangelands Improvement Act of 1978 to include additional states. See<\/em> Public Rangelands Improvement Act of 1978, Pub. L. No. 95-514, \u00a7 7(b), 92 Stat. 1803, 1807 (codified as amended at 43 U.S.C. \u00a7 1752) (expanding FLPMA from eleven to sixteen states).<\/span><\/p>\n

In particular, FLPMA mandates \u201cmultiple use\u201d of public lands, which it defines as:<\/p>\n

[T]he management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.96<\/a><\/sup>Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, \u00a7 103, 90 Stat. 2743, 2745\u201346 (codified as amended at 43 U.S.C. \u00a7 1702).<\/span><\/p>\n

The central challenge with the multiple use requirement is how to balance the uses, particularly given the direct tension between them. Land used for grazing often cannot be used for conservation, just as land used for energy development may conflict with recreation. However, FLPMA is exceedingly clear that multiple use certainly does not mean single use or withdrawal altogether.97<\/a><\/sup>Id.<\/em> at \u00a7 202 (\u201cIn the development and revision of land use plans, the secretary shall use and observe the principles of multiple use and sustained yield set forth in this and other applicable law\u201d).<\/span><\/p>\n

Following the recommendations from the Public Land Law Review Commission, FLPMA requires the BLM consult with state governments in drafting and revising plans.98<\/a><\/sup>Id.<\/em> \u00a7 202(c)(9); see <\/em>U.S. DEP\u2019T OF THE INTERIOR, BUREAU OF LAND MGMT., THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976 AS AMENDED 84 (2016), https:\/\/www.blm.gov\/sites\/default\/files\/AboutUs_LawsandRegs_FLPMA.pdf [https:\/\/perma.cc\/82KW-L8W4].<\/span><\/p>\n

The first RMP was finalized in 1980 and governed the California Desert Conservation Area,99<\/a><\/sup>See<\/em> U.S. DEP\u2019T. OF THE INTERIOR, BUREAU OF LAND MGMT., THE CALIFORNIA DESERT CONSERVATION AREA PLAN (1980), https:\/\/eplanning.blm.gov\/public_projects\/lup\/66949\/82080\/96344\/CDCA_Plan.pdf [https:\/\/perma.cc\/3ANU-UMZT].<\/span> as explicitly required by FLPMA.100<\/a><\/sup>See <\/em>U.S. DEP\u2019T OF THE INTERIOR, supra <\/em>note 98, at 62. <\/span> Eight years later in 1988, North Dakota\u2019s RMP was finalized.101<\/a><\/sup>Record of Decision and Approved Resource Management Plan for the North Dakota Resource Management, 90 Fed. Reg. 3916 (Jan. 15, 2025) (\u201cThe Approved RMP replaces the 1988 North Dakota RMP as amended. The Approved RMP provides guidance for managing approximately 58,500 acres of BLM-administered surface and 4.1 million acres of BLM-administered mineral estate, mostly split estate, across North Dakota.\u201d).<\/span> As of April 2025, there are 174 approved RMPs102<\/a><\/sup>U.S. Department of the Interior, Bureau of Land Management, BLM Natl Approved Land Use Plans<\/em>, GBP-BLM-EGIS HUB (Apr. 3, 2025, at 15:36 ET), https:\/\/gbp-blm-egis.hub.arcgis.com\/datasets\/BLM-EGIS::blm-natl-approved-land-use-plans\/explore [https:\/\/perma.cc\/XX4B-MSFR]. <\/span> and five pending RMPs103<\/a><\/sup>U.S. Department of the Interior, Bureau of Land Management, BLM Natl Revision Development Land Use Plans<\/em>, GBP-BLM-EGIS HUB (July 27, 2022), https:\/\/gbp-blm-egis.hub.arcgis.com\/datasets\/BLM-EGIS::blm-natl-revision-development-land-use-plans\/explore?showTable=true [https:\/\/perma.cc\/3QR3-DHZJ]. <\/span> across large swaths of the western United States.<\/p>\n

In 2016, the Obama administration BLM finalized an RMP for the Eastern Interior of Alaska, which U.S. Senator Lisa Murkowski (R-Alaska) described as \u201cdisregard[ing] its multiple use mission and the livelihoods of Alaskans as it seeks to impose unnecessary conservation designations.\u201d104<\/a><\/sup>Press Release, Sen. Lisa Murkowski (R-Alaska), Murkowski Slams BLM\u2019s Final Plan for Eastern Interior Alaska (Jan. 6, 2017), https:\/\/www.murkowski.senate.gov\/press\/release\/murkowski-slams-blms-final-plan-for-eastern-interior-alaska [https:\/\/perma.cc\/RA78-W7RH]. <\/span> After an inquiry from Senator Murkowski, the GAO qualified the RMP\u2019s eligibility for CRA removal.105<\/a><\/sup>See generally<\/em> U.S. GOV\u2019T ACCOUNTABILITY OFF., supra<\/em> note 13.<\/span> Although Congress elected not to overturn the RMP, it created momentum for future attempts.106<\/a><\/sup>See<\/em> 171 CONG. REC. S7114 (daily ed. Oct. 14, 2025) (statement of Sen. Mike Lee (R-Utah)) (\u201cWhile Congress has long known that it can use the CRA to disapprove of a resource management plan, it has yet to.\u201d). <\/span><\/p>\n

V. Case Study: North Dakota Resource Management Plan<\/span><\/h4>\n

In 2025, Congress embarked on a novel use of the CRA\u2019s oversight power to overturn a RMP that strayed outside the bounds of the BLM\u2019s FLPMA authority. North Dakota\u2019s effort to overturn the state\u2019s recently finalized RMP was a longer, more uncertain road than most CRA efforts.<\/p>\n

Originally finalized in 1988, the BLM announced its intent to update its RMP for North Dakota in 2020, dictating the use of the land for the next twenty years.107<\/a><\/sup>North Dakota Resource Management Plan Revision and EIS<\/em>, BUREAU OF LAND MGMT.: BLM NAT\u2019L NEPA REG. (Aug. 1, 2025), https:\/\/eplanning.blm.gov\/eplanning-ui\/project\/1505069\/510 [https:\/\/perma.cc\/7Y6H-CU7Z].<\/span> During the drafting and finalization process, the State of North Dakota repeatedly expressed concern for the changes and implications it would have on split mineral and surface ownership in the state.108<\/a><\/sup>See<\/em> Press Release, Kelly Armstrong, N.D. Gov., supra <\/em>note 11.<\/span><\/p>\n

In most western areas, especially those managed by the BLM, the owners of the surface and subsurface rights are the same. This is not true in North Dakota. Not only are split-estate lands common, small pockets of federal lands are also intermingled in a patchwork of private and state minerals.109<\/a><\/sup>See Discussion on Draft Legislation to Overhaul Federal Lands Energy Policy: Hearing on H.R. 4239 Before the H. Comm. On Nat. Res.<\/em><\/em>, 115th Cong. 2, 5 (2017) (statement of Lynn Helms, Dir., N.D. Indus. Comm\u2019n Dep\u2019t of Min. Res.) (\u201c[F]ederal mineral ownership is interspersed with a \u2018checkerboard\u2019 of private and state mineral or surface ownership.\u201d). <\/span> <\/em><\/p>\n

One mineral commonly extracted in North Dakota is lignite coal, which is typically extracted via surface mines, rather than underground mines.110<\/a><\/sup>Mining Process<\/em>, BNI COAL, https:\/\/www.bnicoal.com\/AboutBNI\/MiningProcess [https:\/\/perma.cc\/KW5C-5WNF].<\/span> Before mining can begin, the topsoil and subsoil must be removed to access the lignite seams.111<\/a><\/sup>Id.<\/em><\/span> It is impossible to extract lignite without disturbing the surface, just as it is impractical to mine small areas.112<\/a><\/sup>Id.<\/em><\/span> Excluding small patches of federal minerals inhibits an efficient and economic mine plan, so companies need access to contiguous subsurface mineral acres.113<\/a><\/sup>Letter from Doug Burgum, N.D. Gov., to Sonya Germann, State Dir., Mont.\/Dakota Dist. at the U.S. Bureau of Land Mgmt., Protest of the Proposed Resource Management Plan and Final Environmental Impact Statement for the North Dakota Resource Management Plan Revision (Sep. 9, 2024), https:\/\/www.governor.nd.gov\/sites\/www\/files\/documents\/BLM%20RMP%20North%20Dakota%20Protest%20Letter%209.9.2024.pdf [https:\/\/perma.cc\/B6AN-BKFA].<\/span> As for oil and gas, which are also commonly extracted in North Dakota, mineral ownership in a spacing unit is pooled to prevent waste and provide just and equitable royalties.114<\/a><\/sup>See<\/em> N.D. CENT. CODE \u00a7 38-08-08 (2025).<\/span><\/p>\n

In North Dakota, BLM manages over four million acres of coal, 489,300 acres of fluid minerals, and 362,600 acres of other subsurface minerals.115<\/a><\/sup>U.S. DEP\u2019T OF THE INTERIOR, BUREAU OF LAND MGMT., NORTH DAKOTA DRAFT RESOURCE MANAGEMENT PLAN AND ENVIRONMENTAL IMPACT STATEMENT 1 (2023), https:\/\/eplanning.blm.gov\/public_projects\/1505069\/200366341\/20072587\/250078769\/North%20Dakota%20Resource%20Management%20Plan%20Revision%20Volume%201.pdf [https:\/\/perma.cc\/Y4NK-46CE].<\/span> In contrast, BLM only manages 58,500 surface acres.116<\/a><\/sup>See id.<\/em><\/span> Subsurface federal minerals are intermingled with state- and privately-owned assets.117<\/a><\/sup>See<\/em> Record of Decision and Approved Resource Management Plan for the North Dakota Resource Management Plan\/Environmental Impact Statement, North Dakota, 90 Fed. Reg. 3915 (Jan. 15, 2025), https:\/\/www.federalregister.gov\/documents\/2025\/01\/15\/2025-00840\/record-of-decision-and-approved-resource-management-plan-for-the-north-dakota-resource-management [https:\/\/perma.cc\/6AXZ-AX4G].<\/span> If the federal government removes access to the minerals under its jurisdiction, it is simultaneously harming other mineral owners by blocking their rightful access and effectively prohibiting the development of non-federal minerals. The BLM\u2019s new RMP prohibited future development of nearly ninety-nine percent of federal coal acres and forty-four percent of fluid mineral acres.118<\/a><\/sup>See<\/em> Press Release, Sen. Kevin Cramer (R-N.D.), North Dakota Congressional Delegation Introduces Congressional Review Act to Repeal BLM\u2019s Harmful Land Use Plan (July 10, 2025), https:\/\/www.cramer.senate.gov\/news\/press-releases\/north-dakota-congressional-delegation-introduces-congressional-review-act-to-repeal-blms-harmful-land-use-plan [https:\/\/perma.cc\/Y368-5AQT].<\/span> North Dakota\u2019s energy sector plays a significant role in the state, and this plan would have deprived the state of $34 million annually in oil and gas royalties and tax revenue alone.119<\/a><\/sup>See<\/em> Press Release, Sen. Kevin Cramer (R-N.D.), Senate Passes ND Delegation Resolution to Overturn Biden-Era North Dakota RMP (Oct. 8, 2025), https:\/\/www.cramer.senate.gov\/news\/press-releases\/senate-passes-nd-delegation-resolution-to-overturn-biden-era-north-dakota-rmp [https:\/\/perma.cc\/RN49-KBR2]. <\/span><\/p>\n

The combination of split estates; federal meddling, and intermingled private, state, and federal mineral rights makes mining adjacent to federal lands extremely difficult and inefficient. Given the Biden administration\u2019s track record of attempting to shut down fossil fuel development, this was likely intentional.<\/p>\n

A central issue with the RMP was this illegal and overbearing prohibition on mineral development. Per FLPMA, this represented a cut and dry withdrawal, which it defines as:<\/p>\n

withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program.120<\/a><\/sup>See <\/em>U.S. DEP\u2019T OF THE INTERIOR, supra<\/em> note 98, at 34.<\/span><\/p>\n

The BLM cannot unilaterally withdraw land permanently, because FLPMA specifically requires Congress to pass legislation to do so.121<\/a><\/sup>See<\/em> 43 U.S.C. \u00a7 1714(c).<\/span> Congress never withdrew the surface or subsurface land in North Dakota from development. Locking it up is a de facto taking and not in line with multiple use or the spirit of FLPMA.<\/p>\n

Following the release of the draft RMP, I led the North Dakota delegation in sending a letter to the BLM, stressing that \u201cfederal preemption of state and private rights is our central concern with the draft RMP.\u201d122<\/a><\/sup>Letter from Sen. John Hoeven (R-N.D.), Sen. Kevin Cramer (R-N.D.) & Rep. Kelly Armstrong (R-N.D.), to Hon. Tracy Stone-Manning, Dir., Bureau of Land Mgmt. (May 6, 2024), https:\/\/ciosenus.app.box.com\/s\/8jwi3paapl7bf23r5dbfaeoi8u841bze, [https:\/\/perma.cc\/VL6D-JGBV]. <\/span> The BLM recognized the stakeholders who protested the draft RMP, including the State of North Dakota, but chose to ignore the feedback. It pushed forward with a plan that violated FLPMA and the congressional intent behind it.123<\/a><\/sup>See, e.g.<\/em>, Complaint for Review of Final Agency Action at 32\u201340, North Dakota v. U.S. Dep\u2019t Interior, No. 1:25-cv-00042-DMT-CRH (D.N.D. Feb. 25, 2025). <\/span><\/p>\n

About a month after the plan was finalized, North Dakota filed a lawsuit to overturn it in federal court, and the North Dakota delegation started the process of using every possible tool to combat this misguided plan.124<\/a><\/sup>See<\/em> Press Release, N.D. Att\u2019y Gen.\u2019s Off., North Dakota Files Lawsuit Challenging BLM\u2019s Amendments to the State\u2019s Resource Management Plan (Feb. 25, 2025), https:\/\/attorneygeneral.nd.gov\/north-dakota-files-lawsuit-challenging-blms-amendments-to-the-states-resource-management-plan\/ [https:\/\/perma.cc\/TQC3-BLBH]. <\/span> To start the CRA process, the North Dakota congressional delegation wrote to the GAO in February and asked the agency to evaluate whether the RMP met the definition of a rule for the purposes of CRA eligibility.125<\/a><\/sup>See <\/em>Letter from Sen. John Hoeven (R-N.D.), Sen. Kevin Cramer (R-N.D.) & Rep. Julie Fedorchak (R-N.D.), to Hon. Gene L. Dodaro, Comp. Gen., Gov\u2019t Accountability Off. (Feb. 14, 2025), https:\/\/fedorchak.house.gov\/sites\/evo-subsites\/fedorchak.house.gov\/files\/evo-media-document\/gao-ndrmp.pdf [https:\/\/perma.cc\/C6RN-DL8L].<\/span><\/p>\n

In June 2025, the GAO determined our RMP constituted a rule.126<\/a><\/sup>See<\/em> U.S. GOV\u2019T ACCOUNTABILITY OFF., U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT\u2014APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO NORTH DAKOTA FIELD OFFICE RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN 2 (2025), https:\/\/www.gao.gov\/products\/b-337175 [https:\/\/perma.cc\/D3UA-G4L3]. <\/span> Additionally, the GAO ruled that Alaska\u2019s Central Yukon RMP127<\/a><\/sup>See<\/em> U.S. GOV\u2019T ACCOUNTABILITY OFF., U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT\u2014APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO CENTRAL YUKON RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN 2 (2025), https:\/\/www.gao.gov\/products\/b-337200 [https:\/\/perma.cc\/F3T3-EBD7]. <\/span> and Montana\u2019s Miles City RMP128<\/a><\/sup>See<\/em> U.S. GOV\u2019T ACCOUNTABILITY OFF., U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT\u2014APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO MILES CITY FIELD OFFICE RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN AMENDMENT 2 (2025), https:\/\/www.gao.gov\/products\/b-337163 [https:\/\/perma.cc\/F4AC-YK6H]. <\/span> also qualified as rules. The delegations of all three states submitted the GAO\u2019s determination to the Congressional Record, starting the clock as if the Department of Interior had submitted them to Congress as final rules.<\/p>\n

Representative Julie Fedorchak (R-N.D.) and I introduced joint resolutions of disapproval in the House and Senate in July.129<\/a><\/sup>See generally<\/em> Press Release, Cramer, supra <\/em>note 118.<\/span> The House passed the CRA resolution in September by a vote of 215-211, followed by Senate passage a month later in October by a vote of 50-45.130<\/a><\/sup>See<\/em> H.R. Res. 105, 119th Cong. (2025) (enacted). <\/span><\/p>\n

Meanwhile, the Montana131<\/a><\/sup>See<\/em> H.R. Res. 104, 119th Cong. (2025) (enacted). <\/span> and Alaska132<\/a><\/sup>See<\/em> H.R. Res. 106, 119th Cong. (2025) (enacted). <\/span> delegations used the same method of overturning their own RMPs by successfully passing joint resolutions of disapproval in the House and Senate.<\/p>\n

As I explained in a statement after Senate passage, this CRA resolution pushed back against the BLM choosing to ignore the law and willfully flaunting the multiple use mandate. \u201c[BLM\u2019s] resource plan requires the mandate to implement multiple use. Multiple use includes energy development. It includes grazing. It includes agriculture. It includes recreation. It includes development of resources. It’s multiple use.\u201d133<\/a><\/sup>Press Release, Sen. Kevin Cramer (R-N.D.), Senate Passes ND Delegation Resolution to Overturn Biden-Era North Dakota RMP, (Oct. 8, 2025), https:\/\/www.cramer.senate.gov\/news\/press-releases\/senate-passes-nd-delegation-resolution-to-overturn-biden-era-north-dakota-rmp [https:\/\/perma.cc\/S8FH-T85K]. <\/span><\/p>\n

While the CRA resolution passed, it was not without criticism. U.S. Senator Martin Heinrich (D-N.M.) denounced the CRA resolution, asserting that the North Dakota, Montana, and Alaska CRA resolutions will cause a chaotic undoing of every RMP, undoing of individual leases resulting from RMPs, and ignores community and stakeholder feedback since the 1990s.134<\/a><\/sup>See<\/em> 171 CONG. REC. S7001\u201302 (daily ed. Oct. 8, 2025) (statement of Sen. Martin Heinrich (D-N.M.)).<\/span> This is not true. The GAO\u2019s opinions and subsequent repeal of these RMPs does not invalidate all RMPs, but it does firmly establish a path for congressional recourse when the BLM strays from the intent of FLPMA.<\/p>\n

The CRA effort was labeled \u201ca 745-million-acre can of worms\u201d because we had the audacity to check the bureaucracy.135<\/a><\/sup>See <\/em>Alex Guillen, Congress Opens a Can of Worms,<\/em> POLITICOPRO (Oct. 10, 2025, at 15:42 ET), https:\/\/subscriber.politicopro.com\/newsletter\/2025\/10\/congress-opens-a-can-of-worms-00602064 [https:\/\/perma.cc\/97UZJKWU].<\/span> The implication was clear: how dare Congress ensure the BLM stay within the confines of the laws Congress wrote?<\/p>\n

Our CRA did not open a can of worms. In fact, it had the opposite effect. With each CRA resolution, Congress is putting the worms back in the can by permanently limiting the bureaucracy\u2019s regulatory options. The knee-jerk defense of the bureaucracy, even when it is in the wrong, comes at the expense of Congress and is contrary to the Supreme Court\u2019s rulings in West Virginia<\/em>, Sackett<\/em>, and Loper Bright<\/em>.<\/p>\n

Despite the assertions of Senator Heinrich and others, the CRAs only overturned the individual RMPs. The BLM will now have to revise the RMPs, but this time it must use the feedback it previously ignored, and the final product cannot be \u201csubstantially the same\u201d as what was rejected.<\/p>\n

As we painstakingly explained in the lead-up to passage, this CRA resolution was not about overturning an RMP we merely did not like. This RMP was crafted by the Biden administration\u2019s BLM in a manner that blatantly and intentionally ignored the very law Congress passed and closed off mineral development without congressional approval.<\/p>\n

VI. The CRA as the Lawmaking Tool of the Future<\/span><\/h4>\n

The utility of the \u201ctraditional\u201d use of the CRA is powerful but limited. Even so, it is already changing the way presidents govern and the timelines for rulemaking. Washington no longer thinks of the CRA as an obscure, toothless tool. Today, CRA resolutions provide one mechanism for Congress to reclaim its power and conduct oversight.<\/p>\n

The recent increase in use of the CRA has already prompted administrations to finalize rules well in advance of the next administration to prevent potential attempts to overturn them.136<\/a><\/sup>See<\/em> Gerard Edic, Why is the Biden Administration Completing So Many Regulations?<\/em>, AM. PROSPECT (Apr. 23, 2024), https:\/\/prospect.org\/2024\/04\/23\/2024-04-23-biden-administration-regulations-congressional-review-act\/ [https:\/\/perma.cc\/6WNV-LTUH]. <\/span> Protecting the rules from potential CRA repeals provides a strong incentive toward cementing rulemaking efforts. Nevertheless, should an outgoing administration finalize rulemakings in its final months, the incoming administration working with Congress has a viable path to use the CRA to make lasting changes from its predecessor.<\/p>\n

While all previous CRA resolutions have covered standard rulemakings, our RMP CRA resolution demonstrates the Act\u2019s reach is much wider. As long as a member of Congress can successfully navigate the process, Congress can overturn a variety of rules with the CRA.<\/p>\n

The \u201ccan of worms\u201d that has been opened is not Congress\u2019s assertion of authority over agency action, but the unfettered spread of the bureaucracy. While our CRA resolution will not completely eliminate bureaucratic creep, it is a stark reminder that Congress can and, importantly, should use available tools to remind the executive that its rulemaking authority is delegated from the legislative branch, not the other way around.<\/p>\n

As North Dakota native and former House Majority Leader Dick Armey wisely advised us, \u201cAlong with the means, the CRA gives Congress the responsibility to reject inappropriate rules and regulations. If Congress fails to do so, agencies may say that Congress has tacitly approved their actions.\u201d137<\/a><\/sup>Lawmakers Urged to Use Congressional Review Act<\/em>, HEARTLAND INST. (Feb. 1, 1998), https:\/\/heartland.org\/opinion\/lawmakers-urged-to-use-congressional-review-act\/ [https:\/\/perma.cc\/7VUZ-M9JE].<\/span><\/p>\n

I expect increased and more frequent CRA attempts in Congress. However, the newly realized uses of the CRA alone will not be enough to reassert congressional intent and authority. Selectively choosing a limited number of rules as worthy of the CRA battle in the limited time we have to overturn them at the beginning of a Congress is insufficient. Congress can be doing more.<\/p>\n

If we truly want to reassert our authority, Congress should pass legislation providing itself additional mechanisms to do so. One pathway could include the Regulations from the Executive in Need of Scrutiny (\u201cREINS\u201d) Act.138<\/a><\/sup>See<\/em> H.R. 142, 119th Cong. (2025) (enacted).<\/span> Introduced to every Congress for the last fifteen years, the REINS Act would require an affirmative vote from both chambers of Congress on every major rule.139<\/a><\/sup>See id.<\/em><\/span> Instead of attempting to pass CRA resolutions on a small handful of rules within the statutory time frame of the CRA, Congress would have the responsibility of evaluating every rule finalized by the bureaucracy. Evaluating the rules finalized by the bureaucracy and whether they comply with congressional intent should not be an optional exercise. It should be essential.<\/p>\n

Expanding use of the CRA and implementing legislation like the REINS Act are the next steps to reducing the bureaucracy and returning power to Congress. The courts have paved the way for correction, now Congress is taking back control of its authority by using the CRA to safeguard congressional intent. But the real lesson to be learned falls at the feet of the executive branch. Judicial limitations like the major questions doctrine, and legislative limitations like the CRA and REINS Act would not be necessary if the executive branch simply recognized the limits of its power. The sooner it learns that the absence of a prohibition is not a license for bureaucratic creep, the better the whole system will work as our Founders designed.<\/p>\n\n\n

\n\n\n

[*]<\/a> Senator Kevin Cramer was elected to represent North Dakota in the U.S. Senate in 2019, following his three terms as North Dakota\u2019s at-large Congressman in the U.S. House of Representatives from 2013\u20132019. Senator Cramer previously served in North Dakota state government, including as Public Service Commissioner, Economic Development Director, and Tourism Director. He serves on the Senate Committees on Environment and Public Works; Armed Services; Banking, Housing and Urban Development; and Veterans\u2019 Affairs. From his first day in Congress, Senator Cramer has advocated for a more assertive Legislative Branch through the restoration of traditional Constitutional checks and balances. He is a native of Kindred, North Dakota.\u00a0Senator Cramer\u00a0and his wife Kris have\u00a0five adult children\u00a0and six grandchildren.<\/p>\n\n\n

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