Liberal judges on a federal appeals court just sided with unelected Washington bureaucrats and gutted one of Congress’s most powerful tools to rein in the runaway Administrative State, the Congressional Review Act (CRA).
The CRA is clear, when Congress repeals a regulation—and the President signs that repeal—federal agencies are barred from bringing back the same or “substantially similar” rules.
That safeguard is critical to protect American workers, families, and businesses from suffocating regulation. But according to Senator Eric Schmitt, that safeguard has now been shredded.
“Led by liberal judges, a federal court just undermined one of Congress’s most powerful tools to rein in the Administrative State. The court’s decision allows unelected bureaucrats in DC to impose rules that Congress and the President expressly rejected,” Schmitt wrote on X.
The Congressional Review Act was designed to stop runaway agencies from imposing rules that the people’s elected representatives and the President had already struck down.
Once repealed by CRA, an agency is barred from reissuing a rule that is “substantially the same.”
That safeguard was critical in 2017, when President Trump and Republicans in Congress repealed dozens of Obama-era regulations—saving taxpayers billions of dollars and freeing American businesses from mountains of red tape.
But unelected bureaucrats at the FCC refused to accept the will of the people. After Biden took office, they simply reintroduced the same rule under a new disguise.
Companies sued, pointing out the obvious that the FCC had no legal authority to resurrect a rule Congress and the President had killed.
Sen. Eric Schmitt is calling on the 6th Circuit to reverse this dangerous opinion en banc—or for the Supreme Court to step in and restore the CRA’s teeth. Without action, unelected Washington insiders will continue running circles around Congress and the American people
According to Schmitt:
“Led by liberal judges, a federal court just undermined one of Congress’s most powerful tools to rein in the Administrative State.
The court’s decision allows unelected bureaucrats in DC to impose rules that Congress and the President expressly rejected.
Let me explain.
Under the Congressional Review Act (CRA), Congress can vote to repeal a regulation issued by an administrative agency.
If the President signs that resolution, then the regulation is repealed and the agency cannot create a “substantially similar” regulation.
That’s why I’ve championed using the CRA to repeal dozens of harmful Biden-era regulations and make sure they don’t come back.
For example, Congress and President Trump repealed a series of Biden-Dep’t of Energy regs that hurt American energy dominance.
So what happened in this federal appeals court case?
The story starts in 2017 when President Trump and congressional Republicans used the CRA to repeal Obama-era regulations — saving billions of $$ in regulatory costs and millions of paperwork-hours.
One of the rules they repealed was from the FCC.
But the unelected bureaucrats at the FCC weren’t happy that their regulation had been repealed by your elected representatives and President Trump.
So they waited until Biden took office and then tried again.
Companies affected by the new rule sued, arguing it was illegal for the FCC to re-impose the same rules that Congress and the President repealed using the CRA.
And they were right to do so. The FCC rule blatantly violated the law.
But two 6th Circuit appeals court judges (an Obama appointee and a Biden appointee) upheld the rule.
They said the new rule wasn’t “substantially the same” as the repealed rule because the new rule covered only SOME of the issues that the old rule did.
Let’s break that down.
Under the court’s logic, the repealed rule and the new rule were not “substantially the same” because the repealed rule covered subjects A+B while the new rule only covered A.
A simple example shows the absurdity of the court’s reasoning.
Imagine a mother tells her son: “You are not allowed to stay out past 11pm with your friends.”
If the son then stays out past midnight, but does so alone, has the child broken his mother’s command?
Common sense and basic logic both say yes. But the court’s logic says no.
Here, Congress and the President said to the FCC: “You are not allowed to regulate A+B.”
So the Biden FCC — like the disobedient child in our example — tried to be clever and tried to regulate just A.
And the court just let them get away with it. Absurd.
The 6th Circuit should take this case en banc and reverse this faulty opinion.
And if they don’t, then SCOTUS must take the case and restore the full force of the CRA according to the plain meaning of its text. Our separation of powers demands it.
The CRA is in need of an overhaul.
Congress is paying attention too.
After SCOTUS overturned Chevron, I led a Working Group exploring how Congress can best use that decision to rein in the Administrative State and restore our separation of powers.”
Led by liberal judges, a federal court just undermined one of Congress’s most powerful tools to rein in the Administrative State.
The court’s decision allows unelected bureaucrats in DC to impose rules that Congress and the President expressly rejected.
Let me explain. pic.twitter.com/nbbqD2R2YP
— Senator Eric Schmitt (@SenEricSchmitt) August 18, 2025
