Blog by: Lexi Frazier
The U.S. pursuit of mineral independence has emerged as a paramount national security concern. China currently controls about 90% of the global rare earth mineral processing.[i] China’s command in this market grants extreme economic leverage.[ii] These resources are essential for American defense and economic stability.[iii] To combat Chinese monopolization of critical minerals, the U.S. must ensure that it utilizes a constitutional balance of powers to neutralize regulatory whiplash. Transforming temporary executive orders into a stable framework for strategic autonomy while certifying mineral projects are necessary steps in pursuit of protecting national security.
President Trump invoked the Defense Production Act (DPA) to bolster U.S. production of critical minerals.[iv] The DPA grants the President significant emergency authority to exercise control over industries deemed essential for national security.[v] As one of the largest and richest untapped mineral deposits in the world, the Duluth Complex in northern Minnesota could secure the majority of American mineral reserves.[vi] However, development remains stalled by Public Land Order (PLO) 7917, a 20-year mining ban enacted by the Biden administration to protect ecological integrity.[vii] Environmental groups oppose mining near the Boundary Waters because it would disturb critical habitats and disrupt conservation efforts.[viii] The Boundary Waters, a remote watershed area of the Superior National Forest along the Canadian border, attracts many visitors each year because of its unspoiled waterways and forests.[ix] On the other hand, pro-mining groups believe that by opening the area to mineral projects, Minnesota may be a leader in environmental protection and the responsible extraction of critical minerals.[x]
The beginning of 2026 marked a historical moment when the Department of the Interior, under the Trump administration, resubmitted PLO 7917 to Congress.[xi] The PLO is therefore subject to repeal under the Congressional Review Act (CRA) which enables Congress to legislatively disapprove certain actions by federal agencies.[xii] The CRA contains a provision barring a new rule that is substantially the same form as the one previously disapproved, unless expressly authorized by Congress through an enacted law.[xiii] Congressman Pete Stauber introduced H.J. Res. 140, the CRA disapproval resolution, to reverse the mining ban in northern Minnesota, arguing that by sealing the Duluth Complex, the previous administration solidified U.S. dependence on adversaries for critical minerals.[xiv] The U.S. House of Representatives voted to overturn Biden’s mining ban on January 21, 2026, so the disapproval resolution now moves to the Senate for consideration.[xv]
The current legal landscape fosters a sort of regulatory “ping-pong” in the Executive branch.[xvi] While the President may invoke the DPA to command the domestic mineral industrial base for national defense, the President may simultaneously utilize PLOs to withdraw the very domestic lands rich in those minerals.[xvii] This creates tension where the national security concerns of one administration are subject to systematic dismantling by the next. Specifically, since critical mineral projects require years of capital and labor commitments, the threat of a looming ban every four years disincentivizes any domestic investment in mineral projects.[xviii] To break this cycle, the law should recognize and emphasize a reciprocity between the branches. If the President maintains the authority under the DPA to prioritize production for national defense, Congress must exercise a reciprocal authority under the CRA to ensure that lands and resources remain accessible. Through the provision barring substantially similar rules in the future after one has been repealed, Congress’s CRA power may be used to provide a certainty and relief from regulatory whiplash.
While the CRA may provide long-term stability necessary to mitigate regulatory whiplash, it is a double-edged sword. Opening the door for congressional disapproval of PLOs risks an unbounded precedent of inviting Congress to arbitrarily strike down routine PLOs.[xix] While decoupling from China is important for national security, it is crucial that in using the CRA to provide for regulatory certainty, Congress is addressing and identifying relevant national security implications. Twin Metals, a subsidiary of a Chilean mining corporation, is the company pursuing the minerals project in the Duluth Complex.[xx] The parent corporation claims it will likely export the minerals for processing overseas.[xxi] If the minerals extracted are destined for overseas processing in the hands of strategic competitors, the national security justification for the project is illusory. The CRA should only be used to overturn bans if the project includes assurances or plans for domestic use or processing by allied countries. Given the expedited timeline of a CRA disapproval, Congress must act with rigorous scrutiny in verifying projects as pursuing genuine national defense, ensuring they are not merely operating under the guise of national security to appease private economic interests.
Ultimately, the CRA serves as a powerful tool for regulatory certainty, but its applicability centers on ensuring the protection of true security interests. By demanding that the Duluth Complex development be strongly tied to domestic or allied use, Congress can ensure that the CRA will target projects that contribute to U.S. interests, rather than projects that merely utilize the rhetoric of national defense to further commercial interests. Through rigorous oversight the CRA can mitigate regulatory whiplash to secure a stable American supply chain.
[i] Michael Froman, China, the United States, and a Critical Chokepoint on Minerals, Council on Foreign Rel. (Oct. 17, 2025, 2:28 PM), https://www.cfr.org/articles/china-united-states-and-critical-chokepoint-minerals [https://perma.cc/Z44K-ALEK].
[ii] Id.
[iii] Tae-Yoon Kim, et al., With new export controls on critical minerals, supply concentration risks become reality, IEA (Oct. 23, 2025), https://www.iea.org/commentaries/with-new-export-controls-on-critical-minerals-supply-concentration-risks-become-reality [https://perma.cc/U6ML-ATH7].
[iv] Anshu Siripurapu, What is the Defense Production Act?, Council on Foreign Rel. (May 22, 2025, 12:35 PM), https://www.cfr.org/articles/what-defense-production-act [https://perma.cc/G2Y7-CQMG].
[v] Id.
[vi] Brian Martucci, U.S. House makes mining near the Boundary Waters more likely, Minn. Reformer (January 22, 2026, 1:48 PM), https://minnesotareformer.com/2026/01/22/u-s-house-makes-mining-near-the-boundary-waters-more-likely/ [https://perma.cc/EL27-5MM8].
[vii] Public Land Order No. 7917 for Withdrawal of Federal Lands; Cook, Lake, and Saint Louis Counties, MN, 88 Fed. Reg. 6308-6311 (Jan. 31, 2023).
[viii] Martucci, supra note vi.
[ix] Id.
[x] Id.
[xi] Ernest Scheyder, US House votes to overturn Minnesota mining ban, Senate to consider next, Reuters (Jan. 21, 2026, 6:53 PM), https://www.reuters.com/legal/litigation/us-house-votes-overturn-minnesota-mining-ban-senate-consider-next-2026-01-21/ [https://perma.cc/CJU2-B6VK].
[xii] 5 U.S.C. § 801.
[xiii] Id.
[xiv] Press Release, Congressman Pete Stauber, Stauber Introduces Resolution to Overturn Biden’s Mining Ban in Northern Minnesota (Jan. 12, 2026).
[xv] H.R.J. Res. 140, 119th Cong. (2026).
[xvi] Historic move opens Public Land Orders to congressional review, Pac. Legal Found. (Jan. 12, 2026), https://pacificlegal.org/press-release/historic-move-opens-public-land-orders-to-congressional-review [https://perma.cc/JQD2-EU3N].
[xvii] Siripurapu, supra note iv.
[xviii] Historic, supra note xvi.
[xix] Martucci, supra note vi.
[xx] Id.
[xxi] Scheyder, supra note xi.