Overview of the Congressional Review Act (CRA)

What Is the CRA?

The Congressional Review Act (CRA) is a tool that Congress may use to pass legislation overturning a rule issued by a federal agency. When Congress passes a law, it often grants rulemaking authority to federal agencies to implement provisions of the law. That delegation of rulemaking authority, and the rules issued by federal agencies under this authority, is a crucial component of the policymaking process. Congress has an interest in ensuring that federal agencies, when issuing rules, are faithful to congressional intent. To conduct oversight of federal agency actions, Congress has a number of tools available, including the CRA.¹

The CRA was enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act.² Under the CRA, before a rule can take effect, an agency must submit the rule to Congress and the Government Accountability Office (GAO).³ Upon receipt of the rule by Congress, Members of Congress have a specified time period during which to submit and take action on a joint resolution of disapproval overturning the rule. If both houses pass the joint resolution, it is sent to the President for signature or veto. If the President were to veto the joint resolution, Congress could vote to override the veto. Enactment of the joint resolution would take the rule out of effect or prevent it from going into effect, and the agency would be prohibited from issuing a rule that is "substantially the same" without further authorization from Congress.⁴

What Are Advantages and Disadvantages of Using the CRA?

The CRA contains several notable features that could be seen as advantages and/or disadvantages to disapproving rules using the CRA, rather than through regular legislation.

Procedural

The most notable feature of the CRA is its special set of parliamentary procedures for considering a joint resolution disapproving an agency's final rule. These procedures make it easier for Congress to pass a joint resolution of disapproval, particularly in the Senate. Perhaps most significantly, when a joint resolution of disapproval meets certain criteria, it cannot be filibustered in the Senate. In addition, when 20 calendar days have elapsed after the receipt and publication of a rule, a petition, signed by 30 Senators, can be presented on the floor to discharge a Senate committee of the further consideration of a disapproval resolution.⁵ Once the committee is discharged, any Senator can make a nondebatable motion to proceed to consider the disapproval resolution. Should a majority of the Senate vote to consider the disapproval resolution, debate on it is limited, and a final vote would be all but guaranteed.⁶

Not all of the CRA's procedures are advantageous, however—a joint resolution of disapproval may still face some procedural challenges. First, one might argue that the likelihood of a presidential veto (discussed in detail below) means that most CRA disapproval resolutions are likely to be subject to a de facto supermajority requirement. Second, the CRA does not establish any "fast track" procedures for initial consideration of a disapproval resolution in the House of Representatives. As a result, unless the House majority party is willing to schedule the measure for consideration, in all likelihood it will not be considered. Third, unlike the regular legislative process, which is available to Congress at any time, the CRA disapproval mechanism is available in the Senate only during certain statutorily specified time periods. Fourth, calculating the periods established by the CRA for submitting and acting on a disapproval resolution can be complicated, especially in cases where the act provides for additional submission and action periods in a subsequent session of Congress. Fifth, unlike regular legislation, which can overturn or amend more than one rule at time, each CRA disapproval resolution can be aimed only at a single final rule in its entirety. Multiple disapproval resolutions cannot be "bundled" together and still maintain their privileged parliamentary status.⁷ Relatedly, because the stipulated text of CRA disapproval resolutions refer to a rule as a whole, the law does not give Congress the opportunity to expressly disapprove only specific aspects of a rule. Finally, if either chamber rejects a CRA disapproval resolution on a major rule, it appears that it could have the effect of putting a regulation in force sooner than would otherwise be the case.⁸

Prohibition on Issuance of "Substantially the Same" Rules

If a joint resolution of disapproval is enacted, it not only invalidates the rule in question; it also bars the agency from issuing another rule in "substantially the same form" as the disapproved rule unless Congress authorizes the agency to do so in a subsequent law.⁹ Thus, enactment of a joint resolution of disapproval has the immediate effect of taking the rule out of effect or preventing it from taking effect, but it also has a more long-term effect on the agency's ability to issue a substantially similar rule. (See "When Is a New Rule "Substantially the Same" as a Disapproved Rule?" below for more discussion.) For Members who want to disapprove a rule, this restriction on future agency behavior could be seen as an advantage of using the CRA to overturn the rule. On the other hand, some might argue that the prohibition on "substantially the same" rules is actually a disadvantage of the CRA, as it creates uncertainty and could restrict the agency's ability to act going forward. This can potentially create a difficult situation for an agency if Congress uses the CRA to disapprove rules that were specifically required by law, as the CRA overturns the rule itself but does not remove the underlying statutory requirement for the rule.¹⁰

Requirement for Reporting to Congress on Rulemaking Activities

Not only can Congress use the CRA to overturn agency rules, but certain provisions of the CRA may be viewed as helping to increase congressional awareness of federal agency actions. The requirement for agencies to submit their rules to Congress,¹¹ and the subsequent referral of each rule to the committee of jurisdiction,¹² functions as a notification mechanism through which committees and Members can be made aware of agencies' rulemaking activities. Although Members may be likely to become aware of high-profile rules through other means, the referral of each rule upon receipt in Congress provides an additional notification for rules that may be of a more narrow interest.

Additional Information Publicly Available on Federal Rules

Another benefit of the CRA, for Members of Congress as well as for the public, is that it has resulted in a publicly available database of rules and set of reports on major rules compiled by GAO. Since the CRA's enactment, GAO has posted a record of receipt of the rules agencies submitted under the CRA to a database on its website.¹³ The database can be used to search for final rules by elements such as the title, issuing agency, type of rule (major or non-major), and effective date. The website also contains GAO's reports, required under the CRA and discussed below, on major rules. Each major rule report contains summary information and an assessment of the agency's completion of certain cost-benefit and other analytical requirements.¹⁴

Drawing Attention to a Rule

Another potential advantage of the CRA is that it provides a method for Members of Congress to draw attention to a particular rule. The required language of a joint resolution of disapproval, which is stipulated in the CRA, provides for a relatively straightforward process through which a Member can make clear his or her opposition to a rule.¹⁵ Indeed, while the CRA has been used to overturn 20 rules, many more joint resolutions of disapproval have been introduced since the CRA's enactment. Members of Congress have introduced well over 200 joint resolutions of disapproval under the CRA, pertaining to more than 130 rules.¹⁶

In addition, the threat of submission or passage of a disapproval resolution may provide a mechanism through which a Member can pressure an agency to reach a particular outcome, either related to that specific rule or on another matter.¹⁷ Prior to the 115^th Congress, Congress had rarely used the CRA to disapprove a rule, so arguably, the CRA may not have been a credible threat to agencies and thus was not likely to influence agency behavior. However, Congress's more frequent use of the CRA in recent years could suggest otherwise—particularly for Administrations that may be nearing the end of a term.¹⁸

Increased Oversight of Independent Regulatory Agencies

For two reasons, the CRA may present an opportunity for more political control over independent regulatory agencies' rulemaking activities. First, as discussed more below (see "Presidential Veto/De Facto Supermajority Requirement"), enactment of a CRA resolution of disapproval is considered to be unlikely in most circumstances, because a President would be expected to veto a joint resolution disapproving a rule issued by the President's own Administration. However, a President may be more likely to sign a joint resolution disapproving a rule that has been issued by an independent regulatory agency, a type of agency over which the President has less control.¹⁹ Unlike executive agencies, independent regulatory agencies do not submit their regulations to the Office of Management and Budget (OMB) for review under Executive Order 12866, which seeks in part to ensure that federal agencies' regulations are in line with the President's policy priorities.²⁰ As such, the independent regulatory agencies' regulations are considered to be more removed from presidential control than executive agencies' regulations, because the President—through OMB—has less influence over the content of their rules. The CRA presents an opportunity for Congress and the President to exercise more control over those agencies' rules by overturning them.

Second, under the CRA, the administrator of the Office of Information and Regulatory Affairs (OIRA) in OMB is responsible for determining which rules are "major." Prior to 2019, OIRA had largely deferred to independent regulatory agencies in making these determinations about their own rules.²¹ In April 2019, the Trump Administration announced a procedural change for the independent regulatory agencies, which had previously not submitted their rules to OMB for review.²² Under the 2019 policy, all agencies, including independent regulatory agencies, are required to submit their regulations to OIRA for a determination of whether the rules met the CRA's statutory definition of major. Arguably, this procedure potentially provides a point of leverage for the White House (through OMB and OIRA) over independent regulatory agencies' rules if OIRA chooses to use this mechanism to influence the substance of the rules in any way.²³ The status of this 2019 policy under the Biden Administration is unclear, but no rescission or change to the policy has been publicly announced.

Failure of a CRA Joint Resolution of Disapproval Could Make a Major Rule Take Effect Faster Than Otherwise Allowed Under the CRA

In the case of some major rules, it appears that use of the CRA mechanism could make the rule go into effect more quickly than it otherwise would. Under the requirements of the CRA, agencies must delay the effective date of major rules by at least 60 days.²⁴ This is essentially an expansion of the Administrative Procedure Act's (APA) requirement that agencies delay the effective date of most rules by at least 30 days.²⁵ Should either chamber choose to consider a joint resolution disapproving a major rule and then vote to reject the resolution, under one provision of the CRA, the rule in question could go into force immediately, notwithstanding any layover period in its effective date established by the CRA.²⁶ No rule would go into effect under such a scenario, however, until the effective date set by the agency in the rule itself has been reached.

Disapproval of an Entire Rule

A CRA resolution can be used only to invalidate a single final rule in its entirety. A CRA joint resolution of disapproval cannot be used to modify or restructure a rule in order to make it acceptable to Congress. If Congress were to use the regular legislative process instead of the CRA, however, Congress could invalidate part of a rule or instruct the agency to amend or repeal part of a rule. However, regular legislation would not be eligible for the same expedited procedures in the Senate in the same way a CRA resolution of disapproval would. It would not enjoy expedited procedures for floor consideration and might be subject to filibuster.

Presidential Veto/De Facto Supermajority Requirement

One of the biggest challenges for using the CRA to overturn rules is that a President can generally be expected to veto a joint resolution of disapproval attempting to overturn a rule issued by the President's own Administration. A joint resolution of disapproval requires the signature of the President to become law—a very unlikely prospect if the President's own Administration issued the rule. If the President were to veto the measure, Congress could attempt to override the veto. A two-thirds majority of both houses of Congress is required to override a President's veto. This creates a de facto supermajority requirement for a CRA joint resolution to be enacted in most cases.

During a transition period following the inauguration of a new President of a different party than the outgoing President, however, the CRA is more likely to be used successfully.²⁷ Because of the structure of the time periods during which Congress can take action under the CRA, there is a period at the beginning of each new Administration during which rules issued near the end of the previous Administration are eligible for consideration under the CRA.²⁸ This period is sometimes referred to as a "lookback" period.²⁹ The vast majority of the instances in which the CRA was used to overturn a rule took place during such a period.

How Many Rules Have Been Overturned Using the CRA?

As of November 12, 2021, the CRA had been used to overturn a total of 20 rules. One of those rules was overturned in the 107^th Congress (2001-2002), 16 were overturned in the 115^th Congress (2017-2018), and 3 were overturned in the 117^th Congress (2021-2022). For a list of the 20 overturned rules, see Appendix A.

Definitions Under the CRA

What Is a Covered Rule Under the CRA?

The CRA adopts the definition of rule that appears in Section 551 of the APA, with three exceptions.³⁰ Section 551 of the APA defines rule as

the 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 or describing the organization, procedure, or practice requirements of an agency.³¹

The first exception in the CRA definition of rule is for rules 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."³² Second, the CRA's definition of rule excludes "any rule relating to agency management or personnel."³³ Finally, the CRA also excludes "any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties."³⁴

Notably, the CRA adopts the broadest definition of rule contained in the APA, which is broader than the category of rules subject to the APA's notice-and-comment rulemaking procedures.³⁵ Therefore, some agency actions that are not subject to notice-and-comment rulemaking procedures under the APA may still be considered a rule under the CRA.

For a more detailed discussion of what agency actions are considered rules and are eligible to be overturned under the CRA, see CRS Report R45248, The Congressional Review Act: Determining Which "Rules" Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey.

Does the CRA Apply to Guidance Documents?

The CRA applies to some guidance documents and other agency actions taken outside of the APA's notice-and-comment rulemaking procedures. Because the broad scope of the CRA's definition of rule includes some agency actions such as policy statements and interpretive rules—which are sometimes referred to as guidance documents—the CRA may be available to overturn those types of actions. Whether any particular agency action is a rule covered by the CRA depends on the specific facts involved—that is, the nature of the action and its effect.³⁶

A practical challenge for using the CRA to overturn guidance documents is that agencies often do not submit covered guidance documents to Congress, despite the CRA's requirement for them to do so. However, in recent years, Congress has developed a practice under which it can still review covered actions under the CRA, even if the action was not submitted under the statute. For a discussion of how the CRA may still be used in these instances, see "What Happens If an Agency Does Not Submit a Rule to Congress?" below.³⁷

Although the CRA was clearly intended to cover some agency guidance documents,³⁸ the practical effect of overturning any particular guidance document may not always be clear. In particular, the effect of a disapproval resolution may be limited because guidance documents, by their nature, already lack the force of law or any legal effect.³⁹

Does the CRA Apply to Interim Final Rules?

Yes. Interim final rules are considered final rules that carry the force and effect of law, and an interim final rule that satisfies the CRA's definition of rule will be subject to the CRA.⁴⁰ Agencies use interim final rules to promulgate rules without providing the public with notice and an opportunity to comment before publication of the final rule, while offering the possibility of modifying the rule following a post-promulgation comment period.⁴¹ Agencies must generally assert a valid "good cause" under the APA to issue any interim final rule, or they must be statutorily authorized to forego notice-and-comment procedures.⁴²

Does the CRA Apply to Proposed Rules?

No, it does not appear that the CRA applies to proposed rules. Although the CRA does not expressly provide that a rule must be final before it may be reviewed by Congress,⁴³ a proposed rule arguably does not satisfy the CRA definition of rule. GAO specifically advises agencies not to submit proposed rules to Congress or GAO under the CRA, stating on its website that "Agencies should only submit major, non-major, and interim final rules."⁴⁴

In 2014, GAO published a legal opinion determining that the CRA does not apply to proposed rules.⁴⁵ GAO suggested that the statutory scheme indicates that the CRA applies only to final rules, noting that proposed rules are only "an interim step in the rulemaking process,"⁴⁶ and cited legislative history supporting the opinion that the CRA applies only to final rules.⁴⁷Furthermore, GAO stated that its prior decisions had found that an agency action constituted a rule for CRA purposes if "the action imposed requirements that were both certain and final."⁴⁸ Since proposed rules "are proposals for future agency action that are subject to change … and do not have a binding effect on the obligations of any party," GAO concluded they should not be considered "a triggering event for CRA purposes."⁴⁹ Ultimately, however, GAO also noted that because the CRA's expedited procedure for review of agency rules was enacted pursuant to Congress's constitutional authority to establish its own procedural rules, it is for "Congress to decide whether [the] CRA would apply to a resolution disapproving a proposed rule."⁵⁰

Does the CRA Apply to Executive Orders?

No, the CRA does not apply to actions of the President such as executive orders and other types of presidential directives. The CRA imports the definition of agency from the APA, and courts have interpreted the APA's definition of agency not to cover the President.⁵¹ Accordingly, GAO has interpreted the CRA also not to cover actions taken by the President.⁵² In some circumstances, however, the CRA may be available to overturn agency actions taken in response to presidential directives.

What Is a Major Rule Under the CRA?

The CRA defines major rule as

any rule that the Administrator of the Office of Information and Regulatory Affairs [OIRA] of the Office of Management and Budget [OMB] finds has resulted in or is likely to result in—

(A) an annual effect on the economy of $100,000,000 or more;

(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

The term does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.⁵³

Rules can meet the economic threshold for classification as a major rule ($100 million effect on the economy) for a variety of reasons, including because they involve compliance costs, result in transfers of funds, prompt consumer spending, establish user fees, or result in cost savings for consumers and taxpayers.⁵⁴

What Happens When a Rule Is Designated as Major?

When a rule is designated as major, the CRA subjects it to two additional procedural steps. The first is that the comptroller general is required to prepare and submit to the House and Senate committees of jurisdiction a report on each major rule within 15 calendar days of its submission or publication date.⁵⁵ This report is to contain "an assessment of the agency's compliance with procedural steps" required for the rule, including any cost-benefit or other analysis under certain executive orders or statutes such as the Regulatory Flexibility Act and the Unfunded Mandates Reform Act.⁵⁶

Second, the CRA contains provisions that may delay the effective dates of major rules. Specifically, if the rule is major, the statute provides that it "shall take effect on the latest of":

• 60 days after the date that the rule is published in the Federal Register or received by Congress, whichever is later;
• if Congress passes a joint resolution of disapproval and the President vetoes it, the date on which either house of Congress votes and fails to override the veto or 30 session days after the date Congress received the veto, whichever is earlier; or
• the date the rule would have otherwise taken effect, if not for this provision of the CRA.⁵⁷

The APA requires most rules to have a 30-day delay in their effective dates.⁵⁸ The CRA requirement for a 60-day delay essentially extends that APA requirement by an additional 30 days for major rules. This additional delay for major rules allows Congress additional time to consider whether to overturn a major rule—the type of rule that is most economically impactful—before it goes into effect.⁵⁹

For certain types of major rules, these effective date requirements may not apply. The CRA states that, notwithstanding the provisions outlined above, the following rules will take effect on the date the promulgating agency chooses:

(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping, or

(2) any rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.⁶⁰

If the rule is not major, the CRA states that the rule "shall take effect as otherwise provided by law after submission to Congress."⁶¹

Who Determines Whether a Rule Is Major?

The administrator of OIRA is responsible for determining whether a rule is major under the CRA.⁶² The CRA does not specifically require agencies to submit their rules to OIRA so that such a determination can be made. In April 2019, however, the Trump Administration issued guidance directing agencies, including independent regulatory agencies, to submit their rules to OIRA for this determination.⁶³ Prior to 2019, executive agencies had already routinely submitted their rules to OIRA for review pursuant to executive order,⁶⁴ but OIRA had largely deferred to independent regulatory agencies' own major rule determinations.⁶⁵

Does the CRA Apply to Non-Major Rules?

Yes. The CRA can be used to overturn any final rule, regardless of whether the rule is major.

Agency Submission of Rules

When Does an Agency Have to Submit a Rule to Congress and GAO?

The CRA does not specify when an agency must submit a rule. However, a rule cannot become effective until after it is submitted.⁶⁶ In practice, agencies generally submit rules around the time the rule is finalized and published in the Federal Register, if such publication is required.

How Do I Check If a Rule Has Been Submitted Under the CRA?

Submissions to Congress

When final rules are submitted to Congress pursuant to the CRA, notice of each chamber's receipt and referral appears in the respective House and Senate sections of the daily Congressional Record devoted to "Executive Communications." They are also entered into a database that can be searched using the main search page of Congress.gov at https://www.congress.gov.⁶⁷

Submissions to GAO

GAO also maintains a database on its website tracking rules it receives under the CRA. The database can be accessed at https://www.gao.gov/legal/other-legal-work/congressional-review-act. The GAO database also contains links to the reports GAO produces on major rules.

Among other things, the GAO database lists the date the final rule was received by GAO. The date a rule was received by GAO is irrelevant for the calculation of the various CRA time periods for review and action, however. Rather, the dates of receipt by the House and Senate, which often differ from the date received by GAO, are used for calculating these time periods. See "How Do I Introduce a Joint Resolution of Disapproval?" for a discussion of how the date of receipt by Congress is determined for purposes of estimating the time periods governing the CRA disapproval mechanism.

What Happens If an Agency Does Not Submit a Rule to Congress?

In some instances, an agency has considered an action not to be a rule under the CRA and has not submitted the action to Congress, even though the action arguably met the CRA's broad definition of rule. Typically, this has occurred when the agency was not required to follow the APA's notice-and-comment rulemaking procedures to take the action.⁶⁸ If an action meets the CRA's definition of rule, however, regardless of whether it is subject to notice-and-comment procedures, it should be submitted under the CRA and is subject to disapproval using the CRA's expedited procedures.

Because the CRA's special procedures are not available until rules are submitted to Congress, if an agency does not submit a rule to Congress, this could potentially frustrate Congress's ability to review rules under the act. Furthermore, because the CRA contains a provision barring judicial review,⁶⁹ most courts have declined to review claims challenging an agency's failure to submit a rule, making it unlikely that a court would compel an agency to submit a rule under the CRA even if it met the definition of rule.⁷⁰

Consequently, Congress (and more specifically, the Senate) has developed a practice that allows it to employ the CRA's review mechanism even when an agency does not submit a covered rule.⁷¹ Specifically, Members of Congress who thought a particular agency action should have been submitted have asked GAO for a formal opinion on whether the specific action satisfies the CRA definition of rule. GAO has issued several opinions of this type since the CRA's enactment in 1996.⁷² In some of these opinions, GAO determined that the agency action satisfied the CRA definition of rule; in others, GAO determined the agency action did not satisfy the CRA definition of rule either because it fell under one of the exceptions or was outside the scope of the statute altogether. Under current Senate practice, a GAO opinion concluding that an agency action is a rule can essentially substitute for the agency's submission of the rule and still allow Congress to use the CRA's fast-track procedures for disapproval.

To avail themselves of the CRA's disapproval mechanism following such an opinion, Senators have sometimes published the GAO opinions in the Congressional Record.⁷³ It appears that, in these cases, the Senate has considered the date of publication of the GAO opinion in the Congressional Record to be the beginning of the periods for congressional review.⁷⁴ Normally, when agencies submit their rules to Congress under the CRA, a record of each rule's receipt is published in the Congressional Record. The publication of the GAO opinion in the Congressional Record fulfills this same purpose: notifying Congress that a rule is now available for review under the CRA.

The 115^th Congress used this alternative process for the first time to initiate consideration of a resolution of disapproval overturning an agency guidance document that had not been submitted under the CRA.⁷⁵ To date, this is the only instance when Congress disapproved a rule that was not submitted. In all of the other 19 instances in which the CRA has been used to overturn agency actions, the disapproved actions were regulations that were adopted through the APA's rulemaking process, published in the Federal Register, and submitted to Congress under the CRA.⁷⁶

Congressional Procedures Under the CRA

How Do I Introduce a Joint Resolution of Disapproval?

In most respects, submitting a CRA joint resolution of disapproval is the same as introducing any other House or Senate measure. There is, however, a specific time period during which a qualifying joint resolution can be submitted, and its text must read exactly as laid out in the law.⁷⁷

The receipt of a final rule by Congress begins a period of 60 "days of continuous session" during which any Member of either chamber may submit a joint resolution disapproving the rule under the CRA.⁷⁸ Although not required by the statute, it appears that the Senate has established the additional requirement that the rule be published in the Federal Register (if such publication is required) before a qualifying joint resolution of disapproval may be submitted. Accordingly, for purposes of the act, a rule is practically considered to have been "received by Congress" on the later date of its receipt in the Office of the Speaker of the House, its referral to Senate committee, or its publication in the Federal Register. In calculating "days of continuous session," every calendar day is counted, including weekends and holidays, and the count is paused only for periods where either chamber (or both) is gone for more than three days—that is, pursuant to the adoption of a concurrent resolution of adjournment.⁷⁹ In order to qualify for the special parliamentary procedures of the CRA, a joint disapproval resolution must be submitted during this 60-day period—not before and not after.⁸⁰

Under Section 802(a) of the act, the text of a CRA joint disapproval resolution is stipulated. It states the matter after the resolving clause must read:

"That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect." (The blank spaces being appropriately filled in).

The first blank would identify the agency promulgating the final rule and the second the name of the rule itself.

Can a Joint Resolution of Disapproval Contain a Preamble?⁸¹

While the CRA procedure does not explicitly bar a joint resolution of disapproval from having a preamble (as some other expedited procedure statutes do), it is believed that including one raises a number of questions about House and Senate consideration of the measure and that, as such, the practice should be avoided. In the Senate, the preamble to a joint resolution is voted on after the passage of the resolution itself and is separately amendable. Would the consideration of a preamble fall under the "fast track" Senate procedures banning amendments and limiting debate? Does the inclusion of a preamble eliminate the privileged status of the measure in the view of either chamber? Because of these and other ambiguities, Members are advised to consult with the House and Senate Parliamentarians to obtain their definitive review of the measure's text prior to submission. Members may consider laying out the reasons for and intent of a disapproval resolution in ways other than a preamble by, for example, publishing a statement in the Congressional Record upon introduction of the measure or in floor debate.

How Is a Joint Resolution of Disapproval Different from a Bill?

The CRA requires that the disapproval measure be introduced as a joint resolution. Bills and joint resolutions each have traditional uses, but for purposes of the legislative process, the two types of legislation are generally interchangeable. In order to be enacted, a bill or joint resolution has to pass the House and Senate with identical text in both chambers and be signed by the President, enacted over his veto, or become law without his signature.⁸²

Can a Joint Resolution of Disapproval Be Used to Invalidate Part of a Rule or More Than One Rule?

No. Each CRA joint resolution of disapproval can be used to invalidate only a single final rule in its entirety.⁸³

What Are the CRA "Fast Track" Procedures?

The CRA contains "fast track" procedures (sometimes called "expedited parliamentary procedures") for both committee consideration and floor consideration of a CRA disapproval resolution in the Senate.⁸⁴

The CRA does not contain "fast track" procedures for committee and initial floor consideration of a joint resolution of disapproval in the House. In every case in which the House has considered a CRA disapproval resolution on the floor, it has done so under the terms of a closed special rule reported by the Rules Committee and adopted by the House.⁸⁵ When considered under the terms of a special rule, the House minority leader or his designee is guaranteed the opportunity to offer a nondebatable motion to recommit the joint resolution. The CRA also provides expedited procedures that govern the consideration by either the House or Senate of a disapproval resolution received from the other chamber.

What Are the CRA "Fast Track" Procedures for Senate Committee Consideration?

Any time after the expiration of a 20-calendar-day period that begins after a final rule is received by Congress and published in the Federal Register (if it is required to be published), a Senate committee can be discharged from the further consideration of a CRA joint resolution disapproving the rule.⁸⁶ This discharge occurs upon the filing on the Senate floor of a petition signed by at least 30 Senators.⁸⁷ While the act does not specify the text of a CRA discharge petition, those that have been used in the past resemble the language used to file a cloture motion in the Senate:

We, the undersigned Senators, in accordance with chapter 8 of title 5, United States Code, hereby direct that the Senate Committee on Commerce, Science, and Transportation be discharged of further consideration of S.J. Res. 6, a resolution on providing for congressional disapproval of a rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices, and, further, that the resolution be immediately placed upon the Legislative Calendar under General Orders.⁸⁸

What Are the CRA "Fast Track" Procedures for Senate Floor Consideration?

Once a CRA joint resolution of disapproval is reported or the committee of jurisdiction discharged, any Senator may make a nondebatable motion to proceed to consider the disapproval resolution on the floor.⁸⁹ This motion to proceed requires a simple majority for adoption. If the motion to proceed is successful, the CRA disapproval resolution would then be pending and subject to up to 10 hours of debate.⁹⁰ A nondebatable motion to limit debate below 10 hours is in order. No amendments are permitted.⁹¹ Upon the using or yielding back of the allotted time, the Senate would vote on the measure. A CRA disapproval resolution requires a simple majority in order to pass. Because the measure is debate-limited, cloture (and its accompanying requirement for supermajority support) is unnecessary.

The CRA "fast track" procedures governing the each chamber's consideration of a joint resolution of disapproval are considered to be rules of the House and Senate, despite being enacted in law. As such, the chambers may suspend these rules in whole or in part by unanimous consent, suspension of the rules, or special rule.

For How Long Are the "Fast Track" Procedures Available?

In order to be eligible for the "fast track" procedures for Senate consideration, that body has to act on a properly introduced disapproval resolution during a period of 60 days of Senate session that begins when the rule is received by Congress and published in the Federal Register (if it is required to be published). After this "action" period has expired, the joint resolution could still be considered, but would have to be called up and debated under normal Senate procedures. There is no deadline specified in the CRA on House consideration. The House can presumably act on a joint resolution of disapproval at any point during the life of the two-year Congress.

Do Disapproval Resolutions Have to Be Submitted in Both Chambers of Congress?

No. The CRA does not technically require that "companion" disapproval resolutions be submitted in both the House and Senate. Under certain circumstances, however, doing so may be procedurally or politically desirable.

Under the terms of the CRA "fast track" procedure, if one chamber receives a disapproval resolution passed by the other chamber, the receiving chamber may take up and debate its own disapproval resolution but, at the point of disposition, is to take the final vote on the disapproval resolution received from the other house. This automatic "hookup" provision guarantees that both chambers are acting on the same joint resolution, and, as such, it can be sent directly to the President following second-chamber passage. The mechanism also ensures that there will be no need to resolve legislative differences between the chambers even in cases where the House and Senate disapproval resolutions have slightly different texts.⁹²

If the House passes a joint resolution of disapproval, for example, and messages it to the Senate, the House measure would automatically be placed on the Calendar of Business. The Senate could then directly consider the House measure under the fast track procedures without first taking up its own disapproval resolution.⁹³ If the Senate acts first, the received joint resolution would be held at the desk in the House. The House could take up the received Senate measure, should it choose to do so, under its normal parliamentary mechanisms without having a companion resolution submitted in the House.

Having disapproval resolutions submitted in both chambers, however, would preserve the option of having either chamber act first.⁹⁴ Submitting companion measures might also be desirable from a political standpoint in that having a designated champion of the repeal in each chamber might be viewed as increasing support for its passage and increasing the visibility of the issue.

What Happens If Congress Adjourns Before the CRA Initiation or Action Periods Conclude?

If, within 60 days of session in the Senate or 60 legislative days in the House after the receipt by Congress of a rule,⁹⁵ Congress adjourns its annual session sine die, the periods to submit and act on a disapproval resolution "reset" in their entirety in the next session of Congress.⁹⁶ This mechanism is sometimes referred to as the CRA "lookback" period.

In the subsequent session of Congress, the renewed periods for CRA review begin on the 15^th day of session in the Senate and the 15^th legislative day in the House. If the new session is the second session of the same Congress, a disapproval resolution submitted in the first session remains available for expedited action in the Senate during its new action period of 60 days of session.⁹⁷ The intent of the lookback mechanism is to prevent an agency from waiting until the closing days of a congressional session to submit a rule to Congress, thus denying the House and Senate adequate time to review the rule; the provision guarantees that Congress will have the full periods contemplated by the act to disapprove a rule regardless or when that rule is submitted.⁹⁸

Is It Possible to Ascertain When the Periods for Submission, Discharge, and Action on a Resolution to Disapprove a Given Rule Begin and End?

Yes. CRS can provide congressional clients with unofficial estimates of the periods to submit, discharge, and act on a joint resolution of disapproval under the CRA once a given rule has been received by Congress and published in the Federal Register. It is important to stress, however, that CRS estimates are always unofficial and nonbinding. The House and Senate Parliamentarians are the sole definitive arbiters of the CRA parliamentary mechanism, including time periods involved, and should be consulted for authoritative guidance on its operation.

Effect of a Resolution of Disapproval

What Is the Effect of Enacting a CRA Joint Resolution of Disapproval?

Enactment of a CRA joint resolution disapproving a rule has two primary effects. First, a rule subject to a disapproval resolution will not take effect if it had not taken effect by the time the disapproval was enacted.⁹⁹ If a rule has taken effect by the time it is disapproved, it is not to continue in effect and "shall be treated as though such rule had never taken effect."¹⁰⁰

Second, the CRA provides that an agency may not reissue the rule in "substantially the same form" or issue a "new rule that is substantially the same" as the disapproved rule "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."¹⁰¹

When Is a New Rule "Substantially the Same" as a Disapproved Rule?

The CRA does not define the meaning or scope of substantially the same.¹⁰² Looking to the ordinary meaning of the text may not provide much guidance for agencies looking to reissue specific rules.¹⁰³ The word substantially has been defined as "being largely but not wholly that which is specified,"¹⁰⁴ "to a great extent or degree," or "in essentials."¹⁰⁵ This leaves ambiguity, however, in how to determine whether a new rule is largely the same as a disapproved rule. Sameness could be determined by a number of factors and would likely depend on the rule in question.¹⁰⁶ Under these definitions, it could be measured simply by comparing the language of the two rules or by attempting to determine which portions of the rule were essential and comparing the rules on that basis. For example, if the legislative history of the joint resolution of disapproval suggests that Congress objected to a specific section of a rule that was ultimately disapproved, would a rule that removed only that language be considered "substantially the same" as the original, even if the text is otherwise the same? If the agency reissued a rule in which it changed one standard listed in the original regulation, would that be "substantially the same"? If it changed the number of categories to which a standard applied, would the rule still be "substantially the same"? These questions highlight the ambiguity in the meaning of substantially the same.

The CRA seems to contemplate that an agency may reissue a rule related to the rule that was disapproved or within the same policy area, so long as the new rule is not substantially similar to the disapproved rule. In other words, it does not appear that disapproving a rule under the CRA prevents an agency from reissuing a rule—it merely places a condition on the agency's ability to do so. Section 803 of the CRA stipulates that where an agency is under a statutory, regulatory, or court-imposed deadline to promulgate a rule, the deadline will be extended for one year from the enactment of the joint resolution of disapproval. This provision strongly suggests that the text of the CRA itself contemplates that at least some rules would be reissued.

Although the text alone is arguably ambiguous, the legislative history and subsequent agency practice may shed some light on the meaning of substantially the same.¹⁰⁷ A statement inserted into the Congressional Record by the sponsors of the CRA following its enactment described various factors an agency may take into consideration in deciding whether to reissue a rule, stating that the "substantially the same" prohibition "may have a different impact on the issuing agencies depending on the nature of the underlying law that authorized the rule."¹⁰⁸ Factors the statement identified included the amount of discretion the agency has under the authorizing law to change the substance of the rule and whether the rule was mandatory or discretionary in the first place. The statement also specified, "The committees intend the debate on any resolution of disapproval to focus on the law that authorized the rule and make the congressional intent clear regarding the agency's options or lack thereof after enactment of a joint resolution of disapproval."¹⁰⁹ In other words, the CRA's sponsors appear to have envisioned that the debate over a disapproval resolution would provide some guidance to the agency on next steps, helping inform the agency's decision about whether and how to reissue the rule—among other factors, such as the nature of the authorizing statute. In light of this legislative history, agencies considering reissuing rules may look to the reasons Congress gave, if any, for striking down the rule in the first place.

As of November 2021, two rules that had previously been struck down under the CRA have been reissued. Both overturned rules had originally been issued in 2016, in the final months of the Barack Obama Administration, and were among the 16 rules Congress overturned in the 115^th Congress (2017-2018).¹¹⁰ The first rule was reissued by the Department of Labor (DOL) in October 2019, and the second was reissued by the Securities and Exchange Commission (SEC) in January 2021.¹¹¹ Both agencies were under a statutory mandate to regulate on the topic of the disapproved rule and had to determine how to draft a rule that fulfilled these separate regulatory requirements but was not substantially similar to the disapproved rule.

In both of the reissued rules, the agencies provided an explanation of how, in their view, the reissued version of the rule was different enough from the original version that it did not violate this provision of the CRA. For example, DOL stated that in its view, the final rule was not "substantially the same" as the disapproved rule because the new rule had a "substantially different scope and fundamentally different approach" and cited some floor statements from the debate over the joint resolution of disapproval.¹¹² In its reissued rule, the SEC also cited some of the statements of Members during the debate over the 2017 disapproval resolution and further explained that in its view, "the agency should exercise its reasoned judgment in shaping new rules, evaluating a reasonable range of potential responses, including by considering the statutory provision that compels the rulemaking, the administrative record, and the CRA's requirements, among other things."¹¹³ Both agencies sought to determine the "central" issue at the heart of the disapproved rule and concluded that they had to change that aspect of the rule rather than change solely their original justifications or more ancillary provisions.¹¹⁴

How Is the "Substantially the Same" Prohibition Enforced?

The CRA is also silent on the question of who would make the determination as to whether a new rule is "substantially the same" as a disapproved rule. Congress and agencies themselves might be ultimately responsible for making that determination rather than a court. As discussed more in the following section, the CRA contains a prohibition on judicial review, stating that "no determination, finding, action, or omission under this chapter shall be subject to judicial review."¹¹⁵ Courts have generally—but not universally—interpreted this provision to mean that they may not consider any claims alleging that an agency has failed to comply with the CRA.¹¹⁶ As yet, no court has ruled on the precise question of whether an agency's compliance with the "substantially the same" prohibition could be subject to judicial review.¹¹⁷ If a court believed that the CRA barred judicial review of the question of whether a rule is "substantially the same," it would likely not reach a decision on the issue of whether to invalidate a reissued rule on the basis that it violates this "substantially the same" prohibition.

If courts continue to bar all judicial challenges under the CRA, Congress itself would arguably be the arbiter of whether a reissued rule clears the "substantially the same" standard. As occurred in the DOL and SEC reissued rules, if an agency decides to reissue a rule, the agency would likely explain the changes it made in light of this CRA provision, providing a justification for why in its view the rule is sufficiently different from the version that was overturned. Such an explanation is not required under the CRA, but it may be in the agency's interest to provide one. The agency does not face any other additional requirements under the CRA for a reissued rule—the new rule would be subject to the regular procedural requirements of the federal rulemaking process, including submission to Congress under the CRA—but in reissuing a rule, the fact that the original rule was disapproved under the CRA does not trigger any additional requirements. When the reissued rule is received in Congress, Congress could then disapprove the rule on the basis of it being too similar to the disapproved version (or for other reasons). Thus, the most likely enforcement mechanism for the "substantially the same" question is Congress's ability to use the CRA again on the reissued rule. As a practical matter, one might argue that this leaves an agency in a fairly strong position to reissue a disapproved rule, given that the CRA is at its most effective during the relatively narrow window following a presidential transition.

What Is the Effect of a CRA Joint Resolution Disapproving an Amendment to a Previously Issued Rule?

Agencies often promulgate rules that substantively amend or make technical corrections to previously issued rules. An amendment to a rule is considered to be a "rule" under the APA and the CRA.¹¹⁸ If a CRA joint resolution of disapproval were enacted regarding such an amendment, it would prevent the amendment from going into effect or continuing in effect. However, the joint resolution of disapproval would have no effect on the previously existing rule that was being amended.

What Is the Effect of a CRA Joint Resolution Disapproving a Rule that Repeals a Previous Rule?

Generally, the effect of using the CRA to overturn a rule that repealed a prior rule would be essentially to undo the repeal—in other words, overturning the rule under the CRA may have the effect of reinstating the prior rule.¹¹⁹ However, the specifics may depend on the particular phrasing of the relevant rules and any intervening developments.

What Happens If a Rule That Is Already Effective Is Overturned?

If a rule had already taken effect before it was disapproved, the CRA provides that the rule shall not continue in effect¹²⁰ and "shall be treated as though such rule had never taken effect."¹²¹ This provision appears to have the effect of retroactively negating actions that were taken under the rule while it was in effect.

Is There Judicial Review Under the CRA?¹²²

Section 805 of the CRA states: "No determination, finding, action, or omission under this chapter shall be subject to judicial review."¹²³ Accordingly, courts will not weigh in on matters falling within the scope of Section 805, but will instead leave the resolution of these CRA-related issues to the political branches. However, there has been some judicial disagreement regarding which CRA-related matters are within Section 805's scope. On its face, this provision appears to bar judicial review of a broad swathe of claims. While most reviewing courts have interpreted Section 805 to broadly prohibit judicial review of claims alleging CRA violations, a few courts have taken the view that certain types of CRA-related claims are not barred, as discussed in more detail below. In particular, some courts have concluded that Section 805 allows review of agencies' compliance with the CRA.¹²⁴

First, one appellate court drew a distinction between statutory and constitutional claims, concluding that Section 805 barred it from reviewing a claim premised on compliance with the CRA, but did not prevent it from considering a constitutional challenge to a joint resolution of disapproval enacted under the CRA.¹²⁵ As a general rule, statutes that would deny courts the ability to review constitutional claims raise constitutional concerns, and accordingly, courts will interpret laws barring judicial review to allow constitutional challenges "unless Congress explicitly directs otherwise."¹²⁶ Citing this general interpretive principle, the appellate court noted that Section 805 does not expressly foreclose review of constitutional claims.¹²⁷ Accordingly, the court ruled that Section 805 did not bar its review of the plaintiff's constitutional challenge—although the court ultimately rejected the claim on its merits.¹²⁸

But most lawsuits involving the CRA are premised on noncompliance with the statute, rather than constitutional issues. Most courts that have considered the issue, including multiple federal appellate courts, have held that the CRA prohibits courts from reviewing congressional and agency actions for compliance with the CRA.¹²⁹ For example, courts have dismissed lawsuits alleging that rules are invalid because agencies failed to submit them as required under the CRA.¹³⁰ These courts have primarily relied on the plain text of Section 805, noting the broad sweep of the language and lack of any qualifications.¹³¹ For example, the U.S. Court of Appeals for the D.C. Circuit in 2009 described the language of Section 805 as "unequivocal," holding that it "denies courts the power to void rules on the basis of agency noncompliance with the Act."¹³²

But a few federal trial courts have held that, while Section 805 may bar adjudication of congressional actions taken pursuant to the CRA, it does not bar courts from reviewing agency actions.¹³³ First, a federal trial court in Indiana ruled in 2002 that "Congress only intended to preclude judicial review of Congress' own determinations, findings, actions, or omissions made under the CRA after a rule has been submitted to it for review."¹³⁴ The court noted that a prior district court had ruled otherwise, emphasizing that Section 805 "provides for no judicial review of any 'determination, finding, action, or omission under this chapter,' not 'by Congress under this chapter.'"¹³⁵ The Indiana court disagreed, ruling that prohibiting judicial review of agency action "would be at odds with the purpose of the CRA, which was to provide a check on administrative agencies' power."¹³⁶ The court also concluded that the text of the statute supported its opinion, noting that Section 805 bars review of a "determination, finding, action, or omission."¹³⁷ In the court's view, "agencies do not make findings and determinations under this chapter; Congress, on the other hand," does.¹³⁸ Consequently, the court reviewed the plaintiff's claim that the EPA had violated the CRA by failing to submit a rule—but ultimately rejected the suit on its merits, holding that the EPA was not required to report the action.¹³⁹

In 2019, an Idaho district court agreed with the Indiana court's conclusion while noting that most other courts had since rejected that view.¹⁴⁰ The Idaho court pointed to a post-enactment statement from the CRA's sponsors entered into the Congressional Record.¹⁴¹ The sponsors' statement said that major rule determinations made by OIRA and OMB would not be reviewable and that courts could not review Congress's compliance with the congressional review procedures.¹⁴² However, the sponsors also believed that Section 805 "does not bar a court from giving effect to a resolution of disapproval that was enacted into law" and, accordingly, stated that this provision "in no way prohibits a court from determining whether a rule is in effect."¹⁴³ In the court's view, this legislative history demonstrated that Congress "understood that actions taken by certain actors would not be reviewable, but that this non-reviewability did not extend to all CRA actors and that specifically agency action would be reviewable."¹⁴⁴ In addition, the Idaho court emphasized "general policy concerns," concluding that "[r]eading judicial review out of the CRA" and barring judicial enforcement "foils its primary purpose"—to enhance agency accountability.¹⁴⁵ Consequently, the court held that it had jurisdiction to hear the plaintiff's suit, which alleged that executive branch agencies had violated the CRA by failing to submit alleged rules for review.¹⁴⁶

The scope of the CRA's bar on judicial review likely will be subject to further litigation, and the current majority view interpreting this prohibition broadly could shift. And as mentioned above,¹⁴⁷ there is very little case law interpreting, and thus uncertainty regarding, Section 805's applicability to agency actions subsequent to a disapproval resolution.¹⁴⁸ In the absence of case law on the subject, some scholars have argued that Section 805 should not bar courts from reviewing whether a reissued agency rule is substantially similar to a disapproved rule.¹⁴⁹

What Other Tools Are Available to Congress for Conducting Oversight of Federal Regulations?

Although the CRA offers a number of advantages, most of which are procedural, Congress also has many other tools available to overturn and conduct oversight of federal agency rulemaking.¹⁵⁰ These tools include Congress's general legislative power; appropriations language; oversight hearings on proposed or finalized rules; meetings with agency officials or OMB during the rulemaking process; and public communications with agency officials, such as a letter. Each of these is briefly discussed below.

Congress can use its legislative power to oversee the issuance and implementation of rules or to require that an agency repeal a rule. Every rule issued by a federal agency must be based upon a grant of authority given to that agency by Congress in statute,¹⁵¹ and it is Congress's prerogative to ensure that agencies issue rules in a manner consistent with congressional intent. Congress can make a change to the underlying statute authorizing a rule or enact legislation that simply overrides the rule. Such a change could remove or change the agency's authority to issue the rule, or it could prescribe more specifically in law what the rule should contain. The advantage of using the CRA is that the fast-track procedures it provides for, particularly in the Senate, can make it easier to pass a joint resolution of disapproval than to pass a regular bill. However, as discussed, Members must submit and act on a CRA resolution of disapproval within a particular time period following issuance of a rule, whereas Congress can use its general legislative power to act on a rule at any time.

Another use of Congress's legislative power over regulations involves its power of the purse: Congress has frequently used appropriations legislation to restrict an agency's use of funds to promulgate or implement particular regulations.¹⁵² However, unlike CRA joint resolutions of disapproval, provisions of this type do not nullify an existing regulation, nor do they remove the agency's underlying statutory authority to issue a regulation. Therefore, any final rule that has taken effect will continue to be binding law—even if an appropriations restriction prohibits the agency from using funds to enforce the rule. In addition, restrictions on the use of funds in appropriations acts, unless otherwise specified, are binding only for the period of time covered by the measure (i.e., a fiscal year or a portion of a fiscal year). In these instances, any restriction that is not repeated in the next relevant appropriations act or enacted as part of another measure no longer binds the relevant agency or agencies.¹⁵³

Members of Congress also may choose to use other, non-legislative tools to exert political pressure on agencies, such as by holding a hearing on a proposed rule or a rule that has been finalized. Congressional committees can hold oversight hearings focusing on the development or implementation of a particular rule or set of rules that fall under their jurisdiction. Oversight hearings can give Members a chance to directly ask agency officials questions about rules, extract commitments from agency officials, and communicate their views.

Members of Congress can also request a meeting with the rulemaking agency while a rule is under development to communicate his or her views to the agency, or they can make their views publicly known by writing a letter to an agency head or other agency officials about a rule. In addition, a Member can request to meet with OIRA, the entity within OMB that reviews most agency regulations prior to their publication. Such meetings are sometimes referred to as "12866 meetings," a reference to Executive Order 12866, which governs OIRA review of agency rulemaking.¹⁵⁴ During the OIRA review process, OIRA can play a significant role in the content of a proposed or final rule.¹⁵⁵ Therefore, Members may want to make their views known to OIRA while the rule is under review.¹⁵⁶

Appendix A. Rules Overturned Using the Congressional Review Act

Appendix B. Government Accountability Office (GAO) Opinions on Whether Certain Agency Actions Are "Rules" Under the CRA