The Congressional Review Act: Questions and Answers
March 14, 2023
Contact: James Goodwin, Center for Progressive Reform, email@example.com, (202) 747-0698
Rachel Weintraub, Coalition for Sensible Safeguards, firstname.lastname@example.org, (202) 904-4953
What is the Congressional Review Act (CRA)?
The CRA is a law that enables Congress to block certain kinds of administrative actions by Executive Branch and Independent Agencies by using a special form of legislation known as a joint resolution of disapproval. Importantly, the CRA does not give Congress powers it does not already have – Congress always has the power to enact legislation blocking existing regulations. Instead, the purpose of the CRA is to make it easier for Congress to block agency actions by temporarily suspending some of Congress’s self-imposed impediments on the legislative process, including, most notably, the filibuster.
What kind of agency actions are eligible for repeal by the CRA?
The CRA defines the type of agency actions that are eligible for repeal very broadly to include both “regulations” and “guidance documents.” Unlike regulations, guidance documents do not have the independent force of law, but instead are merely intended to help clarify the requirements of agency regulatory programs. What constitutes agency guidance documents is not always clear, however. As a result, there has been considerable confusion as to which agency documents amount to guidance documents, and thus are eligible for repeal under the CRA. The CRA has only been used once to repeal a guidance document.
It is also important to emphasize that the CRA covers all regulations, not just ones that have a large economic impact. In fact, most of the regulations that have been repealed through the CRA had relatively economic impacts.
Typically, the CRA’s expedited legislative procedures are only applicable after an agency action has been completed and sent to Congress for review as required by the CRA. In cases where it is unclear if an agency action is covered by the CRA (i.e., whether it is a guidance document), the required submission to Congress may take place several years after the action is officially released. For instance, Congress may obtain an independent opinion from the Government Accountability Office (GAO) that the action was covered by the CRA and submitted to Congress pursuant to the law. In those cases, the agency action is treated as if it were recently issued. Congress has only used the CRA once to repeal an “old” agency action in this fashion.
How does the CRA work?
Soon after an agency, such as the U.S. Environmental Protection Agency or the U.S. The Food and Drug Administration, completes a regulation or guidance, it must send a copy of that action along with certain supporting information to Congress. The receipt of this information triggers a short time period in which Congress is able to use expedited procedures to block the regulation through a resolution of disapproval. (As noted above, this review procedure can be triggered long after an agency action is actually completed.) These expedited procedures, which primarily affect the Senate, expire after 60 “session days” (days the Senate is in session) unless the Senate has initiated a resolution of disapproval first.
Because a resolution of disapproval is a type of law, it must follow the constitutionally mandated legislative process. That means it must pass both the U.S. House of Representatives and the Senate and be signed by the president. If the president vetoes the resolution of disapproval, Congress still has the option of overriding the veto with the standard two-thirds supermajority vote.
All resolutions of disapproval must adhere to a specific format prescribed by the text of the CRA. See 5 U.S.C. Sec. 802(a). One notable consequence of this format is that only one agency action can be repealed at a time under the CRA. In other words, several actions cannot be “bundled” in a single resolution of disapproval.
What effect does the CRA have on the rulemaking process?
The most immediate effect of the CRA is that it generally postpones the effective date of certain kinds of regulations known as “major rules” for 60 days while Congress carries out the CRA process. In general, major rules often include the bigger regulations that agencies might issue and typically have an annual economic effect of $100 million or more. This postponement contributes additional delay to an already slow rulemaking process.
If a resolution of disapproval successfully becomes law, two things happen. First, the targeted action is void and can have no effect. As a result, whatever the legal status quo was prior to that action is then reinstated.
Second, the agency is prohibited from issuing another action that is “substantially the same” unless Congress specifically authorizes the agency to do so through subsequent legislation. Because courts have not yet determined how different a new action must be so that it is not “substantially the same,” the scope of this prohibition remains unclear, potentially discouraging an agency from issuing a new similar action to replace the one that has been blocked.
How do the CRA’s “carryover” provisions work?
For final actions that are completed soon before Congress adjourns its annual session at the end of each calendar year, the CRA includes unique “carryover” procedures. The CRA creates a complicated process for counting the days when this carryover period begins, and as a result the starting date can differ greatly from year to year. We will not know what the date is until the end of the 118th Congress. However, generally, in any given year, the carryover period can start as early as the beginning of May or as late as the end of June in the last year of the 118th Congressional session.
In general, the effect of the CRA’s carryover provision is to treat actions that were completed during a previous year’s carryover period as if they were completed at the start of the new calendar year instead. By automatically “resetting the clock” in this fashion, the carryover provisions aim to provide both chambers of Congress with a full, uninterrupted period of time to use the CRA’s expedited procedures.
The carryover provisions take on additional significance when they apply to presidential election years, particularly those where presidential control switches from one political party to another. As noted above, under the CRA, the president is free to veto any resolutions of disapproval that reach his or her desk. Since the president is likely to veto any resolutions of disapproval that target an action completed by his or her administration, the only realistic chance for a resolution of disapproval to succeed is if the CRA’s carryover provisions enable a subsequent president to sign into law a resolution of disapproval that targets a final regulation completed by his or her predecessor during the preceding carryover period.
Put differently, the carryover provisions have full effect “when the stars align” – that is, when a president from one party replaces the party from another and both chambers of congress are controlled by the president’s party. The stars have aligned in this fashion several times since the CRA was enacted, including in 2001 (with the election of George W. Bush), in 2009 (with the election of Barack Obama), in 2017 (with the election of Donald Trump), and in 2021 (with the election of Joe Biden).
How frequently has the CRA been used to repeal agency actions?
For the first several decades after the CRA was enacted, it was only used once to repeal an agency action – in 2001 to repeal a rule issued by the Occupational Safety and Health Administration late in the Clinton administration to protect workers against ergonomics injuries. (George W. Bush only used the CRA once; Obama did not use it at all, despite the fact that the stars had aligned at the beginning of his administration.) The aggressive use of the CRA increased significantly with the arrival of the Trump administration. In all, Trump and congressional Republicans repealed 16 actions using the CRA. They included measures to discourage corruption by oil and gas companies operating in foreign countries, protect streams from mountaintop removal mining waste, and prevent certain individuals with mental illness from buying guns. Biden was the first Democratic president to sign off on repeals using the CRA. The CRA has been used only three times during this administration to repeal actions. The Office of the Comptroller of the Currency (OCC) True Lender Rule, the Environmental Protection Agency’s (EPA) Methane Rule, and the Equal Employment Opportunity Commission’s (EEOC) Conciliation Procedures were repealed in 2021.
Why is use of the CRA to block agency action so controversial?
Using the CRA to block agency actions is controversial for at least four reasons. First, the CRA empowers Congress to block actions on the basis of little more than naked politics. Such politically-motivated resolutions of disapproval are particularly objectionable because they can be used to cancel agency actions that reflect good public policy and would advance the public interest.
Second, CRA resolutions of disapproval are a blunt instrument for conducting congressional oversight. They block an entire action even if Congress’s legitimate policy concerns relate to only a small subset of the action’s provisions.
Third, CRA resolutions of disapproval have powerful, far-reaching effects because they also block agencies from issuing any final regulations in the future that are “substantially the same” as the one that was specifically targeted by the resolution of disapproval. The CRA resolution of disapproval that blocked a Clinton-era ergonomics regulation illustrates how damaging this aspect of the CRA can be. In the more than two decades since that rule was repealed, OSHA has not attempted to address the problem of workplace ergonomics injuries, even though these are the leading cause of workplace injury. In other words, thanks to the CRA, the agency charged with protecting workers is unable to address the single greatest threat to safety that workers now face.
Fourth, since the CRA process operates to block actions only after they’ve gone through a resource-intensive rulemaking process, successful resolutions of disapproval result in a mammoth waste of scarce agency resources. This waste is particularly significant, because the CRA’s prohibition on future actions that are “substantially the same” would limit an agency’s ability to repurpose the work it has already done to support a future action. In contrast, with an adverse judgment on judicial review, the agency at least has the option of mitigating its lost resources by undertaking a new rulemaking that cures any fatal defects in the earlier regulation that was struck down by the court.
For more information on the CRA process and specific rules under CRA threat, please visit sensiblesafeguards.org.