About the Congressional Review Act
The Congressional Review Act (CRA) was passed in March 1996 and signed by President Bill Clinton as part of a larger regulatory reform measure. Pub. L. 104–121, Title II, Subtitle E, codified at 5 U.S.C. §§801-08 (2012). The CRA requires regulatory agencies to send every rule with a short report to both Houses of Congress and the Government Accountability Office (GAO) before the rule can go into effect. Congress can then schedule simple-majority, up-or-down votes on rules it wants to disapprove using fast-track procedures.
The CRA defines a “rule” very broadly to include both formal notice-and-comment regulations and informal agency statements regarding governing laws. Although it does not apply to presidential executive orders or proclamations, it applies to almost any regulatory agency document that impacts the general public, including “Dear Colleague” letters and enforcement guidance documents, even if they were never published in the Federal Register. All such rules may be overruled by the CRA’s streamlined procedures, whether they are determined to be “major” rules or not. However, major rules, as determined by the Office of Management and Budget, receive additional attention including reports by the GAO on them, and their effective date is usually extended during part of the congressional review period.
Using the Congressional Review Act
During the first 60 legislative or session days after a rule is received (the House uses the term “legislative day,” the Senate has “session days”), the CRA allows Congress to promptly overturn these rules without a Senate filibuster, with limited debate, and certain other expedited procedures. A joint resolution of disapproval must be presented to the President for his signature or veto, satisfying the Constitution’s Bicameralism and Presentment requirements. Enactment of such a resolution into law pursuant to the CRA kills the rule and prohibits an agency from adopting any “substantially similar” rule again without a new law authorizing it.
If a rule is delivered to Congress within the last 60 legislative or session days of a congressional session, a new period of expedited review begins on the 15th legislative or session day of the next congressional session. Because resolutions disapproving rules under the CRA must either secure the president’s signature or be passed in both Houses over his veto, the tool has only thus far overturned “midnight” regulations sent to Congress at the end of one administration and voted down and signed into law by the next president.
With President Trump’s signature, the current Congress has already enacted more laws overruling agency regulations under the CRA than all previous congresses combined. The midnight rules delivered to Congress by the Obama administration that are subject to being overruled include over 230 problematic regulations.