The Congressional Review Act (“CRA”) was passed by Congress in 1996 for the purpose of allowing congressional lawmakers to review and overturn regulations adopted by federal agencies. In the decades since the CRA was passed, it has been used to overturn a total of twenty rules. Recently, the CRA has come back into the spotlight as members of Congress have initiated an effort to review the new “waters of the United States” rule passed by the Environmental Protection Agency (“EPA”) in late 2022. As the CRA returns to prominence, it is important to understand how the Act functions, and what legal questions arise from CRA actions.
What’s in the CRA
When Congress passes a new law, it will often assign a federal agency or agencies responsibility for carrying out that law. Part of that responsibility includes establishing implementing rules or regulations. Although delegating rulemaking authority to federal agencies is an important aspect of policymaking, Congress still maintains an interest in ensuring that federal agencies are furthering congressional goals and intent when issuing rules. Congress has a variety of tools at its disposal to conduct oversight of federal agencies, including the CRA.
In theory, the CRA process is relatively straightforward. Congress can invalidate an agency rule if both the House and the Senate pass a joint resolution of disapproval which either the President signs or if a Presidential veto is overruled by two-thirds of the Senate. Once a rule is successfully invalidated, the CRA prohibits the agency that passed the rule from adopting any rule that is “substantially the same” going forward. However, while the overall CRA process appears is simple, there are procedural and textual complexities that require examination.
The CRA is only applicable to agency rules, which the text of the statute defines rather broadly. According to the CRA, an agency rule is “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[.]” 5 U.S.C. §§ 804(3); 551(4). In other words, an agency rule is any action taken by an agency that is designed to carry out or otherwise interpret a law or policy implemented by the agency. This includes regulations passed via notice-and-comment rulemaking, as well as certain guidance documents and other policy statements. Although the CRA’s definition of “rule” is broad, it does exclude rules “relating to agency management or personnel,” as well as “any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.” 5 U.S.C. § 804(3).
Along with a definition for “rule,” the CRA also includes a definition for a type of agency action referred to as a “major rule.” According to the CRA, a major rule is:
any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in –
- An annual effect on the economy of $100,000,000 or more;
- A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
- Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
5 U.S.C. § 804(2). Rules that fall under the “major rule” category are subject to slightly a slightly different procedural process under the CRA than other agency rules, which will be discussed more below.
Of the definitions included in the CRA, there is a notable exception. The term “substantially the same” is not defined anywhere in the text of the Act. Because agencies are prohibited from passing a rule that is “substantially the same” as a rule that is invalidated via a CRA action, the lack of definition for the term has created some confusion which will be discussed more below.
The CRA process begins when an agency submits a copy of its rule to Congress. Although the CRA does not specify when an agency must submit a rule, no rule may go into effect until after it has been submitted to Congress. 5 U.S.C. § 801(a)(1)(A). Therefore, agencies tend to submit a copy of their rule to Congress on the same day that the rule is published in the Federal Register. Along with a copy of the rule, the agency is also required to submit a “concise general statement relating to the rule” that includes any cost-benefit analysis the agency has completed, and a determination on whether the agency is submitting a major rule. 5 U.S.C. § 801(a)(1)(B). If the agency is submitting a major rule, the Comptroller General is required to provide a report to Congress within 15 days of the rule’s submission. The report must include an assessment of the agency’s compliance with CRA procedure, and any cost-benefit or other analysis required. 5 U.S.C. § 801(a)(2).
Once a rule is introduced to Congress, it will take effect as it otherwise would have without additional delay. 5 U.S.C. § 801(a)(4). However, if a major rule is submitted to Congress, then the rule shall take effect either 60 days after the date on which Congress received the rule or 60 days after the rule is published in the Federal Register, whichever is later. 5 U.S.C. § 801(a)(3). Regardless of the type of rule submitted to Congress, once it is submitted Congress has a 60-day window in which to begin the joint resolution of disapproval process. 5 U.S.C. § 802(a). Due to the different timelines for when a rule goes into effect and when Congress can begin a CRA action, it is possible that a rule could go into effect before ultimately being overturned by a joint resolution of disapproval. If a rule becomes law prior to Congress overturning it via the CRA, the rule will be treated as though it had never gone into effect. 5 U.S.C. § 801(f).
After a rule is submitted to Congress, a period of 60 “days of continuous session” begins during which any member of either the House or the Senate may propose a joint resolution of disapproval. According to the CRA, the “days of continuous session” are calculated by counting every calendar day, including weekends and holidays, and pausing only if one or both chambers of Congress is adjourned for more than three days. 5 U.S.C. § 802(a). This period of time is important to CRA implementation because only those joint resolutions of disapproval that are filed within this 60-day period will be subject to the special Senate procedures identified in the CRA and further discussed below. All other joint resolutions of disapproval that are not filed in this 60-day period will be subject to the same Senate procedures as any other piece of legislation.
The CRA specifies that the text of a joint resolution of disapproval must read as follows:
That Congress disapproves the rule submitted by the [agency promulgating the final rule] relating to [the name of the rule], and such rule shall have no force or effect.
5 U.S.C. § 802(a). Importantly, the CRA provides that each joint resolution of disapproval may apply to only one agency rule. Joint disapproval resolutions may not be used to overturn multiple rules at once.
After a joint resolution of disapproval is submitted to either the House or Senate, it goes to the committee that has the appropriate jurisdiction. 5 U.S.C. § 802(b)(1). A committee may choose to report a joint disapproval resolution, but it is prohibited from amending the resolution. 5 U.S.C. § 802(d).
While the CRA does not include any additional procedural requirements for a joint resolution of disapproval that is introduced to the House, it does outline additional procedural requirements for joint disapproval resolutions that are introduced to the Senate within the 60 “days of continuous session” time-period. If a joint disapproval resolution is introduced during that time, the following Senate procedures apply. Any time after the end of a period of 20-calendar-days that begins the day a rule is submitted to Congress, a Senate committee can be discharged from further consideration of a joint resolution of disapproval if at least 30 Senators sign a petition to discharge. 5 U.S.C. § 802(c). Once a joint disapproval resolution is either reported or discharged from committee, any Senator may make a nondebatable motion to consider the resolution on the Senate floor. 5 U.S.C. § 802(d)(1). The motion to proceed needs only a simple majority to be successful. Once a joint resolution of disapproval that was introduced within the 60-day period makes it to the Senate floor, debate on the resolution is limited to 10 hours. 5 U.S.C. § 802(d). Senators may move to further limit the debate time for the resolution, but may not amend the joint disapproval resolution or motion to postpone it. 5 U.S.C. § 802(d). If a joint motion of resolution is introduced to Congress after the 60 “days of continuous session” period has passed, then such a resolution will move through the Senate according to the same rules as other legislation.
If a joint disapproval resolution successfully passes through the House and the Senate, its next stop is the President’s desk. As with other legislation, the President can choose to either sign the resolution into law or veto it. If the President does sign the resolution, then the CRA action has been successful and the rule is immediately prevented from going into effect, or treated as though it never had gone into effect. If the President vetoes the resolution, then it is returned to the Senate where a Presidential veto can be overridden by a two-thirds majority. If a veto on a joint resolution of disapproval is overridden by the Senate, then the CRA action is successful, and the agency rule is invalidated.
Once a CRA joint resolution of disapproval is successfully passed, the agency at the center of resolution is prohibited from adopting a rule that is “substantially the same” as the rule that was invalidated. As previously mentioned, “substantially the same” is not defined in the text of the CRA. This has generated some confusion over where the boundaries of “substantially the same” lie. Additionally, the CRA explicitly prohibits judicial review, stating that “no determination, finding, action, or omission under this chapter shall be subject to judicial review.” 5 U.S.C. § 805. Courts have generally interpreted this provision as preventing them from considering any claims related to the CRA, including claims that an agency has violated the prohibition on adopting a substantially similar rule. As a result, no court has considered what it would mean for an agency rule to be “substantially the same” as a rule invalidated via the CRA. The only guidance available comes from a statement added to the Congressional Record by sponsors of the CRA at the time the statute was enacted. According to that statement, it appears that the CRA’s sponsors imagined that agencies would be able to review transcripts of congressional committee meetings to determine which aspects of a rule members of Congress were concerned about. Such transcripts would help the agency determine what to avoid when drafting a replacement rule. Beyond that statement in the Congressional Record, it is difficult to determine when a rule would be considered “substantially the same.” Because the CRA prohibits juridical review, it would appear that the primary enforcement mechanism for invalidating a rule that is “substantially similar” would be the CRA process itself once a new rule is submitted to Congress.
Although the CRA is not often used, it is important to be aware of. Particularly as the CRA once again comes into the spotlight as Congress considers the new “waters of the United States” rule, it is useful to understand the process outlined in the CRA. It is also useful to be aware of the lingering questions surrounding the CRA, especially the questions that arise over what it means for a rule to be “substantially the same.”
To read the text of the CRA, click here.
For a closer look at the CRA and the issues surrounding it, find a Congressional Research Service report here.
For more National Agricultural Law Center resources on administrative law, click here.