The Congressional Review Act: Frequently Asked Questions

Summary

The Congressional Review Act (CRA) is an oversight tool that Congress may use to overturn a rule issued by a federal agency. The CRA was included as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA), which was signed into law on March 29, 1996. The CRA requires agencies to report on their rulemaking activities to Congress and provides Congress with a special set of procedures under which to consider legislation to overturn those rules.

Under the CRA, before a rule can take effect, an agency must submit a report to each house of Congress and the Comptroller General containing a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; and the proposed effective date of the rule. Upon receipt of the report in Congress, Members of Congress have specified time periods in which to submit and take action on a joint resolution of disapproval. If both houses pass the resolution, it is sent to the President for signature or veto. If the President were to veto the resolution, Congress could vote to override the veto.

If a joint resolution of disapproval is submitted within the CRA-specified deadline, passed by Congress, and signed by the President, the CRA states that the “rule shall not take effect (or continue).” That is, the rule would be deemed not to have had any effect at any time. Even provisions that had become effective would be retroactively negated.

Furthermore, if a joint resolution of disapproval were enacted, the CRA provides that a rule may not be issued in “substantially the same form” as the disapproved rule unless it is specifically authorized by a subsequent law. The CRA does not define what would constitute a rule that is “substantially the same” as a nullified rule. Additionally, the CRA prohibits judicial review of any “determination, finding, action, or omission under this chapter.”

This report discusses the most frequently asked questions received by the Congressional Research Service about the CRA. It addresses questions relating to the applicability of the act; the submission requirements with which agencies must comply; the procedural requirements that must be met in order to file and act upon a CRA joint resolution of disapproval; and the legal effect of a successful CRA joint resolution of disapproval. This report also discusses potential advantages and disadvantages of using the CRA to disapprove rules, as well as other options available to Congress to conduct oversight of agency rulemaking.

For further questions not addressed here, please contact one of the authors: Maeve P. Carey (questions regarding history of and agency compliance with the CRA); Christopher M. Davis (questions regarding congressional procedures and day counts under the CRA); or Alissa M. Dolan (questions regarding legal issues under the CRA).