Updated February 27, 2023
The Congressional Review Act (CRA): A Brief Overview
Overview
the Congressional Record. The Congress.gov website hosts
databases of these executive communications that can be
What is the CRA? The CRA (codified at 5 U.S.C. §§801-
electronically searched. GAO also maintains on its website
808) is a tool Congress can use to overturn certain federal
a database of rules it has received under the CRA.
agency actions. The CRA was enacted as part of the Small
Business Regulatory Enforcement Fairness Act in 1996.
What happens if an agency does not submit a rule? In
The CRA requires agencies to report the issuance of “rules”
some cases, an agency has failed to submit a covered action
to Congress and provides Congress with special procedures,
to Congress, generally because the agency has not
in the form of a joint resolution of disapproval, under which
considered the action to be a rule under the CRA. On
to consider legislation to overturn rules. If a CRA joint
occasion when this has occurred, Members of Congress
resolution of disapproval is approved by both houses of
have asked GAO for a formal opinion as to whether an un-
Congress and signed by the President, or if Congress
submitted action satisfies the CRA definition of rule such
successfully overrides a presidential veto, the rule at issue
that the agency would be required to comply with the CRA
cannot go into effect or continue in effect.
submission procedures. GAO has issued dozens of opinions
of this type at the request of Members. These opinions are
What is a rule under the CRA? The CRA adopts the
available on GAO’s website.
broadest definition of rule contained in the Administrative
Procedure Act (APA), with three exceptions.
Although the CRA states that a joint resolution of
disapproval can be introduced only after Congress receives
Definition of Rule Under the CRA
a rule, Members have sometimes used these GAO opinions
The APA definition of rule (5 U.S.C. §551) is “the whole or a
to trigger the CRA’s special procedures, even if the agency
part of an agency statement of general or particular applicability
never submitted the rule to Congress. Specifically, the
and future effect designed to implement, interpret, or prescribe
Senate has developed a practice in which the publication in
law or policy.” The CRA excludes three types of actions from
the Congressional Record of a GAO opinion classifying an
this definition (5 U.S.C. §804(3)):
agency action as a rule can trigger the CRA’s special
1. Rules of particular applicability;
procedures for a joint resolution of disapproval.
2. Rules relating to agency management or personnel; and
CRA Joint Resolution of
3. Rules of agency organization, procedure, or practice that do
Disapproval Procedures
not substantially affect the rights and obligations of non-agency
parties.
What does a joint resolution of disapproval look like?
The CRA stipulates the text for a joint resolution of
The CRA applies to final rules, including major rules, non-
disapproval. Each CRA joint resolution of disapproval can
major rules, and interim final rules. Additionally, the
be used only to invalidate one final rule in its entirety.
definition is sufficiently broad that it may include agency
actions that are not subject to traditional notice-and-
Required Text of a CRA Joint Resolution
comment rulemaking, such as guidance documents and
of Disapproval
policy memoranda. The CRA does not apply to presidential
“That Congress disapproves the rule submitted by the [agency]
actions or to non-rule agency actions such as orders.
relating to [name of the rule], and such rule shall have no force
or effect” (5 U.S.C. §802(a)).
How many rules have been overturned using the CRA?
The CRA has been used to overturn a total of 20 rules: one
How is a joint resolution of disapproval filed? A CRA
in the 107th Congress (2001-2002), 16 in the 115th Congress
joint resolution of disapproval is introduced in the same
(2017-2018), and three in the 117th Congress (2021-2022).
way as any other bill. However, the joint resolution must be
Submission of Rules to Congress
introduced within a specific time frame: during a 60-days-
of-continuous-session period beginning on the day
What submission is required? The CRA requires agencies
Congress receives the rule. As discussed above, if the rule
to submit their rules to both houses of Congress and the
is not submitted, the Senate may consider the date a GAO
Government Accountability Office (GAO) before they may
opinion finding the action to be a rule is published in the
take effect. The CRA does not specify when an agency
Congressional Record as the beginning of the period. Days-
must submit a rule. In practice, agencies generally submit
of-continuous-session periods count every calendar day,
rules around the time they are published.
including weekends and holidays, and exclude only days
that either chamber (or both) is gone for more than three
How do I know if a rule was submitted? Notice of each
days pursuant to an adjournment resolution.
chamber’s receipt of a rule submitted under the CRA is
published in the “Executive Communications” section of
https://crsreports.congress.gov
The Congressional Review Act (CRA): A Brief Overview
Are there expedited procedures for a CRA joint
Senate session and the 15th House legislative day. This
resolution of disapproval in the House? There are no
“lookback” provision is intended to ensure that Congress
expedited procedures for initial House consideration. The
will have the full periods contemplated by the act to
joint resolution would likely be considered in the House
disapprove a rule regardless of when it is received. The
under the terms of a closed special rule reported by the
lookback provision may hold particular import in years in
Rules Committee. A motion to recommit the joint
which there is a change in party control of the presidency.
resolution would be in order in the House.
Effect of a CRA Resolution
Are there expedited procedures for a CRA joint
of Disapproval
resolution of disapproval in the Senate? Yes. When a
What happens when a CRA joint resolution of
CRA joint disapproval resolution meets certain criteria, it
disapproval is enacted? A rule that is the subject of an
cannot be filibustered in the Senate. To be eligible for these
“fast track” procedures, the Senate must act on a
enacted CRA joint resolution of disapproval goes out of
effect immediately if the rule has already taken effect when
disapproval resolution during a 60-days-of-Senate-session
the resolution of disapproval is enacted and “shall be
period, which begins on the date the rule has been
treated as though such rule had never taken effect.” If the
submitted to Congress and published in the Federal
rule has not yet gone into effect when the resolution of
Register (if applicable).
disapproval is enacted, it will not take effect.
Committee Consideration. When introduced, a CRA
In addition, a rule subject to an enacted joint resolution of
disapproval resolution is referred to committee like other
disapproval “may not be reissued in substantially the same
legislation. A committee may choose to report a CRA
form, and a new rule that is substantially the same … may
disapproval resolution, but it may not amend it. After the
not be issued, unless the reissued or new rule is specifically
expiration of a 20-calendar-day period beginning after the
authorized by a law enacted after the date of the joint
rule has been submitted to Congress and published in the
resolution.” The CRA does not define the scope of
Federal Register (if applicable), a Senate committee can be
substantially the same or state who should make such a
discharged of further consideration of a joint resolution
determination. To date, two rules have been reissued
disapproving the rule. This discharge occurs when a
following disapproval under the CRA. In both cases, the
discharge petition signed by at least 30 Senators is
agencies looked to the legislative history of the disapproval
submitted on the floor.
resolution that overturned the rule to understand Congress’s
specific objections. The agencies then focused on changing
Senate Floor Consideration. Once a CRA joint resolution
those aspects of each rule when reissuing them.
of disapproval is reported or the relevant Senate committee
is discharged, any Senator can then make a non-debatable
Is judicial review available? The CRA states that “no
motion to proceed to consider the joint disapproval
determination, finding, action, or omission under this
resolution. If called up, the measure would be subject to up
chapter shall be subject to judicial review.” A number of
to 10 hours of debate before being voted upon. No
courts have examined this provision. The majority view
amendments are permitted. All votes under the CRA are
interprets the provision as prohibiting judicial review of any
simple majority votes.
statutory question arising under the CRA. Adopting this
view, multiple federal appeals courts have held they may
Does a CRA joint resolution of disapproval have to be
not void rules based on an agency’s alleged noncompliance
filed in each chamber? No. The CRA does not require that
“companion” disapproval
with the CRA. The minority view, adopted by a few federal
resolutions be introduced in both
trial courts, concludes that the provision prevents review of
the House and the Senate. In some parliamentary
Congress’s determinations, findings, actions, or omissions
circumstances, however, having a companion measure
made under the CRA—but does not preclude review of
might be advantageous. Having a measure submitted in
agency actions. The scope of the CRA’s bar on judicial
both the House and the Senate would enable either chamber
review continues to be litigated. There is particular
to act first. Additionally, if the Senate passed a CRA joint
uncertainty about whether the provision might bar a court
resolution of disapproval, the measure would be transmitted
from reviewing whether a new rule is substantially similar
to the House and held at the desk there. Because the Senate
to a disapproved rule.
measure is not referred to House committee, there is no way
for House supporters to force consideration of the
CRS Products
resolution through a discharge petition. If there is a House
CRS Report R43992, The Congressional Review Act
companion, on the other hand, a discharge petition could be
(CRA): Frequently Asked Questions, by Maeve P. Carey
filed on it, which, if successful, could ultimately result in
and Christopher M. Davis
the Senate legislation being sent to the President.
CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to
What happens if Congress adjourns before the CRA
Congress, by Valerie C. Brannon and Maeve P. Carey
introduction or action periods end? If, within 60 session
(Senate) or legislative (House) days after a rule is
submitted, Congress adjourns its session sine die, the
Maeve P. Carey, Specialist in Government Organization
periods to introduce and act on a disapproval resolution
and Management
described above reoccur in their entirety in the next session
Christopher M. Davis, Analyst on Congress and the
of Congress, beginning in each chamber on the 15th day of
Legislative Process
https://crsreports.congress.gov
The Congressional Review Act (CRA): A Brief Overview
IF10023
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