The Congressional Review Act: The Lookback Mechanism and Presidential Transitions

The Congressional Review Act: The Lookback Mechanism and Presidential Transitions

July 9, 2024
The Congressional Review Act: The Lookback Mechanism and
Presidential Transitions
The Congressional Review Act (CRA, 5 U.S.C. §§801-808)
issued near the end of the previous Administration—
is a tool that Congress can use to overturn federal
sometimes referred to as “midnight rules”—are eligible for
regulations. Enacted in 1996, the CRA requires that
review under the CRA. If Congress were to consider a joint
agencies submit covered rules to Congress and the
resolution of disapproval to overturn a rule issued by the
Government Accountability Office (GAO) before they may
prior Administration, a new President may be more willing
take effect. Congress then has a limited period of time to
to sign the joint resolution into law. (For more information
use special fast-track procedures to consider legislation
on midnight rulemaking, see CRS Insight IN11539,
overturning those rules. If a joint resolution of disapproval
Presidential Transitions: Midnight Rulemaking.)
is enacted, it has the effect of overturning the rule—either
by taking the rule out of effect immediately or by
The vast majority of the instances in which the CRA was
preventing it from taking effect at all. If the rule had already
used to overturn rules took place during such a period. Of
gone into effect, it is to be treated as though it was never in
the 20 rules that have been overturned by the CRA, 18 were
effect. Furthermore, the agency is prohibited from reissuing
issued by prior, outgoing Administrations.
the rule in “substantially the same form” unless Congress
provides additional statutory authorization.
CRA Time Periods for Review
Under the CRA, before a final rule can take effect, an
The CRA also has a feature that is sometimes referred to as
agency must submit that rule to both houses of Congress.
its “lookback mechanism.” The lookback mechanism
After a rule is received in both chambers and published in
provides Congress with additional time to review rules that
the Federal Register, the CRA establishes specific time
were submitted toward the end of the previous session. This
periods during which Congress can introduce and act on a
feature is most relevant as the end or potential end of a
joint resolution that, if enacted, would disapprove the rule.
President’s Administration approaches, because a new
Specifically, the CRA creates:
Congress and new President might be able to more easily
overturn rules issued by the outgoing Administration.
• an “introduction” period, which lasts for 60 calendar
days (excluding days on which either house has
This In Focus describes why the lookback mechanism is
adjourned pursuant to a concurrent resolution), during
most relevant during a presidential transition, describes how
which joint resolutions disapproving the rule can be
the lookback date is calculated, and makes a general
introduced in either chamber;
estimate about when the lookback date might fall in 2024
under certain assumptions.
• a “discharge” period, which lasts for 20 calendar days,
after which a petition signed by 30 Senators can be filed
Relevance of the CRA in Presidential
to discharge a Senate committee from the further
Transitions
consideration of a CRA joint resolution of disapproval;
Like regular legislation, a CRA joint resolution of
and
disapproval requires passage in both chambers of Congress
and signature by the President to become law. Obtaining the
• a “Senate action” period, which lasts for 60 days of
President’s support to overturn a rule issued by his own
Senate session, during which a disapproval resolution
Administration is an unlikely prospect, however, and
can be considered in the Senate under “fast track”
creates a practical challenge for using the CRA: Most of the
parliamentary procedures that permit a simple majority
time, when presented with a joint resolution of disapproval,
to call up and reach a final vote on the joint resolution
a President can be expected to veto it. Congress could
without a cloture process.
attempt to override a presidential veto, but that requires a
two-thirds majority of each house of Congress. This creates
All three of these time periods begin upon receipt and
a de facto supermajority requirement for a CRA joint
publication of the rule, and they run simultaneously.
resolution of disapproval to be enacted in most cases.
For rules not submitted to Congress but nevertheless
The exception to this, however, is the first few months of a
determined by GAO to be covered by the CRA’s definition
new presidential Administration, particularly if the new
of rule, under current practice, the three time periods begin
President is of a different party and therefore has different
to run once the GAO opinion has been published in the
policy preferences than the previous President. Due to the
Congressional Record.
structure of the time periods during which Congress can
take action under the CRA, there is a period at the
beginning of each new Administration during which rules
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The Congressional Review Act: The Lookback Mechanism and Presidential Transitions
The Lookback Mechanism
lookback provisions and will qualify for additional periods
Section 801(d) of the CRA provides that if a rule is
of CRA review in the first few months of the first session of
submitted to Congress either less than 60 days of session in
the 119th Congress (2025). These renewed periods of
the Senate or less than 60 legislative days in the House of
review are likely to permit disapproval resolutions aimed at
Representatives before Congress adjourns a session of
such rules until late March 2025 and make the CRA “fast
Congress sine die, a new period for congressional review of
track” procedures available to consider such joint
that rule becomes available in the next session of Congress.
resolutions in the Senate until late May or early June 2025.
For this purpose, the “lookback” rule is treated as if it had
This unofficial estimate of the general start of the CRA
been submitted to Congress and published in the Federal
lookback period for 2024 was determined by counting back
Register on the 15th legislative day (House) or session day
from an estimated sine die adjournment of the second
(Senate) of the succeeding session for purposes of
session in the respective chambers—assumed to be January
calculating the time periods described above. This 15th day
3, 2025—60 days of session in the Senate and 60 legislative
is sometimes referred to as the date of “constructive
days in the House, as projected by the 2024 announced
resubmission” of the rule. That is, the lookback period rule
calendars, then taking the earlier of the two dates. This
is treated as if the 15th day of the new session was the first
unofficial estimate assumes that the chambers will meet
time the rule had ever been received and published for
exactly as projected by these House and Senate announced
purposes of CRA oversight, and that is the day the
calendars and that no adjournment resolutions will be
“introduction,” “discharge,” and “action” periods begin
adopted. Should these assumptions change, the lookback
anew on that rule.
date estimate will also necessarily change.
The idea behind the lookback provision is that, if a rule is
It is important to note that CRS day count estimates are
submitted to Congress so late in a session that the House or
unofficial and nonbinding. The Senate and House
Senate do not get the full period contemplated by the law to
Parliamentarians are the sole definitive arbiters of the
review it, the periods for CRA review are available again in
operation of the CRA mechanism, including its associated
their entirety the next session. The provision is intended to
time periods, and should be consulted if a formal opinion is
prevent any Administration from waiting until just before
desired. CRS can, however, provide congressional clients
Congress adjourns a session to submit rules to the House
with unofficial day count estimates of the action windows
and Senate, denying them the full period contemplated by
for specific rules and identify submitted rules that appear
the CRA to review those rules.
likely to be in the CRA lookback period.
Accordingly, rules submitted to Congress prior to both the
Other Mechanisms for Overturning
60th day of Senate session and the 60th House legislative day
Rules During a Presidential Transition
before the day of the adjournment will not be subject to the
The CRA is one way in which Congress can use its
additional periods for review in the following congressional
legislative power to overturn a rule. However, Congress can
session. Rules submitted on or after the 60th such day before
always use its legislative power to consider regular
sine die adjournment in at least one chamber will be subject
legislation to overturn a rule. Regular legislation can be
to the renewed periods for congressional review. These
considered at any time, unlike the CRA, although it would
“lookback” provisions are applied in the same way
not be considered under fast-track procedures. Congress can
regardless of whether the session in question is the first or
also use the appropriations process to prevent a rule from
second session of a two-year Congress, but, as noted above,
being finalized or implemented.
they have particular relevance in a second session that
coincides with a presidential election.
New presidential Administrations also have additional
means to overturn or halt regulations issued by the prior
Estimating the 2024 Lookback Date
Administration. A new Administration may be able to
It is not possible to know with certainty what date the 2024
amend or rescind regulations using the federal rulemaking
lookback period will begin until the end of the 118th
process. In addition, all recent Administrations have issued
Congress. This is because to properly calculate the
memoranda to agencies immediately following
lookback period, one must know the exact date of sine die
inauguration calling for agencies to halt progress on
adjournment and know exactly how many days each
regulations that were underway during the prior
chamber met prior to adjourning. Specifically, to calculate
Administration so that the new Administration may take
the start of the CRA lookback period, one would count
stock and decide which regulations to proceed with and
backward from the date of sine die adjournment 60 days of
which regulations it will no longer continue to pursue.
session in the Senate and 60 legislative days in the House.
The earlier of the two dates arrived at by this calculation
Maeve P. Carey, Specialist in Government Organization
would mark the beginning of the lookback period.
and Management
Christopher M. Davis, Analyst on Congress and the
However, one can estimate when in the year the lookback
Legislative Process
date is likely to fall. CRS unofficially estimates that Biden
Administration rules submitted to the House or Senate on or
IF12708
after August 1, 2024, until the end of the second session of
the 118th Congress are likely to be subject to the CRA

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The Congressional Review Act: The Lookback Mechanism and Presidential Transitions

Disclaimer
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