The 118th Congress and the Congressional Review Act “Lookback” Mechanism

The 118th Congress and the Congressional Review Act “Lookback” Mechanism

INSIGHTi

The 118th Congress and the Congressional
Review Act “Lookback” Mechanism
December 1, 2022
With a change in party majority taking place in the House of Representatives in the 118th Congress (2023-
2024), there has been renewed interest by some lawmakers in a provision of the Congressional Review
Act (CRA, 5 U.S.C. §§801-808) commonly known as the CRA “lookback” mechanism. This provision of
the act allows, for a limited time, a new Congress to access special “fast track” parliamentary procedures
to consider a joint resolution disapproving an agency rule submitted late in the previous session of
Congress. The CRA lookback mechanism potentially offers a brief period at the beginning of the 118th
Congress where the House may be able to pass and send to the Senate for its consideration, under
expedited parliamentary procedures, a joint resolution disapproving a rule issued by the Biden
Administration late in 2022. A joint resolution would have to become law—that is, be signed by the
President or enacted over his veto—to invalidate a rule.
The CRA, enacted as part of the 104th Congress’s (1995-1996) “Contract with America,” established a
special parliamentary mechanism whereby Congress can, by enacting a joint resolution into law,
disapprove a rule promulgated by a federal agency. Whenever a rule is finalized and submitted to
Congress under the CRA, it is subject to an overall period of congressional review, lasting approximately
60 days of Senate session, where “fast track” parliamentary procedures are available, primarily in the
Senate, to consider a joint resolution invalidating the rule.
If a rule is submitted to Congress so late in the year, however, that the final adjournment of the session
prevents either chamber from enjoying this full 60-day review period, that CRA review period—and its
associated “fast track” parliamentary procedures—occur again in their entirety in the next session of
Congress. This mechanism is called the CRA “lookback” mechanism.
Specifically, Section 801(d) of the CRA provides that, if a rule is submitted to Congress with either fewer
than 60 days of session in the Senate or fewer than 60 legislative days in the House of Representatives
before Congress adjourns a session sine die, a new period for congressional review of that rule becomes
available in the next session. For this purpose, a rule is treated as if it had been submitted to Congress and
published in the Federal Register on the 15th legislative day (House) or 15th session day (Senate) of the
new session for purposes of starting the renewed review periods. The lookback mechanism is intended to
ensure that an Administration cannot deny Congress the full periods for review and action on rules
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CRS INSIGHT
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contemplated by the CRA simply by waiting until shortly before Congress adjourns for the year to submit
the rule.
Said another way, rules submitted to Congress prior to both the 60th day of Senate session and the 60th
House legislative day before the day of the adjournment will not be subject to the additional periods for
review in the following congressional session. Rules submitted on or after the 60th day before sine die
adjournment in at least one chamber will be subject to the renewed periods for congressional review.
These lookback provisions are applied in the same way regardless of whether the session in question is
the first or second session of a Congress. They hold special import, however, in instances in which the
first session of a Congress coincides with a new congressional majority in one or both chambers and/or a
President of a different party than the prior President.
The projected second-session meeting schedules of the House and Senate issued by each chamber’s
majority leader may be used to estimate the date in 2022 after which rules submitted to Congress will be
subject to the renewed CRA review periods in 2023. The estimated start of the lookback period for all
rules is determined by counting back from the projected sine die adjournment in the respective chambers
(assumed in this case to be January 3, with no adjournment resolutions adopted)—60 days of session in
the Senate and 60 legislative days in the House—then taking the earlier of the two dates. Using this
calculation, CRS currently estimates that agency rules submitted to one or both chambers after July 29,
2022, will be subject to renewed CRA review periods in 2023. Should the chambers deviate from the
schedule projected by the party leaders, this estimate will necessarily change.
CRS day count estimates are unofficial and non-binding; the Senate and House Parliamentarians are the
sole definitive arbiters of the operation of the CRA mechanism and should be consulted for guidance on
specific procedural questions. CRS can assist congressional clients, however, by providing unofficial
estimates of the periods to review rules under the CRA, as well as lists of late-submitted agency rules that
could potentially be subject to renewed CRA review in the opening months of the 118th Congress.
For more information on the CRA and the CRA “lookback” mechanism, see:
 CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions,
by Maeve P. Carey and Christopher M. Davis
 CRS Report R46690, Congressional Review Act Issues for the 117th Congress: The
Lookback Mechanism and Effects of Disapproval, by Maeve P. Carey and Christopher M.
Davis

Author Information

Christopher M. Davis

Analyst on Congress and the Legislative Process

Disclaimer

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This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
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