What is the Congressional Review Act?
The Congressional Review Act (CRA) gives Congress an expedited process to overturn new final “rules,” defined broadly to include new “major” rules (generally those with $100M+ annual effects), non-major rules, certain guidance, etc. Filibusters are not permitted. Only a simple majority and presidential signature are required for a CRA joint resolution of disapproval.
The CRA prohibits a rule from taking effect unless it is first submitted to Congress and GAO. The effective date of “major” rules must be delayed 60 days, and Congress must be provided with additional information to review.
Any member can introduce a CRA resolution to eliminate a new rule within a 60-day clock. If enacted, the agency is generally prohibited from issuing a rule that is “substantially the same.”
How does the CRA work?
- Congress has 60 days to pass a CRA resolution, beginning the day Congress receives the rule. The clock includes holidays and weekends, but not days when either chamber is adjourned for more than three days.
- In the Senate, “fast track” prevents a filibuster. In the House, a CRA moves under a special closed rule.
- Passage requires a simple majority in both chambers. A 2/3 majority can override a veto.
- If a rule (broadly defined) is not sent to Congress, GAO review can be requested. If GAO determines the action is in fact a “rule,” then publication of that finding in the Congressional Record starts the CRA’s 60-day clock.
What is the CRA “lookback”?
- If a rule is sent to Congress with 60 or fewer session days remaining before adjourning sine die, the CRA’s 60-day clock is reset on the 15th working day of the next annual session of Congress.
- Then, the 15th legislative (House)/session (Senate) day in the new year is treated as CRA review Day 1.
- This lookback provision allows a new Congress and a new President to overturn rules finalized near the end of an outgoing President’s term.
- Many believe the 119th Congress will be able to “look back” to rules sent to the 118th Congress after May 22, 2024, but the precise date often slides back and may well end up being as late as August or September 2024.
Is the CRA useful and effective?
Historically, the CRA has been most effective after a presidential election, when a new Congress and new President work together to overturn the final rules of an outgoing President. The CRA has led to 20 rules being overturned.
CRA resolutions of disapproval can serve to highlight and force votes on new rules. Congressional oversight is strengthened when GAO makes clear that key guidance documents are in fact rules.
The CRA also requires the Office of Information and Regulatory Affairs (OIRA) to determine whether new rules are “major,” thus empowering it to request, review, and provide to Congress and the public important information about the impacts of new rules. The effective date of “major” rules must also be delayed.
