Congressional Review Act

The Congressional Review Act (CRA)[1] is a law that was enacted by the United States Congress under House Speaker Newt Gingrich as Subtitle E of the Contract with America Advancement Act of 1996 (Pub.L. 104–121 (text) (pdf)) and signed into law by President Bill Clinton on March 29, 1996.[2][3] The law empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation.[4] Once a rule is thus repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule" (5 U.S. Code § 801(b)(2)). Congress has a window of time lasting 60 legislative days (i.e., days that Congress is actually in session, rather than simple calendar days) to disapprove of any given rule by simple majority vote; otherwise, the rule will go into effect at the end of that period.[5][6]

Prior to 2017, the CRA had been successfully invoked only once to overturn a rule (in 2001; see below).[7] In January 2017, however, with a new Republican president (Donald Trump), the Republican-controlled 115th Congress began passing a series of disapproval resolutions to overturn a variety of rules issued under the Obama administration. Ultimately, fourteen such resolutions repealing Obama administration rules were passed and signed into law; a fifteenth resolution was passed by the House but failed in the Senate. Because of the shortness of legislative sessions during the 114th Congress, the 115th Congress was able to target rules issued by the Obama administration as far back as May 2016.[8] In late 2017 and early 2018 Congress passed two resolutions repealing Consumer Financial Protection Bureau rules made by former President Obama's CFPB Director, Richard Cordray, who did not leave his post until late 2017.

Procedure

The law states that, as a condition precedent, an agency promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General that contains a copy of the rule, a concise general statement describing the rule (including whether it is a major rule), and the proposed effective date of the rule. A covered rule cannot take effect if the report is not submitted.[9]

The law provides a procedure for expedited consideration in the Senate. If the committee to which a joint resolution is referred has not reported it within 20 calendar days after the rule is received by Congress and published in the Federal Register, the committee may be discharged from further consideration by a written petition of 30 Senators, when the measure is placed on the calendar, and it is in order at any time for a Senator to move to proceed to the joint resolution.[9] If the Senate agrees to the non-debatable motion to proceed, debate on the floor is limited to up to 10 hours and no amendments to the resolution or motions to proceed to other business are in order. The Senate may then pass the joint resolution with a simple majority.[9] A joint resolution of disapproval meeting certain criteria cannot be filibustered.[10] For a regulation to be invalidated under the CRA, the Congressional resolution of disapproval must be either signed by the President or passed over the President's veto by two thirds of both Houses of Congress.[10][11]

Repeal proposal

On May 16, 2017, Senators Cory Booker and Tom Udall introduced S. 1140, a bill to repeal the Congressional Review Act; the bill received no action.[12]

Expanded possibilities

The CRA emerged as an attractive tool in the 115th Congress because it provides one of the few avenues for Senate action that avoids the ordinary 60-vote cloture requirement. As a result, several new theories about how to expand the reach and power of the CRA have been developed.

With regard to previously unsubmitted regulations

One previously under-appreciated provision of the CRA is its stipulation that rules do not go into effect until after they have been submitted to Congress. Since many rules over the last 20 years have never been submitted to Congress, some legal scholars have proposed that the rules are not actually in effect and may still be eligible to be overturned even if they were passed many years ago. According to the Pacific Legal Foundation (PLF), that could be accomplished in one of three different ways: (1) a rule could be submitted to Congress now by the Trump administration and then repealed by a joint resolution under the CRA, (2) the Trump administration could publish notice that a rule not in effect is being withdrawn or abandoned, or (3) a rule could be thrown out by a court on the grounds that it was never in effect.[7][13]

A variation on the idea was pursued later in the 115th Congress by Senator Pat Toomey (R-PA), who was looking for additional deregulatory pathways. Toomey has criticized government regulators for "regulat[ing] by guidance rather than through the process they're supposed to use, which is the Administrative Procedure Act" and has argued that an official determination that a particular piece of guidance "rises to the significance of being a rule" would mean that "from that moment the clock starts on the CRA opportunity".[14] Thus, in response to a request from Senator Toomey for a determination on whether a 2013 auto-lending guidance rule issued by the CFPB qualified as a "rule" under the terms of the CRA, the GAO issued an opinion on December 5, 2017, saying that it did, thus launching the 60-day CRA window according to the opinion of the Senate parliamentarian.[14][15] Subsequently, S.J. Res. 57 was introduced on March 22, 2018, to repeal the CFPB rule, an effort that has been described as a "trial balloon" and, if successful, would open the door to a greatly-expanded application of the CRA to various "rules" issued over the last few decades.[14][16] Other possible applications are already being explored, including a 2016 plan from the Bureau of Land Management, which the GAO confirmed was a rule for CRA purposes in response to a request from Senator Lisa Murkowski (R-AK).[14] On the other hand, the success of S.J. Res. 57 could prove to be a Pandora's box, setting a dangerous precedent and calling into question the legitimacy of many other rules in a way could create a climate of uncertainty and jeopardy for those who have been following or relying on them.[14][15] S.J. Res. 57 was signed into law on May 21, 2018.[17]

With regard to preemptive regulations

Another possible avenue for expanding the power of the CRA concerns its prohibition against any regulation being passed if it is "substantially similar" to one already repealed under the CRA without explicit Congressional approval. Some Republicans have therefore suggested that the Trump administration could preemptively introduce liberal regulations with the intention of having them immediately repealed under the CRA and thereby preventing a future Democratic administration from issuing substantially similar regulations.[18]

Use

Despite its passage in 1996, the Congressional Review Act was not used to send any resolutions of disapproval to the President's desk during the remainder of the presidency of Bill Clinton. President George W. Bush signed the only resolution of disapproval sent to him by Congress.[19] Congress passed five resolutions of disapproval during the presidency of Barack Obama, but he vetoed all of them. In the first four months of his term, President Donald Trump signed fourteen resolutions of disapproval into law.[20] At the White House, Andrew Bremberg, Marc Short, and Rick Dearborn coordinated with aides of Senator Mitch McConnell to use the CRA, creating an Excel spreadsheet of target regulations, eventually being able to eliminate over twice as many as they had anticipated.[21] The later enactment, in November 2017, of H.J. Res. 111 was notable for being the first time that a president signed a CRA resolution against a regulation issued during his own administration.[15]

Successful uses

The following is a complete list of successful uses of the CRA, as of May 21, 2018 (ordered according to when they became law):

Public Law	Date Enacted	Resolution	Description
Pub.L. 107–5 (text) (pdf)	March 20, 2001	S.J.Res. 6	Providing for congressional disapproval of the rule submitted by the Department of Labor relating to ergonomics
Pub.L. 115–4 (text) (pdf)	February 14, 2017	H.J.Res. 41	Providing for congressional disapproval of a rule submitted by the Securities and Exchange Commission relating to "Disclosure of Payments by Resource Extraction Issuers"
Pub.L. 115–5 (text) (pdf)	February 16, 2017	H.J.Res. 38	Disapproving the rule submitted by the Department of the Interior known as the "Stream Protection Rule"
Pub.L. 115–8 (text) (pdf)	February 28, 2017	H.J.Res. 40	Providing for congressional disapproval of the rule submitted by the Social Security Administration relating to Implementation of the NICS Improvement Amendments Act of 2007
Pub.L. 115–11 (text) (pdf)	March 27, 2017	H.J.Res. 37	Disapproving the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation
Pub.L. 115–12 (text) (pdf)	March 27, 2017	H.J.Res. 44	Disapproving the rule submitted by the Department of the Interior relating to Bureau of Land Management regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976
Pub.L. 115–13 (text) (pdf)	March 27, 2017	H.J.Res. 57	Providing for congressional disapproval of the rule submitted by the Department of Education relating to accountability and State plans under the Elementary and Secondary Education Act of 1965
Pub.L. 115–14 (text) (pdf)	March 27, 2017	H.J.Res. 58	Providing for congressional disapproval of the rule submitted by the Department of Education relating to teacher preparation issues
Pub.L. 115–17 (text) (pdf)	March 31, 2017	H.J.Res. 42	Disapproving the rule submitted by the Department of Labor relating to drug testing of unemployment compensation applicants
Pub.L. 115–20 (text) (pdf)	April 3, 2017	H.J.Res. 69	Providing for congressional disapproval of the final rule of the Department of the Interior relating to “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska”
Pub.L. 115–21 (text) (pdf)	April 3, 2017	H.J.Res. 83	Disapproving the rule submitted by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness”
Pub.L. 115–22 (text) (pdf)	April 3, 2017	S.J.Res. 34	Providing for congressional disapproval of the rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”
Pub.L. 115–23 (text) (pdf)	April 13, 2017	H.J.Res. 43	Providing for congressional disapproval of the final rule submitted by Secretary of Health and Human Services relating to compliance with Title X requirements by project recipients in selecting subrecipients
Pub.L. 115–24 (text) (pdf)	April 13, 2017	H.J.Res. 67	Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by qualified State political subdivisions for non-governmental employees
Pub.L. 115–35 (text) (pdf)	May 17, 2017	H.J.Res. 66	Disapproving the rule submitted by the Department of Labor relating to savings arrangements established by States for non-governmental employees
Pub.L. 115–74 (text) (pdf)	November 1, 2017	H.J.Res. 111	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Arbitration Agreements"
Pub.L. 115–172 (text) (pdf)	May 21, 2018	S.J.Res. 57	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act"

Pending

Vetoed by President

The following is a complete list of joint resolutions under the Congressional Review Act that were vetoed by the president after having been passed by both houses of Congress. Five of the six instances came under President Obama, and represented nearly half of the 12 regular vetoes he issued during his eight years in office.

Resolution	Congress	Year	Description	Fate
S.J.Res. 8	114th Congress	2015	Providing for congressional disapproval of the rule submitted by the National Labor Relations Board relating to representation case procedures	passed Senate 53–46 on March 4, 2015 passed House 232–186 on March 19, 2015 vetoed by Obama on March 31, 2015[22]
S.J.Res. 22	114th Congress	2015	Providing for congressional disapproval of the rule submitted by the Corps of Engineers and the Environmental Protection Agency relating to the definition of "waters of the United States" under the Federal Water Pollution Control Act	passed Senate 53–44 on November 4, 2015 passed House 253–166 on January 13, 2016 vetoed by Obama on January 20, 2016 motion to proceed on veto override not agreed to in Senate 52–40 on January 21, 2016[23]
S.J.Res. 23	114th Congress	2015	Providing for congressional disapproval of a rule submitted by the Environmental Protection Agency relating to “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units”	passed Senate 52–46 on November 17, 2015 passed House 235–188 on December 1, 2015 vetoed by Obama on December 18, 2015
S.J.Res. 24	114th Congress	2015	Providing for congressional disapproval of a rule submitted by the Environmental Protection Agency relating to “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”	passed Senate 52–46 on November 17, 2015 passed House 242–180 on December 1, 2015 vetoed by Obama on December 18, 2015
H.J.Res. 88	114th Congress	2016	Disapproving the rule submitted by the Department of Labor relating to the definition of the term “Fiduciary”	passed House 234–183 on April 28, 2016 passed Senate 56–41 on May 24, 2016 vetoed by Obama on June 8, 2016 override vote in House failed 239–180 on June 22, 2016
H.J.Res. 76	116th Congress	2020	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Education relating to "Borrower Defense Institutional Accountability".	passed House 231–180 on January 16, 2020 passed Senate 53–42 on March 11, 2020[24] vetoed by Trump on May 29, 2020 override vote in House failed 238–173 on June 26, 2020

Passed by only one chamber

Resolution	Congress	Year	Description	Fate
S.J.Res. 17	108th Congress	2003	Disapproving the rule submitted by the Federal Communications Commission with respect to broadcast media ownership	passed Senate 55–40 on September 16, 2003 not acted on by House
S.J.Res. 4	109th Congress	2005	Providing for congressional disapproval of the rule submitted by the Department of Agriculture relating to risk zones for introduction of bovine spongiform encephalopathy	passed Senate 52–46 on March 3, 2005 not acted on by House
S.J.Res. 28	114th Congress	2016	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Secretary of Agriculture relating to inspection of fish of the order Siluriformes	passed Senate 55–43 on May 23, 2016 not acted on by House
H.J.Res. 36	115th Congress	2017	Providing for congressional disapproval of the final rule of the Bureau of Land Management relating to “Waste Prevention, Production Subject to Royalties, and Resource Conservation”	passed House 221–191 on February 3, 2017 motion to proceed not agreed to in Senate 49–51 on May 10, 2017
S.J.Res. 52	115th Congress	2018	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to "Restoring Internet Freedom"	passed Senate 52–47 on May 16, 2018 not acted on by House
S.J.Res. 64	115th Congress	2018	Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of the Treasury relating to “Returns by Exempt Organizations and Returns by Certain Non-Exempt Organizations”	passed Senate 50–49 on December 12, 2018 not acted on by House

Did not pass either chamber

Resolution	Congress	Year	Description	Fate
S.J.Res. 20	109th Congress	2005	Disapproving a rule promulgated by the Administrator of the Environmental Protection Agency to delist coal and oil-direct utility units from the source category list under the Clean Air Act	failed in Senate 47–51 on September 13, 2005
S.J.Res. 30	111th Congress	2010	Providing for congressional disapproval of the rule submitted by the National Mediation Board relating to representation election procedures	motion to proceed not agreed to in Senate 43–56 on September 23, 2010
S.J.Res. 39	111th Congress	2010	Providing for congressional disapproval of the rule relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act	motion to proceed not agreed to in Senate 40–59 on September 29, 2010
S.J.Res. 36	112th Congress	2012	Providing for congressional disapproval of the rule submitted by the National Labor Relations Board relating to representation election procedures	motion to proceed not agreed to in Senate 45–54 on April 24, 2012
S.J.Res. 63	115th Congress	2018	A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Secretary of the Treasury, Secretary of Labor, and Secretary of Health and Human Services relating to "Short-Term, Limited Duration Insurance"	failed in Senate 50–50 on October 10, 2018

References

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Subtitle E appeared within Title II of the Contract with America Advancement Act of 1996, and Title II may be cited as the Small Business Regulatory Enforcement Fairness Act of 1996. Pub.L. 104–121 (text) (pdf), Section 201.
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