Congressional Review Act

The Congressional Review Act (CRA) enables Congress to disapprove a final rule issued by a federal agency. A rule disapproved using this mechanism is not only nullified; the agency is also prevented from reissuing a “substantially similar” rule in the future unless Congress authorizes it to do so via subsequent legislation. Congress generally has 60 days to review rules, but there is a provision that also allows an incoming Congress to review the last 60 days of rules issued during the previous Congress.

Question: Which agency actions issued during the Trump Administration can the new Congress disapprove using the Congressional Review Act?

Answer from Daniel Pérez: "Our best estimate is that all regulatory actions issued on or after August 21, 2020 are subject to expedited disapproval under the CRA. The definitive date is pending a formal opinion issued by the House and Senate Parliamentarians."

This Regulatory Insight provides a detailed explanation into what the Congressional Review Act is, how it has been utilized, and what effect it has had on the rulemaking process. After providing a break background on the CRA this report reviews the mechanisms for disapproval of rules by the House and Senate, and explains the Special Lookback Provision which may leave you questioning the definition of a "day." Next we dive into what the ramifications are for rules disapproved by Congress, and recaps the types of actions that are subject to CRA disapproval. Additional readings from the Congressional Research Service are also provided.

Data and charts on the rules published at the end of the Trump administration that could be nullified under the CRA.

View rules in the CRA Window (Google Sheets) | Download Rules in the CRA Window (GWU box)

Previous CRA Activity Tracker (PDF)

GW Regulatory Studies Center -- Updated: 3/20/20 Bill Title Issuing Agency Rule Passed House Passed Senate Sent to President President's Signature S.J. Res. 34 Protecting the Privacy of Customers of Broadband and Other Telecommunications Services FCC 81 FR 87274 3/28/17 3/23/17 3/30/17 4/3/17 H.J. Res. 36 Waste Prevention, Production Subject to Royalties, and Resource Conservation BLM 1004-AE14 2/3/17 Failed H.J. Res. 37 Federal Acquisition Regulation; Fair Pay and Safe Workplaces DOD/GSA 9000-AM81 2/2/17 3/6/17 3/16/17 3/27/17 H.J. Res. 38 Stream Protection Rule DOI 1029-AC63 2/1/17 2/2/17 2/6/17 2/16/17 H.J. Res. 40 Implementation of the NICS Improvement Amendments Act of 2007 SSA 0960-AH95 2/2/17 2/15/17 2/16/17 2/28/17 H.J. Res. 41 Disclosure of Payments by Resource Extraction Issuers SEC 3235-AL53 2/1/17 2/3/17 2/6/17 2/14/17

This Congressional Review Act Tracker provides a list of affirmative actions that at least one chamber of Congress took to disapprove of a rule issued by an agency during the previous session. You will be able to see each of the resolutions by Congress, what agency issued the rule, and when Congress or the president took action.

The number of CRA lookback window openings since 1996, by month.

A step-by-step guide showing how the lookback provision functions within Congress.

8/25/20 - By Bridget C.E. Dooling, forthcoming in the American University Law Review

Known mostly for its role as an auditor, the Government Accountability Office’s activities have expanded over time. As part of this expansion, the GAO became a referee in an increasingly important part of the administrative state: determining which actions are “rules” under the Congressional Review Act. The significance of these opinions, which are not binding as a matter of law, has grown as legislators use them strategically in regulatory politics.

12/11/19 - By Daniel R. Pérez

The Congressional Review Act allows Congress to disapprove regulations issued by agencies and contains a lookback provision that places almost six months of rulemaking in jeopardy of elimination by the next Congress. The window for this period of review opens in 2020, but agencies will have to weigh the tradeoffs of rushing to publish their rules before the window. According to the 2020 House calendar, any rules issued after May 19, 2020 may be subject to review by the 117th Congress. However, historical data suggest the lookback period is more likely to begin sometime in July or early August of 2020.

10/31/17 - By Susan E. Dudley
Op-ed in Forbes

Though the window for disapproving rules seemed to close in May, the CRA is not quite ready for mothballs yet. Not only did Congress disapprove a CFPB rule last week, but it appears poised to veto agency guidance documents using new interpretations from GAO and the Senate Parliamentarian.

11/8/17 - By Susan E. Dudley

Congress continues to make history by exercising its powers under the CRA to eliminate rules issued at the end of the Obama administration. To date, 13 resolutions of disapproval have passed both chambers of Congress; two additional bills have passed the House. President Trump has signed eight of these into law with three additional resolutions awaiting his signature. Finally, the Senate passed two more resolutions on March 30th which should be sent to the president soon. Prior to 2017, Congress had only successfully struck down a single rule using the CRA.

4/4/17 - By Daniel R. Pérez

The 115th Congress has wasted no time in exercising its powers under the Congressional Review Act to eliminate regulations issued by federal agencies during the Obama administration. Currently, eight joint resolutions of disapproval have passed the House—two of which were delivered to the president for his signature on February 6. President Trump signed one of these into law on February 14. This marks the first time in 16 years since Congress has successfully used the CRA to eliminate a regulation.

3/7/17 - By Susan E. Dudley
Op-ed in Forbes

Congress and the president have used the Congressional Review Act to overturn three rules issued in the waning days of the Obama Administration. But, there’s new interest in the possibility that the Act’s coverage extends beyond these so-called “midnight regulations.”

2/15/17 - By Daniel R. Pérez

The CRA has been getting much attention recently. Not only did President Trump sign his fifteenth resolution disapproving a CFPB regulation last week, but this action marked the first time a president had disapproved a regulation issued during his own tenure. Congress is also taking steps to apply the CRA to guidance documents and other non-APA agency regulatory actions. These recent actions suggest the CRA is likely to continue to influence the development, implementation, and enforcement of regulation.