Overview of the Congressional Review Act (CRA)
The CRA requires agencies to submit final rules—major rules, non-major rules and interim final rules—to Congress and the Government Accountability Office (GAO) prior to the rules taking effect.
If an agency fails to submit a rule , members of Congress can request a formal opinion from the GAO as to whether an unsubmitted action meets the CRA definition of a rule, and therefore must be submitted under CRA procedure. If the GAO determines that a rule meets CRA requirements, the Senate publishes such an opinion in the Congressional Record. In rare instances, the CRA may also be used to rescind guidance documents, as the GAO has set precedent by issuing opinions that certain guidance documents qualify as “rules” under the CRA because they represented “general statements of policy.”
Under the CRA, once the rule is submitted to Congress, any member can introduce a joint resolution disapproving of an agency’s final rule, at which point only a simple majority in both chambers is needed for the measure to head to the president’s desk. If the president vetoes a resolution, a two-thirds majority vote in both chambers would be necessary to override.
The time frame for which Congress may use the disapproval procedure is generally 60 days of continuous session—every calendar day, including weekends and holidays, and excluding only days that either chamber (or both) is gone for more than three days following an adjournment resolution—from the date that a rule is submitted to Congress. If a rule was not submitted, but the GAO determines it meets CRA requirements, the Senate has a procedure in place in which it may consider the date the opinion was published in the Congressional Record as the beginning of the period for that particular rule.
If a final rule is submitted to Congress when the adjournment of the session prevents either chamber from having the full 60-day review period, the review period “restarts” during the next year. That “lookback” mechanism, under Section 801(d) of the CRA specifically states that if a rule is submitted to Congress within 60 session (Senate) or legislative (House) days before sine die adjournment in either chamber, a new period for congressional review opens for the incoming session of Congress.
That Congress then operates as though the rule had been submitted to Congress and the Federal Register on the 15th working day of the incoming Congress, at which point a new 60-day review period is opened. The Congressional Research Service has estimated that agency rules submitted to Congress after July 29, 2022, can be subject to CRA review periods during the 118th Congress.
Relatedly, while the CRA does not establish an expedited procedure for a joint disapproval resolution’s consideration in the House, the Senate has “fast track” provisions which mean a CRA joint disapproval resolution cannot be filibustered if it meets certain criteria within the chamber.
If a resolution of disapproval is signed into law or Congress overrides a presidential veto, the rule in question is prohibited from either going into effect, or continuing in effect immediately and “shall be treated as though the rule had never taken effect.”
Additionally, the federal agency which promulgated the rule is prohibited from “reissuing” the same regulation in the future or developing a regulation that is “substantially” similar, unless the new, or revised, regulation is “specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” The CRA omits language defining what would constitute a rule that is “substantially the same,” as a nullified rule, and declines to indicate who would make such a determination. Section 805 of the CRA notes that any “determination, finding, action, or omission,” made pursuant to the CRA is shielded from judicial review—a provision which most courts have upheld.
Below, NCSL will provide updates on which joint resolutions have been signed into law, are awaiting the president’s signature, and have passed either the House or the Senate. For actions prior to 2023, please see NCSL's Congressional Review Act Resolution Tracker. Please check back periodically, as the website will be updated as action is taken.