Introduction: The Provenance, History, and Purpose of the Congressional Review Act

The number of pages in the Federal Register containing new rules promulgated annually by federal agencies greatly outpaces the corresponding number of pages in the Statutes at Large containing a year’s new legislation.REF Both major political parties are guilty.REF One explanation for that imbalance is that Congress commonly punts to an agency the responsibility to decide important or divisive issues that have bewitched Members because of honest uncertainty over their resolution or entrenched partisan disagreement.REF For that reason alone (although there are more), some administrations govern the nation via agency regulations or guidance documents instead of by legislation. The result is that “[a]gency rulemaking has effectively replaced congressional lawmaking as the primary mode of American governance.”REF

That phenomenon is likely to occur during the final year of an Administration as the outgoing President attempts to write his legacy into the history books, particularly as he or she turns the White House keys over to the incoming person belonging to the other major party. From at least the November of a presidential election year through the following January 20 when a new Administration takes office, agencies try to pass what have been termed “midnight rules” to carry forward into law policies that might not—or assuredly would not—be endorsed by the incoming President.REF At such times, a federal statute known as the Congressional Review Act (CRA) might come into play to prevent an outgoing Administration from leaving above-ground or submerged mines to sink or obstruct the revisionary policies of the incoming Administration.REF

Enacted in 1996 with bipartisan support,REF the CRA was Congress’s second major attempt through general legislation to corral agency governance through rules.REF The first such device was the “legislative veto.” Sprinkled through the U.S. Code were nearly 300 provisions that enabled both chambers of Congress, or sometimes merely one, to pass a resolution that had the effect of nullifying an agency rule or some other agency action.REF Although the legislative veto was a politically attractive approach for all Members of Congress because it enhanced their legislative authority, it was a controversial mechanism because it appeared to conflict with the bicameralism and presentment requirements that Article I, § 7, requires before a “Bill” may become a “Law.”REF That is, congressional vetoes could permit one chamber of Congress to nullify a presumptively lawful agency action without the assent of the other chamber or the President even though Article I requires the agreement of all three to enact a law. Decades of debate in the academy produced no agreement on the legitimacy of that practice.REF Eventually, a case reached the Supreme Court of the United States, which held in its 1983 decision in INS v. Chadha that the legislative veto is unconstitutional.REF It took a while for Congress to respond to Chadha, but in 1996, the CRA ultimately became Congress’s attempt to reassert control over the Fourth Branch of government.REF

The CRA empowers Congress expeditiously to review and nullify improvident agency rules. It does so principally in two ways. First, it requires every agency to submit every new rule to the Comptroller General, the House of Representatives, and the Senate so that Congress has the opportunity, with the advice of the Comptroller General, to review the rule before it can take effect. Second, it creates a so-called fast-track process enabling Congress to vote up or down on a joint resolution of disapproval of every new rule without the delay occasioned by Senate practices, particularly the filibuster.REF A joint resolution passed by each chamber then goes to the President for his signature or veto. If the President signs it (or it is repassed by a two-thirds vote of each chamber following the President’s veto), the statute nullifies the rule and bars an agency from later adopting any “substantially similar” rule absent the passage of a new act of Congress.REF

Generally speaking, the CRA has not played a major role in cabining the reach and growth of the administrative state. From 1996 to 2019, more than 200 resolutions of disapproval were introduced, but only 20 became law.REF After all, the White House Office of Management and Budget (OMB) reviews agency rules to ensure (inter alia) that they do not depart from the Administration’s policies. The President therefore has the opportunity to reject a new rule before it goes into effect, thereby making it less likely that he or she would be willing to veto a congressional joint resolution of disapproval—which, in turn, makes it less likely that Congress would spend its time on a resolution that would be headed for a certain veto.REF

But a different scenario occurs when a new Administration first comes into office with a majority of the House and Senate in the hands of the President’s own party.REF In that case, the President and Congress might conclude that a full regulatory housecleaning is necessary to eliminate the outgoing party’s policies that the electorate rejected in the preceding November election.REF The new Congress and President can use the CRA to claw back agency rules issued during the last year of the prior Administration.REF We were in that position during the first Trump Administration and, now that the Biden Administration’s interregnum is drawing to a close, are about to witness the same scenario arise during at least the first two years of the second Trump Administration.

In contrast to earlier transitions, during which the CRA was used successfully only once,REF President-elect Donald Trump used the CRA with alacrity during his first term in office.REF Interested in remaking the regulatory state to lift what he perceived as inefficient, burdensome, and unnecessary regulatory and permitting requirements,REF he issued a series of executive orders designed to eliminate (or reduce to the extent possible) adverse effects on economic growth; prevent agency officials from engaging in ultra vires activities; and use a cost-benefit analysis to decide whether, and if so how, to regulate the public.REF Atop that, however, the President signed 16 CRA joint resolutions of disapproval passed by Congress to nullify the effect of agency rules adopted during the Obama Administration.REF

The Purpose, Operation, and Effect of the CRA

Congress designed the CRA to operate as closely to a legislative veto as the Supreme Court’s Chadha decision would allow.REF The CRA therefore accommodates the bicameralism and presentment requirements that Chadha requires. It does so by requiring the assent of each chamber of Congress and the President before a rule may be nullified. To do so, the CRA requires every agency, including so called independent agencies,REF to submit to the Comptroller General and each chamber of Congress a copy of a new rule before it can take effect. That allows Congress, with the assistance of the Comptroller General, to review the rule’s legality, wisdom, costs, and benefits before it can adversely affect anyone. If the House of Representatives and the Senate are each troubled by a rule, they can use an expedited procedure to pass a joint resolution of disapproval and submit it to the President. If he or she signs it, or if, after his or her veto, each chamber repasses the resolution by a two-thirds vote, the rule is deemed null and void. The CRA also provides that an agency may not repromulgate either that rule or one that is “substantially similar” unless and until a new substantive law justifying the rule takes effect.REF

Accordingly, it is important to answer the following questions: (1) What “rules” trigger the operation of the CRA? (2) What happens once the act is engaged? (3) What is the effect of the President’s decision to sign a joint resolution of disapproval? The next three subsections answer those questions.

What Is the Definition of a “Rule” for Purposes of the CRA?

The CRA incorporates the definition of the term “rule” found in the Administrative Procedure Act (APA),REF which defines that term as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.”REF Rules can take various forms: regulations, guidance documents, manuals, opinions, letters, and so forth. Whatever the particular format of an agency’s discussion might take, numerous documents would qualify as “rules” for purposes of the CRA. While not every agency document or position is a “rule” for CRA purposes,REF numerous parties—such as the federal courts,REF the U.S. Department of Justice,REF the Government Accountability Office (GAO),REF the Congressional Research Service,REF and various scholarsREF—have concluded that the term “rule” should be read and applied broadly to ensure that Congress can review any generally applicable implementation, interpretation, or prescription of law or policy by unelected agency officials before they can direct others with respect to what federal law prohibits, requires, or allows.

It makes sense to interpret the term “rule” in that broad sense given the purposes of the CRA.REF Congress intended that the CRA would reach every agency document that sought to impose legal requirements on private parties.REF Agencies commonly use a host of formal and informal memoranda to offer their positions on the interpretation of federal law and policy, and Members of Congress are savvy enough to be aware of that practice.REF A narrow construction of “rule” would encourage agencies to disguise the import of their memoranda and even hide them from the public. That would prevent the public from learning about potential legal pitfalls or opportunities before it was too late and keep Congress from overseeing the operation of the agencies. That is important even though it is no longer the case, as it was when the CRA was passed, that the federal courts must defer to an agency’s reasonable interpretation of a vague or ambiguous statute.REF Even though an agency’s interpretation of the law is not controlling on the courts, the in terrorem effect of an agency’s views—particularly on individuals and small businesses, which cannot afford the expensive litigation necessary to challenge an agency’s legal interpretation—militates in favor of ensuring that Congress has the opportunity to review an agency rule before it can have an adverse public effect.

What Happens Once an Agency Submits a New Rule to the Comptroller General and Congress?

The Clocks. The CRA creates an expedited process by which Congress can prevent stalling and quickly review and nullify a rule by passing a joint resolution of disapproval for the President’s signature or veto.REF That review process contains three different clocks that are triggered by the filing of a new rule with Congress and the Comptroller General.REF

The first clock starts a 15-day period for the Comptroller General to analyze for Congress a “major rule”REF—that is, a rule that would have a major effect on the economy.REF As part of that analysis, the Comptroller General must determine whether the agency has complied with various specified acts of Congress and has completed a cost-benefit analysis of the new rule.REF The second clock gives Congress 60 days to use the expedited process to decide whether to nullify a rule, except in cases of adjournment.REF The third clock addresses the effective date of a new rule. It provides that, generally speaking, no rule may take effect until 30 days have passed since its submission.REF

Given the running of those clocks, three issues become important: (1) When must an agency submit a new rule to Congress and the Comptroller General? (2) What happens once that submission occurs? (3) How does the expedited congressional procedure work?

The Filing Date of the New Rule. The filing date of the agency’s new rule with Congress and the GAO is critical to the operation of the CRA. The act provides that, before an agency “rule” can go “into effect,” the issuing agency must submit the rule to the House of Representatives and Senate so that each chamber can review its effect and vote on a bill to nullify a particular action.REF

The text of the CRA is clear about that condition. It provides as follows: “Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing” the following elements: “(i) a copy of the rule; (ii) a concise general statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.”REF In addition, the CRA provides that the congressional review period “does not commence until ‘the later of the date on which’ the Federal Register publishes the rule or on which ‘Congress receives the report’ required by the Act.”REF The text of the CRA thus clearly states that the 60-day period for Congress to consider a rule does not commence unless and until an agency submits its report.

As one scholar has noted, “There is nothing particularly mysterious or complicated about this mandate” because “[t]he very first sentence” of the CRA “states that, ‘Before a rule can take effect, the Federal agency promulgating’” the rule “shall submit to each House of the Congress and to the Comptroller General” a report containing certain specified items.REF In short, an unsubmitted rule is not yet “in effect.” Why? Because Congress wanted to ensure that an agency could not deny Congress its ability to nullify a rule by refusing to submit the rule to Congress. The contrary interpretation would nonsensically reward an agency for thumbing its nose at the CRA and Congress.REF

The consequence of failing to submit a rule to Congress is that, because the clock never begins to run, Congress and the President can take advantage of the CRA’s fast-track procedures to nullify a rule that was issued years earlier. For example, in 2018, the Article I and II branches combined to nullify a guidance document adopted by the Consumer Financial Protection Bureau in 2013.REF This is significant because there are estimates that agencies have failed to submit thousands of rules to Congress.REF Any unsubmitted rule is therefore a potential subject of a CRA nullification, regardless of how long ago it was adopted.REF

The Debate and Vote on a Resolution of Disapproval. If a Member of Congress introduces a disapproval resolution, the bill will come up for a vote pursuant to a “fast-track” procedure that avoids parliamentary delays, including (perhaps especially) a delay in committee or a Senate filibuster.REF If both chambers pass the resolution, it goes to the President for his signature or veto in the same manner as any other “Bill” passed by Congress.REF

What Happens When the President Signs a Joint Resolution of Disapproval?

If the President signs the resolution, or if Congress overrides his veto by the requisite two-thirds vote in each chamber, the rule becomes null and void. Moreover, to prevent agency shenanigans—such as issuing a new rule with only trivial or cosmetic changes—the CRA provides that an agency cannot re-adopt a nullified rule or a “substantially similar” one unless Congress passes new authorizing legislation justifying reissuance of the rule.REF The reason is that the now-passed-into-law disapproval resolution amends the underlying statute on which the agency relied for its rule.REF The disapproval resolution has the effect of adding a codicil to the underlying statute providing that “Statute A does not authorize the agency to issue Rule X.” In fact, by prohibiting an agency from adopting a new rule that is “substantially similar” to the now-invalidated rule, Congress has created a buffer zone around the original rule to make it clear that Congress means business when it acts under the CRA.REF

How to Improve the CRA

Congress could improve the CRA by revising it in (at least) two respects.

First, the text of the CRA contemplates that Congress will consider each agency rule on a stand-alone basis rather than combining them in order to save time.REF It is uncertain whether the CRA authorizes Congress to package multiple agency rules into a single package “Bill” that would be subject to an up-or-down vote on the entire package.REF Unlike some state constitutions,REF Article I of the U.S. Constitution does not contain a “single subject” requirement,REF and Congress often combines multiple topics into one bill.REF Nonetheless, the CRA does refer to “the rule” when identifying one of the items that an agency must send to Capitol Hill, so there is some ambiguity in this regard. Accordingly, it would make sense for Congress to clarify this issue by revising the CRA to make it clear that Congress can draft a disapproval resolution that nullifies multiple agency rules in one “Bill.”

Second, Congress should also make it clear that the federal courts may review an agency’s refusal to comply with the CRA submission requirements.REF It should go without saying that, because an unsubmitted agency rule is not yet “in effect” if it has never been submitted to Congress, the courts—whose “province and duty,” quite “emphatically,” is to “say what the law is”REF—should be able to decide whether, in an agency enforcement action or in a declaratory judgment action brought by an affected party, a particular agency rule is null and void because it has never been submitted to Congress as required by the CRA.REF Nonetheless, some courts, including the United States Court of Appeals for the District of Columbia, have concluded that courts cannot review an agency’s compliance with the CRA because that act forecloses judicial review of all such issues.REF I have explained elsewhere why I find that this interpretation of the CRA (to be kind) is blinkered.REF Congress could and should revise the CRA to make it clear that a court always may rule on an agency’s compliance with an act of Congress—in this case, the CRA.

Conclusion

The Congressional Review Act enables Congress to review the work of the administrative state and, together with the President, expeditiously consider and reject any rule that an agency adopts. Once a new rule has been submitted to Congress, an agency may rely on the rule after the CRA review period has expired, but an agency cannot threaten or take an adverse action against anyone based on the purported authority found in an unsubmitted rule. The CRA’s text and purposes demand that a rule never submitted to Congress cannot yet be deemed “in effect,” regardless of the form that the rule might take. Put differently, an agency cannot run out the clock on Congress’s time to review a rule that never started, because the clock never starts until the agency submits the rule as the CRA requires.

Working together seven years ago, Congress and the first Trump Administration proved that the CRA is a valuable tool with which to restrain the Leviathan. Given the second Trump Administration’s continued interest in restraining improvident actions by unelected agency officials, it is likely that the first two branches will tango again—and perhaps on a grander scale.REF

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. I would like to thank John G. Malcolm, Paul J. Ray, and Roger Severino for valuable comments on an earlier draft of this Legal Memorandum. Any errors are mine.