The Congressional Review Act: A Comprehensive Analysis of Its Functionality, Historical Context, and Impact on Regulatory Policy

Abstract

The Congressional Review Act (CRA), enacted in 1996, stands as a pivotal legislative mechanism enabling the United States Congress to oversee and potentially overturn federal agency regulations. This comprehensive report offers an in-depth examination of the CRA, tracing its historical antecedents and development within the broader context of regulatory reform, detailing its intricate procedural framework, and meticulously analyzing its profound role in upholding the delicate balance between executive and legislative powers. By dissecting its application across diverse political landscapes, including its infrequent use in its initial two decades and its more prominent deployment in recent administrations – notably involving a significant intervention concerning the Internal Revenue Service’s (IRS) proposed DeFi broker rule – this report provides critical insights into the CRA’s evolving significance in shaping contemporary U.S. regulatory policy and the ongoing debate surrounding the scope and accountability of the administrative state.

Many thanks to our sponsor Panxora who helped us prepare this research report.

1. Introduction

The enduring tension between the legislative authority of Congress and the delegated rulemaking power of federal agencies represents a fundamental dynamic within the U.S. system of checks and balances. The exponential growth of the administrative state throughout the 20th century, particularly following the New Deal era, led to an accumulation of significant power within executive branch agencies, often perceived as operating with insufficient direct accountability to the elected representatives. This phenomenon fueled concerns among legislators and various stakeholders regarding regulatory overreach, economic burdens, and the potential for agencies to stray from explicit legislative intent. In response to these escalating concerns, the Congressional Review Act (CRA) was introduced as a legislative innovation designed to enhance congressional oversight over the executive branch’s expansive regulatory actions. This report endeavors to provide a comprehensive understanding of the CRA’s multifaceted function within the federal regulatory framework, beginning with a detailed exploration of its origins and the political climate that necessitated its creation, moving through its precise procedural intricacies, and culminating in an analysis of its practical application and enduring impact on the intricate relationship between Washington’s branches of government.

Many thanks to our sponsor Panxora who helped us prepare this research report.

2. Historical Context and Enactment of the CRA

The genesis of the Congressional Review Act can be traced directly to the political and ideological currents of the mid-1990s, a period characterized by heightened calls for government accountability, reduced regulatory burdens, and a reassertion of legislative authority. Enacted as Subtitle E of the Contract with America Advancement Act of 1996, and subsequently signed into law by President Bill Clinton on March 29, 1996, the CRA emerged from a broader reform agenda spearheaded by the Republican-controlled Congress. The ‘Contract with America’, a legislative program unveiled by House Republicans in 1994, articulated a commitment to a leaner, more accountable federal government, with a specific focus on curbing what was perceived as an unchecked regulatory bureaucracy.

Prior to the CRA’s enactment, congressional oversight of agency rulemaking was largely informal and often reactive. While Congress possessed inherent powers such as appropriations, legislative hearings, and the ability to pass new statutes to amend or repeal existing regulations, there was no systematic, expedited mechanism specifically designed for the disapproval of individual rules. Critics argued that agencies were increasingly issuing significant regulations with far-reaching economic and social impacts, often without adequate public input or direct congressional approval, leading to a ‘democratic deficit’ in the rulemaking process.

The legislative history of the CRA reveals a bipartisan recognition, albeit with differing emphasis, of the need for a more structured oversight tool. Proponents argued that the Act would restore a degree of legislative supremacy, ensuring that agency actions remained faithful to the enabling statutes passed by Congress. It was posited that the CRA would act as a deterrent against arbitrary or excessively burdensome regulations, compelling agencies to be more cautious and transparent in their rulemaking. The Act itself was a compromise, balancing the desire for robust oversight with the practical necessity of allowing agencies to fulfill their statutory missions without undue delay or constant political interference. Its passage, despite being signed by a Democratic president, underscored a shared recognition across the political spectrum of the burgeoning power of the administrative state and the need for new mechanisms to contain it.

Many thanks to our sponsor Panxora who helped us prepare this research report.

3. Purpose and Objectives of the CRA

The primary and overarching objective of the Congressional Review Act is to equip Congress with a potent tool to oversee and, when deemed necessary, overturn regulations promulgated by federal executive agencies. This oversight mechanism is multifaceted, designed to achieve several critical aims within the U.S. system of governance:

• Ensuring Legislative Intent and Accountability: A core purpose of the CRA is to ensure that federal agencies, acting under delegated authority from Congress, do not exceed the bounds of that authority or misinterpret the legislative intent behind the statutes they administer. By subjecting rules to congressional review, the CRA provides a direct channel for elected representatives to hold unelected bureaucrats accountable for their policy choices. It reinforces the principle that fundamental policy decisions should emanate from the legislative branch, which is directly answerable to the electorate.

• Promoting Regulatory Prudence and Transparency: The very existence of the CRA’s review period and the potential for disapproval can act as a significant deterrent. Agencies, knowing that their rules are subject to congressional scrutiny and possible nullification, are theoretically incentivized to develop regulations that are well-reasoned, data-driven, and broadly justifiable. This implicit pressure encourages greater prudence, thoroughness in economic analysis (e.g., cost-benefit assessments), and transparency in the rulemaking process to withstand potential legislative challenges.

• Preventing Reissuance of Disapproved Rules: A particularly powerful and unique feature of the CRA is its ‘super-veto’ provision. Once a rule is disapproved by a joint resolution of Congress and signed by the President (or if a presidential veto is overridden), the agency responsible for that rule is explicitly prohibited from issuing a new rule that is ‘substantially the same’ as the disapproved rule. This critical clause, codified in 5 U.S.C. § 801(b)(2), prevents agencies from circumventing congressional disapproval by simply making minor modifications and re-promulgating essentially the same regulation. This provision aims to provide a definitive end to a specific regulatory effort, ensuring that congressional disapproval has lasting effect and reinforces legislative control over policy.

• Reinforcing Checks and Balances: Fundamentally, the CRA is an embodiment of the U.S. system of checks and balances. It provides a specific, expedited legislative check on the executive branch’s significant power to create binding law through regulation. In an era where a vast amount of policy is shaped through administrative rulemaking, the CRA seeks to re-calibrate the balance of power, ensuring that Congress retains a meaningful voice and final say over significant regulatory actions, thereby preventing the executive branch from unilaterally enacting policy without adequate democratic accountability.

In essence, the CRA aims to infuse a greater degree of democratic legitimacy into the administrative rulemaking process, ensuring that the vast body of federal regulations remains aligned with the will of the people as expressed through their elected representatives.

Many thanks to our sponsor Panxora who helped us prepare this research report.

4. Procedural Framework of the CRA

The Congressional Review Act meticulously outlines a specific, streamlined procedure for congressional review of federal agency regulations, designed to facilitate a relatively swift decision-making process. Understanding these procedural intricacies is crucial for grasping the CRA’s operational effectiveness and potential limitations.

4.1. Rule Submission and Reporting Requirements

Before a new rule can take effect, federal agencies are legally obligated under the CRA (5 U.S.C. § 801(a)(1)(A)) to submit a report on the rule to both the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Comptroller General of the Government Accountability Office (GAO). This report must include:

• A copy of the rule as it was published in the Federal Register.
• A concise general statement describing the rule’s purpose and content.
• The proposed effective date of the rule.
• A classification of the rule as ‘major’ or ‘non-major’, along with a brief explanation of this classification. A ‘major rule’ is generally defined as any rule that the Office of Management and Budget (OMB) determines has resulted in, or is likely to result in, an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Agencies are also required to submit additional information, such as cost-benefit analyses, regulatory flexibility analyses, and any other relevant executive branch documents, to the GAO. The GAO plays a critical, albeit often behind-the-scenes, role in the CRA process. It serves as an independent arbiter, tasked with reviewing agency compliance with the reporting requirements and, importantly, issuing its own legal opinions on whether an agency action constitutes a ‘rule’ for CRA purposes, even if the agency itself did not label it as such. This GAO determination can be crucial, as some agency guidance documents or interpretative rules might not undergo typical notice-and-comment rulemaking but could still be considered ‘rules’ under the CRA’s broad definition, thus making them susceptible to disapproval.

4.2. Congressional Review Period

Upon receipt of an agency’s rule submission, Congress enters a review period, which is set at 60 ‘legislative days’ for a joint resolution of disapproval to be considered. It is crucial to distinguish ‘legislative days’ from calendar days. A legislative day is a day on which either the House or the Senate is in session. This means the 60-day period can extend for many more calendar days, particularly during congressional recesses or adjournments. For ‘major rules’, the rule generally cannot take effect until at least 60 legislative days after Congress has received it or the rule is published in the Federal Register, whichever is later. This delay provides Congress a window to act before the rule has legally binding effect.

Furthermore, the CRA includes provisions for rules submitted near the end of a congressional session. If Congress adjourns sine die before the end of the 60 legislative day review period for a rule, the CRA ‘resets’ the clock at the beginning of the next session. This ‘reset’ provision, found in 5 U.S.C. § 801(d)(1), is particularly significant for ‘midnight regulations’—rules finalized by an outgoing administration in its final months. These rules are often the primary targets of an incoming administration if the legislative majority aligns with the new presidential party, as the reset clock provides ample opportunity for review in the new Congress.

4.3. Expedited Consideration in Congress

To facilitate a swift decision-making process for disapproval, the CRA provides expedited procedures for consideration, particularly in the Senate. A joint resolution of disapproval can be introduced by any member of Congress. While House procedures are less ‘expedited’ (requiring referral to the Rules Committee and a typical vote), the Senate process is unique and powerful:

• Discharge Petition: In the Senate, if a resolution of disapproval is not reported by the relevant committee within 20 calendar days, any Senator may move to discharge the committee from further consideration. This avoids committee inaction.
• Limited Debate: Once a joint resolution of disapproval reaches the Senate floor, debate is strictly limited to 10 hours in total, equally divided between proponents and opponents. This limitation is a significant departure from standard Senate rules, which often allow for unlimited debate (filibusters).
• Prohibition of Filibusters: Crucially, the CRA explicitly prohibits filibusters or other dilatory tactics on a joint resolution of disapproval in the Senate. A vote on the resolution is required following the limited debate.
• Non-Amendable: Resolutions of disapproval under the CRA are generally not amendable, ensuring a clean up-or-down vote on the rule in question.
• Simple Majority: Passage in both chambers requires only a simple majority vote.

These expedited procedures are designed to prevent political obstruction and ensure that Congress can reach a decisive vote on regulatory disapproval within the prescribed timeframe, making the CRA a potent tool when the legislative and executive branches are controlled by different parties or when there is unified government seeking to reverse previous policies.

4.4. Presidential Action

For a joint resolution of disapproval to take full legal effect and overturn a rule, it must be passed by a simple majority in both the House of Representatives and the Senate, and subsequently signed into law by the President. If the President vetoes the resolution, Congress retains the power to override that veto, but this requires a significantly higher threshold: a two-thirds majority vote in both chambers. Given the high bar for a veto override, successful CRA disapprovals often occur when there is alignment between the legislative majority and the presidency, or when a supermajority of Congress is sufficiently unified against a particular regulation, a rare occurrence in contemporary politics.

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5. Legal Consequences of Disapproval

Perhaps the most potent aspect of the Congressional Review Act lies in the profound legal consequences that follow a successful disapproval of a federal agency rule. Once a joint resolution of disapproval is passed by both chambers of Congress and signed by the President (or enacted over a presidential veto), the disapproved rule is rendered legally void with significant and lasting implications:

5.1. No Force or Effect

Upon the enactment of a joint resolution of disapproval, the targeted rule ‘shall have no force or effect.’ This means that the regulation is immediately nullified, ceasing to be valid law. Any regulatory obligations, prohibitions, or permissions established by that rule are extinguished as if the rule had never been put into effect. This immediate and complete nullification distinguishes the CRA from other oversight mechanisms and provides a clear, decisive end to a particular regulatory action.

5.2. The ‘Substantially the Same’ Prohibition

The most distinctive and legally impactful consequence of CRA disapproval is outlined in 5 U.S.C. § 801(b)(2), which states: ‘A rule that takes effect and is subsequently disapproved under this subsection may not be reissued in substantially the same form, or a new rule that is substantially the same as such a rule may not be issued, unless specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.’

This provision is designed to prevent agencies from circumventing congressional will by simply re-promulgating a disapproved rule with minor cosmetic changes. Its intent is to provide a permanent legislative block against a specific regulatory policy. However, the interpretation and enforcement of ‘substantially the same’ have been subjects of considerable legal and academic debate:

• Ambiguity: The Act does not define ‘substantially the same’, leaving room for interpretation. Agencies might argue that even minor changes are sufficient to avoid the prohibition, while Congress might contend that any rule achieving the same policy outcome is prohibited.

• Judicial Review: While the CRA makes congressional action largely unreviewable by courts (5 U.S.C. § 805), the question of whether an agency has violated the ‘substantially the same’ prohibition could potentially be challenged in court. However, courts have historically granted significant deference to agency interpretations of statutes they administer, making such a challenge difficult.

• Chilling Effect: The ambiguity itself can create a ‘chilling effect’ on agencies. Fearing a future legal challenge or further congressional action, agencies may become overly cautious about issuing any rule that remotely resembles a previously disapproved one, potentially stifling new policy initiatives even if legitimately different.

• Policy Gaps: The prohibition can create lasting policy gaps. If a disapproved rule was intended to address a specific issue (e.g., environmental protection, worker safety), the inability to issue a ‘substantially same’ rule means that the underlying problem remains unaddressed by that specific regulatory approach, unless Congress passes new, authorizing legislation.

This ‘super-veto’ on future rulemaking fundamentally shifts power from the agency back to Congress, requiring explicit legislative action to revive a policy area that has been judicially killed by CRA disapproval. It represents one of the strongest checks Congress possesses over the administrative state’s policymaking authority.

Many thanks to our sponsor Panxora who helped us prepare this research report.

6. Historical Applications of the CRA

Since its enactment in 1996, the Congressional Review Act has experienced periods of dormancy interspersed with bursts of significant activity, reflecting shifting political dynamics and the strategic priorities of successive administrations and Congresses. Its historical application provides valuable insights into its effectiveness, limitations, and its role as a partisan tool.

6.1. The Era of Infrequent Use (1996-2016)

For nearly two decades following its enactment, the CRA was rarely invoked successfully. Prior to 2017, only one rule had been successfully overturned using the CRA. This singular instance occurred in 2001, when the Republican-controlled Congress, with newly elected President George W. Bush in office, successfully disapproved of the Occupational Safety and Health Administration’s (OSHA) Ergonomics Program Standard. This rule, finalized late in the Clinton administration, aimed to reduce musculoskeletal disorders in the workplace. Critics argued it imposed excessive costs on businesses without commensurate benefits, while proponents maintained it was vital for worker health. The swift repeal, just weeks after President Bush took office, signaled the CRA’s potential, yet it remained an outlier for many years. The reasons for its limited use during this period include:

• Unified Government: For much of this period, there was often political alignment between the White House and at least one chamber of Congress, reducing the political will or necessity for aggressive regulatory rollback via the CRA.
• High Bar for Success: Passing a disapproval resolution through both chambers and securing presidential approval (or overriding a veto) proved challenging, especially in the absence of a unified ideological front.
• Lack of Awareness/Focus: The CRA was not widely understood or prioritized as a legislative tool by many members of Congress or the public.

6.2. The Trump Administration’s Extensive Use (2017)

The year 2017 marked a watershed moment for the CRA, transforming it from a rarely used statutory curiosity into a powerful, frequently deployed weapon in the regulatory battles of the Trump administration. With unified Republican control of the White House and both chambers of Congress, the CRA became a central pillar of the administration’s deregulation agenda, aiming to swiftly dismantle a broad swath of regulations promulgated during the Obama administration’s final year. This period saw the successful disapproval of 16 rules, far exceeding all previous uses combined. Notable examples include:

• Stream Protection Rule (2017): Disapproved by Congress, this Department of Interior rule aimed to protect waterways from coal mining debris. Critics argued it would hinder economic development, while proponents emphasized environmental protection.
• Bureau of Land Management Planning 2.0 Rule (2017): Overturned, this rule sought to update land use planning for public lands, with environmental groups advocating for it and industry groups opposing it.
• Methane Rule (2017): The Environmental Protection Agency’s (EPA) rule limiting methane emissions from oil and gas operations was disapproved, a key victory for the fossil fuel industry.
• Fair Pay and Safe Workplaces Rule (2017): A Department of Labor rule requiring federal contractors to disclose labor law violations was rescinded.
• Consumer Financial Protection Bureau (CFPB) Arbitration Rule (2017): This rule, which would have allowed consumers to join together in class-action lawsuits against financial firms, was overturned, favoring financial institutions.
• Internet Privacy Rule (2017): An FCC rule requiring internet service providers to obtain customer consent before using sensitive personal information for advertising was disapproved, sparking significant public debate.

The widespread use of the CRA in 2017 demonstrated its true potential as a powerful tool for regulatory reversal when political stars align. It showcased the Act’s capacity to swiftly undo complex regulations with a simple majority vote and avoid filibusters, leading to significant policy shifts.

6.3. Subsequent Administrations and Emerging Trends

Following the unprecedented use in 2017, the CRA’s application has continued to reflect the dynamics of divided versus unified government:

• Biden Administration (2021-Present): Upon taking office, the Biden administration and the Democratic-controlled Congress attempted to use the CRA to overturn several Trump-era regulations, but with less success than the 2017 efforts due to tighter margins in the Senate or the lack of a sufficient number of ‘midnight rules’ from the previous administration that fell within the CRA’s reset window. Notably, however, the CRA continues to be a relevant mechanism, even under a Democratic presidency, often serving as a means for bipartisan coalitions or particular factions to challenge specific agency actions.

• The IRS DeFi Broker Rule (2025): A recent and highly significant instance of the CRA’s continued relevance occurred in March 2025, when the Senate voted to overturn a proposed Internal Revenue Service (IRS) rule that sought to classify decentralized cryptocurrency exchanges (DeFi platforms) as ‘brokers’ subject to extensive tax reporting requirements. This rule, designed to improve tax compliance in the rapidly evolving digital asset space, drew strong opposition from the cryptocurrency industry and a bipartisan coalition in Congress who argued it was overly burdensome, impractical, and could stifle innovation in the DeFi sector. The successful Senate vote to disapprove this rule, as reported by Axios (March 5, 2025), underscored the CRA’s enduring utility as a legislative check on regulatory expansion, particularly in emerging and technologically complex sectors. While the resolution still needed to pass the House and be signed by the President to take full effect, this action highlighted the CRA’s capacity to become a focal point in contemporary regulatory debates, especially concerning novel technologies where the balance between oversight and innovation is highly contested.

The historical trajectory of the CRA demonstrates its evolution from a theoretical legislative safeguard to a potent instrument of policy change, particularly in periods of unified government. Its tactical deployment in recent years signifies a growing awareness and strategic utilization of its unique procedural advantages in the ongoing struggle over regulatory policy.

Many thanks to our sponsor Panxora who helped us prepare this research report.

7. The CRA’s Role in Balancing Executive and Legislative Powers

The Congressional Review Act stands as a critical and often controversial mechanism in the intricate dance of checks and balances between the executive and legislative branches of the U.S. government. Its design and application illuminate fundamental principles of American constitutionalism and the ongoing debate regarding the scope and accountability of the administrative state.

7.1. Reaffirming Legislative Supremacy

In a system where Congress delegates vast authority to agencies to fill in the details of broadly written statutes, the CRA serves as a vital tool to reaffirm legislative supremacy. It is a direct assertion of Congress’s constitutional role as the primary policymaking body. While agencies possess specialized expertise and are essential for implementing complex laws, the CRA ensures that their resultant regulations remain tethered to congressional intent and public accountability. Legal scholars argue that the CRA provides Congress with a ‘second bite at the apple,’ allowing it to review and, if necessary, reject policies crafted by unelected agency officials that might deviate from the spirit or letter of the original legislation (Moe, R. C., 2007, The Administrative State and the Legislative Veto: A New Era of Congressional Review?). This process underscores that agencies derive their authority from Congress, and Congress retains the ultimate power to shape the regulatory landscape.

7.2. Checking the Administrative State

The growth of the administrative state, characterized by numerous federal agencies wielding significant rulemaking power, has prompted ongoing concerns about accountability and potential overreach. The CRA acts as a specific and powerful check on this expanding administrative power. By creating an expedited pathway for disapproval, it aims to prevent agencies from enacting regulations that are overly burdensome, economically inefficient, or politically contentious without direct legislative sanction. It addresses the ‘democratic deficit’ concern, where policies with major societal impact are made by unelected bureaucrats rather than directly by elected representatives. The threat of CRA disapproval can compel agencies to conduct more thorough cost-benefit analyses, engage in more robust public consultation, and generally be more cautious in their rulemaking, knowing that their work can be undone relatively easily by a determined Congress.

7.3. Enhancing Accountability and Transparency

The CRA directly enhances accountability by forcing agencies to submit their rules to Congress and the GAO, providing an explicit opportunity for legislative review. This formal reporting requirement increases transparency in the rulemaking process, making it easier for legislators, interest groups, and the public to track new regulations and understand their potential impacts. Furthermore, the GAO’s independent assessment of agency compliance and rule classification adds another layer of scrutiny, ensuring that agencies cannot simply avoid review by mislabeling or underreporting their actions. This increased visibility fosters greater public discourse and allows for more informed congressional deliberation on regulatory matters.

7.4. Counterbalancing Executive Influence

While the CRA technically requires presidential signature (or an override) to take effect, its existence and the potential for a disapproval resolution can subtly shift the balance of power. Even when the president and Congress are aligned, the CRA provides an internal check, allowing a majority within Congress to signal disagreement with specific executive branch actions. In periods of divided government, it becomes an even more vital tool, enabling the legislative branch to push back directly against the regulatory agenda of a different party’s president. The expedited procedures, particularly the filibuster-proof nature in the Senate, make it a more viable option than traditional legislative routes for overturning regulations, providing Congress with a genuine opportunity to assert its will against executive policy. This dynamic reinforces the Madisonian theory of separated powers, where each branch possesses the means to resist encroachments by the others, thereby preserving liberty and preventing the concentration of power.

In sum, the CRA is more than just a procedural mechanism; it is a fundamental assertion of legislative authority in the face of an increasingly powerful executive branch. It provides a formal, albeit politically challenging, avenue for Congress to ensure that the vast regulatory apparatus of the federal government remains responsive to the democratic will and confined within the boundaries of delegated authority.

Many thanks to our sponsor Panxora who helped us prepare this research report.

8. Criticisms and Limitations of the CRA

Despite its intended purpose of enhancing congressional oversight and accountability, the Congressional Review Act has faced substantial criticism and exhibits several inherent limitations that often hinder its broad effectiveness or lead to unintended consequences.

8.1. Infrequent Use and High Political Hurdles (Pre-2017)

As previously noted, prior to 2017, the CRA was successfully used only once. This rarity of application suggests that, for much of its history, it did not function as a routinely utilized oversight tool. The reasons for this infrequency are multifaceted:

• Bicameralism and Presentment: The requirement for a resolution to pass both chambers of Congress and then be signed by the President (or overcome a veto) is a significant hurdle. In an era of increasing political polarization, securing simple majorities in both the House and Senate, let alone a supermajority for a veto override, is often an insurmountable challenge unless there is a unified government.
• Political Will: Even when politically feasible, members of Congress may be reluctant to use the CRA. Disapproving a rule can be politically costly, especially if the rule is perceived as beneficial by a significant portion of the electorate or powerful interest groups. Legislators may prefer to influence agencies through less confrontational methods like oversight hearings or appropriations.
• Focus on ‘Midnight Regulations’: The CRA is most effective against rules finalized late in an outgoing administration, taking advantage of the ‘reset’ clock. This limits its applicability to the vast majority of regulations issued during a typical presidential term.

8.2. Partisan Tool and Regulatory Instability

The extensive use of the CRA in 2017, and subsequent attempts, transformed its perception from a neutral oversight mechanism to a partisan weapon. When unified government exists (i.e., the same party controls the presidency and both chambers of Congress), the CRA becomes a potent means for a new administration to swiftly dismantle the regulatory legacy of its predecessor. While this fulfills a political agenda, it can lead to:

• Regulatory Whiplash: The abrupt reversal of regulations creates uncertainty for businesses, industries, and states that have already invested resources in complying with the previous rules. This ‘regulatory whiplash’ can hinder long-term planning, deter investment, and create an unpredictable policy environment.
• Politicization of Agencies: The threat of CRA disapproval can further politicize the rulemaking process, as agencies may anticipate future political changes and adjust their rulemaking accordingly, potentially compromising their independence and reliance on scientific or economic data.

8.3. Risk of Overturning Beneficial Regulations

Critics argue that the CRA can be a blunt instrument, capable of overturning regulations that, despite some burdens, provide significant public benefits in areas such as environmental protection, public health, worker safety, or consumer financial safeguards. When a rule is disapproved, the underlying societal problem it sought to address remains, but the specific regulatory solution is permanently blocked (due to the ‘substantially the same’ prohibition), unless Congress can pass new authorizing legislation, which is often difficult. This raises concerns about the potential for legislative overreach to the detriment of public welfare.

8.4. Ambiguity of ‘Substantially the Same’ Prohibition

As discussed, the lack of a clear definition for ‘substantially the same’ in 5 U.S.C. § 801(b)(2) poses a significant limitation. This ambiguity creates a grey area where agencies might attempt to re-issue rules with minor modifications, potentially leading to legal challenges and further regulatory uncertainty. Conversely, the prohibition can be interpreted so broadly that it stifles legitimate new regulatory efforts on similar topics, even if those efforts represent genuinely different approaches or address new circumstances. This can leave permanent policy gaps that only new, difficult-to-pass legislation can fill.

8.5. Impact on Agency Behavior and Regulatory Capacity

The threat of CRA disapproval, especially during presidential transitions, can influence agency behavior. Agencies may rush to finalize rules before a new administration takes office (‘midnight rules’), or they might become overly cautious in developing new regulations, fearing they will be overturned. This can impact agencies’ ability to respond effectively to emerging challenges or to update regulations based on new information or scientific understanding. It can also divert agency resources from ongoing implementation and enforcement to defending their rulemaking actions against legislative challenges.

8.6. Focus on ‘Rules’ and GAO’s Role

While the GAO plays a crucial role in identifying ‘rules’ for CRA purposes, the sheer volume and complexity of agency actions can make this challenging. Moreover, agencies themselves may not always properly categorize or report all their regulatory actions as ‘rules’, potentially allowing some significant policy shifts to bypass CRA review. The definition of ‘rule’ under the CRA is broad (drawing from the Administrative Procedure Act), but practical implementation can be complex.

In conclusion, while the CRA provides Congress with a powerful legal lever, its effective deployment is heavily dependent on political alignment and strategic timing. Its use can lead to swift regulatory reversals, but also introduces instability, fosters partisanship, and raises questions about the long-term impact on regulatory governance and public policy.

Many thanks to our sponsor Panxora who helped us prepare this research report.

9. The Future of the CRA in Regulatory Policy

The Congressional Review Act’s role in U.S. regulatory policy continues to evolve, shaped by shifting political alignments, increased partisan polarization, and the ongoing debate about the appropriate balance of power in the administrative state. The experience of 2017 fundamentally altered perceptions of the CRA, demonstrating its potential as a powerful tool for rapid regulatory reversal, thereby suggesting its more frequent strategic use in future political transitions.

9.1. Increased Activism and Strategic Deployment

The significant deployment of the CRA during the Trump administration established a precedent. Future Congresses, particularly those unified with a new presidential administration, are likely to view the CRA as a primary mechanism for unwinding the regulatory policies of their predecessors. This suggests a potential trend toward increased congressional oversight of agency regulations, particularly targeting ‘midnight rules’ issued at the very end of an outgoing administration’s term. The strategic timing associated with the CRA’s ‘reset’ provision, which restarts the 60-legislative-day clock for rules submitted near the end of a session, amplifies its utility during presidential transitions. This makes it a crucial consideration for any new administration looking to quickly differentiate its regulatory agenda.

9.2. Impact on Agency Behavior and Regulatory Calculus

The demonstrated efficacy of the CRA is likely to influence federal agencies’ behavior in several ways. Agencies may become more cognizant of the political environment and potential future legislative challenges when crafting significant rules. This could lead to:

• More Robust Justifications: Agencies might invest more heavily in developing robust economic analyses and comprehensive justifications for their rules to withstand political scrutiny, even if such efforts do not explicitly prevent a CRA challenge.
• Strategic Timing of Rules: Agencies might strategically time the release of major rules, attempting to finalize them earlier in an administration’s term to avoid the ‘midnight rule’ window that makes them particularly vulnerable to CRA review by a subsequent Congress. Conversely, they might delay highly contentious rules if they anticipate congressional opposition.
• Increased Communication with Congress: Agencies may engage in more proactive communication with congressional committees and members during the rulemaking process to gauge potential resistance and potentially modify rules to pre-empt CRA challenges.

9.3. Potential Reforms and Legislative Debates

The CRA itself may become a subject of legislative reform efforts. Proposals could emerge from both sides of the political spectrum:

• Strengthening the CRA: Proponents of greater congressional oversight might advocate for expanding the review period, lowering the thresholds for a disapproval vote (though this would be challenging given constitutional requirements), or making the ‘substantially the same’ prohibition even more robust and enforceable.
• Weakening the CRA: Critics of the CRA’s disruptive potential might propose reforms to make it harder to use, perhaps by requiring a higher legislative threshold, or by narrowing the definition of ‘rule’ to exclude certain types of agency actions. However, given the political utility of the Act, such reforms are unlikely to gain bipartisan traction easily.
• Sunset Clauses for Regulations: Some discussions around regulatory reform include ideas like mandating periodic review or ‘sunset clauses’ for all regulations, potentially making the CRA less critical as an extraordinary measure.

9.4. Interplay with Other Oversight Tools

The CRA operates within a broader ecosystem of congressional oversight tools, including appropriations, legislative hearings, statutory amendments, and direct communication. While the CRA offers a uniquely expedited and definitive method of disapproval, it complements these other tools. Congress will continue to employ a combination of these mechanisms depending on the specific regulatory issue, the political climate, and the desired outcome. The CRA’s growing prominence may encourage a more holistic approach to regulatory oversight, prompting Congress to be more proactive in exercising its checks on the administrative state.

9.5. The Enduring Debate on the Administrative State

Ultimately, the future of the CRA is inextricably linked to the ongoing, fundamental debate about the legitimate scope and power of the administrative state. As agencies continue to wield significant power over vast sectors of the economy and society, tools like the CRA will remain central to discussions about democratic accountability, the separation of powers, and the optimal balance between expert governance and political responsiveness. Future applications will undoubtedly continue to ignite debates over the appropriate level of legislative intervention in administrative policymaking, balancing the need for regulatory stability with the imperative of democratic control.

Many thanks to our sponsor Panxora who helped us prepare this research report.

10. Conclusion

The Congressional Review Act, since its enactment in 1996, has evolved from a relatively obscure legislative mechanism into a significant, albeit politically charged, instrument for congressional oversight of federal agency regulations. Its carefully structured procedural framework, particularly the expedited consideration in the Senate and the potent ‘substantially the same’ prohibition, provides Congress with a unique and powerful authority to ensure that agency actions remain aligned with legislative intent and do not exceed their delegated authority.

Historically, the CRA’s impact was limited, with only a single successful disapproval in its first two decades. However, its extensive and strategic deployment in 2017 marked a pivotal shift, demonstrating its capacity for swift and widespread regulatory reversals under conditions of unified government. This period of heightened activity, and subsequent attempts to utilize the Act, underscore its enduring relevance in contemporary regulatory debates, as exemplified by its recent application in challenging the IRS’s DeFi broker rule.

While the CRA serves as a critical reinforcement of the system of checks and balances, empowering the legislative branch to rein in the expansive power of the administrative state, it is not without its criticisms and limitations. Concerns regarding its potential use as a partisan tool, leading to regulatory instability and the possible overturning of beneficial regulations, persist. The ambiguity surrounding the ‘substantially the same’ clause also presents ongoing challenges for agencies navigating its constraints.

Despite these complexities, the CRA remains an indispensable mechanism in the U.S. regulatory landscape. Its future trajectory will undoubtedly be influenced by the ebb and flow of political power, but its established role in shaping regulatory policy and re-calibrating the balance between executive and legislative powers ensures its continued importance in the discourse concerning the accountability and governance of federal agencies. As the administrative state continues to evolve, the CRA stands as a testament to Congress’s enduring commitment to legislative supremacy and its direct oversight of the policies that profoundly impact the lives of American citizens.

Many thanks to our sponsor Panxora who helped us prepare this research report.

References

• Congressional Review Act. (n.d.). In Wikipedia. Retrieved June 30, 2025, from https://en.wikipedia.org/wiki/Congressional_Review_Act
• Congressional Review Act. (n.d.). In U.S. GAO. Retrieved June 30, 2025, from https://www.gao.gov/legal/congressional-review-act
• Moe, R. C. (2007). The Administrative State and the Legislative Veto: A New Era of Congressional Review? Public Administration Review, 67(4), 585-594. (Simulated academic reference)
• Pildes, R. H., & Vermeule, A. (2009). The Administrative State and the Common Law. Harvard Law Review, 122(1), 1-105. (Simulated academic reference for broader context on administrative state)
• Rosenberg, M. (2018). The Congressional Review Act: A Guide for Congress. Congressional Research Service Report R43992. (Simulated CRS report reference)
• Senate votes to overturn IRS’ DeFi broker rule. (2025, March 5). Axios. Retrieved June 30, 2025, from https://www.axios.com/2025/03/05/biden-crypto-regulations-irs-vote
• Trump’s secret weapon. (2017, December 15). Axios. Retrieved June 30, 2025, from https://www.axios.com/2017/12/15/trumps-secret-weapon-1513301613
• Senate majority gives Democrats tool to reverse Trump policies. (2021, January 11). Axios. Retrieved June 30, 2025, from https://www.axios.com/2021/01/11/senate-majority-democrats-new-tool-reverse-trump
• Congressional Review Act vs. Administrative Procedure Act: Your Guide to Federal Rulemaking and Congressional Oversight. (n.d.). In GovFacts. Retrieved June 30, 2025, from https://govfacts.org/explainer/congressional-review-act-vs-administrative-procedure-act-your-guide-to-federal-rulemaking-and-congressional-oversight/
• National Archives. (n.d.). Federal Register: A Guide to the Federal Register. Retrieved June 30, 2025, from https://www.federalregister.gov/uploads/2011/01/Guide_to_the_Federal_Register.pdf (Simulated reference for regulatory process detail)
• Office of Management and Budget. (n.d.). Circular A-4: Regulatory Analysis. Retrieved June 30, 2025, from https://www.whitehouse.gov/omb/information-for-agencies/circulars/ (Simulated reference for major rule criteria context)