The Congressional Review Act: A Comprehensive Analysis of Its Origins, Mechanisms, Applications, and Impact on U.S. Governance

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Abstract

The Congressional Review Act (CRA), enacted in 1996, stands as a pivotal legislative instrument designed to enhance congressional oversight over federal agency regulations and facilitate their potential disapproval. This comprehensive research report meticulously examines the CRA’s foundational origins within the broader context of U.S. regulatory reform efforts, delving into its intricate procedural mechanisms that afford Congress expedited consideration of disapproval resolutions. Through an in-depth analysis of its historical applications, particularly its heightened utilization in periods of executive-legislative partisan alignment, the report elucidates the CRA’s profound political significance as a tool for shaping the regulatory agenda. Furthermore, it rigorously assesses the CRA’s far-reaching implications for the delicate balance of power between the legislative and executive branches, scrutinizing its capacity to reinforce congressional authority, the potential for legislative overreach, the resultant impact on administrative independence, and the broader ramifications for regulatory certainty and stability. By synthesizing these multifaceted dimensions, this report offers a robust and nuanced understanding of the CRA’s enduring role in the complex tapestry of federal regulatory processes and its consequential influence on American governance.

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

1. Introduction

The intricate relationship between the legislative and executive branches in the United States forms the bedrock of its constitutional framework, characterized by a perpetual and dynamic interplay of powers, especially concerning the creation and implementation of federal regulations. The growth of the administrative state throughout the 20th century, spurred by increasing societal complexities and the delegation of authority from Congress to specialized agencies, has led to a significant shift in the locus of policy formulation. Federal agencies, endowed with rulemaking authority, frequently issue regulations that carry the force of law, shaping economic activity, environmental protection, public health, and numerous other facets of daily life. This expansion of executive branch power through regulatory action inevitably raised concerns about accountability and the potential for regulatory burdens or overreach, prompting calls for enhanced legislative oversight [1].

The Congressional Review Act (CRA), codified at 5 U.S.C. §§ 801-808, represents a significant legislative response to these concerns. Enacted as part of the Contract with America Advancement Act of 1996, it empowers Congress with a direct and expedited mechanism to review and potentially disapprove rules issued by federal agencies. Far from a mere procedural tweak, the CRA has evolved from a relatively obscure and seldom-used provision into a pivotal instrument in shaping the regulatory landscape, particularly evident during periods of political transition and unified government [2]. Its strategic deployment has profound implications for the trajectory of federal policy, influencing everything from environmental protection standards to financial market regulations.

This report aims to provide an exhaustive and in-depth analysis of the CRA. It commences by exploring the historical context and legislative motivations behind its enactment, positioning the CRA within the broader narrative of regulatory reform efforts. Subsequently, it meticulously details the procedural mechanisms that govern the CRA’s application, including the crucial ‘lookback’ period and expedited consideration processes. A significant portion of this analysis is dedicated to examining the CRA’s historical applications, with particular emphasis on its prominent use during the Trump and Biden administrations, which illuminated its potency as a tool for policy reversal. Finally, the report delves into the CRA’s substantial political significance and its intricate implications for the delicate balance of power between the legislative and executive branches, considering arguments regarding legislative authority, potential overreach, administrative independence, and the broader implications for regulatory stability and democratic accountability. Through this multi-faceted examination, the report seeks to offer a comprehensive and critical understanding of the CRA’s role in contemporary American governance.

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

2. Origins of the Congressional Review Act

To fully appreciate the significance of the Congressional Review Act, it is imperative to understand the political and historical landscape that led to its creation. The CRA did not emerge in a vacuum but rather as a direct response to a burgeoning administrative state and long-standing debates about congressional control over the burgeoning regulatory apparatus.

2.1. Context: The Rise of the Administrative State and Calls for Regulatory Reform

The mid-to-late 20th century witnessed a substantial increase in the scope and complexity of federal regulation, driven by public demand for government intervention in areas like environmental protection, consumer safety, and civil rights. Congress, often lacking the technical expertise or time to craft highly detailed statutory language, frequently delegated broad authority to executive branch agencies to issue specific rules and regulations to implement legislative mandates. This delegation gave rise to what is often termed the ‘administrative state,’ a powerful fourth branch of government responsible for day-to-day policy implementation [3].

While essential for modern governance, this expansion of agency power also sparked concerns among various stakeholders, including businesses, conservative lawmakers, and advocates for limited government. Critics argued that agencies, insulated from direct electoral accountability, sometimes issued ‘midnight regulations’ – rules rushed through at the end of an administration – or pursued agendas perceived to be beyond congressional intent or economically burdensome. The rulemaking process, governed primarily by the Administrative Procedure Act (APA) of 1946, while providing for notice and public comment, was seen by some as insufficient to ensure robust congressional oversight [4].

Prior to the CRA, Congress had limited direct mechanisms to influence or overturn agency rules once they were finalized. Traditional tools included:

• Appropriations Riders: Congress could use its power of the purse to defund specific regulatory activities or to prohibit agencies from implementing certain rules through provisions attached to appropriations bills. However, this was often a blunt instrument, difficult to pass, and could lead to government shutdowns [5].
• New Legislation: Congress could enact new laws to overturn or modify specific regulations. This was a cumbersome process, requiring passage through both chambers and presidential assent, making it difficult for Congress to react swiftly to unwanted rules [6].
• Legislative Vetoes: For a period, Congress attempted to implement ‘legislative vetoes,’ provisions in statutes that allowed Congress, or even one chamber, to overturn executive actions, including regulations, by simple resolution. However, the Supreme Court, in INS v. Chadha (1983), declared the legislative veto unconstitutional, ruling that such actions violated the bicameralism and presentment clauses of the Constitution [7]. This ruling left a significant void in congressional oversight tools and prompted a search for new, constitutionally sound mechanisms.
• Oversight Hearings and Investigations: While effective for information gathering and public shaming, these tools lacked the direct legal force to nullify regulations.

The absence of a direct, streamlined, and constitutionally permissible mechanism for regulatory disapproval fueled a desire for stronger congressional checks on executive rulemaking power.

2.2. Legislative History and Enactment of the CRA

The political climate of the mid-1990s was ripe for regulatory reform. The 1994 midterm elections saw the Republican Party gain control of both the House and Senate for the first time in 40 years, ushering in the ‘Contract with America’ agenda. A central tenet of this platform was a commitment to reduce federal regulations and increase accountability. The CRA emerged directly from this legislative push [8].

Drafted primarily by Senator Don Nickles (R-OK) and Representative David McIntosh (R-IN), the CRA was designed to be a constitutional alternative to the legislative veto. Its proponents argued that by requiring a joint resolution, which necessitated passage by both chambers and presidential signature (or a veto override), it would satisfy the bicameralism and presentment requirements affirmed in Chadha. The CRA was introduced as part of the broader Contract with America Advancement Act of 1996 (H.R. 3136), which also included provisions related to small business regulatory fairness and paperwork reduction [9].

Debates surrounding the CRA highlighted a fundamental tension: the desire for congressional oversight versus the need for executive efficiency and agency expertise. Supporters argued it was a vital tool to curb regulatory excesses and ensure agencies remained accountable to the elected representatives of the people. Opponents raised concerns that it could politicize the rulemaking process, undermine agency expertise, and introduce instability into the regulatory environment [10].

Despite these concerns, the bill garnered bipartisan support and was signed into law by President Bill Clinton on March 29, 1996. While President Clinton expressed reservations about certain aspects of the Contract with America, he ultimately signed the package, recognizing the political momentum behind regulatory reform and the CRA’s potential to address bipartisan concerns about executive accountability. His signing statement, however, noted that he would ‘carefully monitor’ the CRA’s impact, particularly its potential to ‘disrupt the implementation of critical public protections’ [11].

The enactment of the CRA marked a significant shift, providing Congress with a more direct and efficient means to exercise its oversight functions over the federal regulatory state than had existed since Chadha.

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3. Procedural Mechanisms of the CRA: A Detailed Examination

The Congressional Review Act establishes a distinct and accelerated process for Congress to review and potentially disapprove new federal regulations. Understanding these intricate procedural mechanisms is crucial to grasping the CRA’s potential impact and strategic utility.

3.1. Scope of Rules Covered

The CRA applies to ‘rules’ as defined by the APA (5 U.S.C. § 551(4)), encompassing agency statements of general applicability and future effect that design, prescribe, or interpret policy or law, or that describe the organization, procedure, or practice requirements of an agency. However, the CRA explicitly excludes certain types of rules, such as those related to monetary policy, agency management or personnel, or rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties [12].

A critical distinction within the CRA’s framework is between ‘major rules’ and ‘non-major rules’. A ‘major rule’ is defined as any rule that the Office of Management and Budget (OMB) Administrator of the Office of Information and Regulatory Affairs (OIRA) finds 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 [13].

Agencies must make an initial determination about a rule’s major status, but the Government Accountability Office (GAO) ultimately provides a formal opinion on whether a rule qualifies as ‘major’ or ‘non-major’ for CRA purposes. This determination is crucial because major rules have a delayed effective date (at least 60 calendar days after submission to Congress or publication in the Federal Register, whichever is later), allowing Congress more time to review them. Non-major rules typically take effect immediately upon publication or on a specified date [14]. The GAO’s interpretation of what constitutes a ‘rule’ for CRA purposes has also been significant, particularly regarding interpretive rules, guidance documents, and policy statements, with the GAO often taking a broad view that includes documents traditionally considered outside formal rulemaking, thereby bringing more agency actions under CRA purview [15].

3.2. Submission Requirement and GAO’s Role

Before a new rule can take effect, federal agencies are mandated by the CRA to submit a report on the rule to both houses of Congress and to the Comptroller General (who heads the GAO). This report must include:

• A copy of the rule;
• A concise general statement describing the rule;
• The proposed effective date of the rule;
• A cost-benefit analysis (if applicable);
• A statement of whether the rule is a ‘major rule’ [16].

This submission requirement is fundamental, as the congressional review period only begins once Congress receives the complete report. The GAO plays a critical, often understated, role in the CRA process. Upon receiving an agency’s submission, the Comptroller General is required to issue a report to Congress regarding whether the agency has complied with the CRA’s submission requirements and, importantly, whether the rule is ‘major.’ GAO’s legal opinions regarding the applicability of the CRA to specific agency actions have provided significant clarity and guidance, often determining which agency actions fall under congressional review [17]. If a rule is not properly submitted, its effective date can be delayed indefinitely until proper submission occurs, a powerful incentive for agency compliance.

3.3. Congressional Review Period and the ‘Lookback’ Provision

Congress has a statutory window of 60 ‘legislative days’ (for the House) or ‘session days’ (for the Senate) to review a submitted rule and introduce a joint resolution of disapproval. The definition of ‘legislative’ or ‘session’ days, which excludes weekends, holidays, and periods when Congress is not in session, means this 60-day period can extend far beyond 60 calendar days [18].

Crucially, the CRA includes a powerful ‘lookback’ provision, located at 5 U.S.C. § 801(d). This provision significantly expands the window for congressional review, particularly for rules issued late in an administration. If Congress adjourns sine die (adjourns without setting a day for reconvening) before the 60-day review period for a rule has expired, or if Congress adjourns for more than 3 days during a session, the 60-day period effectively ‘resets’ or ‘rolls over’ into the next legislative session or even the next Congress. Specifically, rules submitted to Congress within the last 60 legislative/session days of a congressional session must be resubmitted at the start of the next session. This means a new Congress, following a presidential election, can review rules promulgated during the final months of the preceding administration, even if those rules had already taken effect. This ‘lookback’ period was the critical enabler of the extensive use of the CRA in 2017 and 2021 [19]. Without this provision, many ‘midnight regulations’ would be beyond reach.

3.4. Joint Resolution of Disapproval and Expedited Consideration

To overturn a rule under the CRA, members of Congress must introduce a ‘joint resolution of disapproval.’ This resolution functions like any other bill, requiring passage by a simple majority in both the House and Senate and presentation to the President for signature or veto [20].

The CRA, however, provides highly expedited procedures for considering these resolutions, particularly in the Senate, which significantly lowers the procedural hurdles that typically impede legislation:

• Privileged Status: Once introduced, a joint resolution of disapproval is considered ‘privileged’ in both chambers. This means it can bypass the normal committee process and be brought directly to the floor for a vote, provided certain conditions are met.
• Senate Expedited Procedure: The Senate’s procedures are particularly significant. If a committee (e.g., Homeland Security and Governmental Affairs) does not report a resolution of disapproval within 20 calendar days after its introduction, the committee can be ‘discharged’ from further consideration by a petition signed by 30 Senators. This allows the resolution to proceed directly to the floor. Debate on the resolution in the Senate is strictly limited to 10 hours, and no amendments are permitted. Critically, there is no possibility of a filibuster; a simple majority vote (51 votes, or 50 plus the Vice President) is sufficient for passage [21]. This ‘fast track’ process is a rare exception to the Senate’s typically supermajority-driven legislative process, making the CRA a uniquely powerful tool.
• House Expedited Procedure: While the House also has expedited procedures, they are less robust than the Senate’s. A joint resolution of disapproval typically needs to be approved by the House Rules Committee before coming to the floor, although a discharge petition, requiring 218 signatures, is also available to bring it to a vote directly [22].

3.5. Presidential Action and Veto Override

For a joint resolution of disapproval to take effect, it must be signed by the President. If the President vetoes the resolution, Congress can override the veto with a two-thirds majority vote in both the House and Senate, a high bar that is rarely achieved in practice [23]. In situations where the President is from the same party as the congressional majority that passed the resolution (as was the case in 2001 and 2017), presidential signature is almost guaranteed. However, in periods of divided government, presidential vetoes are likely, making successful CRA applications much more challenging unless there is overwhelming bipartisan consensus, which is rare for regulatory issues.

3.6. Effect of Disapproval: The ‘Substantially Similar’ Clause

The most significant and potent consequence of a successful CRA disapproval is its enduring effect. If a joint resolution of disapproval is enacted, the disapproved rule is treated as if it never took effect. Furthermore, and critically, the CRA specifies that the agency may not reissue the disapproved rule in ‘substantially the same form’ or issue a ‘new rule that is substantially similar’ to the disapproved rule, unless specifically authorized by a subsequent Act of Congress [24]. This ‘substantially similar’ clause is a powerful, almost permanent, ban. It effectively prevents agencies from merely tweaking a disapproved rule and reissuing it, thereby creating a significant and lasting barrier to agency action in that specific policy area without explicit legislative re-authorization. This punitive aspect significantly enhances the CRA’s impact, creating regulatory voids that can only be filled by new legislation, rather than merely new rulemaking.

These procedural mechanisms collectively transform the CRA from a simple oversight tool into a potent instrument for policy reversal and legislative assertion, especially during periods of unified government following a change in presidential administration.

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4. Historical Applications and Evolution of the CRA

Since its enactment in 1996, the Congressional Review Act has evolved from a relatively obscure legislative provision into a prominent tool for influencing federal regulatory policy. Its historical applications can be broadly categorized into distinct phases, each revealing different facets of its power and strategic utility.

4.1. The Early Years (1996-2000): A Seldom-Used Mechanism

In the immediate years following its enactment, the CRA was rarely invoked to overturn federal agency regulations. Despite the Republican-controlled Congress that pushed for its passage, there were no successful disapprovals during President Clinton’s second term. Several factors contributed to this initial dormancy:

• Lack of Awareness: The CRA was a new and relatively untested mechanism. Many lawmakers and their staff were unfamiliar with its specific procedures and strategic potential [25].
• Divided Government: During much of this period, the White House was held by a Democrat (Bill Clinton), while Congress was controlled by Republicans. This divided government made it difficult to pass joint resolutions of disapproval that would survive a presidential veto, particularly for regulations that were not broadly unpopular or universally seen as problematic [26].
• Strategic Hesitation: There may have been an initial hesitation to aggressively use such a powerful, and potentially politically controversial, tool. The implications of nullifying a rule and creating a permanent ban on ‘substantially similar’ rules were not fully understood.

4.2. The First Successful Application: OSHA Ergonomics Rule (2001)

The first successful use of the CRA occurred in 2001, marking a pivotal moment in its history. This action set a precedent and demonstrated the CRA’s latent power, particularly when unified government is in place [27].

• Background: In November 2000, in the final months of the Clinton administration, the Occupational Safety and Health Administration (OSHA) issued a comprehensive ergonomics standard. This rule aimed to reduce musculoskeletal disorders (MSDs) in workplaces by requiring employers to implement various measures to protect workers from ergonomic hazards. The rule was the culmination of a decadelong effort by OSHA and was strongly supported by labor unions and public health advocates, but vehemently opposed by many business groups, who viewed it as overly burdensome, costly, and lacking in scientific justification [28].
• Political Context: The rule was finalized just before President George W. Bush took office. With Republican control of both the White House and Congress, opponents of the ergonomics rule quickly seized on the CRA as an opportunity for reversal. The rule fell squarely within the CRA’s ‘lookback’ period, as it was finalized within 60 legislative days of the end of the 106th Congress.
• CRA Action: In March 2001, Congress passed a joint resolution of disapproval to overturn the OSHA ergonomics rule. The resolution passed the House by a vote of 223-206 and the Senate by a narrower margin of 56-44, demonstrating the partisan nature of the vote [29]. President Bush, aligning with his party’s and business community’s objectives, promptly signed the resolution into law on March 20, 2001. This marked the very first time Congress successfully utilized the CRA to disapprove a regulation.
• Impact: The disapproval of the ergonomics rule had significant and lasting consequences. Not only was the rule immediately nullified, but the ‘substantially similar’ clause of the CRA meant that OSHA was effectively barred from reissuing a similar comprehensive ergonomics standard without new legislation from Congress. This outcome demonstrated the CRA’s capacity to create a durable regulatory void and to fundamentally alter the regulatory landscape in a specific area, shaping future agency action for years to come [30]. It also served as a stark warning to future administrations about issuing controversial rules late in their terms.

4.3. The Trump Administration Era (2017-2018): Aggressive Deregulation via CRA

The most prolific and aggressive use of the CRA occurred during the early months of the Trump administration, from February to May 2017. This period showcased the CRA’s potential as a powerful tool for a new administration, allied with a congressional majority, to rapidly reverse the regulatory actions of its predecessor [31].

• Political Context: Following the 2016 elections, Republicans gained unified control of the White House and Congress. President Donald Trump campaigned on a promise of extensive deregulation, viewing existing rules as impediments to economic growth. The CRA provided the perfect mechanism to fulfill this promise swiftly, bypassing the lengthy processes required for new legislation or traditional executive order-based deregulation. The ‘lookback’ provision was critical, allowing Congress to target rules finalized in the final 60 legislative days of the Obama administration (roughly from late May/early June 2016 through January 2017) [32].
• Scale of Use: In total, Congress passed and President Trump signed 16 CRA joint resolutions of disapproval into law, overturning a wide array of Obama-era regulations. This far exceeded any previous use of the Act and highlighted its effectiveness as a partisan tool for policy reversal. These actions spanned various sectors, illustrating the breadth of the regulatory state:
  • Environmental Protection: Several significant environmental rules were targeted. For instance, the Bureau of Land Management (BLM) Methane Rule (known as the ‘Waste Prevention Rule’), aimed at reducing methane emissions from oil and gas operations on public and tribal lands, was disapproved. Similarly, the Environmental Protection Agency (EPA) Stream Protection Rule, which sought to prevent pollution of waterways by coal mining operations, was also overturned [33]. These actions significantly weakened environmental safeguards and signaled a dramatic shift in federal environmental policy.
  • Financial Regulation: The CRA was used to repeal a Department of Labor rule that required states to make it easier for certain municipal employees to establish state-sponsored retirement savings plans. More significantly, it overturned the Consumer Financial Protection Bureau (CFPB) Arbitration Rule, which would have prohibited financial institutions from using forced arbitration clauses to prevent consumers from joining class-action lawsuits [34]. This reversal was a major victory for the financial industry.
  • Education and Labor: Regulations from the Department of Education concerning state accountability plans under the Every Student Succeeds Act (ESSA) and teacher preparation programs were also repealed. In the labor sphere, the CRA nullified the Department of Labor’s ‘Blacklisting’ Rule, which required federal contractors to disclose past labor law violations [35].
  • Privacy and Telecommunications: A notable target was the Federal Communications Commission (FCC) Broadband Privacy Rule, which would have required internet service providers to obtain customer consent before sharing or selling their browsing history and other personal data. Its repeal allowed ISPs greater flexibility in data monetization [36].
• Impact: The 2017 CRA blitz demonstrated the Act’s unprecedented power to facilitate rapid and extensive deregulation. It solidified the CRA’s reputation as a valuable tool for a new administration to quickly dismantle its predecessor’s regulatory legacy, sending a strong signal to federal agencies about the new administration’s policy priorities. The ‘substantially similar’ clause ensured that these reversals had lasting effects, preventing agencies from simply reissuing the rules or minor variations thereof.

4.4. The Biden Administration Era (2021): Targeted Reversals

Following the 2020 elections, with Democrats regaining control of the White House and narrow majorities in both chambers of Congress, the CRA was again employed to overturn regulations from the preceding administration, though on a smaller scale than in 2017. This further underscored the Act’s continued relevance in periods of political transition [37].

• Political Context: The Biden administration entered office with a mandate to reverse many Trump-era policies and restore environmental and consumer protections. Similar to 2017, the ‘lookback’ provision allowed the new Congress to target rules finalized in the final 60 legislative days of the Trump administration (roughly from August/September 2020 through January 2021).
• Scale of Use: Congress passed and President Biden signed three CRA joint resolutions of disapproval:
  • Equal Employment Opportunity Commission (EEOC) Payroll Data Collection: This rule, from late in the Trump administration, sought to revise the previous administration’s decision to eliminate the collection of detailed pay data from employers, which was seen as a tool for identifying pay disparities [38].
  • Office of the Comptroller of the Currency (OCC) ‘True Lender’ Rule: This rule clarified that national banks and federal savings associations could be considered the ‘true lender’ in partnerships with non-bank lenders, potentially insulating some high-interest loans from state usury laws. Its repeal was a win for consumer advocates [39].
  • Department of Labor (DOL) Independent Contractor Rule: This rule, issued in the final days of the Trump administration, provided guidance making it easier for businesses to classify workers as independent contractors rather than employees, which impacts minimum wage, overtime, and benefits. Its disapproval reflected the Biden administration’s pro-labor stance [40].
• Comparison with 2017: The significantly fewer CRA actions in 2021 compared to 2017 can be attributed to several factors. Firstly, the Trump administration was generally less active in issuing ‘midnight rules’ in its final months compared to the Obama administration, partly due to a different political agenda and the impact of the COVID-19 pandemic on agency bandwidth. Secondly, the narrow Democratic majorities in Congress meant that securing bipartisan support for CRA resolutions was often necessary, and the legislative calendar was also dominated by other urgent priorities [41].

4.5. Unsuccessful Attempts and the Threat of CRA

Beyond successful enactments, the CRA has also been invoked in numerous unsuccessful attempts. Resolutions of disapproval are frequently introduced as a form of political protest or to signal congressional opposition to particular rules, even when there is little chance of passage due to divided government or insufficient political will. These attempts, while not leading to formal disapproval, serve as an important mechanism for legislative expression and can put pressure on agencies [42].

Furthermore, the mere threat of CRA action can exert a significant chilling effect on agency behavior, particularly as an administration winds down. Agencies may become more cautious about issuing controversial or ‘major’ rules in the final months of an outgoing administration, knowing they could be vulnerable to CRA repeal by a subsequent Congress [43]. This anticipatory effect influences the timing and substance of late-term rulemaking, demonstrating the CRA’s indirect but powerful influence even when not formally invoked.

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5. Political Significance and Strategic Utility of the CRA

The Congressional Review Act holds substantial political significance, extending beyond its procedural mechanics to serve as a powerful strategic tool within the American political landscape. Its utility is deeply intertwined with partisan dynamics, legislative-executive relations, and the broader regulatory agenda.

5.1. A Potent Partisan Tool for Policy Reversal

One of the most striking aspects of the CRA’s historical application is its strong correlation with partisan alignment. As evidenced by the 2001, 2017, and 2021 instances, the CRA is most effectively deployed when the same political party controls both the White House and Congress [44]. In such ‘unified government’ scenarios, the process for passing a joint resolution of disapproval and securing presidential signature becomes significantly streamlined. The expedited procedures, especially in the Senate where filibusters are not permitted for CRA resolutions, make it a uniquely efficient mechanism for rapidly undoing the regulatory legacy of a previous administration without needing to pass new, substantive legislation that might face greater political hurdles.

For a new administration, the CRA offers a swift pathway to demonstrate its commitment to its policy platform and to signal a dramatic shift in regulatory philosophy. The ability to overturn dozens of rules in a matter of weeks, as seen in 2017, provides immediate tangible results for the incoming party’s base and special interest groups who opposed the regulations [45]. This makes the CRA a favored instrument for achieving rapid policy reversals, particularly in areas like environmental policy, labor regulations, and financial oversight, where regulatory shifts often reflect fundamental ideological differences between parties.

5.2. Shaping the Regulatory Agenda and Signaling Policy Direction

Beyond merely overturning existing rules, the CRA plays a crucial role in shaping the future regulatory agenda. When a new administration uses the CRA to dismantle regulations, it sends a clear and unambiguous signal to federal agencies about the new policy direction and the priorities of the executive branch. This can influence agencies to adjust their rulemaking plans, prioritize different issues, or even cease work on certain regulatory initiatives that might conflict with the new administration’s goals [46].

The chilling effect of the ‘substantially similar’ clause cannot be overstated. By preventing agencies from reissuing a disapproved rule or one that is ‘substantially similar,’ the CRA effectively creates a permanent policy void in that specific area, forcing any future regulatory action to come from new legislation rather than renewed agency rulemaking. This has significant implications for long-term policy development and can fundamentally alter the landscape for specific industries or sectors [47]. For example, the repeal of the OSHA ergonomics rule in 2001 effectively ended comprehensive federal rulemaking on ergonomics for decades, requiring a complete legislative overhaul to revisit the issue. This makes the CRA a powerful tool not just for short-term policy reversal, but for long-term policy reorientation.

5.3. Reinforcing Checks and Balances: A Check on Executive Power?

Proponents of the CRA argue that it serves as a vital check on the executive branch’s expansive rulemaking authority, thereby reinforcing the system of checks and balances fundamental to the U.S. constitutional structure. They contend that in an era where agencies wield significant de facto legislative power through regulation, the CRA provides Congress with a necessary counterweight, ensuring that agencies remain accountable to the directly elected representatives of the people [48].

By allowing Congress to overturn agency regulations, the CRA aims to ensure that executive actions align more closely with legislative intent and do not overstep the bounds of delegated authority. It can be seen as a corrective mechanism for agencies that might be perceived as acting beyond the spirit of the enabling legislation or issuing rules that are overly burdensome or ideologically misaligned with the current political climate. In this view, the CRA promotes a more robust separation of powers by restoring some of the legislative authority that has arguably been ceded to the administrative state [49]. It also avoids the constitutional pitfalls of the legislative veto by requiring bicameral passage and presentment to the President.

5.4. Public and Interest Group Engagement

The strategic utility of the CRA extends to its influence on interest groups and the broader public debate. When a controversial regulation is finalized, the CRA provides a clear and relatively short-term target for opposition groups. Instead of engaging in protracted litigation or lobbying for new legislation, opponents can focus their resources on advocating for a CRA resolution [50]. This often leads to intense lobbying efforts from affected industries and advocacy organizations during the 60-day review period, aiming to influence congressional votes. Similarly, proponents of a rule will vigorously defend it against CRA challenges. This heightened engagement underscores the CRA’s capacity to concentrate political attention and resources on specific regulatory outcomes, making it a focal point for policy advocacy following a change in administration.

5.5. Impact on Agency Behavior and the ‘Midnight Rule’ Phenomenon

Beyond direct policy reversals, the CRA also exerts an indirect influence on agency behavior. The knowledge that a new Congress and President might use the CRA to overturn ‘midnight regulations’ – rules finalized in the waning months of an outgoing administration – can induce caution or strategic behavior within agencies. Some agencies might accelerate their rulemaking efforts to finalize rules well before the ‘lookback’ period kicks in, ensuring they are not vulnerable to easy repeal. Conversely, agencies might hesitate to issue highly controversial rules late in an administration, recognizing the high risk of CRA disapproval [51]. This anticipatory effect means the CRA shapes not just what rules are promulgated, but when they are promulgated, adding another layer of strategic complexity to the regulatory process. It can also encourage administrations to front-load their most significant regulatory actions earlier in their terms.

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6. Implications for the Balance of Power and Regulatory Governance

The Congressional Review Act’s impact reverberates deeply throughout the U.S. system of governance, particularly altering the delicate balance of power between its branches and shaping the stability and predictability of the regulatory environment.

6.1. Reinforcement of Legislative Authority and Accountability

One primary implication of the CRA is its significant reinforcement of legislative authority. For decades, legal scholars and political scientists have debated the extent to which Congress has effectively delegated away too much of its lawmaking power to unelected agencies [52]. The CRA offers a direct counter-measure, providing Congress with an explicit, constitutionally permissible mechanism to reassert its will over specific regulatory outcomes. It transforms congressional oversight from a largely advisory or reactive function into a definitive means of nullifying agency actions.

By empowering Congress to overturn agency regulations, the CRA ensures a greater degree of accountability from the executive branch. Agencies, though staffed by experts, are ultimately part of the executive branch and implement policies that significantly affect the public. The CRA forces them to be more mindful of potential congressional disapproval, especially for rules that might be seen as exceeding statutory authority or legislative intent [53]. This can lead to agencies being more careful in their interpretation of statutes and more responsive to signals from Capitol Hill, thus making the administrative state more politically accountable to elected representatives.

6.2. Potential for Legislative Overreach and Undermining Expertise

While the CRA enhances legislative authority, its use also raises serious concerns about potential legislative overreach and the undermining of administrative expertise. Critics argue that the CRA allows Congress to overturn complex regulations – often the product of years of research, data analysis, public input (through notice-and-comment rulemaking), and specialized scientific or economic expertise – with limited debate and without substantive understanding of the underlying technical details [54]. The expedited process, particularly in the Senate, limits robust deliberation and amendment, reducing the process to a simple up-or-down vote driven primarily by political and partisan considerations rather than an in-depth policy analysis.

Furthermore, the CRA’s ‘substantially similar’ clause, while powerful, can be seen as unduly restrictive. By effectively imposing a permanent ban on an agency reissuing a similar rule without new congressional authorization, it can stifle policy innovation and adaptation. This means that even if circumstances change, or new scientific evidence emerges, the agency might be barred from addressing an issue that was previously regulated, unless Congress passes a new law. This rigid outcome can be detrimental to sound, adaptive governance, overriding evidence-based policymaking with a single legislative vote [55]. It implies that Congress, through a simple majority, can make highly technical decisions that would normally require a much more detailed and informed legislative process.

6.3. Impact on Administrative Independence and Politicization

Frequent or aggressive use of the CRA, especially to target rules that reflect agencies’ technical judgment, can significantly undermine the independence of federal agencies. Agencies are designed to be relatively insulated from day-to-day political pressures, allowing them to make decisions based on expertise and consistent application of law [56]. When their carefully crafted rules are overturned through a rapid, politically driven process, it can disincentivize robust, independent analysis and encourage agencies to align their rulemaking more closely with the prevailing political winds, potentially leading to a more politicized regulatory process. This might cause agencies to shy away from issuing controversial but necessary rules, or to prioritize rules less likely to face CRA challenge, thereby diminishing their role in implementing and enforcing laws effectively.

Moreover, the CRA contributes to a revolving door of regulatory policy with each change in presidential administration. Agencies, particularly career staff, may face demoralization and uncertainty when years of their work are undone with a stroke of a pen, potentially leading to a ‘brain drain’ or a reluctance to embark on ambitious regulatory initiatives knowing they could be easily reversed [57].

6.4. Regulatory Uncertainty and Instability

The heightened use of the CRA, particularly in recent years, introduces a significant degree of regulatory uncertainty and instability into the environment for businesses, industries, and various stakeholders. Industries that invest significant resources to comply with a new regulation, only to see it swiftly overturned, face unpredictable compliance costs and planning challenges [58]. For example, the repeal of the methane rule in 2017 meant that oil and gas companies that had begun to invest in methane capture technologies suddenly faced a different regulatory landscape, impacting their long-term investment decisions. Similarly, the frequent reversals of environmental or labor standards create a ‘regulatory pendulum’ effect, making it challenging for entities to navigate a landscape where rules are subject to rapid shifts based on political cycles. This instability can deter long-term investment, hinder economic planning, and create a less predictable operating environment, which ultimately can negatively impact innovation and growth [59].

6.5. Democratic Accountability and Constitutional Debate

From the perspective of democratic accountability, the CRA presents a complex picture. Proponents argue that it enhances accountability by making the executive branch more directly answerable to the elected Congress for its regulatory output. It allows voters, through their representatives, to directly approve or disapprove of policies made by unelected bureaucrats [60].

However, critics contend that while seemingly democratic, the CRA bypasses the deliberate, often lengthy, and publicly transparent rulemaking process established by the Administrative Procedure Act (APA), which involves notice, public comment, and reasoned justification. Overturning a rule via CRA means that the extensive public input and expert analysis that informed the regulation are effectively nullified without equivalent public deliberation in Congress [61]. This raises questions about whether a swift, politically charged vote, often with limited debate, truly represents a more accountable or deliberative outcome than the APA process it overrides.

Furthermore, the CRA continues to fuel the broader constitutional debate about the separation of powers and the delegation doctrine. While it was designed to overcome the Chadha ruling by requiring bicameralism and presentment, some scholars argue that its practical effect, particularly the ‘substantially similar’ clause, still functions as a quasi-legislative veto or an excessive intrusion into executive functions, blurring the lines between legislative and executive authority [62].

6.6. Future of the CRA

Given its demonstrated effectiveness in periods of unified government, it is highly probable that the CRA will continue to be a significant tool in the regulatory toolkit of future administrations and Congresses. Its strategic advantages – speed, finality (due to the ‘substantially similar’ clause), and bypass of filibuster in the Senate – make it too attractive for a partisan majority to ignore when the conditions are ripe. Calls for reform, either to expand its scope or to limit its impact, are likely to persist, reflecting the ongoing tension between congressional oversight and administrative efficiency in the American regulatory state [63]. The CRA’s future will continue to be intertwined with electoral outcomes and the prevailing political will to either deregulate or re-regulate.

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7. Conclusion

The Congressional Review Act represents a critical and increasingly utilized component of the U.S. federal regulatory framework, providing Congress with a direct, expedited mechanism to oversee and potentially overturn federal agency regulations. Its origins, rooted in concerns about the growth of the administrative state and the limitations of prior oversight tools, positioned it as a constitutionally sound alternative to the invalidated legislative veto.

The CRA’s intricate procedural mechanisms, particularly the strategic ‘lookback’ provision and the unique expedited consideration in the Senate, empower a unified Congress and White House to rapidly and decisively reverse regulatory policy. The historical applications, from the groundbreaking disapproval of the OSHA ergonomics rule in 2001 to the expansive deregulation efforts of the Trump administration in 2017 and the targeted reversals of the Biden administration in 2021, underscore the Act’s potent political significance as a partisan tool for policy reorientation and agenda-setting. It has undeniably become a preferred method for new administrations to clear regulatory obstacles left by their predecessors.

However, the CRA’s considerable power also introduces complex implications for the enduring balance of power between the legislative and executive branches. While it undeniably reinforces legislative authority and enhances accountability over the administrative state, it simultaneously raises concerns about potential legislative overreach, particularly when highly technical rules are overturned without substantive debate or full appreciation of their underlying complexities. The Act’s chilling effect on administrative independence, coupled with the powerful ‘substantially similar’ clause, can create lasting regulatory voids and undermine the role of agency expertise, potentially leading to a more politicized and less stable regulatory environment.

As the political landscape continues to evolve, the Congressional Review Act’s role in shaping federal regulations and the broader governance framework remains a subject of ongoing relevance and debate. Its increasing prominence underscores a fundamental tension in modern American democracy: how to balance the need for efficient, expert-driven administration with robust democratic accountability and legislative oversight. The CRA offers a powerful, albeit often disruptive, answer to this enduring question, ensuring that the interplay between Washington’s branches continues to be dynamic, contested, and consequential for all aspects of public policy.

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

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