Why It Matters
Congress has overturned 43 federal agency rules using the Congressional Review Act (CRA) since its enactment in 1996, including 23 during the 119th Congress, according to a Congressional Research Service (CRS) report updated Oct. 1.
The CRA gives Congress expedited procedures to overturn covered agency rules. A joint resolution of disapproval must pass both chambers and receive presidential approval, or become law through a congressional veto override. An overturned rule cannot take effect or continue operating. If already effective, it is treated as though it had never taken effect. Federal agencies must submit covered rules to both chambers of Congress and the Government Accountability Office (GAO) before the rules take effect.
The Big Picture
The CRA's broad definition of "rule" covers final and interim final rules and may include guidance documents and policy memoranda not adopted through traditional notice-and-comment rulemaking. Three categories are excluded: rules of particular applicability, rules concerning agency management or personnel, and internal procedural rules that do not substantially affect outside parties' rights or obligations.
Presidential actions and agency orders that do not qualify as rules are also excluded. The CRA prohibits agencies from reissuing overturned rules in substantially the same form or issuing substantially similar replacements unless Congress specifically authorizes them through subsequent legislation.
The law also states that determinations, findings, actions, and omissions under the CRA are not subject to judicial review. Most courts examining that provision have interpreted it as broadly prohibiting judicial review of statutory questions arising under the CRA. As a result, multiple federal appeals courts have rejected challenges based on alleged agency noncompliance. A minority of federal district courts have interpreted the restriction more narrowly, concluding that it prevents review of congressional actions but not necessarily agency conduct.
The Bottom Line
CRS identifies continuing uncertainty over whether courts can review challenges alleging that an agency's replacement rule is substantially similar to one Congress previously overturned. The CRA does not define "substantially the same," leaving questions about how agencies can revise disapproved regulations and whether courts can enforce that restriction.
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