The Specter of the Congressional Review Act

It’s election season, and it’s also spooky season. Today’s blog topic is perfect for both! Today we discuss the specter of the Congressional Review Act (“CRA”), which looms over any federal rule, but especially over those passed during the final months of a president’s term.  

Among other things, the CRA allows simple majorities in Congress to “disapprove” certain federal rules passed in recent months, by allowing the Senate to bypass the filibuster. Because a sitting president would typically veto any attempt to disapprove rules that came from their own administration, the CRA presents the greatest risk of disapproval when the White House changes hands and when the new president’s party also controls Congress.  

Background

The CRA, 5 U.S.C. § 601-612, is a 1996 anti-regulatory statute. Among other things, it: (1) requires submission of all agency “rules” to Congress; (2) delays the effective date of “major” rules; (3) provides streamlined procedures, including a filibuster bypass, for congressional disapproval of any rule (whether major or non-major); and (4) creates a “lookback” period for review by the new Congress of rules promulgated toward the end of the prior legislative session. Because of the filibuster bypass and the “lookback” concept, the CRA creates serious risk of disapprovals after elections in which both Houses of Congress and the White House change hands.  

This pattern—White House changes hands, with Congress and incoming president aligned—occurred multiple times after 1996 (specifically, in 2001 and 2009). Despite these transitions, for decades the CRA was rarely invoked. In 2017, however, there was a deluge of CRA disapprovals of Obama Administration rules after the White House passed to Donald Trump, whose Republican party also held simple majorities in both houses of Congress. Dozens of CRA resolutions were introduced that year, with over a dozen signed into law.

CRA Disapproval

Under the CRA, if a disapproval resolution is signed into law, the rule that has been disapproved “shall not take effect (or continue).” 5 U.S.C. § 801(b)(1). Thereafter, the disapproved rule “may not be reissued in substantially the same form, and a new rule that is substantially the same as [the disapproved] rule may not be issued” unless subsequent legislation specifically authorizes reissuance.  Id. § 801(b)(2).

The Lookback Window  

Complicated parameters govern the length of the “lookback window” during which streamlined CRA procedures apply to disapprovals of previously approved rules. The lookback review period includes all rules that were submitted to Congress:  

• Within 60 Senate session days before the end of the session, or  
• Within 60 House “legislative days” before the end of the session. Id. § 801(d)(1).  

This period of 60 working days (Senate session days or House legislative days) is always longer than 60 calendar days. Among other things, a “legislative day” in the House need not correspond to a calendar day, and instead represents a period that begins after each adjournment (of whatever length) and ends at the next adjournment. Because of the “legislative day” concept, one analyst (see this source) notes it is the House calendar, not the Senate calendar, that typically sets the window for the lookback period. 

The below graphic (credit: GWU) illustrates all this:  

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George Washington University

One analyst calculated the CRA lookback date in each year from 1996 though 2019 and found that the review period most often starts in July, but has started as early as May or as late as September.  This means that, in election years, rules finalized in the months leading up to the election—beginning as soon as the May before the election—may be vulnerable to CRA lookback if the White House changes hands and both houses of Congress are aligned with the incoming President.  

What Happens After Disapproval?

A significant question is what happens after a CRA disapproval is enacted. The statute forecloses new rules that are “substantially the same” as the disapproved rule—notably requiring substantial sameness, or identicality, between the disapproved rule and the new rule, not just similarity. See Safari Club Int’l v. Haaland, 31 F.4th 1157, 1167 (9th Cir. 2022), cert. denied, 2023 WL 2357331 (Mar. 6, 2023) (positing CRA to bar substantially identical new rules). This may be an issue to watch if CRA disapprovals continue at the past and present pace.  

The CRA and Imperiled Species

Since the floodgates opened in 2017, Defenders of Wildlife has seen an increasing number of CRA resolutions related to imperiled species. So far, these typically have not been signed into law but blocking them has sometimes required a presidential veto.  

For example, in September 2023, President Biden vetoed two CRA resolutions aimed at stripping Endangered Species Act (“ESA”) protections from the lesser prairie-chicken and northern long-eared bat—protections Defenders fought long and hard in court to secure. CRA disapproval of ESA listings presents a huge risk for the affected species. Defenders’ press release on the matter highlights the severe threats that these species face and explains the dangers of the CRA resolutions.  

These are just two examples of an increasing trend. CRA resolutions were also introduced in the 118th Congress to disapprove a rule related to the reintroduction of grizzly bears to their habitat in the North Cascades Ecosystem, to overturn the endangered listing of the dunes sagebrush lizard, and to remove ESA protections for multiple imperiled species of freshwater mussel. Defenders closely tracks these and other attacks on the ESA on its website.    

The CRA does not threaten merely to chip away at ESA protections for species—if CRA resolutions erasing ESA protections are signed into law – the protections will be obliterated. In the case of the bat and prairie-chicken, for example, the measures would have disapproved the ESA listing of the species. Not only would this have left these vulnerable species defenseless, but opponents might also have then pointed to these disapprovals to thwart any future listing as well—even if the species were to slide even further toward extinction. Defenders is committed to opposing these efforts to substitute politics for science and to legislate extinction.