Congressional Review Act (CRA)
📘 Congressional Review Act (CRA)
The Congressional Review Act (CRA) is a powerful tool that allows the U.S. Congress to review and overturn rules and regulations issued by federal agencies. It was passed in 1996 as part of the Small Business Regulatory Enforcement Fairness Act and is codified in 5 U.S.C. §§ 801–808.
✅ Key Features of the CRA:
Review Period:
Congress has 60 legislative days to disapprove a new federal rule after it is submitted.
Joint Resolution of Disapproval:
Congress can introduce a joint resolution to invalidate the rule. If both chambers pass it and the President signs, the rule is void.
One-Time Shot:
If a rule is overturned, the issuing agency cannot reissue that rule or one that is "substantially the same" without specific authorization by law.
Applies to More Than Major Rules:
CRA covers all agency rules, including guidance documents and policy statements — not just “major” ones.
Submission Requirement:
Rules must be formally submitted to Congress and the GAO (Government Accountability Office) before they take effect.
🏛️ Case Law and Real-World Use of the CRA — Explained
Although the CRA is seldom litigated, its practical uses and related court decisions provide significant insight. Let’s walk through seven of the most important case-based or political applications of the CRA:
🔹 1. INS v. Chadha (1983) – Constitutional Background
Facts:
This case involved a one-house legislative veto of an immigration decision.
Held:
The U.S. Supreme Court held that legislative vetoes are unconstitutional because they violate bicameralism and the Presentment Clause.
CRA Connection:
After this ruling, Congress could no longer unilaterally veto agency rules. The CRA was created to replace that veto power by requiring bicameral passage and presidential approval.
Significance:
The CRA was crafted to conform to Chadha, by ensuring any disapproval of agency rules goes through the full legislative process.
🔹 2. United States v. Southern Indiana Gas and Electric Co. (2002)
Facts:
The company argued that an EPA rule couldn’t be enforced because it had not been submitted to Congress under the CRA.
Held:
The court rejected this argument, stating that the CRA did not make unsubmitted rules automatically unenforceable by agencies.
Significance:
This case showed that courts are reluctant to give individuals the power to invalidate rules simply because the agency failed to follow the CRA’s procedural steps.
🔹 3. Center for Biological Diversity v. Bernhardt (2020)
Facts:
This involved a challenge to the Trump administration’s use of the CRA to repeal an Obama-era rule that protected wildlife in Alaska's national preserves.
Held:
While the court did not strike down the repeal, it acknowledged the CRA’s prohibition on reissuing a "substantially similar" rule once a regulation is overturned by Congress.
Significance:
This was one of the first court cases to interpret the meaning of "substantially the same" in the CRA, suggesting that the CRA creates long-term policy limitations.
🔹 4. 2017 CRA Usage Spree under President Trump
Background:
Before 2017, the CRA had only been used once successfully (in 2001 to repeal an ergonomics rule). But in 2017, with Republican control of both Congress and the White House, it was used to overturn 15 Obama-era regulations.
Examples:
Stream Protection Rule (environment)
CFPB Arbitration Rule (financial regulation)
Broadband Privacy Rule (FCC regulation)
Significance:
This was the broadest use of CRA in history and demonstrated its effectiveness when there is political alignment between Congress and the President.
🔹 5. CFPB Arbitration Rule Repeal (2017)
Facts:
The Consumer Financial Protection Bureau issued a rule banning mandatory arbitration clauses in financial contracts.
CRA Action:
Congress repealed it using the CRA; President Trump signed the disapproval.
Effect:
The rule was invalidated.
The CFPB was barred from issuing a similar rule in the future without explicit legislative approval.
Significance:
Showed the long-term policy consequences of CRA — it can lock out entire categories of regulation.
🔹 6. BLM Methane Rule Repeal Attempt (2017)
Facts:
An Obama-era rule from the Bureau of Land Management limited methane leaks from oil and gas drilling.
CRA Attempt:
The House passed a disapproval resolution, but the Senate rejected it (including a Republican "no" vote).
Significance:
Showed that CRA repeal attempts are not guaranteed, even when a party controls both chambers — political judgment still plays a role.
🔹 7. Department of Labor ESG Rule Repeal Attempt (2023)
Facts:
The Department of Labor issued a rule allowing retirement plan managers to consider environmental, social, and governance (ESG) factors.
CRA Action:
Congress passed a resolution to overturn the rule, but President Biden vetoed it.
Result:
The rule stayed in effect.
Significance:
This illustrates that the CRA’s success depends on presidential approval, even with bipartisan support in Congress.
📌 Summary Table: Case Law & CRA Usage
| Case / Event | Key Learning about CRA |
|---|---|
| INS v. Chadha (1983) | CRA created to comply with constitutional limits post-Chadha |
| U.S. v. Southern Indiana Gas (2002) | Courts won’t void rules due to procedural failures under CRA |
| Center for Biological Diversity v. Bernhardt (2020) | CRA prevents reissuing "substantially similar" rules |
| CRA Usage in 2017 | 15 Obama-era rules repealed; shows CRA’s power when politically aligned |
| CFPB Arbitration Rule Repeal | Agencies blocked from future action in same regulatory area |
| BLM Methane Rule Repeal Attempt | CRA repeal efforts can fail without Senate majority |
| ESG Rule Veto (2023) | Presidential veto can stop CRA disapproval |
⚖️ Final Takeaways:
The CRA is a powerful, but narrowly timed, oversight tool.
It combines legislative and executive checks on the administrative state.
Rules repealed under CRA cannot be easily revived, even by future administrations.
The CRA is rarely used due to political gridlock, but when aligned, it’s a fast track to change regulatory policy.
Judicial interpretation is limited, but recent cases help clarify its procedural boundaries and effects.
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