REPORT FOR THE
A DMINISTRATIVE CONFERENCE OF THE UNITED S TATES

TECHNICAL REFORM OF
THE CONGRESSIONAL REVIEW ACT

Jesse M. Cross
University of South Carolina School of Law

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).

Recommended Citation
Jesse M. Cross, Technical Reform of the Congressional Review Act (Nov. 30, 2021) (report to the Admin. Conf. of
the U.S.).

1

Table of Contents

I.

Introduction ................................................................................................... 3

II.

Background: The Congressional Review Act ............................................. 4
A.
Required Submission of Agency Rules ............................................. 7
B.
Delayed Rule Implementation ......................................................... 10
C.
Expedited Review Process ................................................................ 12
D.
Judicial Review ................................................................................. 15
E.
Usage History .................................................................................... 16

III.

Electronic Report Submissions .................................................................. 17
A.
Benefits............................................................................................... 17
B.
Concerns ............................................................................................ 23

IV.

Timing and Deadlines ................................................................................. 27
A.
Look-Back Period ............................................................................. 30
B.
Introduction Period .......................................................................... 36
C.
Additional Time Periods .................................................................. 39
D.
Codification of Parliamentarian Interpretations ........................... 41

V.

Codifying Congressional Initiation............................................................ 43
A.
The Argument for Codification ....................................................... 47
B.
Recommended Ancillary Policies .................................................... 50

VI.

Conclusion.................................................................................................... 55

2

I.

Introduction

This year marks the twenty-fifth anniversary of the enactment of the Congressional Review
Act (CRA), an oversight mechanism designed to enable Congress to disapprove certain agency
rules by joint resolution. 1 The CRA creates a streamlined legislative procedure for the enactment
of such joint resolutions, thereby allowing Congress to act expeditiously on them within specified
time periods.2 In this way, the CRA provides a legislative mechanism for Congress to prevent
agency rules from going into effect—an effort to reclaim congressional oversight of agency
rulemaking in a post-Chadha world.3
Congress previously attempted to use a similar anniversary—the tenth anniversary of the
CRA—as an opportunity to examine and improve upon the Act’s significant flaws. That
assessment found “ample evidence” that the statute “has not worked well enough to achieve the
objectives envisioned by its sponsors.”4 Despite this conclusion, however, the CRA underwent no
statutory improvements in the intervening years—even as further developments revealed
additional problems of statutory design. As a result, the CRA has never been amended in the
twenty-five years since its enactment.
Improvements to the CRA are today even more necessary than they were fifteen years ago.
On its tenth anniversary, the CRA remained a relatively obscure statute. At that time, it had been
successfully invoked only once,5 and many predicted that the conditions needed for its use would
not repeat.6 These predictions have proven false: the statute has been successfully used nineteen
times since 2016,7 a relative explosion in usage, including use by Presidents of both parties.8 This
sudden rise in usage has created a situation unexpected on the Act’s tenth anniversary: one in
which the CRA has become an active and important legal component of our administrative state.
If the CRA continues in this role, then it will be increasingly important for the details of
the CRA to be thoughtfully designed and well-crafted. Yet, as was true upon the Act’s tenth
anniversary, it is difficult today to argue that the Act is fully achieving its objectives. Rather, there
is broad consensus that flaws in the original design of the statute, as well as intervening changes
1

Small Business Regulatory Enforcement Fairness Act, Pub. L. No. 104-121, 110 Stat. 857 (1996) (codified at 5 U.S.C.
§§ 801-808 (2018)).
2
5 U.S.C. § 802.
3
Id. § 801(b) & (f).
4
SUBCOMM. ON COMMERCIAL & ADMIN. L. OF THE H. COMM. ON THE JUDICIARY, 109TH CONG., INTERIM REPORT ON THE
ADMINISTRATIVE LAW, PROCESS, AND PROCEDURE PROJECT FOR THE 21ST CENTURY 75 (Comm. Print No. 10 Dec. 2006)
[hereinafter INTERIM REPORT], https://www.govinfo.gov/content/pkg/CPRT-109HPRT31505/pdf/CPRT-109HPRT31505.
pdf. See also Congressional Review Act: Hearing Before the Subcommittee on Commercial and Administrative Law of the
Committee on the Judiciary, House of Representatives, 110th Cong. 10 (2007) [hereinafter CRA Hearing],
https://www.govinfo.gov/content/pkg/CHRG-110hhrg38764/pdf/CHRG-110hhrg38764.pdf (statement of Mort
Rosenberg).
5
See Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001).
6
See MORTON ROSENBERG, CONG. RSCH. SERV., RL30116, CONGRESSIONAL REVIEW OF AGENCY RULEMAKING: AN
UPDATE AND ASSESSMENT OF THE CONGRESSIONAL REVIEW ACT AFTER A DECADE, at CRS-1 (2008),
https://fas.org/sgp/crs/misc/RL30116.pdf.
7
See Congressional Review Act, U.S. GOV’T ACCOUNTABILITY OFF., https://www.gao.gov/legal/other-legalwork/congressional-review-act [https://perma.cc/UBE3-UHJL] (listing disapprovals through Trump administration);
Richard L. Revesz, Using the Congressional Review Act to Undo Trump-Era Rules, BLOOMBERG LAW (Aug. 30, 2021),
https://news.bloomberglaw.com/environment-and-energy/using-the-congressional-review-act-to-undo-trump-era-rules
(listing Biden administration disapprovals).
8
See Congressional Review Act, supra note 7; Revesz, supra note 7.

3

both within Congress and in the surrounding world, have created significant opportunity to
improve the operation of statute.
Consequently, this report uses the twenty-fifth anniversary of the CRA as an opportunity
to consider whether targeted reforms might ensure that the CRA continues to function as designed
over time. To this end, the report examines the wisdom and feasibility of three specific reforms to
the CRA. These reforms have repeatedly been identified as potential good governance solutions
that, given the quarter-century of experience with the CRA, appear to hold significant promise to
strengthen the Act. The potential reforms are as follows:
•

Phase out the requirement that agencies submit paper copies of certain materials to
Congress in favor of an electronic submission process.

•

Make it easier to ascertain key dates and time periods that initiate CRA review of
agency rules.

•

Formalize a procedure by which Members of Congress can initiate CRA review of rules
that agencies conclude are not covered by the CRA.

The aim of this report is to examine the benefits, drawbacks, and feasibility of these three
proposed reforms. To accomplish this, the report proceeds in five Parts. Part II provides a
background on the CRA, explaining its statutory design and intended operation. Parts III through
V then each examine in detail a proposed technical reform to the CRA. Part III considers the
possibility of Congress transitioning to an electronic submission process for CRA materials. Part
IV looks at options for clarifying and improving the various time and date calculations that are
central to the operation of the Act. Finally, Part V examines the possibility of establishing a formal
procedure whereby Congress can initiate CRA review of rules not submitted by agencies. A brief
conclusion follows.

II.

Background: The Congressional Review Act

On March 29, 1996, the Contract with America Advancement Act of 1996 was enacted
into law.9 A bipartisan accomplishment, the legislation passed the Republican-controlled 104th
Congress with sizeable majorities before being signed into law by President Clinton. 10 Title II of
the Act, known as the Small Business Regulatory Enforcement Fairness Act of 1996, included a
provision adding a new chapter to title 5 of the U.S. Code (where it sits alongside other provisions
regulating the modern administrative state, such as the Administrative Procedure Act).11 It is this

9

Pub. L. No. 104-121, 110 Stat. 847 (1996).
See H.R.3136—Contract with America Advancement Act of 1996, CONGRESS.GOV, https://www.congress.gov/bill/
104th-congress/house-bill/3136/actions [https://perma.cc/B5SU-N6ZS] (noting final House vote of 328-91 and Senate
passage by unanimous consent). See also 142 CONG. REC. 6922–30 (Mar. 28, 1996) (statement of Rep. Hyde) [hereinafter
Joint Committees’ Statement] (giving procedural history); Bethany A. Davis Noll & Richard L. Revesz, Regulation in
Transition, 104 MINN. L. REV. 1, 14 (2019) (noting passage on bipartisan vote).
11
The legislative history explained it (on behalf of the committees of jurisdiction) as “add[ing] a new chapter to the
Administrative Procedure Act.” See Joint Committees’ Statement, supra note 10, at 6926. On the status of this legislative
history statement, see infra note 15.
10

4

additional chapter of title 5, which was itself the beneficiary of bipartisan support, 12 that is
commonly referred to as the Congressional Review Act (CRA).13
Describing the purpose of this new chapter, legislators spoke of a desire to reassert a
measure of congressional power over the administrative state. 14 As a joint statement of the
committees of jurisdiction for the legislation observed:
Our constitutional scheme creates a delicate balance between the appropriate roles of the Congress
in enacting laws, and the Executive Branch in implementing those laws. This legislation will help
to redress the balance, reclaiming for Congress some of its policymaking authority, without at the
same time requiring Congress to become a super regulatory agency.15

Explaining the mechanism that the CRA would use to accomplish this inter-branch goal,
the joint statement then observed: “This [chapter] allows Congress the opportunity to review a rule
before it takes effect and to disapprove any rule to which Congress objects.”16 Or, as one of the
Act’s key supporters in Congress put it, the CRA would “provide a formal Congressional review
process of regulations issued by Federal agencies.”17 The goal was to empower Congress to
reclaim some oversight of modern administrative power—and the method was to establish a
procedure whereby Congress would have a meaningful opportunity to review agency rules.18
In the design of this procedure, Congress faced judicially-imposed limits that it had not
confronted in earlier decades. For much of the twentieth century, Congress had enacted statutes
that empowered one or both chambers of Congress, acting without presidential involvement, to
reject individual agency rules. By the mid-1970s, Congress had enacted nearly two hundred such
“legislative veto” statutes, thereby providing Congress with an efficient method of disapproving

See 142 CONG. REC. S3120 (daily ed. Mar. 28, 1996) (statement of Sen. Nickles) (“The Congressional Review Act
before us is similar to S. 219, the Regulatory Transition Act that passed the Senate 100–0 a year ago this week.”); 142
CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“Before it becomes law, this bill will have passed the Senate at least four
times and passed the House at least twice.”).
13
See 5 U.S.C. § 801 note (“This chapter is popularly known as the ‘Congressional Review Act’.”).
14
See also CRA Hearing, supra note 4, at 26 (statement of Sally Katzen) (“[T]he CRA was intended to serve an
extraordinarily important function, namely, to reassert congressional accountability for what has become known as the
administrative state.”).
15
Joint Committees’ Statement, supra note 10, at 6926. This statement was entered into the Congressional Record in each
chamber on behalf of the committees of jurisdiction as part of an explicit effort to remedy the lack of official legislative
history generated during the enactment process. See id. (“[N]o formal legislative history document was prepared to explain
the legislation or the reasons for changes in the final language negotiated between the House and Senate. This joint
statement of the committees of jurisdiction on the congressional review subtitle is intended to cure this deficiency.”). In
the House, it was inserted by Rep. Hyde on April 19, 1996—but when the bound version of the Congressional Record was
compiled, the statement was appended to the House debate on the bill on March 28. See id. An identical statement was
entered into the Congressional Record in the Senate on April 18, 1996. See 142 Cong. Rec. S3683 (Apr. 18, 1996).
16
Joint Committees’ Statement, supra note 10, at 6926.
17
142 CONG. REC. S3120 (daily ed. Mar. 28, 1996) (statement of Sen. Nickles). Senator Nickles had been a sponsor of of
S. 219 the year prior, which was an important prototype for the CRA. See 142 Cong. Rec. S3683 (Apr. 18, 1996)
(statement of Sen. Nickles) (describing S. 219 as “the forerunner to the congressional review title” and Sen. Nickles as its
sponsor).
18
As a witness from the Congressional Research Service put it at a subsequent congressional hearing: “[The Act’s
purpose] is to set in place an effective mechanism to keep Congress informed about the rulemaking activities of Federal
agencies and to allow for expeditious congressional review and possible nullification of particular rules.” CRA Hearing,
supra note 4, at 10 (statement of Mort Rosenberg).
12

5

administrative rulemaking that it disliked.19 In 1983, however, the Supreme Court declared in INS
v. Chadha that the legislative veto was an unconstitutional method of bypassing presidential
presentment.20 As a result of this holding in Chadha, the architects of the CRA were faced with a
particular challenge: to develop a mechanism that would allow Congress to act with the expediency
needed to respond to agency rulemaking, yet to retain the elements of bicameralism-andpresentment that the Court had required in Chadha.21
In response to this challenge, the drafters of the CRA elected to create a “fast-track” or
“expedited” congressional procedure for the review of agency rules.22 Much like the legislative
veto, this approach had a long track record in Congress. As Molly Reynolds has charted, the
method first appeared in Congress in the mid-1800s,23 was first used in policymaking in 1939,24
and was increasingly used in the last half century (with over 160 such procedures being enacted
since 1969).25 In these statutes, Congress often retains the key traits of bicameralism and
presentment, yet it removes internal legislative hurdles and vetogates that can delay or prevent
enactment of federal legislation. Since legislative procedure beyond the basic bicameralism-andpresentment requirement is mostly entrusted to each chamber under Article I, Section 5, this
approach does not run afoul of the limits expounded in Chadha.26 Fast-track legislation therefore
provided the drafters of the CRA with an option that, while limited in its ability to overcome the
hurdles of bicameralism and presentment, at least could create a pathway for congressional review
of agency rules that was somewhat less cumbersome than the traditional congressional process.
To apply this expedited approach to agency rulemaking, the architects of the CRA outlined
a statutory scheme with three key elements:
19

See Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 DUKE L.J. 1059, 1086
(2001) (“Between 1932 and 1975, Congress passed 196 statutes that authorized 295 veto-type procedures, often giving
either house, or even the oversight committee of either house, the power to reject an agency rule.”) (citing James
Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives,
52 IND. L.J. 323, 324 (1977)). See also CRA Hearing, supra note 4, at 29 (statement of Sally Katzen) (“One device used
by Congress to retain close control of certain rules, which was used in nearly 200 hundred provisions, was the one- (or
sometimes two-) House legislative veto, whereby the enabling legislation provided that any implementing regulations
would be laid before the Congress and go into effect only if neither House objected.”).
20
462 U.S. 919 (1983).
21
See Joint Committees’ Statement, supra note 10, at 6926 (“Congress has considered various proposals for reviewing
rules before they take effect for almost twenty years. Use of a simple (one-house), concurrent (two-house), or joint (two
houses plus the President) resolution are among the options that have been debated and in some cases previously
implemented on a limited basis. In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down as
unconstitutional any procedure where executive action could be overturned by less than the full process required under the
Constitution to make laws—that is, approval by both houses of Congress and presentment to the President. That narrowed
Congress' options to use a joint resolution of disapproval. The one-house or two-house legislative veto (as procedures
involving simple and concurrent resolutions were previously called), was thus voided.”).
22
Molly Reynolds has argued for calling such statutes “majoritarian exceptions,” as they expedite procedure by returning
Congress to simple majoritarian thresholds—an “exception” to the supermajoritarian standards that typically prevail (the
most notable of which is the filibuster). See MOLLY E. REYNOLDS, EXCEPTIONS TO THE RULE: THE POLITICS OF FILIBUSTER
LIMITATIONS IN THE U.S. SENATE (2017).
23
Id. at 19.
24
Id. Reynolds cites a concurrent resolution for this initial appearance, which of course does not require presidential
presentment.
25
Id. at 2 (“[C]areful review of the historical record has identified 161 such provisions adopted between the 91st and 113th
Congresses (1969–2014).”). For examples of other fast-track legislation, see 10 U.S.C. § 2687 note (defense base
closures); 19 U.S.C. §§ 2191–2193 (international trade agreements); 5 U.S.C. §§ 909–912 (presidential reorganization
plans).
26
U.S. CONST. art. I sec. 5 (“Each House may determine the Rules of its Proceedings”).

6

(1) Required submission of agency rules.
(2) Delayed rule implementation.
(3) Expedited congressional review process for overturning rules.
Each of these elements warrants further consideration.

A.

Required Submission of Agency Rules

First, the CRA requires an agency to submit a brief report (hereinafter the “801(a) report”)
on every rule it promulgates to each chamber of Congress and to GAO, which includes submission
of the rule itself.27 This submission requirement applies to a notably broad universe of actors. To
define this set of actors, the statute borrows a definition of “Federal agency” from the APA that is
particularly inclusive,28 a choice that one legislator explained by remarking that: “It is essential
that this regulatory reform measure include every agency, authority, or entity that establishes
policies affecting all or any segment of the general public.” 29 The chosen definition therefore
captures entities such as independent agencies, government corporations, and actors that may not
conduct rulemaking under section 553(c) of the APA.30 However, following precedent in
interpreting the APA, the CRA does not cover actions of the President.31
The definition of covered “rules” is similarly broad.32 Aiming to capture any agency action
that impacts the general public, the CRA borrows the APA definition of “rule,” which courts have

27

5 U.S.C. § 801(a)(1)(A).
Id. § 804(1). See also Joint Committees’ Statement, supra note 10, at 6929 (“The committees intend this chapter to be
comprehensive in the agencies and entities that are subject to it. The term ‘Federal agency’ in subsection 804(1) was taken
from 5 U.S.C. §551(1).”).
29
142 CONG. REC. H3005 (daily ed. Mar. 28, 1996).
30
See 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“Congress intends this legislation to be comprehensive. . . . The
objective is to cover each and every entity in the executive branch, whether it is a department, independent agency,
independent establishment, or Government corporation, whether or not it conducts its rulemaking under section 553(c),
and whether or not it is even covered by other provisions of title 5, U.S. Code. This definition of ‘Federal agency’ is also
intended to cover entities and establishments within the executive branch, such as the U.S. Postal Service, that are
sometimes excluded from the definition of an agency in other parts of the U.S. Code.”).
31
MAEVE P. CAREY & VALERIE C. BRANNON, CONG. RSCH. SERV., IF11096, CRS IN FOCUS: THE CONGRESSIONAL REVIEW
ACT: DEFINING A “RULE” AND OVERTURNING A RULE AN AGENCY DID NOT SUBMIT TO CONGRESS 1 (Feb. 5, 2019),
https://crsreports.congress.gov/product/pdf/IF/IF11096 (“Following precedent interpreting the APA, the CRA does not
cover actions of the President, such as executive orders and presidential proclamations.”). On presidential usage of this
exemption, see ROSENBERG, supra note 6, at CRS-17 (“A number of Senate opponents of the policy filed a disapproval
resolution on March 20, 2001, S.J.Res. 9, to nullify the Administrator’s action, reasoning that it was a covered rul e under
the CRA since the implementing action was taken by an executive agency official and not by the President himself, and
thus was reviewable by Congress. The President responded by rescinding his earlier directive to the AID Administrator
and thereafter issuing an executive directive under his statutory authority implementing the necessary conditions and
limitations for NGO grants. The presidential action mooted the disapproval resolution, and rendered a subsequent attempt
to veto by S.J.Res. 17 ineffective because the CRA does not reach such actions by the President.”).
32
See Joint Committees’ Statement, supra note 10, at 6930 (“The committees intend this chapter to be interpreted broadly
with regard to the type and scope of rules that are subject to congressional review.”). The GAO accordingly has interpreted
the term broadly. See MAEVE P. CAREY & VALERIE C. BRANNON, CONG. RSCH. SERV., R45248, THE CONGRESSIONAL
REVIEW ACT: DETERMINING WHICH “RULES” MUST BE SUBMITTED TO CONGRESS 21–22 (Mar. 6, 2019),
https://crsreports.congress.gov/product/pdf/r/r45248 (“In many of these opinions, GAO has defined the term ‘rule’ as used
in the CRA expansively.”). See also MAEVE P. CAREY & CHRISTOPHER M. DAVIS, CONG. RSCH. SERV., R43992, THE
CONGRESSIONAL REVIEW ACT (CRA): FREQUENTLY ASKED QUESTIONS 6 (Jan. 14, 2020) (“Notably, the CRA adopts the
broadest definition of rule contained in the APA . . . .”).
28

7

construed broadly.33 Reaching beyond legislative rules,34 this definition additionally captures
agency publications such as interpretive rules, policy statements, and other publications that are
often characterized as guidance documents.35 Rules pertaining to monetary policy are wholly
excluded from the Act’s coverage, however. 36 And the statute is silent on the actor that determines
whether an agency action constitutes a “rule” for purposes of the statute37—a silence that has
generated disputes,38 and one that has led to implementation challenges discussed in Part V.
Nonetheless, the definition unquestionably captures a staggering array of agency actions; as of
October 7, 2021, agencies had submitted approximately 90,000 rules to GAO under the Act, 39 with
thousands more likely never submitted. 40
For a narrower subset of agency rules, known under the statute as “major rules,” agencies
also must submit to GAO (and make available to each chamber) documentation showing that the
rule was developed and promulgated in compliance with various rulemaking requirements.41 In
practice, this submission requirement is made via a standard two-page form issued to the agencies
by OMB.42 This second submission requirement relies upon a definition of “major rules” from
ROSENBERG, supra note 6, at CRS-2–CRS3 (“The courts have recognized the breadth of the term, indicating that it
encompasses ‘virtually every statement an agency may make,’ including interpretive and substantive rules, guidelines,
formal and informal statements, policy proclamations, employee manuals and memoranda of understanding, among other
types of actions.”) (citing Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983)).
34
Joint Committees’ Statement, supra note 10, at 6929 (“In some instances, federal entities and agencies issue rules that
are not subject to the traditional 5 U.S.C. §553(c) rulemaking process. However, the committees intend the congressional
review chapter to cover every agency, authority, or entity covered by subsection 551(1) that establishes policies affecting
any segment of the general public.”). See also id. at 6930 (“This definition of a rule does not turn on whether a given
agency must normally comply with the notice-and-comment provisions of the APA, or whether the rule at issue is subject
to any other notice-and-comment procedures.”).
35
See CAREY & BRANNON, supra note 31, at 1 (“This definition [of “rule” in the APA that the CRA picks up and
modifies] includes actions that are subject to the APA’s notice-and-comment rulemaking procedures, but it also covers
interpretive rules and general statements of policy—categories that may encompass agency actions that are sometimes
referred to as guidance documents.”).
36
5 U.S.C. § 807.
37
See U.S. Cong., Senate Comm. on Energy & Natural Res. & H. Comm. on Resources, Joint Hearings on Tongass Land
Management, 105th Cong., 1st Sess., July 9–10, 1997, S. Hrg. 105-252 (Washington: GPO, 1997) (“[The CRA] does not
provide any identification of who is to decide what a rule is, unlike the issue of whether a rule is a major rule or not,
which, as [former OIRA Administrator] Ms. Katzen pointed out, has been assigned to her.”) (quoted in CAREY &
BRANNON, supra note 32).
38
See Bridget C.E. Dooling, Into the Void: The GAO’s Role in the Regulatory State, 70 AM. U. L. REV. 387, 403 (2020)
(“There was a time when the executive branch was cool to the idea of the GAO offering its legal opinion on this issue.
Testifying before a joint hearing of Congress in 1997, Sally Katzen, then Administrator of the Office of Information of
Regulatory Affairs, explained that ‘it is the agency promulgating the regulation that has the responsibility for determining
whether a particular issuance is a ‘rule’ under the [CRA].’”).
39
The GAO database chronicles 84,451 rules submitted to GAO under the Act as of this date. See Congressional Review
Act, U.S. GOV’T ACCOUNTABILITY OFF., https://www.gao.gov/legal/other-legal-work/congressional-reviewact?processed=1&type=all&priority=all#s-skipLinkTargetForMainSearchResults (listing search results in database out of
84,451 total results) (last visited Oct. 7, 2021). It also has been reported that roughly 5,700 additional rules were submitted
before GAO established its database. See COPELAND, supra note 53, at 6 n.34.
40
See infra notes 234–241.
41
5 U.S.C. § 801(a)(1)(B). These include requirements to conduct regulatory flexibility analysis with respect to small
entities (as required under 5 U.S.C. § 603-09); to conduct various economic analyses for mandates imposing over $100
million in burdens on state or local governments or the private sector (as required by the Unfunded Mandates Reform Act
of 1995, § 202-05); and to submit “any other relevant information or [evidence of compliance with applicable]
requirements under any other Act and any relevant Executive orders.” Id.
42
On OMB development of form (after congressional prodding, and in consultation with GAO), see CAREY & BRANNON,
supra note 32, at 18 (“In FY1999 appropriations legislation, Congress required the Office of Management and Budget
33

8

President Reagan's Executive Order 1229143—a definition that Congress chose partly to ensure
that it reached beyond notice-and-comment rulemaking, given congressional frustration with past
agency circumvention of notice-and-comment requirements.44
The statute is explicit that the Administrator of the Office of Information and Regulatory
Affairs (OIRA) decides if a rule meets this “major rule” definition.45 It was hoped that the
Administrator could make consistent, centralized determinations for agencies and would retain the
prior interpretations she had applied under the aforementioned Executive Order.46 This
determination by the Administrator, like many determinations under the CRA, is not judicially
reviewable.47
The CRA contemplated that GAO would rely partly upon this submission to develop a
report to Congress on each “major rule.”48 The GAO must submit this report not later than 15
calendar days after the 801(a) report is submitted to Congress and the relevant rule is published in

(OMB) to provide agencies with a standard form to use to meet this reporting requirement. OMB issued the form in March
1999 as part of a larger guidance to agencies on compliance with the CRA. A copy of the form is provided in Appendix A
of this report.”). GAO has interpreted this provision as only requiring agencies to complete a checklist attesting that the
agency has performed requisite tasks, without further examination into the adequacy of agency compliance. See
ROSENBERG, supra note 6, at CRS-3 (“The CG has interpreted his duty under this provision relatively narrowly as
requiring that he determine whether the prescribed action has been taken, i.e., whether a required cost-benefit analysis has
been provided, and whether the required actions under the Regulatory Flexibility Act, the Unfunded Mandates Reform Act
of 1995, and any other relevant requirements under any other legislation or executive orders were taken, not to examine
the substantive adequacy of the actions.”); RICHARD S. BETH, CONG. RSCH. SERV., RL31160, DISAPPROVAL OF
REGULATIONS BY CONGRESS: PROCEDURE UNDER THE CONGRESSIONAL REVIEW ACT 8 (Oct. 10, 2001),
https://www.senate.gov/CRSpubs/316e2dc1-fc69-43cc-979a-dfc24d784c08.pdf (“In practice, this GAO report has not
involved substantial additional analysis of agency actions, but has taken the form of a simple checklist.”).
43
5 U.S.C. § 804(2). See also Joint Committees’ Statement, supra note 10, at 6930 (“The definition of a ‘major rule’ in
subsection 804(2) is taken from President Reagan’s Executive Order 12291.”); 142 CONG. REC. S3121 (daily ed. Mar. 28,
1996) (statement of Sen. Nickles) (“Major final rules, which the Congressional Review Act defines as final rules that meet
the criteria for ‘‘major rules’’ set forth in the Reagan Administration’s Executive Order 12291.”). Rules promulgated
under the Telecommunications Act of 1996 and the amendments made by that Act are exempted. 5 U.S.C. § 804(2).
44
See 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“The version of subtitle E that we will pass today takes the
definition of a ‘major rule’ from President Reagan’s Executive Order 12291. . . . We intend the term ‘major rule’ to be
broadly construed, particularly the nonnumerical factors contained in the new subsection 804(2) (B) and (C).”); id. (“All
too often, agencies have attempted to circumvent the notice and comment requirements of the Administrative Procedure
Act by trying to give legal effect to general policy statements, guidelines, and agency policy and procedure manuals. . . .”).
45
5 U.S.C. § 804(2).
46
Joint Committees’ Statement, supra note 10, at 6930 (“Pursuant to subsection 804(2), the Administrator of the Office of
Information and Regulatory Affairs in the Office of Management and Budget (the Administrator) must make the major
rule determination. The committees believe that centralizing this function in the Administrator will lead to consistency
across agency lines. Moreover, from 1981-93, OIRA staff interpreted and applied the same major rule definition under
E.O. 12291. Thus, the Administrator should rely on guidance documents prepared by OIRA during that time and previous
major rule determinations from that Office as a guide in applying the statutory definition to new rules.”). On evolution of
whether OIRA Administrator has made centralized determination for independent agencies, see CAREY & DAVIS, supra
note 32, at 10 (noting transition in Trump administration to centralized determinations).
47
5 U.S.C. § 805. See also Joint Committees’ Statement, supra note 10, at 6929 (“Section 805 provides that a court may
not review any congressional or administrative ‘determination, finding, action, or omission under this chapter.’ Thus, the
major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs of the Office of
Management and Budget are not subject to judicial review.”).
48
5 U.S.C. § 801(a)(2)(A). See also CAREY & BRANNON, supra note 32, at 18 (noting that agency report includes “most of
the information required to be included in GAO’s major rule report”).

9

the Federal Register. 49 This report from GAO, along with the submissions from agencies, would
alert Congress to new rulemaking—and empower it with basic information about that
rulemaking.50 In so doing, it would provide Congress with information that could awaken
legislators to any concerns that might lead them to overturn the rulemaking under the provisions
of the Act discussed in infra Subpart C.

B.

Delayed Rule Implementation

As the second major component of the Act, the CRA imposes two timing delays upon
implementation of agency rules. First, it stipulates that an agency rule may not take effect until the
agency has submitted the 801(a) report to GAO and each chamber of Congress. 51 Exception is
made for certain rules related to hunting, fishing, and camping, as well as for rules with respect to
which an agency makes a good cause determination that notice-and-comment procedures are
unnecessary.52 This “good cause” exception is taken from the APA,53 where it has been narrowly
construed by courts 54—and there is indication that Congress similarly wanted agencies to apply it
narrowly in the CRA context. 55
In addition to this statutorily-imposed delay on rule implementation, the CRA also imposes
a further delay on the effectiveness of major rules. In general, the CRA provides that major rules
may not take effect until at least 60 calendar days after the 801(a) report has been submitted to
Congress and the rule published in the Federal Register.56 However, this window can be lengthened
49

5 U.S.C. § 801(a)(2)(A). For each CRA timing requirement that, like this one, is defined with reference to the date on
which the 801(a) report is submitted to Congress and the relevant rule is published in the Federal Register, if these events
do not occur on the same date, then the timing requirement is measured by reference to whichever of the described actions
occurs later. See 5 U.S.C. § 802(a)(2) (defining “submission or publication date” for CRA purposes as the later of these
two described dates).
50
See CAREY & DAVIS, supra note 32, at 2 (Jan. 14, 2020) (noting that these “provisions of the CRA may be viewed as
helping to increase congressional awareness of federal agency actions”).
51
5 U.S.C. § 801(a)(1)(A).
52
Id. § 808.
53
See id. § 553(b)(3)(B). See also Joint Committees’ Statement, supra note 10, at 6928 (“This ‘good cause’ exception in
subsection 808(2) is taken from the APA and applies only to rules which are exempt from notice and comment under
subsection 553(b)(B) or an analogous statute.”). See also CURTIS W. COPELAND, CONG. RSCH. SERV., R40997,
CONGRESSIONAL REVIEW ACT: RULES NOT SUBMITTED TO GAO AND CONGRESS 3 (Dec. 29, 2009),
https://www.everycrsreport.com/files/20091229_R40997_9c378c3e951a9a0272213d2ac51818214ed85029.pdf (“The
‘good cause’ language in the second category of rules [under 808] refers to an exception to the notice and comment
rulemaking requirement in the Administrative Procedure Act (APA), which allows agencies to publish final rules without
previously seeking comments from the public on an earlier proposed rule. Interim final and direct final rules are
considered particular applications of the APA’s good cause exception.”).
54
ROSENBERG, supra note 6, at CRS-4 n.6 (“Reviewing courts have generally applied the Administrative Procedure Act’s
good cause exemption, from which this language is obviously taken, narrowly in order to prevent agencies from using it as
an escape clause from notice and comment requirements. See, e.g., Action on Smoking and Health v. CAS, 713 F.2d 795,
800 (D.C. Cir. 1987). However, since Section 805 precludes judicial review . . . there could be no court condemnation of a
good cause determination.”).
55
See 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“The good cause exception in section 808(2) is borrowed from
the chapter 5 of the Administrative Procedure Act and applies only to rules which are exempt from notice and comment
under section 553. Even in such cases, the agency should provide for the 60-day delay in the effective date unless such
delay is clearly contrary to the public interest. This is because a determination under section 801(c) and 808(2) shall have
no effect on the procedures under 802 to enact joint resolutions of disapproval respecting such rule, and it is contrary to
the policy of this legislation that major rules take effect before Congress has had a meaningful opportunity to act on such
joint resolutions.”).
56
5 U.S.C. § 801(a)(3).

10

if the President vetoes a CRA disapproval of the rule (an effort to provide Congress with sufficient
opportunity to override the veto) 57 or if the rule otherwise would take effect at a later date. 58 The
major rule delay window also can be shortened if: (1) either chamber rejects a joint resolution of
disapproval of the rule under the CRA;59 (2) the President determines by executive order (and
submits written notice to Congress) that the rule qualifies for one of several emergency rulemaking
categories;60 or (3) any of the aforementioned exceptions for hunting, fishing, and camping rules
or for “good cause” exemptions applies.61
The effectiveness delays under the statute work in conjunction with subsection 553(d) of
the APA, which requires publication of most substantive rules at least 30 days prior to their
effective date.62 To assist with the tracking of the submission dates that are used to initiate the CRA
effectiveness delays, notice of each chamber’s receipt of an 801(a) report is published in the
sections of the daily Congressional Record devoted to “Executive Communications.”
Congressional receipt also is entered into a database that can be searched using congress.gov. GAO
notes its receipt of rules in a database on its website.
There has been significant dispute over whether, if an agency implements a rule prior to
the CRA-stipulated effectiveness delays, judicial review is available to render the rule ineffective.
In the aforementioned joint committee statement for the legislation, it was indicated that such
review was meant to be available, notwithstanding a statutory provision prohibiting judicial review
of certain elements of the statute. 63 While courts have been inconsistent on the question, 64 they
have inclined to find that judicial review is barred.65 This prohibition on judicial review is
discussed further in infra Subpart D.
57

5 U.S.C. § 801(a)(3)(B). The statute provides an extension of the delay window of 30 session days, unless either
chamber holds a failed override vote on the veto, in which case the rule may take effect immediately. Legislative history
indicates that Congress viewed this provision as implying that the delay window also would extend if Congress passed a
disapproval resolution that, after 60 days, the President had neither signed nor vetoed. See 142 CONG. REC. S3120 (daily
ed. Mar. 28, 1996) (statement of Sen. Nickles) (“Major final rules would not go into effect after the 60-day period if the
joint resolution of disapproval has passed both Houses within that time.”). It is unclear how this veto delay window is
meant to operate in a situation where, after 60 days, Congress has not yet even enacted the resolution See Daniel Cohen &
Peter L. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95, 108 (1997) (“Suppose, then, ‘60
calendar days’ have expired and no joint resolution of disapproval has been introduced in either house, although time
remains in which to do so. May the rule take effect? The second condition of section 801(a)(3)(B) requires actual
enactment of a joint resolution of disapproval and a presidential veto, but the stage for these events has not been set and
the statute does not limit the time within which they might occur.”). For a suggestion that it might be unconstitutional for
the veto delay to apply in such a situation, see id.
58
5 U.S.C. § 801(a)(3)(C).
59
Id. § 801(a)(5).
60
Id. § 801(c). These categories include: that the rule is necessary due to imminent threat to health or safety or other
emergency, for the enforcement of criminal laws, or for national security; or is issued pursuant to any statute
implementing an international trade agreement. Id.
61
Id. § 808.
62
Id. § 553(d).
63
Joint Committees’ Statement, supra note 10, at 6929 (“The limitation on a court’s review . . . however, does not bar a
court from giving effect to a resolution of disapproval that was enacted into law.”).
64
See 10th Anniversary of the Congressional Review Act: Hearing Before the Subcomm. on Commercial & Admin. Law of
the H. Comm. on the Judiciary, 109th Cong., 2d Sess. (Mar. 30, 2006) (statement of Todd F. Gaziano, Esq., Sr. Fellow in
Legal Stud. & Dir. For Legal & Jud. Stud., Heritage Found.) (noting conflicting rulings); ROSENBERG, supra note 6
(same).
65
See CAREY & BRANNON, supra note 31, at 2 (“[T]he CRA states that ‘no determination, finding, action, or omission
under this chapter shall be subject to judicial review,’ which courts have usually interpreted to prohibit judicial review of a

11

C.

Expedited Review Process

Finally, the CRA creates an expedited process for Congress—and specifically, for the
Senate—to access during consideration of a joint resolution to disapprove an agency rule.66 That
process applies to joint resolutions that both: (1) contain specific language provided in the CRA;67
and (2) are introduced during a specified period (hereinafter the “introduction period”). With
respect to the latter requirement, the statute specifies that the introduction period begins with
receipt of the 801(a) report from the agency by Congress68 and ends 60 calendar days thereafter
(excluding any adjournments of more than three days by either chamber).69 When a joint resolution
satisfies these conditions, it benefits from the unique Senate procedural track created by the CRA.
That procedural track has a number of benefits. First, after the typical referral to the
committee of jurisdiction,70 a petition of 30 Senators may discharge the resolution from the
committee after 20 calendar days (measured from when the 801(a) report is submitted to Congress
and the rule published in the Federal Register).71 This sets a higher bar than most expedited
procedure rules, which often allow bills to go directly to the chamber floor, to discharge
automatically after a fixed period, or to be discharged on motion by any Senator.72 In this regard,
the committee discharge provision more closely resembles the cloture petition requirements than
a typical fast-track procedure. Nonetheless, it ensures that popular discharge petitions cannot be
stymied by a hostile committee. The tradeoff of this virtue is that the provision may reduce
opportunity for committee consideration—however, this policy likely has relatively minor costs,
given the fact that Senate committees do not generally have the ability to amend and improve the
disapproval resolution anyhow.73
claim that an agency has failed to submit a rule under the CRA. This provision makes it unlikely that a court would
compel an agency to submit a rule under the CRA.”); Noll & Revesz, supra note 10, at 23 (“Most courts that have ruled on
this question have interpreted the provision to bar review of claims that agencies failed to comply with the Congressional
Review Act's reporting requirement.”). See also CAREY & DAVIS, supra note 32, at 20-23 (providing overview of judicial
treatment of provision).
66
The statute is explicit that, while located in statute, section 802 is an exercise of each chamber’s rulemaking power. See
5 U.S.C. § 802(g). Language to this end appears consistently in statutes providing for expedited procedures. For a critical
evaluation of rules in statute, see, e.g., Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment,
Separation of Powers, and the Rules of Proceedings Clause, 19 J. L. & POL. 345 (2003).
67
5 U.S.C. § 802(a) (requiring the resolution to state: “That Congress disapproves the rule submitted by the ____ relating
to ____, and such rule shall have no force or effect.”).
68
But see infra Part IV.B. (noting that Senate Parliamentarian also has required Federal Register publication in practice to
begin this window).
69
Id. On the practical impact of this three-day window, see BETH, supra note 42, at 3 (noting that “weekend days will
count toward the initiation period, but district work periods will not”).
70
5 U.S.C. § 802(b)(1).
71
Id. § 802(c).
72
BETH, supra note 42, at 10 (“This provision [for committee discharge] appears to have no close analog among other
Senate procedures. Expedited procedure statutes more typically provide that after a specified time period, either the
committee is automatically discharged, or a motion to discharge it is privileged (meaning that the motion could be offered
on the floor by any Senator, and would not be debatable). By requiring the joint action of 30 Senators, the Congressional
Review Act makes discharge somewhat more difficult, ensuring that it can occur only for a disapproval resolution that has
significant Senate support.”). See also REYNOLDS, supra note 22 (discussing the typical fast-track approaches to
committee discharge). For examples, see Pub. L. No. 110-343, § 115(d)(3) (providing automatic discharge) & (e)(2)
(bypassing committee).
73
See BETH, supra note 42, at 10–11 (“The Congressional Review Act does not expressly forbid consideration of
amendments in committee, but it does prohibit amendments on the Senate floor. A committee can only recommend

12

After committee consideration, the resolution is placed on the Senate calendar,74 and a
motion to proceed to its consideration is in order.75 As the Congressional Research Service (CRS)
has explained before, this has the effect of waiving certain layover requirements that typically
would apply and create delay.76 It also underscores that, at least in theory, the Senate may call up
the resolution, even though the motion to consider typically is informally reserved to the Majority
Leader.77 This motion to proceed is not made privileged by the statute, an anomaly for a statute
with expedited procedures, but other elements of the CRA nonetheless have the effect of rendering
it privileged anyway.78 The statute does explicitly prohibit a variety of motions with respect to this
motion to proceed, including motions to amend it (which Senate rules generally would prohibit
anyhow),79 as well as motions to proceed to consider other business (which would displace the first
motion).80 While not mentioned by the CRA, the resolution also could be brought up for
consideration by unanimous consent.81 Typically, the Majority Leader would obtain this consent.82
If the Senate agrees to the motion to proceed, the resolution itself is considered under
procedural rules that similarly limit opportunities for delay. The resolution remains the unfinished
business of the Senate until disposed of,83 and motions to proceed to consider other business are
not allowed,84 nor are motions to postpone consideration. 85 In practice, these rules mean that
unanimous consent is required to move on to other business—and that, even in such a situation,
amendments, which become part of the measure only if adopted on the floor. Because the statute precludes the adoption of
amendments on the floor, any recommended by the committee will be moot. For this reason, the committee will in practice
find little purpose in acting on amendments to a disapproval resolution, and its markup will presumably consist only of
consideration.”).
74
5 U.S.C. § 802(c).
75
Id. § 802(d)(1).
76
See BETH, supra note 42, at 11 (“The general procedure of the Senate already permits a motion to consider any measure
on the calendar, but only after it has met certain layover requirements. Inclusion of this special provision in the expedited
procedure has the effect of waiving these layover requirements.”). On the meaning of the phrase “layover requirements” in
the Senate, see GLOSSARY, U.S. SENATE, https://www.senate.gov/about/glossary.htm (“[‘Layover is an] [i]nformal term for
the requirement in various Senate rules that a measure or matter lie over one or two days before Senate action is in order.
For example, when a bill or other measure is reported from committee, it may be considered on the floor only after it ‘lies
over’ for one legislative day, and if the measure is reported with a written report, after the written report has been available
for two calendar days.”).
77
See id. (“The motion to consider is normally reserved to the Majority Leader, to whom the Senate, in practice, accords
responsibility for arranging the floor agenda. Nevertheless, by including the motion explicitly in the expedited procedure,
the Act emphasizes that the Senate, in principle, has means of calling up the disapproval resolution, no matter what
position the committee or leadership take on it.”).
78
See 142 CONG. REC. S3121 (daily ed. Mar. 28, 1996) (statement of Sen. Nickles) (“Under the Senate procedures, the
motion to proceed to the joint resolution is privileged and is not debatable.”). See also BETH, supra note 42, at 11–12
(“The Congressional Review Act omits one other provision that appears in many expedited procedures for taking up
resolutions of disapproval. The Act does not explicitly make the disapproval resolution privileged. It is established Senate
practice that a motion to proceed to consider a matter is debatable (and, therefore, subject to filibuster) unless the ma tter in
question is privileged. Senate precedents, however, indicate that if a statute establishes a time limit for the consideration of
a specified measure, the provision has the effect of rendering the measure privileged, so that a motion to proceed to i ts
consideration is not debatable. Consistent with this principle, the Senate has treated a motion to consider a disapproval
resolution under the Congressional Review Act as not debatable, even though the Act does not explicitly bar debate.”).
79
See BETH, supra note 42, at 11.
80
See id.
81
See id. (“As with any other measure, of course, a disapproval resolution could also be brought up for consideration by
unanimous consent, which would usually be obtained by the Majority Leader.”).
82
Id.
83
5 U.S.C. § 802(d)(1).
84
Id. § 802(d)(2).
85
Id.

13

the resolution will automatically recur unless the unanimous consent agreement provides
otherwise.86 Amendments to the resolution also are prohibited, as are motions to recommit—
prohibitions that work in tandem to ensure that the Senate does not modify the text of the
resolution87 (although there is no prohibition on amendment by unanimous consent, as in some
fast-track statutes).88 Appeals of procedural rulings are non-debatable,89 and overall debate is
limited to 10 hours.90 After debate, one quorum call is allowed (in order to prevent strategies that
might allow opponents to quickly dispose of the resolution),91 and all other dilatory actions are
prohibited prior to a vote. 92 Taken together, these procedural limitations have one especially
important implication: they prevent a filibuster of either the motion to proceed or of the resolution
itself. As a result, only a simple majority is needed for the resolution to pass the Senate.
The expedited Senate committee and floor procedures are available only for a limited
period (hereinafter referred to as the “Senate action period”). Generally, that period ends 60 session
days after the 801(a) report has been submitted to Congress and the rule published in the Federal
Register.93 However, the statute provides that this period is extended when the 801(a) report is
submitted 60 Senate session days or House legislative days before the end of a congressional
session (hereinafter the “look-back period”).94 In this situation, an additional Senate action period
begins on the 15th session or legislative day of the subsequent congressional session.95 This
additional period again extends for 60 Senate session days.96 (The introduction period also restarts
with the look-back period, but the effectiveness delay does not.)97
The CRA also outlines a unique procedure for when a resolution passes one chamber. In
that instance, rather than the resolution being referred to a committee in the second chamber, that
chamber holds the resolution at the desk, thereby making it available for floor consideration.98 The
See BETH, supra note 42, at 12 (“Under these conditions other business may interrupt consideration of the disapproval
resolution only if the Senate gives unanimous consent. If the Senate does turn to other business by unanimous consent, the
disapproval resolution automatically recurs as pending after the interruption, unless the unanimous consent agreement
provides that the other business displace the disapproval resolution as the unfinished business.”).
87
5 U.S.C. § 802(d)(2). See also BETH, supra note 42, at 12 (“The Senate sometimes uses the motion to recommit in such
a way as to effect an amendment.”).
88
BETH, supra note 42, at 12 (“Also, some expedited procedures explicitly prohibit the Senate from suspending a
prohibition on amendment by unanimous consent, but no such additional safeguard appears in the Congressional Review
Act.”).
89
5 U.S.C. § 802(4).
90
Id. § 802(d)(2). It is this ten-hour limit that prevents filibusters on joint resolutions, as this limit precludes the need for
cloture. See CAREY & DAVIS, supra note 32, at 15 (“Because the measure is debate-limited, cloture (and its accompanying
requirement for supermajority support) is not necessary.”).
91
BETH, supra note 42, at 12 (“Absent this provision . . . it might become impossible to stop the Senate from disposing of
a disapproval resolution quickly, by voice vote, when few Senators were on the floor. It might also become impossible to
secure a roll call vote under these conditions, because not enough Senators might be on the floor to second a demand for
one.”).
92
5 U.S.C. § 802(d)(3).
93
Id. § 802(e).
94
Id. § 801(d)(1). In practice, the Senate Parliamentarian also has required Federal Register publication to occur by this
date in order to prevent such extension. See infra Part IV.A.
95
Id. § 801(d)(2).
96
Id.; id. § 802(e)(2).
97
See id. § 801(d) (applying look-back only to “section 802” policies).
98
Id. § 802(f)(1). See also Joint Committees’ Statement, supra note 10, at 6928 (“In both Houses, the joint resolution of
the first House to act shall not be referred to a committee but shall be held at the desk.”). In practice, being “held at the
desk” means that the resolution remains available to the full chamber for potential action, rather than being referred to a
86

14

vote of the second chamber also automatically is applied to the resolution already passed by the
first chamber, even if debate was held on a separate resolution. 99 This is the only provision of the
CRA that impacts House procedure,100 and it is the lone procedure that applies even beyond the
Senate action period. 101
If a CRA resolution is enacted, the rule it addresses is prohibited from taking effect.102 In
the case that the rule had taken effect prior to resolution enactment, the rule is prohibited from
having continued effect, 103 and it is treated as though it never took effect. 104 In practice, therefore,
the regulation that preceded the disapproved rule again takes effect.105 Once a rule is disapproved
under the CRA, agencies also are prohibited from promulgating “substantially the same” rule in
the future, absent subsequent congressional authorization. 106 The breadth of this final prohibition
has been contested.107 If the agency was under a statutory deadline to promulgate the disapproved
rule, that deadline is automatically extended to the date that is one year from enactment of the
disapproving CRA resolution.108

D.

Judicial Review

The CRA also contains several provisions that structure the role of courts in the CRA
review process. Most notably, as mentioned above, the statute prohibits judicial review of any
“determination, finding, action, or omission” under the CRA.109 Additionally, the statute prohibits
courts from inferring any intent of Congress from its failure to enact a CRA resolution with respect
to any rule.110

committee (who might withhold it from the full chamber). See BETH, supra note 42, at 13 (“[The] receiving house must
hold it at the desk, rather than refer it to committee. This action retains the received resolution in a status in which it i s
available for floor action.”).
99
5 U.S.C. § 802(f)(2).
100
This may be because the House Rules Committee always can expedite consideration. See Congressional Review Act:
Hearing before the Subcomm. on Commercial & Admin. Law, H. Comm. on the Judiciary, 105th Cong. 50 (1997)
(testimony of Charles W. Johnson III, Parliamentarian, U.S. House of Representatives).
101
See 5 U.S.C. § 802(e) (applying action period limitation only to “the procedure specified in subsection (c) or (d)”).
102
Id. § 801(b)(1).
103
Id.
104
Id. § 801(f).
105
See Noll & Revesz, supra note 10, at 14 (“After a disapproval, the regulation that was in effect immediately before the
disapproved rule again becomes the effective regulation.”).
106
5 U.S.C. § 801(b)(2).
107
See, e.g., Dooling, supra note 38, at 398–99 (noting contestation). The joint statement indicated that the impact of this
provision may vary based on both the rule and the statute that licensed it. See Joint Committees’ Statement, supra note 10,
at 6929 (“If the law that authorized the disapproved rule provides broad discretion to the issuing agency regarding the
substance of such rule, the agency may exercise its broad discretion to issue a substantially different rule. If the law that
authorized the disapproved rule did not mandate the promulgation of any rule, the issuing agency may exercise its
discretion not to issue any new rule. Depending on the law that authorized the rule, an issuing agency may have both
options. But if an agency is mandated to promulgate a particular rule and its discretion in issuing the rule is narrowly
circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule.”).
108
5 U.S.C. § 803.
109
Id. § 805.
110
Id. § 801(g).

15

E.

Usage History

Through the various components outlined above, the provisions of the CRA collaborate to
provide a unique, filibuster-proof legislative mechanism that Congress can use to disapprove
agency rules. For much of its history, this mechanism did not get much use by Congress, however.
In the first twenty years of the Act’s existence, it was successfully used by Congress only once,
when the newly seated 107th Congress used it in 2001 to overturn a controversial ergonomics rule
issued by the Department of Labor under the outgoing Clinton administration.111 Beyond this
isolated instance, Congress typically preferred during this period to address disfavored agency
rulemaking through other avenues, such as appropriations riders. 112 This does not mean that the
CRA offered no benefits to Congress during this period; several commentators have noted that the
Act may be useful to legislators even in the absence of any success in overturning agency
rulemaking.113 As a strategy to reject agency rules, however, the Act seemed to provide little utility.
This perception changed in 2017 with the arrival of the 115th Congress. In this Congress,
Republican majorities in both chambers—paired with a newly-elected Republican President—
turned to the CRA to address a host of rules issued by the outgoing Obama administration. Within
five months of the 115th Congress being seated, it had successfully used the CRA mechanism to
overturn fourteen rules issued in 2016.114 Later, this Congress would successfully invoke the CRA
twice more—once to overturn a Bureau of Consumer Financial Protection (CFPB) rule issued in
July 2017, and once to overturn a CFPB rule issued in 2013.115
This trend in successful deployment of the CRA disapproval mechanism continued, albeit
not as ambitiously, four years later with the arrival of the 117th Congress. In this instance, the
election of a Democratic President, along with Democratic majorities in both chambers, provided
an opportunity to revisit rulemaking conducted by the outgoing Trump administration. The 117th
Congress used this opportunity to overturn three agency rules in June 2021, rejecting rules issued
by the Environmental Protection Agency, the Equal Employment Opportunity Commission, and
the Office of the Controller of the Currency.116 As a result, the CRA process has to date been
successfully invoked twenty times—nineteen of which have occurred in the past five years,
including by both political parties.
The CRA therefore has experienced a dramatic increase in usage in recent years. This
makes it particularly important for Congress to revisit the CRA to determine how the Act can be
revised to optimally achieve its original goals. The remaining Parts of this report consider several
proposed revisions that hold significant promise in this regard.

111

See Ergonomics Rule Disapproval, Pub. L. No. 107-5, 115 Stat. 7 (2001).
See CAREY & DAVIS, supra note 32, at 23 (“Congress also has many other tools available to conduct oversight of
federal agency rulemaking. These tools include general legislative powers, oversight hearings, meetings with agenc y
officials, and appropriations language.”). As Carey and Davis note, Congress initially used this appropriations tool with
respect to the ergonomics rule before ultimately disapproving it via CRA process. See id. at 21 n.143.
113
See infra notes 282-289.
114
See Congressional Review Act, U.S. GOV’T ACCOUNTABILITY OFF., https://www.gao.gov/legal/other-legalwork/congressional-review-act [https://perma.cc/UBE3-UHJL] (listing disapprovals, along with rulemaking date and
disapproval date). This 2017 use of the CRA was foreshadowed by efforts of congressional Republicans, occurring in
2015 and 2016, to use the CRA to force votes (for political messaging purposes) on resolutions that would be vetoed. On
these, see REYNOLDS, supra note 22, at 193-94.
115
See id. On the use of the CRA to overturn rules issued years prior, see infra Part V.B.
116
See Revesz, supra note 7.
112

16

III.

Electronic Report Submissions

There are several aspects of the CRA that, twenty-five years after its enactment, have been
revealed by experience to warrant consideration for reform. First, while many institutions have
transitioned to the use of electronic documents (both inside and outside the federal government),
Congress still receives 801(a) reports in hard copy. A number of factors argue in favor of a change
to electronic submission of these 801(a) reports. This Part considers the benefits that such a
transition could afford, and it evaluates potential concerns with this policy change—concerns it
ultimately finds unpersuasive, but that it acknowledges might counsel toward concurrent adoption
of identifiable ancillary policies.

A.

Benefits

A transition to electronic submission of 801(a) reports likely would provide a number of
notable benefits. First, electronic submission might provide an opportunity to reduce the
significant administrative burdens imposed by the CRA. The CRA tripled executive
communications to Congress, resulting in a staggering increase in the volume of documents
Congress must process.117 As previously noted, approximately 90,000 rules have been submitted
under the CRA as of October 2021.118 This volume of submissions is received in addition to all
other executive communications, annually adding thousands of documents to an already
formidable workload for Congress.119
That workload is borne by a small cadre of individuals. Responsibility for receiving,
cataloguing, referring, and transmitting these documents falls to each chamber’s Parliamentarian
and clerk offices.120 The House Parliamentarian’s office consists of 13 individuals, and the Senate
Parliamentarian’s office of three individuals.121 These individuals handle the entirety of their
offices’ responsibilities, which of course extend far beyond CRA duties. The House Office of the
Clerk and the parallel portion of the Secretary of the Senate’s office are similarly small. In the

CRA Hearing, supra note 4, at 6 (statement of Hon. John V. Sullivan) (noting that “executive communications have
roughly tripled”); 10th Anniversary of the Congressional Review Act, supra note 64, at 38 (statement of John V. Sullivan,
Esq., Parliamentarian, Office of the Parliamentarian, U.S. House of Representatives) (“[T]he CRA has engendered a
tripling of the executive communications traffic to the Speaker.”). See also CRA Hearing, supra note 4, at 6 (statement of
Hon. John V. Sullivan) (graphically depicting volume of executive communications to Congress by year).
118
See supra note 39.
119
The House Parliamentarian has testified that, in the last Congress prior to the CRA, “the executive departments
transmitted 4,135 communications to the Speaker that warranted referral to committee.” CRA Hearing, supra note 4, at 5
(statement of Hon. John V. Sullivan).
120
10th Anniversary of the Congressional Review Act, supra note 64, at 41 (statement of John V. Sullivan) (“The Speaker
delegates to the Parliamentarian the task of identifying committees of referral—typically the committees having
jurisdiction over the enabling statutes for the particular rulemaking actions the sheer volume of them affects not only the
parliamentarians who must assess their subject matter but also the clerks who must move the paper and account for dates
of transmittal.”). In the clerk’s office, it belongs primarily to the Legislative Resource Center. See id. at 50 (“It certainly
would make more efficient the movement of the paper and the tracking of submittal dates and so forth, the things that the
clerk’s office has to do with the flow. . . . I think it would materially assist the Legislative Resource Center and the others
who have to move this paper.”).
121
Jesse M. Cross & Abbe R. Gluck, The Congressional Bureaucracy, 168 U. PA. L. REV. 1541, 1600 (2020).
117

17

House clerk’s office, for example, just two individuals have responsibility for handling all
communications to the chamber.122
Explaining the ramifications of the CRA for such offices, the House Parliamentarian has
remarked: “For a small operation like ours [the paperwork burden of the CRA] is more significant
than might meet the eye.”123 And, indeed, there has been significant agreement that paperwork
under the CRA imposes troubling burdens on these offices. This concern has been echoed by
Members of Congress,124 former administrative officials,125 and academics.126 These observers have
described CRA submissions as creating “a deluge of paperwork”127 and “flood of paperwork”128
for the Parliamentarians and clerks, one that has imposed “significant administrative burdens”129
and “a huge burden”130 on the offices and has “spread [Congress’s] resources extremely thin.”131
To a certain extent, this administrative burden admittedly will persist so long as agencies
must submit all rules to Congress. And, as a solution to this problem, a pivot to electronic
submissions is only one possible solution among several. Past reformers have sometimes suggested
more drastic reforms, such as reducing or eliminating submissions to Congress. 132 A transition to
electronic submissions would have less of an impact upon administrative burden than such an
alternative approach.
Nonetheless, it appears that use of electronic submissions would provide material
improvement in this regard, as the administrative burden imposed by the CRA is especially acute
when submission is made via paper documents. The process often begins with a confused agency
employee or courier wandering the Capitol Visitor Center, a large stack of documents in hand,
hoping to find the correct physical office in which to submit them.133 From there, as the House
Parliamentarian explained in a 2007 hearing:

See CRA Hearing, supra note 4, at 7–8 (statement of Hon. John V. Sullivan) (describing the role of the “[t]wo clerks
whose sole duty it is to process communications to the House” in the CRA process).
123
CRA Hearing, supra note 4, at 32 (Hon. John V. Sullivan).
124
See, e.g., id. at 1 (Rep. Sanchez) (“The entities tasked with implementing the CRA have faced significant
administrative burdens.”); id. at 2 (“[T]he parliamentarians and the clerk’s office in the House and Senate have
experienced a deluge of paperwork.”); id. at 34 (statement of Rep. Cannon) (“And so, we find ourselves with an
administrative process that does not take into consideration the vast amount of activity that individual bureaucrats and
cumulatively agencies have to participate in. And in that mix, I know that our parliamentarian has a huge burden.”).
125
Id. at 29 (statement of Sally Katzen) (“[T]here are concerns about the administrative burden on the Parliamentarian
(and others) resulting from the flood of paperwork that is generated by the Act’s requirements.”).
126
See, e.g., Cohen & Strauss, supra note 57, at 103 (“Congress has spread its resources extremely thin.”).
127
CRA Hearing, supra note 4, at 2 (Rep. Sanchez).
128
Id. at 29 (statement of Sally Katzen).
129
Id. at 1 (Rep. Sanchez). See also H.R. Rep. No. 110-700, at 3 (2008) (“[T]hose charged with implementing this Act
have faced significant administrative burdens.”); INTERIM REPORT, supra note 4, at 105 (noting “the paperwork burden on
the Parliamentarian’s office”).
130
CRA Hearing, supra note 4, at 34 (statement of Rep. Cannon).
131
Cohen & Strauss, supra note 57, at 103.
132
See, e.g., 10th Anniversary of the Congressional Review Act, supra note 64, at 38 (statement of John V. Sullivan) (“I
think that the Committee may want to assess whether a lesser volume of communications traffic might better optimize the
oversight of the regulatory Committees of the rulemaking process, dwelling greater attention on a more selective universe
of rulemaking actions.”); Cohen & Strauss, supra note 57, at 102–03 (“The great volume of regulatory actions that
Congress will theoretically be called upon to consider means, in most cases, that Congress will fail to provide useful
guidance on agency implementation of statutes.”).
133
See H.R. Rep. No. 110-700, at 4 (2008) (noting that “agencies must often resort to having copies of their rules handdelivered by courier to the House and Senate”)
122

18

These couriers often require a hand-receipt from somebody on the staff of the Speaker or the
Parliamentarian. . . . [E]ach communication must be logged in by the Office of the Parliamentarian.
In addition to date-stamping each submission, the Office of the Parliamentarian tries to retain
outer packaging or other contact information in case the rule—as is not infrequently the case—must
be returned to the agency for failure to comply with the CRA or to conform to standards regarding
communications transmitted to the Speaker. After documenting the receipt of a communication, a
parliamentarian must annotate the committee of referral on each rule.
Every few days, a parliamentarian calls the staff of the Clerk to advise that another batch of
submissions is ready to be processed. Two clerks whose sole duty it is to process communications
to the House then transport the communications—often voluminous enough to require a handtruck—to their office, where they are counted and sorted. The clerks then enter all the relevant
information regarding each rule and its referral into a database and transmit the same information to
the Government Printing Office (for printing in the Congressional Record) and to the Legislative
Information Service. Finally, the clerks hand-deliver each rule to the committee of referral. 134

Summarizing the challenges posed by repeating this process thousands of times each year,
the Parliamentarian added: “This flow of paper poses a significant increment of workload for a
range of individuals. . . . [T]he sheer volume of them affects not only the parliamentarians who
must assess their subject matter but also the individuals who must move the paper and account for
dates of transmittal.”135
Numerous actors who have investigated this issue have concluded that a pivot to electronic
submissions would help alleviate this burden, at least somewhat. The aforementioned House
Parliamentarian has remarked that electronic submissions would “make more efficient the
movement of the paper and the tracking of submittal dates,” “materially assist [those] who have to
move this paper,” and potentially “speed up the referral process.”136 Another former House
Parliamentarian concluded that it could “reduce the amount of sheer paperwork that we and the
bill clerks undergo every day.”137 Similar conclusions have been proffered by a a former
Administrator of OIRA138 and a House subcommittee.139 As the former OIRA Administrator
remarked: “I am aware that well designed automated systems generally provide significant benefits
134

CRA Hearing, supra note 4, at 7–8 (statement of Hon. John V. Sullivan). See also KATHLEEN E. MARCHSTEINER,
CONG. RSCH. SERV., R46661, STRATEGIES FOR IDENTIFYING REPORTING REQUIREMENTS AND SUBMITTED REPORTING TO
CONGRESS 10 (July 8, 2021), https://fas.org/sgp/crs/misc/R46661.pdf (“Written reports due to Congress in general are
typically submitted as Executive Communications (ECs). The House and Senate Executive Clerks’ Offices record the EC
submissions and create an abstract to be published in the Congressional Record. 26 The actual documents are then given to
the congressional committees to which they have been referred by the House or Senate Parliamentarian’s Office.”).
135
CRA Hearing, supra note 4, at 7 (statement of Hon. John V. Sullivan).
136
10th Anniversary of the Congressional Review Act, supra note 64, at 50 (statement of John V. Sullivan). See also CRA
Hearing, supra note 4, at 32 (statement of Hon. John V. Sullivan) (testifying of electronic submission, “I think that would
be a step” toward reducing paperwork burden); id. (noting that “digital is better than analogue in that case”); id. at 45
(“That probably would reduce the hours devoted to the referral of CRA communications by a small, but material,
amount.”).
137
Congressional Review Act: Hearing before the Subcomm. on Commercial & Admin. Law, H. Comm. on the Judiciary,
105th Cong. 26 (1997), http://commdocs.house.gov/committees/judiciary/hju40524.000/hju40524_0f.htm (statement of
Charles W. Johnson, House Parliamentarian).
138
CRA Hearing, supra note 4, at 27 (statement of Sally Katzen) (“With electronic processing the burden on the
parliamentarian would be reduced, but systematic and timely notice to the Committees would remain.”).
139
INTERIM REPORT, supra note 4, at 105 (“The House Parliamentarian and other witnesses and symposia panelists have
indicated that the paperwork burden on the Parliamentarian’s office as well as the uncertainties of proper receipt by
Congress and timely redirection to the appropriate committees, and other problems with paper submissions, would be
relieved by electronic submissions.”).

19

in terms of both time and operating costs.” 140 Such an approach to the CRA, she added, could
provide similar benefits without diminishing the notice that Congress receives of pending rules—
a virtue that distinguishes it from proposals to eliminate submissions altogether.141
In addition to holding promise as a means to reduce administrative burdens under the Act,
a transition to electronic submissions also would provide a second benefit: it would assist with
timeliness concerns. As Part II explained, the CRA attaches consequences to the date on which
rules are submitted to Congress. This date determines when rules may become effective (for both
major142 and non-major143 rules), as well as when Congress may introduce disapproval resolutions 144
and when the Senate may use its expedited procedures. 145 As a result, it is important for agencies
to have a manner of submitting rules to Congress that is expeditious—and one where congressional
receipt is easily tracked and confirmed. In this regard, paper submissions have proved frustrating.
Submission by mail can create delay, and the possibility of submissions getting lost via mail
introduces troubling uncertainty into the process. This is why agencies often have used couriers
and hand-receipts for submissions—a cumbersome solution to the risks and problems of
submission by mail.146 Yet this use of couriers can pose its own challenges—for example, by
rendering submission difficult during interruptions in congressional operations, as discussed
further below.147
Electronic submissions would provide real benefits in this regard. For agencies,
submissions would be far easier to transmit and track, thereby lessening agency CRA burden. The
resulting ease of submission also might make agencies more likely to submit all covered rules,
thereby providing a non-confrontational strategy to boost agency compliance with CRA
requirements.148 Since electronic communications typically bear a time-and-date stamp, agencies
particularly would benefit from improved clarity about the all-important date of submission. For
Congress, meanwhile, electronic submissions would make the tracking of submission dates easier
and less cumbersome.149 It also would enable further electronic transmission of rules to the
appropriate committees, which the CRA directs to occur “[u]pon receipt of a report”—a
responsibility that places further burdens upon the clerks and Parliamentarians, and one that
140

CRA Hearing, supra note 4, at 50 (statement of Sally Katzen).
Id. at 30 (“With electronic processing, the burden on the Parliamentarian would be reduced, but systematic and timely
notice to the committees of agency actions within their jurisdiction would remain.”).
142
5 U.S.C. § 801(a)(3)(A)(i).
143
Id. § 801(a)(1)(A).
144
Id. § 802(a).
145
Id. § 802(e)(1). See also 10th Anniversary of the Congressional Review Act, supra note 64, at 41 n.3 (statement of John
V. Sullivan) (“Because of the need to track this interval, the date of receipt of a rule submitted pursuant to the CRA is
published in the Congressional Record. With most other executive communications, only the date of referral to committee
is published.”).
146
CRA Hearing, supra note 4, at 7 (statement of Hon. John V. Sullivan) (“Many agencies transmit their communications
by courier to ensure timely receipt. These couriers often require a hand-receipt from somebody on the staff of the Speaker
or the Parliamentarian.”).
147
See infra notes 154-157 and accompanying text.
148
See CAREY & BRANNON, supra note 32, at 20 (“The higher incidence of noncompliance with the CRA’s submission
requirement for agency actions that were conducted outside the notice-and-comment rulemaking process is likely due in
large part to the practical difficulty of submitting the substantial number of agency statements that qualify as rules under
the CRA.”). On agency under-submitting of qualifying rules, see infra PartV.
149
See 10th Anniversary of the Congressional Review Act, supra note 64, at 50 (statement of John V. Sullivan) (“It
certainly would make more efficient the movement of the paper and the tracking of submittal dates and so forth, the things
that the clerk’s office has to do with the flow.”). See also supra note 134 and accompanying text (detailing this
cumbersome process).
141

20

electronic transmission could minimize.150 And by untethering receipt of documents from physical
in-person transmission, electronic submission would provide new opportunities for congressional
actors to receive timely notice of submitted rules when not physically in the Capitol. These
timeliness-related benefits of electronic submission have been affirmed by commentators both
inside and outside Congress,151 and they provide an important set of benefits that would attend
electronic submissions.
As another benefit, electronic submission of 801(a) reports also might prevent delay in the
implementation of rules. Congress frequently rejects and returns agency 801(a) reports for a
variety of reasons, including lack of proper signatures and missing enclosures.152 Under the current
submission process, such rejection necessitates additional transportation of physical documents
between agencies and Congress. As the House Modernization Committee has noted, this “can lead
to delays in the regulatory implementation process,” as proper submission is a prerequisite to
implementation.153 Electronic submission holds promise to remedy this problem, for several
reasons. First, electronic submission presumably will entail waiving or modifying certain
congressional signature requirements, thereby reducing the number of rejected submissions.
Second, a pivot to electronic submissions may provide opportunity to standardize submission
practices and forms across agencies, thereby further reducing rejected submissions. Third, the
simultaneity of electronic communications means that, even in the instance that submissions are
rejected, it may be possible to quickly remedy the submission defects and re-submit without the
delay that attends physical submissions.
The aforementioned benefits of electronic submission have long been known. In addition
to them, there are several benefits that have become apparent only recently. For example, recent
events have underscored the value that electronic reports might provide with respect to continuity
of congressional and agency operations. In the past several years, Congress has experienced two
separate events that significantly disrupted its physical operations. First, the events of January 6,
2021, led to a massive disruption of physical operations in the Capitol—including via the
ransacking of hard-copy documents in the Senate Parliamentarian’s office.154 While it is hoped that
such events will not recur, this event did highlight the vulnerability created by a reliance upon
5 U.S.C. § 801(a)(1)(C). See also INTERIM REPORT, supra note 4, at 105 (“The House Parliamentarian and other
witnesses and symposia panelists have indicated that . . . the uncertainties of proper receipt by Congress and timely
redirection to the appropriate committees, and other problems with paper submissions, would be relieved by electronic
submissions.”); CRA Hearing, supra note 4, at 30 (statement of Sally Katzen) (noting that electronic submission would
preserve “systematic and timely notice to the committees”).
151
See INTERIM REPORT, supra note 4, at 105 (citing “[t]he House Parliamentarian and other witnesses and symposia
panelists” as indicating that electronic submissions would address “the uncertainties of proper receipt by Congress and
timely redirection to the appropriate committees,” among other issues).
152
See H.R. Rep. No. 110-700, at 4 (2008) (“Rules are frequently returned to the agency, delaying their implementation,
for failing to comply with the CRA or these other congressional requirements.”); id. at 4 n.25 (“For example, agency
submissions to the House of Representatives are often rejected because they lack a valid original signature on the
transmittal letter, do not have a completed Congressional Review Act Form with an original signature, or are missing
pertinent enclosures.”); U.S. Cong., H. Comm. on the Judiciary, Congressional Review Act Improvement Act, report to
accompany H.R. 2247, 111th Cong., 1st Sess., H.R. 111-150, at 3 (2009) [hereinafter H.R. 2247 Accompanying Report]
(“Materials are frequently returned to the promulgating agency for failure to comply with the CRA or these other
congressional requirements, delaying implementation of the rule.”).
153
THE SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS: FINAL REPORT 201 (Oct. 2020),
https://modernizecongress.house.gov/imo/media/doc/ModernizationCommittee_10152020r1Compressed
%20(newest%20gpo%20report).pdf [hereinafter MODERNIZATION REPORT].
154
Philip Elliott, The Breach of the Capitol Spooked Us — As It Should Have, TIME (Jan. 7, 2021),
https://time.com/5927664/capital-siege-trump-supporters/.
150

21

physical documents, and the havoc that any disruption to the physical space of the Capitol can
wreak upon a CRA system tethered to paper documents.155 Second, and perhaps more illuminating,
the ongoing pandemic has given rise to a prolonged period in which physical workspaces
throughout the country, including the Capitol, have been disrupted. According to persons
interviewed for this report, pandemic-related disruptions have meant that, in some instances,
congressional officials have not been present in the Capitol to receive CRA submissions via the
typical in-person submission process. As a result, some agencies have pivoted to mail
submission—a process attended by the uncertainties and delays of mail submission discussed
above. This CRA experience tellingly contrasts with the experience of agencies in domains where,
as the House Modernization Committee noted, agencies have more successfully “ensur[ed]
continuity of operations” during the pandemic.156 As the Committee observed: “The quick
transition to digital signatures allowed many executive branch operations to continue throughout
the COVID-19 crisis.”157 A transition to electronic 801(a) reports could provide for a similar
continuity of operations in the CRA process in the event that the ongoing pandemic, or similar
future events, again disrupt physical operations in the Capitol.
The pandemic also has produced changes in GAO policy that are instructive. Unlike
Congress, GAO has long accepted electronic submission of 801(a) reports, a capacity it has
possessed since 1999.158 In earlier years, few agencies made use of this option.159 Due to the
pandemic, however, GAO has begun requiring electronic submission of 801(a) reports.160 In light
of this change to GAO policy, congressional use of electronic submissions now would have several
added benefits. First, it would align current submission requirements between Congress and GAO,
thereby allowing agencies to follow a single submission protocol for 801(a) reports. Second, it
would prevent agencies from reverting to paper submissions to GAO in the event that, at a future
date, GAO removes its electronic submission mandate—reversion that otherwise might be
expected because, in the past, agencies have submitted paper copies to GAO primarily to
standardize submissions across Congress and GAO.161 Third, it would transfer agencies to a mode
of submission to which they already are accustomed, given their experience with electronic GAO
submissions. Indeed, it seems difficult for agencies to argue that this change in policy would
impose any significant new burdens on them, since it would merely require them to extend a
155

On the difficulty of complying with congressional hand-delivery requirements in the wake of January 6 (as well as after
the emergence of COVID-19), see also Mikaela Lefrak, Some 60 D.C. Laws Were In Limbo Because Officials Can’t
Hand-Deliver Them To Congress, NAT’L PUB. RADIO (Feb. 2, 2021),
https://www.npr.org/local/305/2021/02/02/962885976/some-60-d-c-laws-were-in-limbo-because-officials-can-t-handdeliver-them-to-congress.
156
MODERNIZATION REPORT, supra note 153, at 201.
157
Id.
158
U.S. GOV’T ACCOUNTABILITY OFF., GAO-08-268, CONGRESSIONAL REVIEW ACT 3 (Nov. 6, 2007) [hereinafter GAO08-268] (statement of Gary Kepplinger, General Counsel) (“GAO has been able to receive agency rules and reports
electronically since 1999, although only a handful of agencies have used this method to transmit rules.”).
159
Id.
160
Congressional Review Act, supra note 7 (“Due to the Coronavirus pandemic and recommendations to practice social
distancing, many GAO staff are working remotely. Therefore, agencies should send their submissions to rulesc@gao.gov.
Until further notice, GAO will not accept submissions by regular mail or fax.”).
161
GAO-08-268, supra note 158, at 3 (“Our conversations with agencies indicate that this is attributable, in part, to the
fact that the House of Representatives and the Senate require paper copies to be submitted to fulfill the agency’s obligation
under CRA.”). See also Letter from Robert J. Cramer, Associate General Counsel, GAO, to Susan E. Dudley,
Administrator, OIRA (May 27, 2008) (remarking to OIRA Administrator that, if bill enacted to eliminate Cong
submission, “we would welcome the opportunity to work with your office and federal agencies to implement the law and
make greater use of electronic submission of rules to our Office”).

22

method of report submission that they already are using with GAO. This underscores a point that
others have made before: that, because many agencies also regularly submit rules to the Federal
Register electronically, a pivot to electronic CRA submissions would impose little additional
agency burden.162

B.

Concerns

Notwithstanding the benefits that might accompany a transition to electronic submission
of 801(a) reports, there are countervailing concerns that warrant consideration. Most generally,
there may simply be concern that a novel mode of submission always can pose unforeseen hurdles
and challenges. However, the pandemic has produced changes in Congress that may lessen this
concern about electronic submissions. In April 2020, pandemic concerns led the House to adopt
electronic submission of legislative documents, a shift from its prior in-hand delivery
requirements.163 Implementation of this policy has given key CRA actors—including the House
Parliamentarian’s Office and the House Office of the Clerk—experience with electronic
submissions.164 As a result, these and other actors have gained additional experience with
development and implementation of policies around use of electronic signatures, 165 timing of
submissions,166 and manner of electronic submissions.167 The House additionally moved to remote
committee proceedings in May 2020, a policy that entailed new permissions for electronic

See Paul J. Larkin, Jr., Reawakening the Congressional Review Act, 41 HARV. J.L. & PUB. POL’Y 187, 239 (2018)
(“Sending electronic copies of rules to Congress when they are sent to the Government Printing Office for publication in
the Federal Register scarcely burdens anyone.”); CRA Hearing, supra note 4, at 27 (statement of Sally Katzen) (“I suggest
in my written testimony that the burden on the parliamentarian and others could be reduced by authorizing or requiring
agencies to submit their rules to Congress electronically, which is how they send them to the Federal Register.”);
Congressional Review Act: Hearing before the Subcomm. on Commercial & Admin. Law, H. Comm. on the Judiciary,
105th Cong. 26 (1997), http://commdocs.house.gov/committees/judiciary/hju40524.000/hju40524_0f.htm (statement of
Charles W. Johnson, House Parliamentarian) (“We believe that, because virtually all--we think all--regulations are
promulgated and printed in the Federal Register, which is online, to perhaps reduce the amount of sheer paperwork that we
and the bill clerks undergo every day, that a form of electronic transmittal and referral be explored . . . .”).
163
Press Release, Nancy Pelosi, Speaker of the House, Dear Colleague to All Members on Electronic Submission of Floor
Documents (Apr. 6, 2020) [hereinafter Dear Colleague], https://www.speaker.gov/newsroom/4620 (“Beginning Tuesday,
staff must electronically submit all Floor documents—including bills, resolutions, co-sponsors and extensions of
remarks—to a dedicated and secure email system, rather than deliver these materials by hand to staff in the Speaker’s
Lobby or Cloakrooms.”). See also Katherine Tully-McManus, House Moves to Electronic Filing of Bills and Floor
Documents to Reduce Staffing During Pandemic, ROLL CALL (Apr. 6, 2020), https://www.rollcall.com/2020/04/06/housemoves-to-electronic-filing-of-bills-and-floor-documents-to-reduce-staffing-during-pandemic/ (“The electronic filing
mandate will replace, for now, the existing system that requires staff to deliver these documents by hand to staff in the
Speaker’s Lobby or Democratic and Republican cloakrooms.”).
164
See Quick Guide to the Electronic Submission of Legislative Documents, MAJORITY LEADER (Apr. 2020) [hereinafter
Quick Guide], https://www.majorityleader.gov/sites/democraticwhip.house.gov/files/quick-guide-electronic-submissions
.pdf (requiring submissions for hopper to be emailed to House Clerk); Dear Colleague, supra note 163 (noting policy
developed in consultation with Offices of the Clerk and the Parliamentarian, and stating that the “Clerk’s Office will send
out detailed guidance on where and how to submit materials”); MODERNIZATION REPORT, supra note 153, at 201 (noting
consultation with Offices of the Clerk and the Parliamentarian).
165
Quick Guide, supra note 164.
166
See id. at 2 (“Only those submissions emailed 15 minutes before convening, during the session, and 15 minutes after
adjournment will be accepted and processed. Email submissions sent outside these times will receive an autoreply email
and must be resubmitted on another legislative day”); Dear Colleague, supra note 163 (“Electronic submissions will be
accepted when the House is in pro forma session, as well as 15 minutes immediately before and after.”).
167
See Dear Colleague, supra note 163 (noting “Clerk’s Office will send out detailed guidance on where and how to
submit materials”).
162

23

signature and Clerk attestation of committee subpoenas.168 This experience has been sufficiently
successful that the House Modernization Committee has recommended retaining and expanding
elements of it beyond the pandemic. 169 Presumably, it can inform any transition to electronic
submission of 801(a) reports.
Admittedly, the Senate has not made a similar transition to electronic submissions during
the pandemic. However, the concerns that have animated Senate reluctance in this regard hold
little relevance for 801(a) reports. Most notably, the Senate has long resisted policy changes that
might reduce opportunities for collegial interactions and relationships among Senators. While a
past House Parliamentarian once voiced similar concerns about the effects of electronic 801(a)
submissions,170 it seems unlikely that such a policy would meaningfully reduce face-to-face
Senator interactions. After all, unlike other forms of legislative business, in-person submission of
801(a) reports generates only interactions between congressional staff and agency couriers, not
between legislators. And even though the Senate has not embraced electronic document
submissions during this period, it presumably would still reap the benefits of the House experience
with them—particularly because submission standards likely would be standardized across
chambers.
Other concerns that might sometimes apply to electronic document transmissions similarly
do not translate to the CRA context. For example, use of electronic platforms often can raise
concerns about cybersecurity.171 Unlike many other governmental documents and proceedings,
however, 801(a) reports are not confidential.172 As such, typical concerns about security breaches
seem inapt. And, as always, the assessment of risk regarding transmission problems—whether due
to accident or malicious actors—is a comparative one, not an absolute one. In light of the risks and
errors that can accompany submission via hard copy, especially in a period when submission often
is made via mail, it seems difficult to view electronic submission as a comparatively risky option.
Several other concerns with electronic submission of 801(a) reports are slightly more
compelling—but these concerns appear manageable via ancillary policy choices. For example, a
transition to electronic submissions undoubtedly makes submission easier for agencies. As noted
above, this can have a positive effect: agencies regularly fail to submit reports for covered rules,
and electronic submission may improve compliance with submission requirements. However,
reducing the burden imposed by submission also creates the possibility of agencies oversubmitting to Congress. This might undermine the goal of reducing administrative burden for the
small offices that handle 801(a) reports in Congress, exposing them to an even larger flood of

168

See H. Res. 965.
See MODERNIZATION REPORT, supra note 153, at 33 (“The House should make permanent the option to electronically
submit committee reports.”).
170
10th Anniversary of the Congressional Review Act, supra note 64, at 50 (statement of John V. Sullivan) (“I’m
personally leery about going virtual on anything. Committees frequently want to teleconference instead of meet[ing]
together face to face, or poll their Members instead of having them in the same room and voting, we constantly try to
impress on them notion of Jeffersonian collegiality and the importance of Members being together in the flesh. So crossing
the threshold of a virtual submission I would want to be very cautious about that.”).
171
See, e.g., Scott R. Anderson & Margaret L. Taylor, Congress Dawdles on Remote Voting, BROOKINGS (May 12, 2020),
https://www.brookings.edu/blog/techtank/2020/05/12/congress-dawdles-on-remote-voting/ (noting that some in Congress
voiced cybersecurity concerns during discussions on remote voting).
172
Notice typically has already been given of the rules being submitted, for example.
169

24

paperwork.173 This concern is heightened by preliminary evidence suggesting that the transition to
electronic bill introduction in the House has notably increased the volume of introduced bills.
However, the temptation for agencies to over-submit may be minimal, given that the GAO has
regarded submission as a tacit agency admission that a rule is covered by the CRA, and that
agencies may wish to resist the setting of precedents that grant the CRA a wide purview. 174
Moreover, Congress may be able to adopt additional policies that limit the risk of agency oversubmission, as discussed further in infra Part V.B.175
Another plausible concern with electronic submission similarly relates to administrative
burden. While Congress has increased its experimentation with electronic documents, the House
Clerk still could rightly observe in 2020 that: “[T]he work of Congress continues to be driven by
paper.”176 Chamber rules and precedents continue to require paper submissions for a universe of
congressional communications that extend beyond CRA submissions. By transitioning to
electronic submission of 801(a) reports in isolation, Congress would establish a situation in which
executive communications would be received through multiple channels (i.e., electronic for CRA
submissions; hard copy for other submissions). The management of these simultaneous channels
might add to administrative burden, and it also might generate agency confusion and error (with
submissions using the incorrect channel). For this reason, Congress may want to consider 801(a)
reports not in isolation, but rather as part of a potential transition to electronic submission for a
broader universe of congressional submissions—and approach that would harness the benefits of
electronic submission without generating the challenges of a two-channel submission system.
However, even if Congress does consider 801(a) reports in isolation, it seems unlikely that the
burdens imposed by this aspect of electronic submissions outweigh the significant benefits
outlined above.
As a final matter, even if it is acknowledged that Congress should transition to electronic
submission of 801(a) reports, it may not be clear why statutory amendment is necessary to
accomplish this goal. The CRA directs simply that agencies “shall submit” their 801(a) reports to
each chamber and to GAO, without specifying any particular manner of submission.177 That
language would seem broad enough to permit electronic submission—and indeed, as noted above,
GAO has long regarded this language as permitting electronic submission of 801(a) reports to it.178
Congress elsewhere has used this statutory phrase to capture electronic submission requirements,

173

See Congressional Review Act: Hearing before the Subcomm. on Commercial & Admin. Law, H. Comm. on the
Judiciary, 105th Cong. 94 (1997) (prepared statement of Peter L. Strauss, Betts Professor of Law, Columbia University)
(suggesting that even full compliance “would impose significant aggregate costs, well beyond their possible benefit”).
174
See Letter from Thomas H. Armstrong, Gen. Counsel, U.S. Gov’t Accountability Off., to Charles E. Schumer, Senator,
U.S. Senate, & Ron Wyden, Senator, U.S. Senate Comm. (Sept. 15, 2020), https://www.gao.gov/assets/710/709404.pdf
(concluding of agency submission of an 801(a) report, read as an agency admission that the agency action was a rule for
purposes of the CRA, “obviates the need for us [in GAO] to make that determination here”).
175
See infra notes 294-303 and accompanying text.
176
CHERYL L. JOHNSON, CLERK OF THE HOUSE OF REPRESENTATIVES, REPORT: ADOPTING STANDARDIZED FORMATS FOR
LEGISLATIVE DOCUMENTS, at 1 (May 11, 2020),
https://modernizecongress.house.gov/imo/media/doc/Adopting%20Standardized%20Formats%20for%20Legislative%20D
ocuments.pdf.
177
5 U.S.C. § 801(a)(1)(A).
178
See supra notes 158-160.

25

both in enacted179 and pending legislation.180 Moreover, legislative history for the CRA indicates
that Congress viewed the statutory directive as sufficiently broad to permit submissions in other
than hard copy (such as by “telefax”) 181 and that Congress assumed agencies would work with
report recipients to establish mutually agreeable submission methods. 182 These various indicia of
congressional intent all suggest that, even under existing statutory language, electronic submission
of 801(a) reports might be legally permissible.183
However, this situation is complicated by congressional rules and precedents. Pursuant to
its constitutional rulemaking power, 184 Congress has long required various submitted documents
to bear an original signature, a requirement that effectively necessitates submission via hard
copy.185 That baseline policy has sometimes been modified via rule or Speaker policy (as discussed
above with respect to the Covid-19 pandemic),186 and it presumably could be so modified for CRA
submissions as well. Nonetheless, at least one past Parliamentarian has suggested that a change to
statutory text might be necessary to effectuate a change for the CRA, at least insofar as the goal is
to require (versus merely permit) electronic submissions.187 Ultimately, the success of any reform
in this area presumably will depend on persuasiveness with the Parliamentarians—a situation
owing both to Congress’s ultimate power over its rulemaking 188 and to the CRA’s prohibition on
See 10 U.S.C. § 284(h)(1) (requiring that “the Secretary of Defense shall submit to the appropriate committees of
Congress a written and electronic notice” on various matters); id. § 284(h)(3) (providing that “the Secretary [of Defense]
shall submit to the appropriate committees of Congress a report . . . in written and electronic form”).
180
See Access to Congressionally Mandated Reports Act, H.R. 2485, 117th Cong. (2021) (directing that agencies “shall
submit” congressionally-mandated reports to the Director of GPO for purposes of posting on online portal).
181
Joint Committees’ Statement, supra note 10, at 6927 (“If no other means of delivery is possible, delivery of the rule
and related report by telefax to the Speaker of the House, the President of the Senate, and the Comptroller General s hall
satisfy the requirements of subsection 801(a)(l)(A).”).
182
With respect to information submitted to GAO under section 801(a)(1)(B), for example—which contained an identical
“shall submit” mandate—the joint statement remarked: “It also is essential for the agencies to present this information in a
format that will facilitate the GAO’s analysis. The committees expect that GAO and OMB will work together to develop,
to the greatest extent practicable, standard formats for agency submissions.” Joint Committees’ Statement, supra note 10,
at 6929. GAO and OMB did ultimately collaborate on this, after significant additional congressional prodding of OMB.
See Memorandum from Jacob J. Lew, Director, Off. Mgmt. & Budget, M-99-07, to Heads of Dep’ts, Agencies &
Independent Establishments, on Submission of Rules under the Congressional Review Act (Jan. 12, 1999) (superseded by
M-99-13 (Mar. 30, 1999)); Memorandum from Jacob J. Lew, Director, Off. Mgmt. & Budget, M-99-13, to Heads of
Dep’ts, Agencies & Independent Establishments, on Guidance for Implementing the Congressional Review Act (Mar. 30,
1999), https://trumpwhitehouse.archives.gov/sites/whitehouse.gov/files/omb/memoranda/1999/m99-13.pdf. See also
COPELAND, supra note 53, at 6.
183
Of course, the prohibition on judicial review under section 805 of the CRA means that any dispute over the sufficiency
of performance based on manner of submission presumably would be left to the political branches and not subject to court
challenge. See Joint Committees’ Statement, supra note 10, at 6929 (“Nor may a court review whether Congress complied
with the congressional review procedures in this chapter.”).
184
See U.S. CONST. art. I, sec. 5.
185
See H.R. 2247 Accompanying Report, supra note 152, at 5 (“[Agencies] must often resort to hand-delivering the
required materials by courier to the House and Senate, in order to comply with the CRA and the standards regarding
communications transmitted to Congress.”); MODERNIZATION REPORT, supra note 153, at 201 (“Congress . . . still requires
‘wet signatures’ on many official documents, which can lead to delays in the regulatory implementation process.”); id. at
n.220 (“The House Parliamentarian requires wet signatures, in compliance with the Congressional Review Act.”).
186
See infra notes 156-157 and accompanying text.
187
10th Anniversary of the Congressional Review Act, supra note 64, at 50 (statement of John V. Sullivan) (“I assume that
[establishing a requirement for electronic submission] might require that you visit the statutory text.”).
188
U.S. CONST. art. I, sec. 5. See also CAREY & BRANNON, supra note 32, at 25–26 n.210 (“Even if the CRA did not
contain a provision barring judicial review, or if that provision were found not to apply to a certain dispute, courts may be
reluctant to intervene in a dispute regarding the application of the CRA, to the extent that any given dispute would require
a court to second-guess congressional procedures.”).
179

26

judicial review.189 A change in statute would provide the Parliamentarians with a particularly
strong, overriding indication of congressional intent to accept electronic submissions, longstanding
signature requirements notwithstanding. For this reason alone, it makes sense to use statutory
amendment as the tool to effectuate any desired shift to electronic submissions.
There also are further practical reasons that counsel in favor of a statutory solution. First,
this approach would ensure a uniform submission standard across chambers. This would bring a
variety of practical benefits, such as enabling simultaneous submission (and thereby assisting with
tracking important dates under the CRA) and development of a standard submission format (e.g.,
cover sheet or reporting template). A rule-based approach might not provide this beneficial
uniformity, as rulemaking occurs separately in each chamber. 190 Second, this statutory approach
would forestall any potential agency pushback or insistence upon continued paper submissions
(which, for reasons outlined above, agencies could potentially argue comply at least with CRA
statutory requirements, if not with chamber rules regarding acceptable submissions).191 Third, the
CRA already is a challenging statute for parties to navigate specifically because many compliance
details have been developed at the sub-statutory level, as explained further in Part IV—a fact which
makes the CRA process difficult to navigate even for those familiar with its statutory requirements.
Given this, it would be wise for Congress to move toward increasing the share of CRA rules that
are encoded in statute. Legal and practical reasons therefore conspire to make change via statute a
wise path, if Congress does indeed choose to pursue electronic submissions.

IV.

Timing and Deadlines

Another potential area of promising CRA reform relates to the various time periods created
under the Act. To establish an expedited process for reviewing agency rules, the CRA relies upon
a series of specified time periods. These periods establish windows of time during which agencies
must refrain from implementing rules, or during which Congress has access to specific legislative
processes. While these time periods are consistent on a number of metrics—many of them refer to
a 60-day period, for example—they also differ in various ways. This can include the event that
triggers the beginning of the time period, as well as the manner in which days are counted within
it. Figure 1, below, provides an overview of some of the key time periods under the CRA.

5 U.S.C. § 805. On the interaction of these two legal dimensions, see Joint Committees’ Statement, supra note 10, at
6929 (“This latter limitation on the scope of judicial review was drafted in recognition of the constitutional right of each
House of Congress to ‘determine the Rules of its Proceedings,’ U.S. Const., art. I, §5, cl. 2, which includes being the final
arbiter of compliance with such Rules.”).
190
See U.S. CONST. art. I, sec. 5.
191
On agency and OMB resistance to congressional and GAO efforts to standardize submissions in the past, see
ROSENBERG, supra note 6, at CRS-28 (describing OMB resistance to collaboration with GAO on standardized submission
format, until directed to so collaborate via congressional rider).
189

27

Fig. 1: CRA Time Periods

Section

Function

Calculation:
Relevant
Action from
Agency

Calculation:
Window
Length:
Units

Calculation:
Window
Length: # of
Units

801(a)(2)

GAO Report
Deadline

Congress
receives report
& rule published
in Fed. Reg.

calendar
days

801(a)(3)

Major Rule
Effectiveness
Delay

Congress
receives report
& rule published
in Fed. Reg.

801(d)

Look-Back
Period

802(a)

Window Can
Lengthen?

Window
Can
Shorten?

(Beyond length
in calendar
days)

(Below
length in
calendar
days)

15

no

no

calendar
days

60*

no*

no*

Report “was
submitted”**

Session days
/ legislative
days

60

yes

yes

Introduction
Period

Congress
receives
report***

calendar
days,
excepting 3+
day
adjournments

60

yes

no

802(c)

Can
Discharge
from
Committee

Congress
receives report
& rule published
in Fed. Reg.

calendar
days

20

no

no

802(e)

Senate
Fast-Track
Window

Congress
receives report
& rule published
in Fed. Reg.

Senate
session days

60

yes

yes

* This window may be lengthened by presidential veto or if rule otherwise would take effect at later
date, or it may be shortened or skipped if: (1) a chamber vote on a joint resolution fails, (2) the
President makes a determination that it falls in an urgent rulemaking category specified in statute,
or (3) it is an exempt rule as specified in section 808. (Telecommunications rules by definition are
not major rules, and therefore also are effectively exempt.)
** In practice, the Senate Parliamentarian also has required publication in the Federal Record.
Agency action here also serves a different role than in other time windows: it does not start the
window (which is calculated by counting backwards from the date of sine die adjournment), but
rather is the action that must occur within the time window in order for an additional expedited
window to open in the next session of Congress.

28

*** In practice, the Senate Parliamentarian also has required publication in the Federal Record.

*****
In the design of these time windows, the architects of the CRA sought to advance (and
balance) three different values. Two of these values work in opposite directions. On the one hand,
the CRA architects sought to provide Congress with sufficient time to meaningfully consider and
act upon CRA joint resolutions. The legislative history repeatedly speaks to this goal. 192 It is a goal
that the CRA protected by ensuring that its time windows were not too short. On the other hand,
the drafters of the CRA also looked ensure that, within a reasonably short amount of time, there
was closure to the CRA process. As CRS has put it, the CRA “contemplates a speedy, definitive
and limited process.”193 The legislative history speaks to several reasons why this was desired—
including prevention of needless delay of agency action 194 and allowing regulated entities to
achieve closure and proceed with confidence about the governing rules.195 This competing value
counseled toward ensuring that time windows under the CRA were not too long or open-ended.
Meanwhile, a third value did not necessarily counsel toward longer or shorter windows.
This was the value of a coherent, clear, interactive statutory system. It was a value the CRA’s
drafters hoped would emerge from various elements of statutory structure, such as from the
creation of aligned time windows. This goal is evident in the statutory design: it rarely is an
accident when four separate provisions refer to an identical date calculation (60 days) or reference
the same date trigger (congressional receipt and Federal Register publication).196 And, indeed, key
legislators noted in the legislative history that this was an intentional element of the design of the
CRA. They repeatedly commented, for example, on the attempted alignment of the time window
delaying major rule effectiveness (hereinafter “delayed effectiveness period”) with the Senate
action period.197 Unlike the aforementioned statutory goals, this objective did not rely upon time
142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“The 60-day period [for the effectiveness window] was selected to
provide a more meaningful time within which Congress could act to pass a joint resolution before a major rule went into
effect.”); id. (emphasizing importance of “Congress [having] a meaningful opportunity to act on such joint resolutions”);
Joint Committees’ Statement, supra note 10, at 6928 (noting that “the committees determined that the proper public policy
was to give Congress an adequate opportunity to deliberate and act on joint resolutions of disapproval”); id. (noting
purpose of look-back window as ensuring both chambers “have adequate time to consider a joint resolution in a given
session”).
193
ROSENBERG, supra note 6, at CRS-24.
194
See, e.g., Joint Committees’ Statement, supra note 10, at 6928 (noting goal of “ensuring that major rules could go into
effect without unreasonable delay”).
195
See id. at 6927–28 (voicing desire for closure to process “before regulated parties must invest the significant resources
necessary to comply with a major rule”); id. at 6928 (noting that “it would be preferable for Congress to act during the
delay period so that fewer resources would be wasted”); 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (noting that “it
would be preferable for the Congress to act before outside parties are forced to comply with the rule”).
196
This goal apparently contributed to Congress’s choice of a 60-day effectiveness window over a 45-day window. See
Joint Committees’ Statement, supra note 10, at 6928 (“To increase the likelihood that Congress would act before a major
rule took effect, the committees agreed on an approximately 60-day delay period in the effective date of a major rule,
rather than an approximately 45-day delay period in some earlier versions of the legislation.”).
197
See 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (remarking that “it is contrary to the policy of this legislation that
major rules take effect before Congress has had a meaningful opportunity to act on such joint resolutions”); Joint
Committees’ Statement, supra note 10, at 6928 (noting that “it would be best for Congress to act pursuant to this chapter
before a major rule goes into effect”); id. at 6927 (“The reason for the delay in the effectiveness of a major rule beyond
that provided in APA subsection 553(d) is to try to provide Congress with an opportunity to act on resolutions of
disapproval before regulated parties must invest the significant resources necessary to comply with a major rule.”); id. at
192

29

windows being sufficiently long or short; rather, it relied upon these windows aligning (or
otherwise working in complementary fashion) with each other.
Of these different values, Congress plainly was least successful in its effort to achieve the
third value—i.e., in designing time windows to create a coherent, clear, interactive statutory
system. For example, the desired alignment of time windows has proven largely illusory, as the
use of different measurement units (e.g., calendar days versus session days) has given the CRA a
veneer of window alignment, but a lack of substantive alignment. While the Act’s success in
creating time windows that achieve its other two objectives may be debatable, therefore, its failure
on this count seems undeniable.
This failure in the design of the CRA also has undermined a fourth value that is integral to
the CRA’s operational success, yet that did not receive full attention in Congress’s public
discussion of the Act. This was the value of simplicity. In the intervening years, scholars have
noted the dizzying complexity created by the statute’s various time windows, describing the Act
as presenting an “unusually complex set of action periods and deadlines”198 and a “tangled web of
date and time calculations [that] create[s] uncertainty over the effectiveness of rules.” 199 Inside
Congress, this complexity has led to regular confusion about the measurement of individual
windows and the interactions between multiple windows.
To address this complexity and its attendant confusion—as well as the Act’s failure to
create a coherent, integrated statutory system—reformers should consider simplifying the various
time windows under the Act. This project should focus on reducing the presence of multiple
misaligned time windows under the CRA, as well as transitioning to methods of time measurement
that provide enhanced ease and clarity of calculation for observers. In so doing, the goal should be
to target those windows that are outliers, and that cannot sufficiently justify their variance by
recourse to the Act’s other goals. These outlier windows might be remedied either by: (1) changing
the manner in which they are calculated, such as by better aligning them with other CRA windows;
or (2) removing them altogether. In weighing these reform options, the goal should be to reduce
complexity and promote clarity in a manner that does not undermine the Act’s first two goals (viz.,
provision of meaningful consideration time to Congress; timely closure for agencies and regulated
entities).
In a survey for outlier CRA windows, and particularly for outliers that pose heightened
versions of this complexity problem, two stand out. These are the look-back period and the
introduction period. Each is considered below.

A.

Look-Back Period

One time window that warrants reconsideration is the window used to determine whether
a rule submitted in one session of Congress will be subjected to an additional CRA disapproval
6928 (“Congress may continue to use the expedited procedures to pass resolutions of disapproval for a period of time after
a major rule takes effect, but it would be preferable for Congress to act during the delay period so that fewer resources
would be wasted.”); 142 CONG. REC. H3005 (daily ed. Mar. 28, 1996) (“The 60-day period was selected to provide a more
meaningful time within which Congress could act to pass a joint resolution before a major rule went into effect. Even
though the expedited congressional procedures extend beyond this period—and some of the special House and Senate
rules would never expire—it would be preferable for the Congress to act before outside parties are forced to comply with
the rule.”).
198
BETH, supra note 42, at 1.
199
Cohen & Strauss, supra note 57, at 110.

30

window in the next session (i.e., the “look-back period”).200 This look-back period has several
features that not only render it an outlier among the CRA’s time windows, but that also make it
uniquely difficult to calculate and implement. These problems arise from: (1) the agency action
deemed relevant under the window; (2) the unit of time calculation used for purposes of the
window; and (3) the use of retroactive calculation under the window. Each warrants some
consideration.
First, with respect to relevant agency action: unlike most other CRA windows, the relevant
agency action under the look-back period is declared by the statute to be submission of the 801(a)
report to Congress alone (i.e., without a corresponding requirement of Federal Register
publication). There may have originally been some logic to this choice: the CRA provides a
matching window for introduction of CRA joint resolutions,201 and so the look-back period
arguably is calculated to protect a post-introduction period in which Congress can sufficiently
consider a resolution.202 By creating a statutory scheme in which two pieces of the process
potentially operate with a distinct starting date from all others, however, the CRA plainly creates
the possibility of heightened confusion and complexity under the statute.
These complexity concerns have not materialized under the CRA, however, because the
Senate Parliamentarian has imposed a creative interpretation upon both the look-back period and
the introduction period. Under that interpretation, publication in the Federal Register is required
(along with receipt of the 801(a) report) to begin each period.203 On the one hand, that interpretation
helpfully avoids the complex situation in which the beginning of either period is misaligned with
the beginning of the other CRA procedural windows. However, it introduces another form of
complexity and opacity into the CRA, creating a situation in which familiarity with statutory text
is insufficient to understand the Act’s real-world operation (and, in fact, is somewhat misleading).
This particularly is a problem for congressional outsiders, who may lack access to information
about Parliamentarian decisions. In the process of aligning the start of the introduction and lookback periods with the start of other CRA windows, in other words, the Senate Parliamentarian
decision has rendered the statutory text of the CRA somewhere between opaque and misleading.
Whatever its merits, this has not helped with the pursuit of a transparent, simple statutory scheme.
Second, unlike most CRA time windows (which are calculated in calendar days), the lookback period is calculated in session or legislative days.204 This is even more anomalous than it first
appears, as Congress’s use of pro forma sessions has effectively made the introduction period into
a calendar-date calculation, thereby matching most of the Act’s other time window calculations.
Not only does this introduce complexity by adding an anomalous method of calculation into the
CRA (and one that may be different for each chamber), it adds complexity by using an
unpredictable and highly variable method of calculation, as each chamber may decide (with little
notice) to modify its anticipated calendar of days in session. Moreover, because legislative or
200

5 U.S.C. § 802(d).
Id. § 802(a).
202
See Joint Committees’ Statement, supra note 10, at 6928 (noting purpose of look-back window to ensure both
chambers “have adequate time to consider a joint resolution in a given session”).
203
Relatedly, the Senate Parliamentarian has shown some reluctance to begin the Senate action window without some
additional agency verification in instances in which the agency rule is not to be published in the Federal Register. See 164
CONG. REC. S6380 (daily ed. Sept. 28, 2018) (statement of Sen. Wyden) (noting Parliamentarian request for agency
confirmation in writing that rule would not be published in Federal Register).
204
See Figure 1, supra (listing four time periods calculated via calendar days, two calculated in whole or in part via
session days, and one calculated via calendar days excepting three-plus day adjournments).
201

31

session days are artificial and malleable, and because they are controlled by interested actors (viz.,
congressional chambers), they theoretically are vulnerable to strategic manipulation; each chamber
could strategically lengthen or shorten the look-back period by having legislative or session days
extend for multiple calendar days, or by fitting several into a single calendar day. It is one of only
two CRA windows to have a unit of calculation that is subject to this form of two-way uncertainty
(i.e., one that theoretically allows the window to be both lengthened and shortened from its baseline
by strategic congressional action).205 While this last possibility does not seem to have been realized
to date, it highlights the uncertainty and complexity that attends this method of calculation.
In other words, it is simple for those both inside and outside Congress to calculate calendar
days. It is somewhere between difficult and impossible for them to calculate session or legislative
days, at least in advance. By relying upon the latter method of calculation, the look-back window
thereby generates significant uncertainty and confusion in the real-world experience of the CRA.
Third, further complexity is added by the anomalous direction in which days are counted
for the look-back period. For other CRA time periods, the relevant window is calculated by
counting a provided number of days (or session days, etc.) forward from a given start date. By
contrast, the look-back period is calculated by counting a provided number of session days back
from a given ending date. This retrospective quality makes the look-back period effectively
impossible to calculate in real time; the date on which the window begins cannot be known until
the window’s conclusion. This is quite different from the prospective windows that are typical
under the statute—windows in which the only uncertain date is the ending date, and in which even
that date at least: (1) is known upon its arrival, and (2) can be predicted with increasing certainty
as it approaches.
The look-back period therefore is anomalous in several ways. Moreover, its anomalies
generate particularly difficult and opaque calculations, thereby dramatically increasing uncertainty
and confusion under the CRA. This raises the question: might this window be simplified in a
manner that does not undermine the other core goals of the CRA?
One solution, as noted above, would be to remove this window entirely. However, this
plainly would undermine the goals of the CRA. Unlike certain procedural windows under the CRA
which arguably are quasi-redundant (see below), the look-back period is the sole mechanism that
protects Congress’s interest in having a meaningful, uninterrupted opportunity to review agency
rules that are issued late in a congressional session. Congress does admittedly have such an
opportunity regardless of the look-back period when it transitions into the second session of a
Congress; the personnel within the legislature does not change during that transition, and so a fixed
body of legislators does essentially retain a continuous period of time to review agency rules
regardless of the look-back period.206 As a result, the look-back period presumably could be
removed for these session transitions with little harm. However, wholesale removal of the look205

For the other, see 5 U.S.C. § 802(e) (Senate fast-track window). The effectiveness delay window for major rules also
possesses two-way variability, but that variability is triggered only by specified statutory exceptions, not by sub-statutory
manipulation of the unit of date calculation. See id. § 801(a)(3).
206
For context, a “Congress” is a label applied to the two-year period between congressional elections. So, for example,
the current Congress—known as the 117th Congress—convened in January 2021 (when Members elected in the last
congressional election were first seated) and will end in January 2023 (when the Members elected in the next
congressional elections are seated). By contrast, a “session” of Congress refers to a one-year period. Consequently, each
Congress consists of two sessions—and only the first session of a Congress, not the second, aligns with an election that
potentially changes the legislators in Congress.

32

back period—including for transitions into the first session of a new Congress—plainly would
undermine this goal of the CRA.
Since removal of the look-back period appears problematic, it is necessary to consider
whether modifications to the window might prove more appealing. This report recommends one
such modification: establishing in statute a fixed date on which, going forward, the look-back
period is declared to begin. This modified approach to the look-back period holds significant
potential to simplify and clarify the operation of the CRA, while also preserving a meaningful
opportunity for congressional deliberation and action.
The benefits this modification could provide in terms of simplicity and clarity are obvious.
Unlike under the current CRA, actors both within and beyond Congress would know ex ante when
the look-back period will begin each session, and therefore would know which rules will be subject
to potential CRA review in a subsequent session. Those within Congress will no longer need to
endlessly seek real-time estimates of this window from nonpartisan staff within Congress, a
process that currently puts this staff in the unenviable position of making prognostications based
on chamber calendars that are subject to change. It is difficult to imagine a clearer approach, or
one more easily administered, than use of a date certain for this purpose.
Of course, some might see this increased clarity as a detriment. When clarity is provided
to the start of the look-back period, executive agencies will know with certainty that they can evade
CRA review in a subsequent session by submitting an 801(a) report by a fixed date. This would
allow the agencies to strategically time their rule development to avoid such review. Yet, while
this may be a politically-understandable concern, it is a difficult one to defend as logical under the
values of the CRA. No evidence suggests that the CRA look-back period was designed to be
strategically opaque in the effort to entrap executive agencies in additional reviews due to
unexpected calculations of this window. And if agencies are able to submit their 801(a) reports on
a timeline that permits the current session of Congress adequate time to meaningfully consider the
report, that suffices to accomplish the Act’s goals—even if the agency submitted that report sooner
than it otherwise might have. It therefore is difficult to understand how this objection can be
defended as grounded in the principles the CRA seeks to advance.
It therefore seems apparent that increased clarity for the look-back period is desirable, at
least from a system-level perspective, and that use of a fixed date to begin this window would
provide such clarity. However, it may not be obvious that this approach will adequately preserve
another CRA value: namely, providing Congress with the time necessary to engage in meaningful
review of rules. After all, the transition to a fixed date for the look-back period would remove two
protections for a robust deliberation window. These are the protections provided against: (1) early
sine die adjournment of a session of Congress; and (2) a concluding period to a congressional
session that has abnormally few session or legislative days. Each warrants some consideration.
First, the current calculation of the look-back period protects a full period of congressional
deliberation from any abnormally early sine die adjournment of Congress. It accomplishes this by
establishing what the Act considers to be an adequate consideration window (viz., 60 legislative
or session days) and counting backwards from the date of sine die adjournment to identify the
applicable consideration window. In this way, the CRA ensures that the duration of the look-back
period remains constant, even as the date of Congress’s sine die adjournment changes. By contrast,
a pivot to the use of a fixed date to begin the look-back period would sacrifice this form of
constancy, creating a situation where an abnormally early sine die adjournment would translate to

33

a comparatively short look-back period (as the beginning of the window would remain constant,
while the end of the window would move earlier).
However, there are at least four reasons why concern about this issue is less than
compelling. First, the date of sine die adjournment has significantly stabilized in recent
Congresses. With Congress moving toward a consistent January 3 adjournment date, a chamber
has adjourned before January only twice in the last ten years—and it has not once adjourned during
this period before mid-December.207 In the last fifteen years, a chamber has adjourned before midDecember only once (in 2006).208 A chamber has not had a November adjournment date since
2002.209 Congress always could return to greater variation in sine die adjournment dates, of course.
Nonetheless, its current practice suggests that a fixed beginning date for CRA look-back periods
would not lead to significant variation in the duration of these windows, given the stability of
Congress’s recent sine die adjournment dates.
Second, there is bound to be a tradeoff between improved clarity for the look-back period,
on the one hand, and preservation of a rigid deliberation period in this window, on the other. So
long as the date of sine die adjournment remains variable and unknown in advance, either the start
date or the duration of the look-back period also must remain variable and uncertain. By placing
this variability on the start date of the window, rather than its duration, the architects of the CRA
created a system that has proven frustrating both within and beyond Congress. If there is desire to
remedy this and bring greater clarity to the start date of the window, then some sacrifice in clarity
on window duration is unavoidable—and a seemingly tolerable tradeoff.
Third, this tradeoff seems particularly tolerable because the default window that Congress
has protected via the look-back period is exceedingly long. Here, Congress has ensured that it will
have an additional opportunity (in a subsequent session) to review any rule which it has had less
than 60 legislative or session days to examine and consider (assuming this examination process
commences with submission of an 801(a) report to Congress on the rule). This is an exceedingly
long window of time for Congress to have for consideration of a joint resolution to disapprove a
rule; for example, it only took a week for the ergonomics rule that Congress disapproved to go
from introduction to passage by both chambers. 210 Consequently, there is reason to think that
Congress will have ample time to consider any joint resolutions of disapproval even if, due to a
transition to a fixed date to begin the look-back period, the window occasionally is shortened by
an early sine die adjournment.
Fourth, it is necessary to honestly ask whether the purported value of preserving a robust
deliberation window even is meaningful in the context of the look-back period as it operates today.
The look-back provision in section 801(d) consistently has been invoked by Congress—but not
because a prior Congress was interested in disapproving a rule yet ran out of time, thereby
requiring the subsequent Congress to continue the work of the prior Congress. Rather, it has been
a useful tool because the intervening election changed the political party in control of government,
thereby ushering in a new Congress (and President) that wished to overturn rules that the prior
Congress (and President) had no interest in reviewing or overturning. In modern practice,
207

See Dates of Sessions of the Congress, U.S. SENATE, https://www.senate.gov/legislative/DatesofSessions
ofCongress.htm#2015 [https://perma.cc/A7PQ-CXDH].
208
Id.
209
Id.
210
The joint resolution for this rule was introduced on March 1, 2001, passed the Senate March 6, and passed the House
March 7. Pub. L. No. 107-5 (2001).

34

therefore, the look-back period protects a value that rings relatively hollow: namely, the ability of
a party whose presidential administration is issuing midnight rules to immediately review and
reject those same rules. Since the look-back period has transitioned in practice away from
protecting any window for congressional review that Congress itself seems to find meaningful, it
is difficult to see why that value—now largely fictitious—should be cited to override competing
values that still are meaningful in the present-day operation of the CRA (viz., clarity and
predictability in implementation).211
For these reasons, concerns about sine die adjournment ultimately do not seem to override
the benefits that could attend a transition to a fixed date to begin the look-back period. Similar
logic applies to the second form of deliberation protection that, admittedly, would be sacrificed in
this transition: namely, protection against a congressional session that concludes with abnormally
few session or legislative days. By creating a look-back period that is counted in session or
legislative days, the CRA currently prevents a situation where, although Congress has ample
calendar days in which to review a rule, it has insufficient days in session to engage in meaningful
deliberation on a joint resolution of disapproval. A transition to a fixed-date initiation of the lookback period would remove this protection; if a chamber were to be out of session for an abnormally
large number of days subsequent to the fixed initiation date, this would indeed reduce the number
of days in session that Congress would have available to consider the rule (and nonetheless lack
access to a subsequent review window in the next session).
For many of the reasons already mentioned in the discussion of sine die adjournment,
however, this concern is largely unpersuasive. As before, some tradeoff between clarity and
protection of a deliberation window is unavoidable; the deliberation window currently is longer
than necessary; and the deliberation protected by the look-back period is almost entirely fictitious.
All these reasons counsel in favor of a pivot to a fixed start date, even if this has some potential to
periodically prevent Congress from having a full deliberation window of 60 continuous legislative
or session days. Moreover, the number of days a chamber is in session is controlled by that
chamber; it therefore is unconvincing for a chamber to object that it lacked deliberation time with
a rule simply because it had itself chosen not to hold session for an abnormally large number of
days at the end of a congressional session.
If concerns about transitioning to a fixed initiation date are unpersuasive, then the next
question is: how should this fixed date be determined? Perhaps the best option, and the one that
best preserves the balance of values enshrined in current CRA practice, is one that simply codifies
the average date on which the look-back period has begun in recent years. For these purposes, it
may be instructive to focus on the last decade of experience, since sine die adjournment practices
have particularly stabilized during this period. Over this decade, the average date on which the
look-back period has begun has been August 2. A policy choice is raised by the fact that, in
practice, the look-back period typically is invoked in presidential election years—and over the last
decade, the average date on which the window has begun for this subset has been July 18. It
therefore would be wise for Congress to select a date somewhere within the range demarcated by
these two data points. Doing so would provide Congress with a look-back period that matches the
one it has had in practice for the last decade—and therefore one that should not provide any jarring
transition or any erosion to values currently protected by actual CRA practice.
211

On the broad need to reconceive structural features in light of party alignment in the modern era, see generally Daryl J.
Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312 (2006).

35

B.

Introduction Period

The second time window under the CRA that is anomalous, and that has unique features
that add particular complexity to the law, is the introduction period. This window, it will be
recalled, establishes the period during which joint resolutions of disapproval can be introduced
under the CRA.212 This window is an outlier in the CRA with respect to both: (1) the relevant
agency action to initiate it; and (2) its manner of time calculation. Each of these outlier features
appears today to be operating in a manner that not only adds complexity and opacity to the CRA,
but also that likely differs from its intended functioning by the Act’s architects. As such, it is a
strong candidate for revision.
It is worth considering each of these outlier features. First, as already discussed in Subpart
A, the CRA specifies that the introduction period begins with a particular event: namely,
congressional receipt of the 801(a) report from the agency. Along with the look-back period, the
introduction period is theoretically the only other time window under the Act that begins with
submission of the 801(a) report alone, rather than also requiring publication in the Federal Register
(where applicable). Unlike the look-back period, however, the introduction period interacts with
the other expedited procedures in the CRA in the attempt to create a coherent, step-by-step
legislative process (introduction, committee consideration, floor debate, etc.). Having one piece of
that process potentially operate with a distinct starting date from the others creates the possibility
of heightened confusion and complexity under the statute.
Once again, these concerns have not materialized because the Senate Parliamentarian has
stipulated that, in practice, publication in the Federal Register is required (along with receipt of
the 801(a) report) to begin the introduction period. As with the application of this policy to the
look-back window, its application to the introduction window helpfully aligns the start dates of
the various CRA procedural windows—yet, in so doing, also undermines the transparency and
accessibility of the statutory scheme, particularly for those who lack regular access to the chamber
Parliamentarians. In this regard, the introduction window (like the look-back window) adds
significant opacity and complexity to the real-world operation of the Act.
The introduction period also is abnormal in its manner of time calculation. It is the lone
CRA time period in which time is calculated in calendar days but with adjournments of greater
than three days by either chamber excepted.213 An outlier at least in theory, this novel time
calculation creates an array of complex possibilities. Consider, for example, how this interacts with
the Senate action period, which is calculated in Senate session days. Both refer to a baseline period
of 60 days—yet, due to their differing calculations, the following permutations are possible:
•

The Senate is out of session for periods of less than four days the introduction period
continues while the Senate action period freezes. This may lead to the introduction
period expiring before the Senate action period.

•

The Senate holds multiple session days in a single calendar day Senate action period
proceeds faster than introduction period. This may lead to the Senate action period
expiring before the introduction period.

212

5 U.S.C. § 802(a).
On the practical effect of this rule, see BETH, supra note 42, at 3 (“Normally, in other words, weekend days will count
toward the initiation period, but district work periods will not.”).
213

36

•

The House adjourns for longer than three days the introduction period freezes while
the Senate action period continues.214 This may lead to the Senate action period expiring
before the introduction period.

These theoretical complexities notwithstanding, however, the unique manner of time
calculation for the introduction period has not generated this level of complexity in practice. This
is because the novel feature of time calculation for the introduction period—its pausing for lengthy
adjournments—has been rendered largely irrelevant by modern congressional practice. Today,
Congress makes regular use of pro forma sessions in order to avoid adjournments of greater than
three days—a practice adopted primarily to block opportunities for recess appointments by the
President.215 As a result, the calculation of the introduction period is not regularly paused in the
contemporary Congress by reason of adjournment. This functionally makes the introduction period
tend to operate on a calendar day basis, a fact which brings it into harmony with most of the other
CRA windows (which similarly operate on a calendar date basis). As before, however, this
functional alignment comes at a price. First, it means that the plain letter of the CRA again is
misleading to the uninitiated, as the Act’s operation cannot be discerned by those who do not know
how it interacts with detailed changes in congressional practice and procedure. Second, it means
that this window no longer serves the functional goals envisioned by its drafters. After all, there is
little functional difference between adjournments and recesses with strategically deployed pro
forma sessions, yet the policies drafters attached to the former have not carried over to the latter.
As a result, the unique manner of calculating time under the introduction period now appears to be
a source of legalistic complexity that lacks functional utility.
The introduction period therefore appears to be another dimension of the CRA that not
only is an outlier, but that has unique features that particularly heighten the complexity and opacity
of the Act. This again raises the question of whether the window should be eliminated or reformed.
Here, a number of policy options present themselves to Congress. These include: (1) removing the
introduction period entirely; (2) aligning the introduction period with the Senate action period; and
(3) making the introduction period available only for a fixed number of calendar days.
First, unlike the look-back period, it does appear that outright removal of the introduction
period is a plausible policy option. This approach plainly would have the upside of simplifying
time calculations under the CRA, as it would eliminate one of several overlapping time windows
that must be tracked under the current statute. It also would bring clarity to the statute by
eliminating a window with practical operation that does not always align with its statutory
appearance. The important question, of course, is whether these benefits are offset by any
countervailing concerns. Consequently, it is important to consider whether the policy might have
ramifications that could undermine the other goals of the CRA.
Such ramifications could result in two ways. First, there is the risk of ramifications created
by removal of the front-end limitation on the introduction of joint resolutions. Today, the
5 U.S.C. § 802(a). See also BETH, supra note 42, at 3 (“Any day that either house is in adjournment during a recess of
more than 3 days does not count toward this time limit.”).
215
CONG. RSCH. SERV., RS21308, RECESS APPOINTMENTS: FREQUENTLY ASKED QUESTIONS, at 8-9 (“During periods when
most Members of the House and Senate have otherwise been absent from the Capitol for more than three days, and the two
chambers have not agreed to adjourn for such period, each house has typically met in pro forma session every few days to
satisfy Adjournments Clause requirements.41 In this context, pro forma sessions are short meetings of the Senate or the
House which are held for the purpose of avoiding a recess of more than three days and therefore the necessity of obtaining
the consent of the other chamber.”).
214

37

introduction period ensures that joint resolutions of disapproval under the CRA are not introduced
until Congress receives an 801(a) report on the rule. For rules considered in a new session due to
the operation of the look-back period, it ensures that any joint resolution is not introduced before
the 15th session day. If the introduction period were removed, these constraints would vanish—
and so Members could introduce joint resolutions of disapproval before receipt of an 801(a) report
or the 15th session day.
However, it is difficult to see how early introduction could produce problematic
consequences within Congress. No subsequent procedural element under the CRA is tethered to
the date of introduction, and so allowing for early introduction of a joint resolution would not
provide a strategic opportunity for Members to bring a premature close to other windows of
consideration under the CRA. And it does not appear that the interaction that would indeed occur
between these two features—viz., earlier introduction, but consistent application of other
procedural windows—generates concerns. For example, since the date of possible committee
discharge is not tied to the introduction date, perhaps early introduction of a joint resolution would
afford a committee more time with a resolution than it otherwise would have available. However,
this does not appear to be a problem, as additional consideration time in this instance does not
translate into an ability of the committee to “hold up” consideration of a resolution. After all, the
absolute date on which the resolution could be discharged from committee would remain
unchanged. In this way, it is difficult to pinpoint any meaningful downside to removal of the frontend limitation on introduction.
If there is any concern regarding the removal of the introduction period, it perhaps would
be about the risk created by removal of the back-end limitation on the introduction of joint
resolutions. Absent that constraint, a joint resolution of disapproval could be introduced at any
time—including years after a rule has been issued. However, such resolution would not have
access to the primary procedural benefit of the CRA: the Senate action period (i.e., the window for
expedited consideration in the Senate). That expedited consideration window closes 60 session
days after receipt of an 801(a) report and publication in the Federal Register, regardless of the date
of introduction.216 Rather, the only procedural benefit that would remain for late-introduced
resolutions would be the CRA cross-chamber reconciliation procedure. 217 Today, that procedure
already remains available to resolutions years after the expedited-procedure window has closed;
however, it remains available only for resolutions introduced during the introduction period.218 By
contrast, if the introduction period were removed, it presumably would become available to
resolutions introduced at any time. That arguably is not a significant policy change—the benefit
of access to the reconciliation process is so minimal, and the policy change so minor insofar as it
simply extends access to a process already available on an open-ended basis to those who introduce
within the introduction period, that it is difficult to see this as a meaningful shift. As such, there
216

5 U.S.C. § 802(e).
Id. § 802(f). See also Joint Committees’ Statement, supra note 10, at 6928 (“If a joint resolution of disapproval is
pending when the expedited Senate procedures specified in subsections 802(c)-(d) expire, the resolution shall not die in
either House but shall simply be considered pursuant to the normal rules of either House-with one exception. Subsection
802(f) sets forth one unique provision that does not expire in either House. Subsection 802(f) provides procedures for
passage of a joint resolution of disapproval when one House passes a joint resolution and transmits it to the other House
that has not yet completed action.”). Congress of course may override an agency rule at any time via the standard
legislative process.
218
See Cohen & Strauss, supra note 57, at 107–08 (“No provision, however, restrains the period within which Congress
must act, so long as a resolution of disapproval is introduced within the qualifying period—a period that itself may end
days or weeks after ‘60 calendar days’ of section 801(a)(3)(A) have expired.”).
217

38

do not appear to be significant downsides to removal of the introduction period—on either the
front or back end of that window. Congress therefore may want to consider simply removing this
window from the CRA, thereby further simplifying and clarifying the Act’s operation.
However, it is possible that wholesale removal of the introduction period will raise
concerns for some. Perhaps there is worry that any widening of the availability of the reconciliation
process under the Act will create additional uncertainty for regulated actors. Or perhaps there is
simply a desire to retain some introduction period because most expedited procedure statutes do
include some such window. If removal is unappealing for these (or other) reasons, Congress may
instead want to consider other ways to simplify the introduction period. One such option would be
simply to align it with the Senate action period. On the front end, this would formally prevent
Congress from introducing a joint resolution of disapproval until a rule was published in the
Federal Register—a modification that would not effectuate any substantive change since, as
already mentioned, the Parliamentarian already interprets the CRA to require such publication
before introduction. On the back end, this policy change functionally would tend to provide
Congress with a small additional window of time in which to introduce a resolution (as Senate
session days do not pass as quickly as calendar days, even typically with extended adjournments
excepted). This would provide some minor additional uncertainty for regulated actors, who would
not have closure under the Act until the Senate action period closed. Again, however, the chamber
action needed to preserve the full Senate action period at present is so minimal (viz., introduction
of a joint resolution) that it is difficult to see this as a significant change. The time window that is
vital to the Act’s benefits—the Senate action period—would remain unchanged under this
approach. And the benefits of simplicity under the Act would essentially equal those provided by
wholesale repeal of the introduction period, as it would remove the need for an independent
calculation of an introduction period apart from the calculation of the Senate action period.
A final policy option would be to create a fixed introduction period that is measured in
calendar days. Such a window would provide the sought-after clarity and ease of calculation, while
also enhancing (rather than detracting from) the sense of closure that could be provided to
regulated actors. However, these benefits would come with a corresponding tradeoff of slightly
reducing Congress’s opportunity for action, particularly in the (admittedly unlikely) event that
Congress adjourns for extended periods of time. It also would do less than the aforementioned
policy options to reduce complexity under the CRA, insofar as it would continue to require relevant
actors to calculate an introduction period that is separate from the Senate action period and the
delayed effectiveness period. In fact, this reform essentially would leave the practical operation of
the CRA unchanged; its benefit would be mostly in the simplicity provided by aligning the text of
the CRA with its real-world operation. That alone may be a significant benefit, but it might not
match the level of simplification achieved by the other potential reforms to the introduction period
considered above.

C.

Additional Time Periods

This report does not offer any recommended revisions to other time periods under the CRA,
such as the Senate action period or the delayed effectiveness period. Admittedly, there are reasons
why the Senate action period in particular might also be a candidate for reform. Calculated in
Senate session days, it is at odds with the calculation of the many various windows that operate on
a calendar-day basis—most notably the effectiveness window, where alignment could provide

39

significant benefits. 219 The use of session days, as explained above, introduces particular
uncertainty into real-time efforts to calculate CRA windows, as this manner of calculation is
subject to two-way uncertainty. And it is unlikely that any particular joint resolution requires 60
session days to receive proper consideration, especially given that the text of the resolution is fixed
by statute and therefore does not permit modification of the sort that can warrant extended
legislative consideration. 220 These factors do make the Senate action period a plausible candidate
for revision. Such a revision might look to convert the Senate action period to calendar days, and
might do so by looking to the average calendar-day duration of this window at the beginning of a
new presidency, in a manner similar to one of the calculations proffered in Subpart A for a revised
look-back period.
However, there may be particular concern with altering the Senate action period. Due to
its vital benefit of providing a fast-track workaround to filibuster efforts, this window presumably
is one with respect to which Congress wishes to guard its window of meaningful opportunity for
deliberation and action particularly carefully. In contrast to the situation with the look-back
window, such arguments for meaningful opportunity of review would ring true with respect to the
Senate action period, where the time window actually does continue to protect a period of useful
congressional deliberation and consideration—and to thereby advance a core value of the CRA.
And while 60 Senate session days is ample time to consider any individual joint resolution, the
desire to balance review of numerous rules with other important actions (e.g., presidential
appointments) at the beginning of a new presidency and Congress may create time pressures in
aggregate that make Congress particularly protective of a robust and flexible Senate action
period.221 And for CRA time periods occurring outside this look-back period scenario, subjection
of the Senate action period to a calendar date calculation might invite strategic agency action to
undermine the congressional opportunity for meaningful review, such as by submitting 801(a)
reports at the beginning of an August recess of Congress.222 Reforms to the Senate action period
therefore could plausibly prove especially detrimental to a countervailing value enshrined in the
CRA (viz., preserving ample opportunity for congressional deliberation), even if these reforms
could add significant simplicity and clarity to the Act.
The Senate action period also may not necessarily raise concerns equal to those identified
with respect to the look-back and introduction windows. While its method of calculation is
somewhat unpredictable due to its use of session days, this period does not have certain features
that make these other windows particularly frustrating for various actors (e.g., retroactive
calculation; unanticipated interaction with contemporary chamber practices). While a wholesale
attempt to redesign the CRA process might reconsider the Senate action period, therefore, the
benefits sought via technical reform legislation to an already-extant process might well be
219

See supra notes 196-197.
See 5 U.S.C. § 802(a) (specifying text of joint resolution).
221
See, e.g., Noll & Revesz, supra note 10, at 21 (“[F]uture administrations will have to weigh using limited Senate time
for confirming presidential appointments against using that time for Congressional Review Act disapprovals.”). In 2017, it
appeared that Republicans also may have considered more joint resolutions, but for time constraints under the Senate
action period. But see CRA Hearing, supra note 4, at 26 (statement of Sally Katzen) (noting that CRA process “was to be
used only in those infrequent instances where there was such opposition to an agency rule that the Congress was willing to
put aside its other work and to express its concern in an official way”).
222
But see CRA Hearing, supra note 4, at 51 (statement of Sally Katzen) (“Based on my experience, I believe there would
be very little attempt to manipulate the timing of the issuance of rules—it is difficult enough to navigate the various
substantive and procedural requirements and the pressures that inevitably develop from both proponents and opponents of
a proposed rule.”).
220

40

achievable simply by reforming the look-back and introduction periods, and by leaving this more
consequential and controversial CRA window intact.
The delayed effectiveness period appears to be an even less worthy candidate for reform.
There already is admirable clarity in its calculation, which (for major rules) extends 60 calendar
days from the date of 801(a) report submission and Federal Register publication. 223 Moreover, the
architects of the CRA cautioned specifically against modification of this window, which
apparently was subject to detailed negotiation and compromise. They remarked:
Such action [by courts to modify the effectiveness window] would be contrary to the many express
provisions governing when different types of rules may take effect. Such court action also would be
contrary to the committees’ intent because it would upset an important compromise on how long a
delay there should be on the effectiveness of a major rule. The final delay period was selected as a
compromise between the period specified in the version that passed the Senate on March 19, 1995
and the version that passed both Houses on November 9, 1995.224

This cautionary note from the CRA drafters, plus the fact that the delayed effectiveness period
provides little implementation complexity (beyond its basic misalignment with the Senate action
period), seems to provide sufficient reason to focus technical reforms elsewhere under the Act.

D.

Codification of Parliamentarian Interpretations

Finally, Congress might consider one additional reform that would not require substantive
changes to any of the CRA time windows, yet that nonetheless could increase clarity of operations
under the CRA. This reform would codify in statute the various interpretations of the CRA that
the Senate Parliamentarian has adopted in the twenty-five years since the statute was enacted. This
would bring significant clarity to the operation of the statute for actors both inside and outside
Congress who may not be familiar with these interpretations. This would be particularly valuable
because the Senate Parliamentarian has not made available written, updated precedents since 1992,
thereby making it particularly difficult for those who lack informal access to the Parliamentarian
to glean the details of its modern-day operation.225 This reform effort could focus on interpretations
that bear on the time windows under the CRA, which might include the following Parliamentariandetermined policies:
•

Federal Register publication is required to begin the introduction window and lookback window for a CRA joint resolution (as discussed above).

•

If the rule at issue is not required to be published in the Federal Register, submission
to GAO (in addition to submission to Congress) may be required to begin CRA time
windows.

•

Due to Senate policies against conducting any business during pro forma sessions,
CRA time windows do not begin until an 801(a) report is referred in the Senate, not
just received by Congress.

223

5 U.S.C. § 801(a)(3).
Joint Committees’ Statement, supra note 10, at 6928.
225
S. Doc. 101-28 – Riddick’s Senate Procedure: Precedents and Practices, GOVINFO.GOV, https://www.govinfo.gov/
app/details/GPO-RIDDICK-1992 [https://perma.cc/EY9C-32J6].
224

41

•

If an applicable time window expires when the Senate is not in session, a “hold
harmless” policy is applied allowing for one day of additional action on a CRA joint
resolution upon the Senate’s return.

•

If Congress attempts and fails to enact a CRA joint resolution in one session, no lookback period is available in the subsequent session.226

•

It appears (though is not entirely clear) that it is considered impermissible for the Senate
to take action on a CRA joint resolution on the same day as discharge from committee,
except by unanimous consent.

•

In the event that the look-back periods of the two chambers differ, the period with the
earlier start date will be the period used by both chambers.

•

For purposes of calculating the look-back period, the date of adjournment is counted as
an applicable session or legislative day.

•

Various rules regarding whether each time window is construed to begin on the date of
relevant action specified in statute, or on the first day after such specified action.

This codification of Parliamentarian interpretations also potentially could extend beyond
policies regarding CRA time windows. For example, the details of the petition for committee
discharge, which have been modeled after a cloture motion, arguably also could benefit from such
codification.227 The prohibition on preambles to CRA joint resolutions also could be made explicit,
as could the fact that motions to proceed are non-debatable. Regardless of the scope, however,
codification of at least some additional procedural details could reduce the opacity of the CRA for
unfamiliar actors.228
If codification proves an unappealing option, any publication of these Parliamentarian
interpretations likely would prove useful. Indeed, even publication in this report may perhaps assist
the uninitiated—one reason why an effort has been made above to collect and list relevant
interpretations. Publication by a congressional office presumably would make such interpretations
more readily accessible, however, as those impacted by the statute could be expected to check
work bearing Congress’s imprimatur first in the effort to understand the statute. Codification
would go even further in this regard, making the details of CRA operation apparent on the face of
the statute itself—and thereby rendering them especially visible to those attempting to understand
the CRA via its plain text. For this reason, it may be worth considering whether at least some of
these interpretations rise to the level of warranting not only publication, but statutory inclusion.
Codification of Parliamentarian interpretations presumably would not hard-wire these rules
in ways that might make it more difficult for Congress to undo them at a later date. The CRA is
explicit that, while included in statute, its procedural elements are an exercise of chamber
rulemaking power—and therefore are always subject to alteration via single-chamber action,

226

It is somewhat surprising that this policy has not been manipulated to a greater extent, as it seems that an outgoing
majority sympathetic to a President’s midnight rulemaking would want to introduce resolutions late in the session simply
to have them fail and thereby render the rule unavailable for review in the subsequent session. The fact that this has not
been a widespread practice suggests limits on concern about strategic behavior under the CRA.
227
For an example of these details, see CAREY & DAVIS, supra note 32, at 15.
228
Part V also proposes codification of an informal practice sanctioned by Parliamentarian interpretation. See infra Part V.

42

pursuant to each chamber’s constitutional prerogative.229 Indeed, Congress typically has viewed
statutory provisions of this type simply as recognizing the inalienable constitutional power of each
chamber to unilaterally modify its rules at any time, and courts typically have declined to enter the
fray on this issue.230 Consequently, while codification would promote informal Parliamentarian
interpretations to the status of chamber rules, it presumably would not constrain the ability of a
single chamber to modify or override those policies in the future. 231 As such, codification could
provide increased CRA transparency without reducing chamber flexibility—a seemingly good
proposition.

V.

Codifying Congressional Initiation

A final problem that has emerged under the CRA relates to its method for initiating
Congress’s expedited procedures. As explained above, the CRA uses a specific agency action—
submission of an 801(a) report to Congress (typically along with publication of the rule in the
Federal Register)—as a trigger to begin the time periods for expedited congressional review.232
This raises a troubling question: what happens if an agency does not submit an 801(a) report for a
rule? The CRA is silent about this situation. Through this silence, it creates the possibility that
agencies might evade expedited congressional review of their rules under the CRA simply by
defying its submission requirement for 801(a) reports, thereby never beginning the expedited
congressional review process.233
The concern that agencies might fail to submit 801(a) reports for rules, and might thereby
raise this dilemma of rules potentially evading CRA review, is more than hypothetical. Studies
and investigations have repeatedly confirmed that agencies fail to submit hundreds, 234 if not
thousands,235 of 801(a) reports for relevant rules each year. This problem has persisted for the

229

5 U.S.C. § 802(g). See also U.S. CONST. art. I, sec. 5 (rulemaking power of each chamber). Inclusion of this provision
is common in expedited procedure statutes. See Bruhl, supra note 66, at 363-65.
230
See Bruhl, supra note 66, at 365-70. The narrow exception apparently has been that the House has sometimes viewed
itself as unable to modify a statutory chamber rule within the same session that the rule was enacted. See id. at 367.
231
This is reinforced by the prohibition on judicial review. See 5 U.S.C. § 805.
232
See supra Figure 1 (outlining the triggering action or actions for each CRA time period).
233
See CAREY & BRANNON, supra note 31, at 2; CAREY & BRANNON, supra note 32, at 21 (“Because submission of rules is
key to Congress’s ability to access the CRA’s special procedures, an agency’s failure to submit a rule to Congress could
frustrate Congress’s ability to review rules under the act.”).
234
See, e.g., J. CHRISTOPHER MIHM, U.S. GOV’T ACCOUNTABILITY OFF., GAO-06-601T, FEDERAL RULEMAKING:
PERSPECTIVES ON 10 YEARS OF CONGRESSIONAL REVIEW ACT IMPLEMENTATION 4 (Mar. 30, 2006),
https://www.gao.gov/assets/gao-06-601t.pdf (stating that “roughly 200 nonmajor rules per year [are] not filed with our
office”); COPELAND, supra note 53, at 10 (noting an average of 150 per year, as chronicled in GAO-OIRA letters covering
seven years in 1998-2008 period); U.S. GEN. ACCOUNTING OFF., GAO/T-OGC-98-38, CONGRESSIONAL REVIEW ACT:
IMPLEMENTATION AND COORDINATION (Mar. 10, 1998) [hereinafter CRA, IMPLEMENTATION & COORDINATION] (statement
of Robert P. Murphy, General Counsel) (finding 279 rules not submitted in ten month period); U.S. Gen. Accounting Off.,
Federal Agency Rules Filed Under Congressional Review Act Following General Accounting Office Review of Unfiled
Rules, 63 Fed. Reg. 71672 (Dec. 29, 1998) [hereinafter CRA Unfiled Rules] (finding over 300 non-major rules not
submitted that had been issued between October 1, 1996 and December 31, 1997).
235
See, e.g., H. COMM. ON GOV’T REFORM, NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS, H.R. 1061009 (2000) (finding for the period of March 1996 through November 1999 that 7,523 guidance documents issued by the
EPA, Department of Labor, and Department of Transportation were not submitted); CRA Hearing, supra note 4, at 10
(statement of Mort Rosenberg) (“Furthermore, not nearly all the rules defined by the statute as covered are reported for
review. That number is probably at least double those actually submitted for review.”).

43

duration of the CRA; it was documented as early as 1997236 and as recently as 2019.237 Moreover,
there are reasons to think that, if anything, these assessments have been overly optimistic about
agency compliance. 238 Non-major rules in particular have been a problem in this regard.239 And
while there is some reason to think that at least some agency noncompliance has been due to goodfaith errors and oversights by agencies, 240 a GAO examination found that agency justifications
often were plainly founded on error or mis-assessment.241 The result is that, each year, agencies

See CAREY & BRANNON, supra note 32, at 18 n.173 (“One witness, administrative law scholar Peter Strauss, noted that
many agency actions that fall outside of the scope of what agencies publish in the Federal Register as part of regular
notice-and-comment rulemaking proceedings, were not being submitted.”) (citing U.S. Cong., H. Comm. on the Judiciary,
Subcomm. on Commercial & Admin. L., Congressional Review Act, 105th Cong., 1st sess. (Mar. 6, 1997)); id. at 18
(“Following enactment of the CRA in 1996, some Members of Congress and others raised concerns over agencies not
submitting their rules on several occasions.”). See also CRA Unfiled Rules, supra note 234 (finding over 300 non-major
rules not submitted that had been issued between October 1, 1996 and December 31, 1997); CRA, IMPLEMENTATION &
COORDINATION, supra note 234 (finding 279 rules not submitted in a ten month period); ROSENBERG, supra note 6 (noting
GAO effort, spurred by House Government Reform and Oversight Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs, to address perceived under-reporting as early as 1998).
237
See CAREY & BRANNON, supra note 31, at 1; U.S. CONG., H. COMM. ON OVERSIGHT & GOV’T REFORM, SHINING LIGHT
ON REGULATORY DARK MATTER, MAJORITY STAFF REPORT, 115TH CONG. 10 (Mar. 2018), https://republicansoversight.house.gov/wp-content/uploads/2018/03/Guidance-Report-for-Issuance1.pdf (noting few agency guidance
documents submitted). But see MIHM, supra note 234, at 4 (“Although we reported that agencies’ compliance with CRA
requirements was inconsistent during the first years after CRA’s enactment, compliance improved over time.”).
238
See ROSENBERG, supra note 6 (noting that failures to submit rules not reported in Federal Register likely are never
noticed). See also 10th Anniversary of the Congressional Review Act, supra note 64, at 24 (statement of Todd F. Gaziano)
(“I am somewhat disappointed that compliance has not been complete, and I actually think that the incidence of
noncompliance may be higher than that which GAO has been able to record. Anecdotal evidence and investigation by
other Committees of this House has suggested as much.”).
239
See CAREY & BRANNON, supra note 31, at 1 (“In practice, agencies appear to be fairly consistent in submitting rules to
Congress that have undergone notice-and-comment rulemaking procedures and have been published in the Federal
Register. Agencies are less consistent, however, in submitting actions to Congress that did not go through notice-andcomment but nonetheless fall under the broad scope of the CRA’s definition of rule.”); U.S. CONG., H. COMM. ON
OVERSIGHT & GOV’T REFORM, SHINING LIGHT ON REGULATORY DARK MATTER, MAJORITY STAFF REPORT, 115TH CONG.
10 (Mar. 2018), https://republicans-oversight.house.gov/wp-content/uploads/2018/03/Guidance-Report-for-Issuance1.pdf
(noting few agency guidance documents submitted); CAREY & BRANNON, supra note 32, at 20 (“In general, although there
have been exceptions noted by GAO, agencies appear to be fairly comprehensive in submitting rules to Congress and
GAO when those rules have been promulgated through an APA rulemaking process. . . . In the case of rules that are not
subject to notice-and-comment procedures, however, agencies often do not fulfill the submission requirement, and
tracking compliance for these types of agency actions is more difficult.”); 10th Anniversary of the Congressional Review
Act, supra note 64, at 5 (statement of J. Christopher Mihm, Managing Director for Strategic Issues, U.S. Gov’t
Accountability Off.) (“In the 10 years since the CRA was enacted, all major rules have been filed with us in a timely
fashion. For nonmajor rules, the degree of compliance has remained fairly constant, but not as high, with roughly 200
nonmajor rules per year not filed with our office.”); 10th Anniversary of the Congressional Review Act, supra note 64, at
30 (statement of Todd F. Gaziano) (“[I]nvestigations by GAO and the Government Reform and Oversight Committee have
confirmed that agencies are not submitting all covered rules as the CRA requires, and instead, are principally submitting
only those that are published in the Federal Register.”). But see COPELAND, supra note 53, at 17 (noting CRS study finding
22 of 181 “significant” rules not submitted to GAO for fiscal year 2009).
240
See CAREY & BRANNON, supra note 32, at 21 (“In addition, it seems possible that many agencies are unaware of the
breadth of the CRA’s coverage. Reading through various agencies’ responses to the GAO opinions discussed below
suggests that many agencies appear to be aware that notice-and-comment rules are generally covered by the CRA, but they
may be unaware that many other types of actions are covered.”).
241
See Letter from J. Christopher Mihm, Gov’t Accountability Off., to Christopher B. Cannon, Chairman of Subcomm. on
Commercial & Admin. L. of the H. Comm. on the Judiciary & Melvin L. Watt, Ranking Member of Subcomm. on
Commercial & Admin. L. of the H. Comm. on the Judiciary (May 12, 2006), in 10th Anniversary of the Congressional
Review Act, supra note 64, at 53 (“However, when we looked at the impact of the rules, it was clear that they had a
substantial effect on the rights or obligations of nonagency parties.”).
236

44

regularly defy a key assumption built into the CRA—namely, that an 801(a) report would be
submitted to Congress for each rule.
If these submission failures were to allow agencies to evade rule review under the CRA, it
plainly would undermine the goals of the Act. The CRA was intended to empower Congress to
conduct a comprehensive review of agency rules that affect the public. As a subcommittee interim
report put it in 2006:
The plain, overarching purpose of the review provision of the CRA was to assure that all covered
final rulemaking actions of agencies would come before Congress for scrutiny and possible
nullification through joint resolutions of disapproval . . . . [T]he statutory scheme is geared toward
Congressional review of all covered rules at some time; and a reading of the statute that allows for
easy avoidance defeats that purpose.242

Numerous statutory provisions in the CRA speak to this goal—ensuring, for example, that even
major rules exempted from the Act’s longer effectiveness delays are still subject to the CRA review
process.243 Congressional intent plainly was to provide an opportunity for review of all covered
rules. If agency noncompliance with the 801(a) submission requirement translated into an easy
escape from such review, it would significantly compromise this basic premise of the CRA. 244
To prevent this situation from occurring, Congress has developed an ad hoc process for the
initiation of CRA reviews when agencies fail to submit 801(a) reports. Under this process, a
Member or committee can request the opinion of GAO on whether an agency action qualifies as a
“rule” under the CRA.245 In response, GAO issues an opinion providing its answer to this question.
In the case that GAO concludes that the agency action amounts to a “rule,” Members of Congress
provide for publication of the GAO opinion in the Congressional Record.246 The Parliamentarians
then regard the date of this publication as providing the relevant initiation date for CRA time
periods, effectively replacing submission of the 801(a) report (and, where applicable, Federal
Register publication).247 Through this process, as GAO recently explained: “Congress has used

242

INTERIM REPORT, supra note 4, at 92–93.
See ROSENBERG, supra note 6, at CRS-31 (explaining of rules subject to exemptions under sections 808 and 804(2) that
“all such rules must ultimately be submitted for review”). See also Joint Committees’ Statement, supra note 10, at 6930
(“The committees are concerned that some agencies have attempted to circumvent notice-and-comment requirements by
trying to give legal effect to general statements of policy, ‘guidelines,’ and agency policy and procedure manuals. The
committees admonish the agencies that the APA’s broad definition of ‘rule’ was adopted by the authors of this legislation
to discourage circumvention of the requirements of chapter 8.”).
244
See Dooling, supra note 38, at 416 (“If an agency fails to fulfill its legal obligation to notify Congress of its rule, that
essentially deprives Congress of its ability to exercise oversight.”); ROSENBERG, supra note 6, at CRS-44 (“Proponents of
the CRA consider this lack of an enforceable reporting requirement to undermine the purpose of the CRA.”).
245
See CAREY & BRANNON, supra note 32, at 21 (outlining this process).
246
CAREY & DAVIS, supra note 32, at 12 (Jan. 14, 2020) (“To avail themselves of the CRA’s disapproval mechanism
following such an opinion, Senators have published the GAO opinion in the Congressional Record.”).
247
CAREY & BRANNON, supra note 31, at 2 (“In recent years, the Senate appears to have considered the publication in the
Congressional Record of a GAO opinion concluding that an agency action should have been submitted under the CRA as
the trigger date for the CRA’s fast-track disapproval procedures.”); CAREY & BRANNON, supra note 32, at 22 (“In recent
years, the Senate has considered publication in the Congressional Record of a GAO opinion classifying an agency action
as a rule as the trigger date for the initiation period to submit a disapproval resolution and for the action period during
which such a joint resolution qualifies for expedited consideration in the Senate.”).
243

45

GAO opinions to cure the impediment created by the agency’s failure to submit the rule, protecting
its review and oversight authorities.”248
Congress has developed this ad hoc process over a number of years. GAO issued its first
legal opinion in response to a Member inquiry about CRA applicability in September of 1996, just
months after the CRA was enacted. 249 Members first introduced a joint resolution following such
a GAO opinion in 2008, thereby inaugurating (after some debate) the practice of using publication
of the GAO opinion as the initiation date for CRA time periods. 250 The House passed a joint
resolution following a GAO opinion for the first time in 2012,251 and Congress overturned a rule
pursuant to a GAO opinion for the first time in 2018.252 As of 2020, GAO had issued 30 opinions,253
wherein it had concluded that the relevant agency action was a rule 17 times (i.e., 57 percent of
the time).254
The role that GAO performs in this process, whereby it issues opinions on whether an
agency action constitutes a “rule” under the CRA, is not a responsibility that the CRA explicitly
assigns to GAO.255 Instead, GAO performs this function as part of its general role as an adviser to
Congress—a role in which GAO regularly issues opinions in response to specific Member and
committee inquiries.256 In this capacity, GAO will issue formal legal opinions pertaining to a
variety of topics.257 It is only due to Members of Congress making use of this general GAO
function—and the practice of the Parliamentarians deferring to the assessments GAO offers—that
Congress has found a sub-statutory solution to the silence in the CRA about what results when an
agency fails to submit an 801(a) report for a rule.

248

Letter from U.S. Gov’t Accountability Off. to Senator Orrin Hatch, GAO-B-330376, at 2 (Nov. 30, 2018) (on whether
Internal Revenue Service Revenue Procedure 2018-38 is a “rule” under the CRA) (as quoted in CAREY & BRANNON, supra
note 32).
249
Letter from Robert P. Murphy, Gen. Counsel, U.S. Gen. Accounting Off., to Larry E. Craig, Chairman, U.S. Senate
Subcomm. on Forests and Pub. Land Mgmt. of the Comm. on Energy & Res, GAO-B-274505 (Sept. 16, 1996),
https://www.gao.gov/assets/370/365493.pdf.
250
S.J. Res. 44 (2008). See also CAREY & BRANNON, supra note 32, at 24 (“Members appear not to have introduced any
joint resolutions of disapproval following a GAO opinion until 2008.”). On debate surrounding this joint resolution’s use
of the GAO opinion as a timing trigger, see id.; CAREY & BRANNON, supra note 32, at 24 n.199 (“The Senators supporting
the resolution argued that the CRA deadlines began either when the resolution was introduced or when CMS affirmatively
refused to submit the rule to Congress; however, it was ultimately decided that the clock started ticking on the day that
GAO published its opinion determining that the agency letter was a rule.”).
251
H.J. Res. 118. See also CAREY & BRANNON, supra note 32.
252
S.J. Res. 57. See also CAREY & BRANNON, supra note 32.
253
Dooling, supra note 38, at 405 (noting 29 instances as of December 2020); U.S. Gov’t Accountability Off., B-331171,
Decision in the Matter of Department of Housing and Urban Development—Applicability of the Congressional Review
Act to Fair Housing Act Guidance on Assistance Animals (Dec. 17, 2020).
254
Dooling, supra note 38, at 405 (reporting 16 such conclusions out of 29 opinions issued by December 2020). This
counts multiple opinions in same letter separately. Id.
255
The only responsibility placed upon GAO by the CRA is the obligation to submit a report to committees of jurisdiction
on major rules. 5 U.S.C. § 801(a)(2)(A). See also GAO-08-268, supra note 158, at 2 (“CRA is silent as to GAO’s role
relating to the nonmajor rules”).
256
See U.S. Cong., S. Comm. on Energy & Natural Res. & H. Comm. on Resources, Joint Hearings on Tongass Land
Management, 105th Cong., 1st Sess., July 9–10, 1997, S. Hrg. 105-252 (Washington: GPO, 1997) (noting that CRA
opinions are “done in our role as adviser to the Congress,” in this case “in response to the request of three chairmen of
congressional committees”). On congressional practice of lodging inquiries with GAO, see GOV’T ACCOUNTABILITY OFF.,
GAO-19-1SP, GAO PERFORMANCE AND ACCOUNTABILITY REPORT 2018, at 5 (2018) (noting that, in fiscal year 2018,
GAO “received 786 requests for work from the standing committees of the Congress”).
257
See Dooling, supra note 38, at 394 (noting CRA opinions as part of GAO’s broader “legal opinion function”).

46

A.

The Argument for Codification

It would be wise for Congress to formalize this GAO responsibility into the statute of the
CRA, along with its consequence for expedited procedures. Two insights support this conclusion.
First, the GAO-driven process that Congress has created for itself is a logical one—and one that
appears to function reasonably well in practice. Second, there are benefits that would result from
taking this practice, which now transpires at a sub-statutory level, and codifying it into law.
To begin, there appears to be little reason to revise the ad hoc process that Congress has
created. To initiate CRA review in the absence of an agency submission, some actor inevitably
must make an initial determination that an agency action qualifies as a “rule” under the CRA. 258
GAO is well-positioned to be that actor, for a variety of reasons. For one thing, institutional
strengths of GAO position it to perform this function in an effective and consensus-building
manner. GAO has an admirable reputation for independence 259—a reputation only bolstered by its
history of CRA opinions, where it has concluded in nearly half of its inquiries that agency actions
were not rules.260 GAO also has a strong tradition of defending its conclusions in thorough, wellargued written publications—a tradition of reasoned adjudication that gives its assessments a
quasi-judicial dimension of legitimacy. 261 This tradition is buttressed by its decisionmaking
processes, such as proactively seeking the views of the relevant agency prior to issuance of any
opinion on a rule.262 And its longstanding preference for transparency leads it to publish most of
its work products263—a practice it has similarly extended to its GAO opinions, and that makes its
assessments more predictable and understandable. 264 These institutional features of GAO make it
an appealing actor to handle CRA determinations that can implicate the delicate relationship
between the branches—particularly compared to other congressional offices, which often tend
toward confidentiality practices that can make rulings appear cryptic and confusing to outsiders.265
Entrusting GAO with this responsibility also makes sense because, as mentioned above, it
dovetails with GAO’s existing statutory role and responsibilities to Congress—a fact which made
GAO amenable to performing this function in the first place. As Bridget Dooling has put it: “Given
The CRA is silent about who makes this determination. This differs with its treatment of “major rules”—a
categorization it explicitly assigns to the OIRA administrator. See 5 U.S.C. § 804(2). See also supra note 37.
259
See Cross & Gluck, supra note 121, at 1587–94; Dooling, supra note 38, at 402 (“This is particularly the case because
of the GAO’s reputation as a reasonably independent, expert fact finder and arbiter.”).
260
Dooling, supra note 38, at 405.
261
Id. at 410–11 (“This reason-giving, somewhat akin to the reason-giving that an agency provides in its proposed and
final rules or that a judge provides in his opinions, could similarly be a way to bolster the legitimacy of the GAO’s
actions.”).
262
See U.S. GOV’T ACCOUNTABILITY OFF., GAO-06-1064SP, PROCEDURES AND PRACTICES FOR LEGAL DECISIONS AND
OPINIONS (Sept. 2006), www.gao.gov/products/GAO-06-1064SP.
263
See Cross & Gluck, supra note 121, at 1593 (“With respect to its analyses and methodology, the office’s work is
structured by transparency. GAO publishes nearly all of its reports and studies for public consumption—even if members
of Congress would prefer the reports to be suppressed.”).
264
See Dooling, supra note 38, at 410–11 (“By making the legal opinions public, an agency will have a better sense of
which actions might be ‘rules,’ the public can better understand what to expect in terms of oversight, and legislators and
their staffs have access to the opinions to inform themselves. But this choice may serve the GAO itself, as well,
particularly in combination with how it writes the legal opinions. The GAO has elected to compose the opinions with a
wealth of information about the requestor, the matter under consideration, and the detailed legal reasoning that informed
its opinion. This reason-giving, somewhat akin to the reason-giving that an agency provides in its proposed and final rules
or that a judge provides in his opinions, could similarly be a way to bolster the legitimacy of the GAO’s actions.”).
265
For a breakdown of the differing transparency practices of nonpartisan congressional offices, see Cross & Gluck, supra
note 121, at 1625–28.
258

47

the GAO’s other legal work to prepare legal opinions and decisions on federal bid protests,
appropriations law, and other matters, legislators made a reasonable choice [in using GAO for this
CRA function].”266 GAO therefore assumed this responsibility not only with institutional strengths
that recommended it, but also with specific experience developing legal opinions of the sort
required for these CRA determinations.
Use of GAO for this role also makes sense because, at this point, GAO has a quartercentury of experience with the analysis required to make these determinations. This GAO
experience extends well beyond the thirty opinions the office has issued in response to Member
CRA inquiries. Since the earliest days of the CRA, GAO has voluntarily maintained a database
that chronicles agency submissions under the Act.267 Partly to evaluate the comprehensiveness of
this database, GAO also has conducted annual reviews of the Federal Register to identify rules that
fall within the CRA, yet with respect to which agencies failed to submit an 801(a) report. 268 As
with the database itself, GAO has conducted such reviews essentially since the CRA was
enacted.269 While GAO limited the annual review in 2012 to major rules, 270 the ongoing practice of
conducting such a review—which requires GAO to make determinations of whether agency
actions constitute “rules” under the CRA—nonetheless has given the office a wealth of experience
with these pivotal CRA determinations.271
266

Dooling, supra note 38, at 402.
See 10th Anniversary of the Congressional Review Act, supra note 64, at 5 (statement of J. Christopher Mihm);
COPELAND, supra note 53, at 6 (“When agencies submit rules to GAO, GAO enters them into a publicly available database
that it maintains on its website.”).
268
See U.S. Cong., H. Comm. on Gov’t Reform & Oversight, Subcomm. on Nat’l Econ. Growth, Nat. Res. & Regul.
Affs., OIRA Implementation of the Congressional Review Act, 105th Cong., 2nd Sess., at 52 (Mar. 10, 1998) (“[GAO]
conducted a review to determine whether all final rules covered by the Congressional Review Act and published in the
Register were filed with the Congress and the GAO. We performed this review both to verify the accuracy of our own data
base and to ascertain the degree of agency compliance with the statute.”); 10th Anniversary of the Congressional Review
Act, supra note 64, at 5 (statement of J. Christopher Mihm) (“Each year, we also seek to determine whether all final rules
covered by the CRA and published in the Federal Register have been filed with both Congress and us. We do this review
to both verify the accuracy of our database and to determine if agencies are complying with the CRA.”). See also GAO08-268, supra note 158, at 3 (“GAO has conducted yearly reviews to determine whether all final rules covered by CRA
and published in the Federal Register were filed with GAO . . . . Additionally, GAO monitors the Federal Register daily
for major rules under CRA to ensure that we receive all such rules.”); CAREY & BRANNON, supra note 32, at 19 (“Because
agencies were initially inconsistent about fulfilling the submission requirement, GAO began to monitor agencies’
compliance with the submission requirement by comparing the final rules that were published in the Federal Register with
rules that were submitted to GAO.”).
269
See CRA, IMPLEMENTATION & COORDINATION, supra note 234 (reviewing rules published in Federal Register from
October 1, 1996, to July 31, 1997); U.S. GEN. ACCOUNTING OFF., GAO/TOGC-98-55, CONGRESSIONAL REVIEW ACT:
UPDATE ON IMPLEMENTATION AND COORDINATION (June 17, 1998) (reviewing rules published in Federal Register from
August 1, 1997 to December 31, 1997); CRA Unfiled Rules, supra note 234 (reviewing rules issued from October 1, 1996
to December 31, 1997). See also CAREY & BRANNON, supra note 32, at 19 (“After its review of agency compliance with
the submission requirement, in November 1997, GAO submitted to OMB’s Office of Information and Regulatory Affairs
(OIRA) a list of the rules that had been published in the Federal Register but had not been submitted to GAO.”).
270
CAREY & BRANNON, supra note 32, at 20 (“GAO continued to conduct similar reviews regularly, comparing the list of
rules that agencies submitted to GAO against rules that were published in the Federal Register. Until 2012, GAO
periodically sent letters to OIRA regarding rules that it had not received. In March 2012, GAO notified OIRA that, due to
constraints on its resources, it would no longer be sending lists of rules not received. Instead, GAO decided to continue to
track only major rules not received, not all final rules, as they had previously done.”).
271
See id. at 23 (“Perhaps most notably . . . GAO’s determination of whether agency actions are considered ‘rules’ under
the CRA appears to be closely linked to its monitoring of agency compliance with the submission requirement. . . . The
question of whether an agency action is a rule under the CRA is also a question of whether it should be submitted;
arguably, then, GAO is addressing a very similar question in its opinions on whether certain agency actions are covered as
it was in its initial reports to OIRA on agency compliance with the submission requirement.”).
267

48

Finally, assignment of this task to GAO is logical because it defers to congressional
wisdom and preferences. Through the ad hoc process it has constructed, Congress has shown its
preference for the actor it prefers to empower with this CRA determination. By respecting that
congressional choice, use of GAO is respectful of the fact that Members of Congress may have
insights about the comparative benefits and drawbacks of using different potential actors—insights
that may be inaccessible to congressional outsiders. These might include their comparative trust
in different institutional actors, as well as their assessments of which actors can best balance the
task with existing workloads. Deference to Congress’s choice holds the potential to capture that
institutional wisdom and leverage it to an optimally-functioning CRA.
For these reasons, it makes sense to continue GAO’s role as the actor that determines
whether an agency action is a “rule,” and that thereby initiates applicable time periods under the
CRA when agencies fail to submit 801(a) reports. Moreover, there are good reasons to codify this
practice in statute, rather than simply allowing it to continue as an informal, sub-statutory process.
Three of these reasons are particularly worth noting.
First, as discussed in Part IV, the myriad CRA elements that rely on informal
Parliamentarian interpretations make the statute maddeningly inaccessible to those (both within
and without Congress) who do not have extensive insider experience with its implementation. This
problem is exacerbated by the lack of any recent publication of Senate parliamentary precedents. 272
Nowhere is this more true than with respect to the GAO practice of initiating time windows under
the Act—a significant policy, and one completely invisible to those who rely on statutory text to
understand the CRA. Formal enactment of this policy would put relevant actors on notice of the
process of determining whether an agency action is a “rule” despite the absence of an 801(a)
report—and of the fact that a broader universe of agency actions might be covered than they
otherwise might realize or expect.
Second, the absence of a statutory mandate for this GAO function presumably means that,
at any point, GAO might voluntarily stop performing it. Bridget Dooling has noted that, as the
CRA has become more frequently used and more politically controversial, the incentives for GAO
to extricate itself from the CRA process increase. 273 Codification of GAO’s role could remove any
concern about this possibility, ensuring that GAO continues to serve this important function under
the CRA—even as the Act becomes more popular (and, potentially, more polarizing).
Third, the amount of time it takes GAO to respond to congressional CRA inquiries under
the current approach can vary significantly. In one recent instance, for example, GAO responded
nearly three months after an inquiry by the Chairman and Ranking Member of the Senate Armed
Services Committee.274 These delays can be frustrating when they relate to agency rules that
Congress wishes to address with some expediency. Presumably, this delay in GAO responses today
occurs partly because GAO prioritizes work that it is statutorily required to perform—which, of
course, does not currently include its CRA determinations. Simply by codifying this GAO

272

See supra note 225.
Dooling, supra note 38, at 411 (“As the GAO considers its own role, might the use of its opinions to reach back years,
beyond the period immediately following a rule’s issuance, combined with the politically-charged domain of regulatory
policy, encourage it to exit the role to protect its reputation and credibility?”).
274
U.S. Gov’t Accountability Off., B-332233, Federal Communications Commission—Applicability of the Congressional
Review Act to Ligado Amendment to License Modification Applications (Aug. 13, 2020),
https://www.gao.gov/products/b-332233 (issuing response on August 13, 2020 to request noted as filed on May 22, 2020).
273

49

responsibility, therefore, Congress may induce GAO to prioritize its CRA work, leading to GAO
responses that are more consistently timely.
Codification of this GAO role should not raise constitutional problems. Under this
approach, the codified policy would be simply that, in the absence of a submitted 801(a) report,
each chamber will treat Congressional Record publication of a GAO determination that an agency
action is a “rule” as an event that triggers access to the expedited process outlined in section 802
of the CRA. By specifying this, Congress can clarify that a GAO determination is not a
determination for purposes of section 801(a) of the CRA, which determines whether or when a
rule is effective. Rather, because the determination would be purely for purposes of section 802,
its sole consequence would be as a condition precedent to Congress having access to specified
chamber procedures. That is a consequence for Congress’s internal cameral rules and operations—
functions constitutionally entrusted to each chamber of Congress.275 Since this would be an
exercise of Congress’s rulemaking power, the limits outlined in Chadha would be inapplicable, as
those limits apply specifically to Congress’s legislative power—i.e., its power to bind actors
beyond Congress.276 Nor would concerns raised by Bowsher v. Synar be applicable—concerns
limited to GAO functions that have the effect of commanding executive-branch action (and that
therefore are executive in character), not functions that have consequences exclusively for internal
congressional practice. 277 In sum, while actions with ramifications outside Congress (e.g., binding
outside parties; commanding executive-branch actors) may raise constitutional concerns absent
bicameralism and presentment, actions that have only internal procedural ramifications for
Congress are squarely entrusted to Congress, and may involve determinations by such
congressional offices as the chambers deem appropriate. Use of GAO opinions as a trigger for
CRA time periods, an action of the latter type, should be constitutionally unproblematic.278

B.

Recommended Ancillary Policies

Based on the foregoing analysis, codification of GAO’s current role in the CRA process
appears both logical and constitutional. As such, Congress should consider adopting it. And if
Congress does take this approach, it also should strongly consider adopting several related,
ancillary policies.
First, under this formalized CRA initiation process, it would be wise for Congress to make
the option to solicit a GAO opinion available to legislators in both chambers. This would be a
logical extension of the core structure of the CRA—a statute that, in its original design, envisioned
legislators in each chamber as having equal ability to introduce joint resolutions of disapproval

275

U.S. CONST. art. I, sec. 5.
As the Court put it in Chadha, the analysis is driven by “whether [the relevant actions] contain matter which is properly
to be regarded as legislative in its character and effect”, 462 U.S. 919, 952 (quoting S. Rep. No. 1335, 54th Cong., 2d
Sess., 8 (1897)), and whether it “had the purpose and effect of altering the legal rights, duties, and relations of persons,
including the Attorney General, Executive Branch officials and [private parties], all outside the Legislative Branch,” id.
277
See Bowsher v. Synar, 478 U.S. 714, 733 (“The executive nature of the Comptroller General’s functions under the Act
is revealed in § 252(a)(3), which gives the Comptroller General the ultimate authority to determine the budget cuts to be
made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation . . . the
directive of the Comptroller General as to the budget reductions . . . .”).
278
See also Dooling, supra note 38, at 404–05 (“Ultimately, however, the Constitution gives Congress authority over its
own procedures. If Congress wants to rely on the GAO’s legal opinions, that choice probably cannot be successfully
challenged.”).
276

50

under the CRA.279 This introduction policy aimed to let either chamber initiate congressional
deliberation over rules. Allowing either chamber to solicit a GAO opinion for purposes of initiating
CRA review would extend that policy, applying it to the anomalous situation where an agency has
failed to submit an 801(a) report.
Admittedly, this proposed ancillary policy would create the seemingly odd situation in
which legislators in the House of Representatives could initiate (albeit indirectly) a finite window
for expedited procedures that, under the CRA, exist solely in the Senate. 280 Yet this should not be
viewed as a significant problem. The CRA already envisions Senate expedited procedures that
become available upon agency submission of 801(a) reports and publication of rules in the Federal
Register. As such, it does not envision the Senate as controlling the time periods for its access to
expedited CRA procedures. Moreover, a core goal of the CRA initiation process was to enable
expeditious and timely review of agency rules. The option to initiate CRA review via GAO opinion
would exist specifically for instances where agencies have had opportunity to submit an 801(a)
report, yet failed to do so—an option that, by definition, will be used at a later date than that
envisioned by the CRA.281 Allowing the Senate to unilaterally add further delay to the initiation of
these time windows, and to do so in spite of House desire for expeditious action, therefore seems
to be the policy option that is out of step with the values enshrined in the CRA.
Allowing the House to initiate CRA review also makes sense because such initiation is
useful to Members of Congress for reasons beyond its procedural ramifications. Commentators
have noted that use (or threatened use) of this initiation power can generate information on agency
actions,282 incentivize agency compliance with statutory requirements and congressional policy

279

5 U.S.C. § 802(a).
Unlike some other expedited procedure statutes, the CRA does not provide for any procedures in the House other than
via its reconciliation mechanism.
281
This assumes that the GAO-initiated option, because it would be made available only for rules an agency fails to
submit, would become available only after a reasonable opportunity for agency submission has passed. For the manner in
which the Senate Parliamentarian has addressed initiation of windows in the face of agency failure to take prerequisite
actions, see 164 CONG. REC. S6380 (daily ed. Sept. 28, 2018) (statement of Sen. Wyden) (noting Parliamentarian request
for agency confirmation in writing that rule would not be published in Federal Register as prerequisite to Senate action
window opening without such publication).
282
See 10th Anniversary of the Congressional Review Act, supra note 64, at 6 (statement of J. Christopher Mihm) (“My
second broad point this afternoon is that agencies and GAO have provided Congress a considerable amount of information
about the forthcoming rules in response to the CRA. The limited number of joint Congressional resolutions might suggest
that this information generates little additional oversight of rulemaking. However, as we have found in our review of the
information generated on Federal mandates under [the Unfunded Mandates Reform Act], the benefits of compiling and
making information available on potential Federal actions should not be underestimated.”); 10th Anniversary of the
Congressional Review Act, supra note 64, at 24 (statement of Todd F. Gaziano) (citing purpose of CRA “to advance
public record-keeping of agency rulemaking” and to “better catalogue the corpus of agency rules that affect the public”).
280

51

preferences,283 enhance legislative accountability for agency rulemaking, 284 increase opportunities
for public engagement with rulemaking, 285 spur future opportunities to overturn rules via
congressional action,286 clarify CRA boundaries,287 signal engagement to constituents, 288 and
establish a record of opposition to administration activity. 289 In fact, these extra-procedural benefits
may be what truly makes the CRA non-duplicative with other forms of congressional action to
overturn rules, such as appropriations riders. 290 It is difficult to see why this suite of benefits should
not be afforded to both chambers in the absence of a submitted 801(a) report, just as they are when
an agency does submit such a report (and publishes the relevant rule in the Federal Register).
Providing the House with power to solicit GAO opinions on CRA matters would enable this.
As a second ancillary policy, Congress should consider imposing a deadline on GAO for
its issuance of requested CRA legal opinions. In the past, as already noted, there has been
significant variation in the lengths of delay for GAO answers to congressional CRA inquiries. 291
This variation has the potential to frustrate the desire within Congress for expeditious action on
283

See U.S. Cong., H. Comm. on the Judiciary, Subcomm. on Commercial & Admin. L., Congressional Review Act,
105th Cong., 1st sess., at 2 (Mar. 6, 1997), http://commdocs.house.gov/committees/judiciary/hju40524.000/hju40524
_0f.htm (statement of Rep. Gekas) (“Even we have gained nothing more than making the agencies cognizant of, and
sensitive to, the fact that Congress has this added capability, and even if Congress should never exercise it fully, the fact
that this sensitivity does exist will make sure, in my judgment, that the agencies will be more careful, more predicting, in
the outcome of their rules as they go about the business of promulgating same.”); INTERIM REPORT, supra note 4, at 72–73
(“It was the apparent vision of the sponsors of the CRA that the effective utilization of the new reporting and revi ew
mechanism would draw the attention of the rulemaking agencies and that its presence would become an[] important factor
in the rule development process. . . . The expectation was that Congress, through the CRA, would again become an
effective player with the White House in influencing agency decisionmaking.”); 10th Anniversary of the Congressional
Review Act, supra note 64, at 24 (statement of Todd F. Gaziano) (“The second purpose of the Congressional Review Act is
to change agency rulemaking behavior.”); CRA Hearing, supra note 4, at 26 (statement of Sally Katzen) (“[T]he numbers
are equally consistent with the notion that the act is working, and that the agencies have been doing a usually good job,
faithfully performing their functions, especially knowing that Congress is looking over their shoulders.”); 10th
Anniversary of the Congressional Review Act, supra note 64, at 6 (statement of J. Christopher Mihm) (“Further, as we’ve
also found regarding [the Unfunded Mandates Reform Act], the availability of procedures for congressional disapproval
may have some deterrent effect.”); Dooling, supra note 38, at 415 (noting that a “legislator might want to send signals to
the agency that issued the document in question”); CAREY & DAVIS, supra note 32, at 3 (noting that “the threat of
submission or passage of a disapproval resolution may provide a mechanism through which a Member can pressure an
agency to reach a particular outcome, either related to that specific rule or on another matter”).
284
See 10th Anniversary of the Congressional Review Act, supra note 64, at 25 (statement of Todd F. Gaziano) (“The third
major purpose of the Congressional Review Act is to enhance legislative accountability for agency rulemaking. And I
submit to you that by its action or inaction, Congress is now more accountable for agency rules.”).
285
See Joint Committees’ Statement, supra note 10, at 6926 (“Congressional review gives the public the opportunity to
call the attention of politically accountable, elected officials to concerns about new agency rules.”).
286
See ROSENBERG, supra note 6, at CRS-15 (“In all other cases, if there is any discernible pattern to the introduced
resolutions, it is to exert pressure on the subject agencies to modify or withdraw the rule, or to elicit support of Members,
which in some instances was successful.”); Dooling, supra note 38, at 415 (noting one function as to signal “to other
legislators or political actors as part of larger debates and negotiations”).
287
See Dooling, supra note 38, at 414 (noting “genuine uncertainty” as a factor motivating legislator inquiries).
288
See id. at 415 (noting capacity to signal “to constituents and other public stakeholders, as a way to show action”).
289
See CAREY & DAVIS, supra note 32, at 3 (noting that CRA “provides for a relatively straightforward process through
which a Member can make clear his or her opposition to a rule”); REYNOLDS, supra note 22, at 193 (documenting Senate
use in 2015-16 to “give their members a chance to go on record in opposition to the Obama administration’s priorities”).
290
See, e.g., 10th Anniversary of the Congressional Review Act, supra note 64, at 31 (statement of Todd F. Gaziano)
(“One reason Congress may not have used the CRA as often as anticipated is that Congress has other tools at its disposal,
such as legislative riders on appropriations bills, to accomplish the same end.”). Because appropriations riders are bundled
into larger legislative packages, whereas CRA disapproval resolutions must be stand-alone legislation, the former present
opportunities for horse-trading and logrolling that are less readily available for CRA resolutions.
291
See S. Doc. 101-28, supra note 225.

52

agency rules, as well as the desire of private actors for closure and certainty on regulatory actions.
Simply codifying the GAO obligation to provide these answers may help expedite this GAO
process, as discussed above.292 Yet Congress can further ensure that this GAO process is conducted
expeditiously by making explicit its expected response time, thereby providing GAO with a brightline time constraint that can guide its CRA reviews.
A third ancillary policy Congress ought to consider is a time limitation on its own ability
to use the GAO-initiated process for CRA review. Absent such a limitation, Congress theoretically
could use this process to initiate reviews for any rule with respect to which an agency had failed
to submit an 801(a) report—even a rule issued decades prior. Indeed, some commentators recently
advocated for Congress to use the ad hoc initiation process in precisely this manner, 293 and
Congress in 2018 did use this process to reject a rule issued in 2013.294 As Bridget Dooling has
documented, this 2018 action corresponded with a broader trend of Congress requesting GAO
legal opinions with respect to rules issued significantly farther back in time. 295
There are several reasons why Congress should consider curtailing this emerging practice.
Most importantly, it should do so because the practice undermines a key value of the CRA. As
CRS has aptly observed, the Act “contemplates a speedy, definitive and limited process.” 296 It does
so as part of its effort to provide regulated entities with closure and certainty, allowing them to
move forward with confidence about the rules that will govern their activities without concern
about CRA review, as Part IV discussed. 297 As several commentators have noted, an unlimited
window for Congress to utilize the GAO-driven review process undermines these values.298 It
threatens to introduce radical uncertainty into established regulatory regimes—something the CRA
sought to avoid. To preserve this value under the CRA, it therefore is logical to delimit the temporal
scope of this policy.

292

See id. and accompanying text.
See Kimberley A. Strassel, Opinion, A GOP Regulatory Game Changer, WALL ST. J. (Jan. 27, 2017); Jonathan Wood
& Todd Gaziano, Three Cheers for the Congressional Review Act, NAT’L REV. (June 29, 2017),
https://www.nationalreview.com/2017/06/congressional-review-act-finally-some-accountability-washington (arguing that
review period could still be initiated for many rules for which agencies had not submitted 801(a) reports).
294
See S.J. Res. 57 (2018). For the overturned rule, see CONSUMER FIN. PROT. BUREAU, CFPB BULLETIN 2013-02,
INDIRECT AUTO LENDING AND COMPLIANCE WITH THE EQUAL CREDIT OPPORTUNITY ACT (Mar. 21, 2013),
https://files.consumerfinance.gov/f/201303_cfpb_march_-Auto-Finance-Bulletin.pdf.
295
Dooling, supra note 38, at 407 (“Legal opinions before 2017 were requested within the timeframe for the conventional
understanding of the CRA window: an average of 89 calendar days. Starting in 2017, the number of days elapsed between
the action and the opinion grew almost tenfold to an average of 842 days. This increase was driven by requests for
opinions up to 2944 days after an agency action.”).
296
ROSENBERG, supra note 6, at CRS-24.
297
Dooling, supra note 38, at 416 (“The tradeoffs are somewhat analogous to those presented by statutes of limitations,
most notably reliance interests. With a statute of limitations, valid claims trade off against the ability for parties to mov e
forward. In the rulemaking context, members of the public may have invested resources or made other decisions in
reliance upon the contents of an agency action that the GAO later opines is a rule and is therefore suddenly vulnerable. ”).
298
Id. at 407 (“This span of time is important because Congress limited the reach of the CRA to a set period of time--and
the longer the rule is vulnerable, the more it strains the idea that the CRA provides Congress with limited time to review
the rule.”); id. at 417 (“The tradeoffs are somewhat analogous to those presented by statutes of limitations, most notably
reliance interests. With a statute of limitations, valid claims trade off against the ability for parties to move forward. In the
rulemaking context, members of the public may have invested resources or made other decisions in reliance upon the
contents of an agency action that the GAO later opines is a rule and is therefore suddenly vulnerable.”); Seidenfeld, supra
note 19, at 1084 (“The statutory architecture of fast-track review manifests an intent that such motions be made shortly
after the agency issues its rule.”).
293

53

Imposing a time constraint on the GAO-initiated process also is logical because, absent
such a constraint, agencies might be induced to overwhelm Congress with a deluge of submissions.
A constant concern with the CRA is the possibility of agencies overwhelming Congress with
paper.299 If GAO-initiated review existed without time limit, there would be strong incentives for
agencies to review their history of rulemaking for unsubmitted rules and, to prevent later CRA
review of these rules, to submit all such rules to Congress immediately (particularly during periods
in which parties controlling Congress are sympathetic to existing regulatory regimes). As Part III
discussed, congressional offices already are managing a daunting administrative task in handling
the volume of CRA submissions—a burden Congress should look to lessen, not exacerbate.
Agencies submitting every action that might possibly constitute a “rule” tracing back to the late1990s, yet that was not previously submitted, would be antithetical to this goal. So would an
approach to GAO initiation that, going forward, encourages agencies to submit every action that
might possibly constitute a “rule,” even where the agency genuinely believes it does not. Yet an
open-ended congressional opportunity for GAO-initiated review, by creating tremendous
regulatory uncertainty for unsubmitted rules, would incentivize precisely that approach.
It also makes sense to impose a time constraint on GAO-initiated review for the same
reason that statutes of limitations often are used in the judicial context: it prevents factfinding
inquiries that are exceedingly difficult to conduct accurately after the passage of significant time.300
Even for rules issued recently, it may sometimes be difficult to establish or refute a claim that a
rule in fact was submitted (or was lost in the mail system, for example). An inquiry into such an
issue for a rule from the late 1990s poses a significantly more daunting task—one that would
seemingly invite contestation and inter-branch disagreement and conflict. Providing a time
limitation would forestall this sort of difficult and divisive evidentiary inquiry.
Finally, many of the rules that agencies fail to submit may be instances of published
guidance for regulated parties.301 This category of agency action is especially likely to fall on the
borderline of the CRA definition of a “rule.” Many view published guidance of this sort as
beneficial; it advises all regulated parties about the agency’s intended application of the law, rather
than making such insights differentially available only to those parties with heightened access to
informal communicative channels with the agency. 302 If uncertainties about the CRA coverage of
published guidance translates into a radical, open-ended instability of such guidance, however, one
could reasonably expect agencies simply to move away from issuing this form of guidance. 303 This
would be an unfortunate consequence for both agencies and regulated parties—and one that
Congress would be wise to forestall via time limits on the GAO-initiated process of CRA review.
See, e.g., COMM. ON GOV’T REFORM, NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS: SEVENTH
REPORT 541–42 (Oct. 26, 2000) [hereinafter SEVENTH REPORT], https://www.congress.gov/106/crpt/hrpt1009/CRPT106hrpt1009.pdf (noting concern with feasibility of agency submission of all guidance documents, as “when the
subcommittee asked only three agencies for a subset of their guidance documents produced since 1996, it received
compendiums totaling over 7,000 documents”).
300
For broader comparison of this policy to statutes of limitations, see Dooling, supra note 38, at 416–17 (“This question
is worth additional consideration, perhaps borrowing from statutes of limitations and other analogous doctrines to shed
light on the dilemma. With statutes of limitations, for example, the clock can start again in certain situations. So, too, with
the CRA?”).
301
See supra note 239 (noting that most rules not submitted appear to be non-major rules).
302
For a thorough discussion of published guidance that includes analysis of these beneficial dimensions for regulated
parties, see, e.g., NICHOLAS R. PARRILLO, ADMIN. CONF. UNITED STATES, FEDERAL AGENCY GUIDANCE: AN
INSTITUTIONAL PERSPECTIVE (Oct. 12, 2017), https://www.acus.gov/sites/default/files/documents/parrillo-agencyguidance-final-report.pdf.
303
See, e.g., SEVENTH REPORT, supra note 292, at 542.
299

54

For a variety of reasons, therefore, it would be wise for Congress to limit the availability of this
review process.
There is one last ancillary policy that Congress also may wish to consider: it may want to
provide GAO with additional resources to support this newly formalized CRA role. With the
codification of this GAO obligation, there presumably will be heightened expectation for GAO to
issue its opinions in a timely manner, as discussed above. There also may be some increase in the
use of this GAO-driven process as additional actors become aware of it as a policy option. These
factors may increase the workload for GAO as its current role under the CRA is formalized. GAO
apparently has indicated in the past that it has concerns about an expanded CRA workload, given
its resource limitations. 304 To address this concern, Congress may wish to pair its formal expansion
of GAO responsibilities with a corresponding expansion of GAO resources.

VI.

Conclusion
As the Congressional Review Act celebrates its twenty-fifth anniversary, it arguably has
never been more consequential. Once largely dormant, it has been invoked with increased
frequency in recent years—including by both major political parties. If the statute is to take on
increased significance in the coming quarter century, Congress would do well to ensure that it is
updated to accomplish its objectives effectively, fairly, and efficiently. The reforms outlined in
this report will not remedy every shortcoming of the Act in this regard, of course. Nonetheless,
they may provide a foundation for that project, as they outline a set of commonsense reforms that
draw upon the lessons afforded by a quarter century of experience under the statute. With them,
Congress can better equip itself to use the tool of the CRA to review agency rulemaking in the
coming years—and to thereby maintain its vital oversight function within the modern
administrative state.

See COPELAND, supra note 53, at 22 (“Both GAO and OIRA have, however, indicated to CRS that they currently have
limited resources to take on additional responsibilities for CRA compliance enforcement.”).
304

55