The Congressional Review Act: Congressional Procedures

Welcome to part three of my series of blog posts discussing the Congressional Review Act (CRA). Part one provided an overview of the CRA and defined the terms "Federal agency," "rule," "major rule," and "submission or publication date" as they are used in the Act. Part two summarized the requirements that the CRA imposes on federal agencies and their rules. This post describes the procedures used by Congress in enacting a joint resolution of disapproval under the CRA to overturn an agency rule.

One Last Congressional Review Act Definition

Section 802(a) of the Congressional Review Act provides one more definition that hasn't been explained yet. The phrase defined in section 802(a) is "joint resolution." You can read the definition for yourself at the link, but the necessary elements can be described as follows: Under the CRA, a "joint resolution" means only:

  1. A joint resolution
  2. that is introduced during the Initiation Period
  3. and says the Magic Words after the resolving clause.

The "Initiation Period" is what the Congressional Research Service (CRS) in this PDF calls the period that begins when an agency submits a report to Congress under the CRA and ends 60 days after that, but excluding any days when either house of Congress is adjourned for more than three days during a congressional session. (The CRS refers to these as "days of continuous session.") The "Magic Words" are what I call the following sentence: "That Congress disapproves the rule submitted by the _____ relating to _____ and such rule shall have no force or effect." The blank spaces should be filled in as appropriate to refer to the rule being overturned.

This definition is more than just a definition. It also places some procedural constraints on Congress's ability to overturn agency rules under the CRA. For instance, if an agency never submits a report to Congress, then the Initiation Period never begins, and Congress can't introduce a joint resolution that satisfies the requirements of the CRA. We'll return to this issue in my next post, but for now, here's a summary of congressional procedures under the CRA.

Provisions Applicable to Both the House and Senate

Although most of the procedural provisions of the Congressional Review Act relate to the expedited procedures available in the Senate, a handful apply equally to both the Senate and the House of Representatives.

  1. Agency reports. According to section 801(a)(1)(C), when an agency submits a report about a rule to Congress under the CRA, a copy of the report is given to the chairman and ranking member of each standing committee of the House of Representatives and Senate that has jurisdiction to report a bill to amend the law under which the rule is issued.
  2. Joint resolutions. Under section 802(b)(1), if a joint resolution is introduced, it will be referred to the committees in the House and Senate that have jurisdiction. This is consistent with standard practice.
  3. Passage in the other house of Congress. Section 802(f) describes the procedures to be followed if a joint resolution is passed by one house of Congress while a companion resolution is pending in the other. Specifically:
    • The joint resolution passed by the first house is not referred to a committee in the other house. This differs from standard practice in both the House and the Senate. Normally, an act passed by one house would be referred to the relevant committee or committees in the other house.
    • The second house continues to consider its own joint resolution, rather than the joint resolution it received from the first house, but--
    • The vote for final passage in the second house is on the joint resolution of the first house, not the companion resolution that was pending in the second. This is supposed to eliminate the need for a conference between the House and Senate to make two disparate versions of the joint resolution identical.
  4. Reset in a new session of Congress. According to section 801(d), the time periods for congressional action under the CRA reset in a new session of Congress if an agency report on a rule is submitted within 60 session days (in the Senate) or 60 legislative days (in the House) of the date on which Congress adjourns sin die (i.e., the last day of a session of Congress). In that event, the time periods in the new session are calculated as if the rule were published in the Federal Register, and the report on the rule submitted, on the 15th session day of the Senate and the 15th legislative day of the House during the new session. Importantly, the reset-trigger period is calculated in terms of session days and legislative days, not calendar days. Counting backwards using those measures indicates that rules for which reports were submitted as far back as June 2016 are subject to congressional review under the CRA in early 2017 (PDF).

Expedited Procedures in the Senate

The expedited procedures in the Senate are at the heart of the Congressional Review Act. It is here that the advantages of using the CRA come into sharpest focus, particularly with the limitations on debate. As explained below, joint resolutions under the CRA cannot be filibustered, because debate is limited to 10 hours, subject only to further limitation.

  1. Senate Action Period. The CRA limits the applicability of its expedited procedures in the Senate in two ways: First, the expedited procedures apply only with respect to a joint resolution, as that term is defined above. Second, they apply only during what the CRS calls the Senate Action Period. The Senate Action Period is a period of 60 session days beginning with the submission or publication date (including the deemed submission or publication date following a reset in a new session of Congress). Keep in mind that this period is measured in session days, not calendar days, so it lasts significantly longer than 60 calendar days.
  2. Discharge of committee. The Senate committee to which a joint resolution has been referred can be discharged from further consideration if it has not reported the joint resolution at the end of 20 calendar days after the submission or publication date. This is accomplished under section 802(c) by the written petition of 30 senators. This 20-day trigger does not guarantee that the committee will have 20 days to consider a joint resolution under the CRA, because the joint resolution might not be introduced until some time after the submission or publication date, or even until after the 20-day period has ended.
  3. Motion to proceed to consideration. Section 802(d)(1) provides for rules to expedite the process of beginning debate on a joint resolution under the CRA:
    • After a committee has reported a joint resolution, or after the committee has been discharged, a motion to proceed to consideration of the joint resolution is in order at any time. Under normal procedures, there is a delay between when a committee reports a bill or resolution and when a motion to proceed can be made.
    • All points of order against the joint resolution and against consideration of the joint resolution are waived. Points of order are objections based on an alleged failure to follow Senate rules.
    • The motion is not subject to amendment, to a motion to postpone, or to a motion to proceed to the consideration of other business.
    • A motion to reconsider the vote by which the motion is agreed to or disagreed to is not in order.
    • If the motion to proceed to consideration is agreed to, the joint resolution remains the unfinished business of the Senate until disposed of. The CRS explains (PDF) that "[u]nder these conditions other business may interrupt consideration of the disapproval resolution only if the Senate gives unanimous consent," in which case "the disapproval resolution automatically recurs as pending after the interruption."

    Notably, section 802(d)(1) does not say that the motion to proceed to consideration is not debatable. However, as the CRS explains in the PDF just linked to, "Senate precedents . . . indicate that if a statute establishes a time limit for the consideration of a specified measure, . . . a motion to proceed to its consideration is not debatable."

  4. Debate on joint resolution; No filibuster. Section 802(d)(2) limits debate on a joint resolution to 10 hours, split equally between supporters and opponents of the joint resolution. A motion to limit debate further than that is in order and not subject to debate. Further, "[a]n amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order."
  5. Immediate vote. Immediately following debate on the joint resolution, the Senate will proceed to vote on final passage. Upon request, a single quorum call may be conducted before the vote.
  6. Expedited appeals. According to section 802(d)(4), no debate is allowed on an appeal of a decision of the chair regarding how Senate rules apply to CRA procedures.