Congressional Review Act vs. Administrative Procedure Act: Your Guide to Federal Rulemaking and Congressional Oversight

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Federal agencies create thousands of rules each year that affect everything from the air you breathe to the financial services you use.

These are legally binding requirements that can determine whether your workplace is safe, whether your drinking water is clean, and how much you pay for healthcare.

But who watches the watchers? Two critical laws govern how federal agencies make rules and how they can be held accountable: the Administrative Procedure Act (APA) and the Congressional Review Act (CRA). While both deal with federal regulations, they serve fundamentally different purposes and operate at different stages of the regulatory process.

The APA, passed in 1946, sets the ground rules for how agencies must make regulations—requiring public notice, opportunities for comment, and reasoned decision-making. The CRA, enacted in 1996, gives Congress a powerful tool to overturn agency rules after they’re finalized, with expedited procedures that bypass normal legislative obstacles.

Understanding these two laws is essential for anyone who wants to influence government policy, challenge agency actions, or simply understand how the regulatory state that shapes modern life actually works.

The Administrative Procedure Act: Foundation of Federal Rulemaking

The Administrative Procedure Act stands as the constitutional framework for the modern administrative state. Signed into law on June 11, 1946, it emerged from growing concerns about the explosion of federal agencies during the New Deal era and fears of an unchecked bureaucracy becoming a “fourth branch of government” not sanctioned by the Constitution.

Why the APA Was Created

The early 20th century saw unprecedented expansion of federal regulatory authority as the government created numerous agencies to address economic and social crises. While these agencies were often necessary for effective governance, their growing power—encompassing legislative, executive, and judicial functions—raised significant questions about accountability, consistency, and due process.

The APA emerged from what the Administrative Conference of the United States described as a “long, fierce compromise” to standardize agency procedures and bring them under a predictable legal framework. Its stated intentions were threefold: to require agencies to keep the public informed of their organization and procedures; to provide for public participation in rulemaking; and to prescribe uniform standards for formal proceedings.

More than three-quarters of a century later, the APA remains the cornerstone of administrative law, dictating how federal agencies must operate when creating, amending, or repealing rules and when deciding specific cases.

How Agencies Make Rules Under the APA

The APA’s most visible impact comes through its regulation of agency rulemaking—the process by which agencies translate broad congressional mandates into specific, enforceable requirements.

Notice of Proposed Rulemaking (NPRM): Agencies must begin by publishing a Notice of Proposed Rulemaking in the Federal Register, the official daily publication for federal rules and notices. This notice must include the time, place, and nature of the rulemaking proceedings; reference to the legal authority under which the rule is proposed; and either the terms of the proposed rule itself or a description of the subjects and issues involved.

The NPRM serves as the agency’s opening statement to the public, explaining the problem it’s trying to solve, the regulatory approach it’s considering, and why it believes the rule is necessary.

Public Comment Period: Following NPRM publication, the APA requires agencies to give “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” This comment period typically lasts 30 to 60 days, though agencies can extend it for complex or controversial rules.

Comments are now predominantly submitted electronically through Regulations.gov, where anyone can review and respond to proposed federal regulations. Agencies may receive anything from brief individual statements to extensive analyses from industry groups, advocacy organizations, and academic experts.

Consideration and Final Rule: After the comment period closes, agencies must consider all “relevant matter presented” in public comments. When issuing final rules, agencies must include “a concise general statement of [the rule’s] basis and purpose” explaining their reasoning, how they addressed significant comments, and why they made particular policy choices.

Courts have interpreted this requirement to mean agencies must provide adequate responses to “significant” comments—those that raise relevant points and, if adopted, would necessitate changes to the proposed rule. Final rules typically have delayed effective dates, often 30 days after publication, to allow affected parties time to prepare for compliance.

The Power and Purpose of Public Comments

The public comment process represents a vital democratic innovation in federal governance. It’s designed to enhance rulemaking quality by ensuring agencies benefit from diverse knowledge, experiences, and perspectives of those who will be directly affected by regulations.

This participatory mechanism fosters transparency by requiring agencies to conduct rulemaking openly and justify their decisions publicly, promoting accountability. The integrity of this process depends not merely on providing opportunities to comment, but on genuine agency consideration of input received.

Failure by agencies to meaningfully engage with and respond to significant, relevant comments can serve as grounds for courts to find rules arbitrary and capricious and set them aside.

Different Types of Rulemaking

While informal notice-and-comment rulemaking is most common, the APA acknowledges several other approaches:

Formal Rulemaking: This involves trial-like adversarial hearings with cross-examination opportunities, used only when statutes specifically require rules to be made “on the record after opportunity for an agency hearing.” Due to its complexity and time-consuming nature, formal rulemaking is rare.

Hybrid Rulemaking: Congress sometimes mandates specific procedures in addition to or in place of APA requirements, creating processes that blend formal and informal elements.

Direct Final Rulemaking: Used for non-controversial rules where agencies anticipate no adverse comments. Agencies publish final rules with statements that they’ll become effective on certain dates unless significant adverse comments are received.

Negotiated Rulemaking: Authorized by the Negotiated Rulemaking Act, this involves agencies establishing committees of stakeholders representing various interests to negotiate proposed rule text. If committees reach consensus, agencies may use that language as the basis for NPRMs.

Agency Adjudication: Deciding Individual Cases

Beyond rulemaking, the APA governs agency adjudication—the process for making decisions in individual cases. This includes granting or denying licenses, awarding benefits, imposing sanctions, and resolving disputes.

Formal Adjudication: Required when statutes mandate that adjudications be “determined on the record after opportunity for an agency hearing.” These proceedings resemble court trials, with notice requirements, opportunities to present evidence and arguments, rights to cross-examine witnesses, and decisions based exclusively on hearing records.

Formal adjudications are often conducted by Administrative Law Judges (ALJs)—independent, quasi-judicial officials within agencies who function similarly to trial judges.

Informal Adjudication: The APA doesn’t specify detailed procedures for informal adjudications, which constitute the vast majority of agency adjudicative actions. These must still provide basic due process but are generally less structured and determined by agency regulations or enabling statutes.

Judicial Review: Holding Agencies Accountable

A critical APA component is its provision for judicial review of agency actions, allowing individuals or entities harmed by agency decisions to challenge them in federal court.

Presumption of Reviewability: The Supreme Court has recognized a “strong presumption that Congress intends judicial review of agency action.” This means agency actions are generally subject to court review unless Congress has specifically precluded it or the action is “committed to agency discretion by law.”

Standards of Review: Courts must examine whether agency actions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional rights; in excess of statutory authority; conducted without required procedures; or unsupported by substantial evidence in formal proceedings.

Recent Changes in Deference: For many years, courts gave “deference” to agency interpretations of statutes they administered under the Chevron doctrine. However, in June 2024, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo, requiring courts to “use every tool at their disposal to determine the best reading of [a] statute” rather than deferring to agency interpretations.

This landmark decision significantly shifts interpretive authority back to courts, potentially altering the balance between agencies and the judiciary in interpreting federal statutes.

Key APA Definitions

The APA provides crucial definitions that determine its scope:

Agency: Broadly defined as “each authority of the Government of the United States,” with specific exclusions for Congress, courts, territorial governments, the District of Columbia, certain dispute resolution bodies, courts martial, and military authority in wartime.

Rule: “The whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” This includes legislative rules, interpretive rules, policy statements, and organizational procedures.

Order: “The whole or a part of a final disposition of an agency in a matter other than rule making but including licensing.” Orders result from adjudicatory processes dealing with specific parties and situations.

APA Exemptions

The APA includes important exemptions from its procedural requirements:

Statutory Exemptions: Notice-and-comment requirements don’t apply to military or foreign affairs functions or matters relating to agency management, personnel, public property, loans, grants, benefits, or contracts.

Interpretive Rules and Policy Statements: These are exempt from notice-and-comment requirements, though the line between exempt and non-exempt rules can be blurry and heavily litigated.

Good Cause Exception: Agencies may bypass notice-and-comment procedures if they find such procedures are “impracticable, unnecessary, or contrary to the public interest,” though this exception is expected to be used sparingly.

APA’s Lasting Impact

The APA has profoundly shaped federal governance by standardizing procedures across diverse agencies, enhancing transparency and public participation, providing frameworks for accountability and judicial oversight, and legitimizing the administrative state by embedding it within procedural regularity and legal oversight.

The APA serves as baseline law, with Congress sometimes building upon it through more specific procedural requirements for particular agencies or rulemaking types. It fundamentally structures how federal agencies interact with the public and other government branches, striving to ensure administrative power is exercised lawfully, reasonably, and subject to scrutiny.

The Congressional Review Act: Congress’s Regulatory Reset Button

While the APA governs how agencies make rules, the Congressional Review Act provides Congress with a powerful tool to overturn those rules after they’re finalized. Enacted on March 29, 1996, as part of the Small Business Regulatory Enforcement Fairness Act, the CRA was designed to strengthen congressional oversight of executive branch rulemaking and ensure agencies remain accountable to the legislative branch that delegates them authority.

The CRA’s Unique Power

The CRA gives Congress what amounts to a “legislative veto” over agency regulations, albeit one that requires presidential approval or veto override to be effective. It was intended to address concerns that Congress had ceded too much lawmaking power to unelected agency officials.

The Act establishes a specific, multi-step process that allows Congress to review and potentially overturn agency rules through expedited procedures that bypass normal legislative obstacles like Senate filibusters.

How the CRA Works: Step by Step

Rule Submission: Before any rule subject to the CRA can take effect, the issuing agency must submit a report to both houses of Congress and the Government Accountability Office (GAO). This submission must include a copy of the rule, a statement about whether it’s a “major rule,” and the proposed effective date.

The 60-Day Review Window: Congress generally has 60 days of “continuous session” from when a rule is submitted and published in the Federal Register to introduce a joint resolution of disapproval. For Senate action, the window is 60 “session days”—days when the Senate is actually in session.

Joint Resolution of Disapproval: Any Member of Congress can introduce a joint resolution with specific language: “That Congress disapproves the rule submitted by the [agency name] relating to [name of the rule], and such rule shall have no force or effect.” Each resolution can target only one rule in its entirety.

Expedited Senate Procedures: The CRA provides special “fast-track” procedures for Senate consideration that prevent filibusters and other delaying tactics:

• Committees can be discharged from considering resolutions through petitions of 30 Senators
• Motions to proceed are non-debatable
• Floor debate is limited to 10 hours
• No amendments or motions to recommit are allowed
• Only simple majority votes are required

Presidential Action: For a disapproval resolution to take effect, it must pass both houses and be signed by the President, or Congress must override a presidential veto with two-thirds majorities in both chambers.

Major Rules vs. Regular Rules

The CRA distinguishes between “major” and regular rules, with major rules receiving additional scrutiny:

Major Rule Definition: A rule that the Office of Management and Budget finds has resulted in or is likely to result in:

• Annual economic effects of $100 million or more
• Major increases in costs or prices for consumers, industries, or governments
• Significant adverse effects on competition, employment, investment, productivity, innovation, or U.S. competitiveness

Delayed Effective Dates: Major rules generally cannot take effect until 60 days after submission to Congress and GAO or publication in the Federal Register, giving Congress more time to review significant regulations.

The “Lookback” Provision: A Powerful Transition Tool

One of the CRA’s most potent features is its “lookback” or “reset” provision. If a rule is submitted to Congress within 60 Senate session days or 60 House legislative days before Congress adjourns sine die (formally ending a session), the review period carries over to the next Congress.

This provision ensures Congress has full opportunities to review rules submitted late in congressional sessions, preventing outgoing administrations from pushing through “midnight regulations” that might evade scrutiny. The lookback provision makes the CRA particularly powerful for new presidential administrations and congressional majorities of the same party to overturn rules issued by previous administrations.

Consequences of CRA Disapproval

When Congress successfully uses the CRA to overturn a rule, the consequences are severe and lasting:

Immediate Nullification: The disapproved rule “shall not take effect (or continue).” If the rule had already taken effect, it’s treated as though it never existed.

“Substantially the Same” Rule Prohibition: The agency that issued the disapproved rule is prohibited from reissuing that rule in “substantially the same form” or issuing new rules that are “substantially the same” as the disapproved rule unless specifically authorized by new legislation enacted after the disapproval.

This prohibition creates long-term policy consequences far beyond simply nullifying single rules, theoretically preventing agencies from easily re-instituting similar policies without new legislative authorization.

Limited Judicial Review

The CRA contains a provision that significantly limits judicial review: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.”

Most courts interpret this as broadly prohibiting judicial review of any statutory questions arising under the CRA itself. This means courts generally cannot void agency rules based on alleged noncompliance with CRA submission requirements, and Congress’s own CRA determinations aren’t subject to court challenge.

Historical Usage: When Politics Align

Since 1996, the CRA has been used to overturn 20 agency rules, with usage concentrated during periods of unified government following presidential transitions:

2001 (Bush Administration): 1 rule overturned—an OSHA ergonomics standard from the Clinton administration, marking the first successful CRA use.

2017-2018 (Trump Administration): 16 rules overturned, all Obama-era regulations covering diverse areas from environmental protection to financial regulation to telecommunications privacy.

2021 (Biden Administration): 3 rules overturned, all Trump-era regulations dealing with employment discrimination, environmental standards, and banking regulations.

The pattern is clear: the CRA is most effectively used during presidential transitions when incoming Presidents and congressional majorities are of the same party and wish to reverse previous administrations’ regulatory actions.

Recent CRA Activity

The 118th Congress (2023-2024) saw record activity with 208 disapproval resolutions introduced and 11 passed to President Biden, though all were vetoed as expected when Congress attempts to overturn rules from administrations of their own party.

This high level of activity demonstrates growing congressional interest in using the CRA as an oversight tool, even when ultimate success isn’t guaranteed.

Comparing the APA and CRA: Different Tools, Different Purposes

While both laws deal with federal agency rules, the APA and CRA operate at different stages of the regulatory process and serve distinct functions in the American system of checks and balances.

Fundamental Differences

Purpose and Timing:

• APA: Governs how agencies must develop and issue rules, focusing on procedural fairness, transparency, and public participation before rules are finalized
• CRA: Provides oversight mechanism that operates after agencies have finalized rules, giving Congress opportunities to review and potentially overturn specific regulations

Primary Actors:

• APA: Federal agencies (following procedures), the public (participating through comments), and federal courts (reviewing agency actions)
• CRA: Federal agencies (submitting rules), Congress (reviewing and voting), the President (signing or vetoing), and GAO (receiving rules and reporting)

Process Focus:

• APA: Internal agency procedures for developing rules and conducting hearings
• CRA: Legislative process in Congress for approving or disapproving finalized rules

Definition Differences

Both laws use broad definitions of “rule,” but with important distinctions:

APA Definition: “The whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy”

CRA Definition: Adopts the APA’s broad definition but excludes rules of particular applicability, rules on agency management/personnel, and internal agency procedures not substantially affecting outside parties

Importantly, the CRA can cover agency actions like guidance documents or policy statements that might be exempt from APA notice-and-comment requirements but still qualify as reviewable “rules” under the CRA.

Judicial Review Contrasts

APA: Provides strong presumption of judicial review, allowing courts to assess compliance with procedures, statutory authority, and constitutional limits

CRA: Explicitly prohibits judicial review of any CRA determinations, findings, actions, or omissions, severely limiting courts’ roles in overseeing the CRA process

Different Outcomes

APA Compliance: Results in legally valid rules that can withstand court challenges; non-compliance can lead to judicial invalidation

CRA Success: Results in complete nullification of specific rules plus prohibition on issuing “substantially the same” rules without new legislation

Real-World Examples: How These Laws Shape Policy

Understanding how the APA and CRA work in practice requires examining specific examples of their application across different policy areas.

APA in Action: Environmental Regulation

The Environmental Protection Agency’s development of air quality standards under the Clean Air Act illustrates the APA’s notice-and-comment process at work. When EPA proposes new National Ambient Air Quality Standards, it must:

1. Publish detailed NPRMs explaining the scientific basis for proposed standards
2. Provide extended comment periods (often 60-90 days) for complex environmental rules
3. Hold public hearings in multiple locations
4. Respond to thousands of comments from industry, environmental groups, states, and individuals
5. Explain in final rules how it addressed significant concerns and why it chose particular approaches

This process can take years but results in scientifically grounded, legally defensible standards that have dramatically improved air quality while allowing for extensive public input.

CRA in Action: The Great Regulatory Rollback of 2017

The most extensive use of the CRA occurred in 2017 when the new Trump administration and Republican Congress used the lookback provision to overturn 16 Obama-era rules. Examples included:

Stream Protection Rule: An Interior Department regulation protecting waterways from coal mining impacts was overturned in February 2017, one of the first CRA successes.

Broadband Privacy Rule: An FCC regulation requiring internet service providers to obtain customer consent before sharing personal information was overturned in March 2017.

Arbitration Agreements Rule: A Consumer Financial Protection Bureau rule restricting mandatory arbitration clauses in financial contracts was overturned in November 2017.

Each disapproval took only weeks to complete using CRA’s expedited procedures, compared to the years it would normally take to overturn regulations through new rulemaking.

APA vs. CRA: The Methane Regulation Saga

The regulation of methane emissions from oil and gas operations illustrates how both laws can affect the same policy area:

APA Process (Obama Era): EPA spent years developing methane regulations through extensive notice-and-comment rulemaking, receiving hundreds of thousands of comments from industry, environmental groups, and the public before finalizing standards in 2016.

CRA Attempts (Trump Era): Rather than using APA procedures to revise the methane rules, the Trump administration initially tried to use the CRA to overturn them. When that failed, they pursued lengthy APA rulemaking to weaken the standards.

CRA Success (Biden Era): In 2021, Congress used the CRA to overturn Trump administration revisions to methane standards, effectively reinstating stronger regulations in a matter of weeks rather than years.

This back-and-forth demonstrates how the CRA can provide faster policy reversals than traditional rulemaking while the APA ensures thorough analysis and public input for lasting regulatory changes.

How Citizens Can Engage With Both Processes

Understanding the APA and CRA isn’t just academic—these laws provide concrete opportunities for citizens to influence federal policy and hold government accountable.

Engaging With APA Processes

Commenting on Proposed Rules: The most direct way to influence federal regulations is by submitting comments through Regulations.gov during the public comment period. Effective comments:

• Provide specific data, experiences, or expertise relevant to the proposed rule
• Identify potential problems or unintended consequences
• Suggest alternative approaches or modifications
• Reference relevant studies, economic analyses, or legal authorities

Petitioning for Rulemaking: The APA allows any interested person to petition agencies to issue, amend, or repeal rules. While agencies aren’t required to grant petitions, they must consider them and respond within reasonable timeframes.

Challenging Agency Actions: Citizens harmed by agency actions can sue in federal court to challenge rules that were developed improperly, exceed agency authority, or violate constitutional rights. This right to judicial review provides a crucial check on agency power.

Staying Informed: The Federal Register publishes all proposed and final rules, providing official notice of agency actions. Citizens can subscribe to daily updates or search for rules affecting specific topics or industries.

Engaging With CRA Processes

Alerting Congress: While the CRA doesn’t provide direct public participation, citizens play crucial roles by bringing potentially problematic rules to their representatives’ attention. This requires monitoring agency actions and understanding which rules might be subject to CRA review.

Advocacy and Lobbying: Individuals and organizations can lobby Members of Congress to introduce and support disapproval resolutions for specific rules. Public pressure and advocacy can influence legislative decisions about CRA usage.

Electoral Accountability: The CRA process is public, allowing citizens to monitor how representatives vote on disapproval resolutions and hold them accountable through elections.

Tools for Citizen Engagement

Government Websites:

• Regulations.gov: Primary portal for finding and commenting on proposed federal regulations
• Congress.gov: Track congressional activity including CRA resolutions
• GAO CRA Database: Search rules submitted under the CRA

Advocacy Organizations: Many groups across the political spectrum monitor federal rulemaking and help citizens engage effectively, from environmental organizations to business associations to civil liberties groups.

Legal Resources: Public interest law organizations sometimes challenge agency actions in court, while legal aid societies can help individuals navigate administrative processes.

The Broader Significance: Democracy and Accountability

The APA and CRA represent different approaches to a fundamental challenge in modern democratic governance: how to maintain accountability and public participation when complex policy decisions require technical expertise and specialized knowledge.

The APA’s Democratic Innovation

The APA’s notice-and-comment process was a democratic innovation that opened up previously closed agency decision-making to public scrutiny and participation. It recognized that while agencies need flexibility and expertise to address complex problems, they also need legitimacy that comes from public engagement and transparency.

This process has enabled millions of Americans to influence federal policy directly, from parents commenting on school nutrition standards to small business owners weighing in on financial regulations to environmental advocates shaping pollution controls.

The CRA’s Congressional Oversight

The CRA provides a different form of democratic accountability by enabling elected representatives to override agency decisions when they believe agencies have overstepped their authority or adopted misguided policies. It preserves congressional primacy in lawmaking while acknowledging the practical necessity of agency rulemaking.

The CRA’s expedited procedures ensure Congress can act quickly when necessary, while its supermajority requirements (for veto overrides) ensure that only rules with broad congressional opposition are overturned.

Balancing Expertise and Democracy

Both laws attempt to balance competing values in democratic governance:

• Expertise vs. accountability
• Efficiency vs. participation
• Stability vs. responsiveness
• Technical competence vs. political legitimacy

Neither provides perfect solutions to these tensions, but together they create a system where agency expertise is channeled through democratic processes and subject to multiple forms of oversight and accountability.

Looking Forward: Evolving Challenges

As the regulatory state continues to evolve, both the APA and CRA face new challenges:

Technological Change: Digital platforms, artificial intelligence, and rapid technological change challenge traditional rulemaking timelines and methods. Agencies struggle to keep pace while maintaining thorough public engagement.

Political Polarization: Increasing partisan polarization affects both public participation in rulemaking and congressional use of the CRA, potentially undermining the deliberative processes both laws were designed to foster.

Global Complexity: International economic integration and global challenges like climate change require regulatory approaches that may strain traditional domestic procedures for public participation and oversight.

Information Overload: The sheer volume of federal rulemaking—thousands of rules annually—challenges citizens’ ability to engage meaningfully with agency decision-making.

Despite these challenges, the APA and CRA remain essential tools for democratic governance of the administrative state. They provide frameworks for ensuring that the enormous power of federal agencies is exercised responsibly, transparently, and with appropriate accountability to both the public and their elected representatives.

Understanding these laws empowers citizens to move from being passive recipients of regulation to active participants in democratic governance. Whether commenting on proposed rules, petitioning agencies for action, challenging unlawful agency decisions in court, or urging congressional representatives to use CRA oversight powers, informed citizens can help ensure that the regulatory system serves the public interest rather than narrow private interests.

The complexity of modern governance requires both technical expertise and democratic legitimacy. The APA and CRA, working together, provide complementary mechanisms for achieving both, creating a regulatory system that is both competent and accountable to the people it serves.

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