Republicans are using the Government Accountability Office to expand the reach of the Congressional Review Act.
A statute that was barely used for its first 20 years is playing an increasingly important role in Republicans’ deregulatory efforts. The Congressional Review Act (CRA), which was enacted in 1996, allows the U.S. Congress a limited time window to disapprove agencies’ rules through expedited procedures. As we discussed in a previous essay, since 2017, congressional Republicans have used the law extensively—mainly to disapprove, within the first few months of each of President Donald J. Trump’s terms, rules issued by the outgoing Obama and Biden Administrations during their respective final months.
And Congress is not only expanding its use of the CRA through its own actions. Congressional Republicans have enlisted the assistance of the Government Accountability Office (GAO) to expand the scope of agency actions that can be disapproved under the CRA. With GAO’s assistance, Congress is able to reach further back in time and to disapprove categories of actions that it otherwise could not through normal CRA procedures.
Our empirical analysis shows that, under both Trump Administrations, congressional Republicans have effectively used GAO as a tool to help them disapprove agency actions taken by prior Democratic administrations. In contrast, during the Obama and Biden Administrations, congressional Democrats did not similarly enlist GAO to target agency actions from the Republican administrations that preceded them. Our analysis has significant implications for lawmakers’ and presidential administrations’ strategic use of the CRA.
The CRA requires agencies to submit new rules to Congress for review before they go into effect. Congress may then choose to enact a joint resolution of disapproval. If a joint resolution passes both congressional chambers and is signed by the President, the rule is invalidated.
The CRA has a few special procedural features that make it a powerful tool. Most importantly, disapproval resolutions are subject to a “fast-track” process in the U.S. Senate, which allows them to pass with a simple majority rather than the 60 votes needed to overcome a filibuster. And if a disapproval resolution is signed into law, the agency is prohibited from issuing another rule in the future that is “substantially the same” as the disapproved one, unless Congress specifically authorizes it to do so.
The CRA has important limits. Two relate to timing: First, one congressional chamber must introduce a disapproval resolution within 60 legislative days of the rule’s submission to Congress. Second, the fast-track procedures are available in the Senate only for the same length of time. But an important exception to the CRA’s time limits applies when Congress adjourns before the end of the 60-day period. In those cases, the full period restarts during the following congressional session. This means that when a presidential administration changes, an incoming Congress can reach back to disapprove any rules submitted during the “lookback” period of the final 60 legislative days of the previous session. In practice, most rules invalidated under the CRA were targeted through this exception, in periods after inter-party presidential transitions when the incoming President’s party controls both congressional chambers.
Perhaps the most important limit on the CRA is that it applies only to “rules.” The CRA adopts the definition of “rule” from the Administrative Procedure Act, except that it excludes rules of “particular applicability,” rules “relating to agency management or personnel,” and rules “of agency organization, procedure, or practice” that do not substantially affect anybody’s rights or obligations.
Agencies therefore do not submit every action they take to Congress for review—only those that they consider to be “rules” under the CRA’s definition. And agencies sometimes fail to submit covered rules. This problem is not explicitly contemplated by the CRA, which does not provide any mechanism for Congress to review actions that agencies don’t submit.
Congress has responded to this problem by relying on GAO to act as a referee on actions that agencies do not submit for review. Although the CRA does not explicitly provide for GAO to play such a role, Congress has developed the following system of unwritten procedural norms: If an agency does not submit an action to Congress, a member of Congress can request an opinion from GAO on whether the action is a rule subject to the CRA. If GAO finds that it is, both chambers treat the action as a rule and treat the date of GAO’s opinion as the rule’s submission date.
Because GAO’s role developed informally through congressional practice, there are no specified time limits on when Congress may request a GAO opinion on an unsubmitted action. This means that Congress can disapprove agency actions far outside the usual timeframe for CRA review, so long as GAO determines that a given action is a rule. For instance, Congress can disapprove unsubmitted agency actions from a prior administration that predate the lookback period, as it did in the past year for an action by the Bureau of Land Management issued during the Biden Administration that GAO deemed a rule.
This development is significant because GAO broadly interprets the Administrative Procedure Act’s definition of “rule,” covering actions that many agencies assumed were not subject to the CRA. And there is no clear temporal stopping point; presumably, with an affirmative GAO opinion, Congress could disapprove unsubmitted actions going back to the CRA’s enactment in 1996.
This approach puts at risk many long-settled actions. For instance, GAO’s position that the Bureau of Land Management’s resource management plans are rules makes plans going back three decades vulnerable to disapproval, with commentators warning of “chaos” for federal lands management. And because the CRA requires that rules be submitted to Congress before they go into effect, GAO’s position calls the legality of unsubmitted management plans into question, even if Congress never acts to disapprove them. Litigators are already seizing the opportunity to argue that these plans never lawfully went into effect.
Besides requesting a GAO opinion, however, another route exists through which Congress can disapprove agency actions that were not submitted at the time they were issued. An agency seeking to undo an action it took under a prior administration may submit that action to Congress, stating that the agency belatedly recognizes that the action is a rule subject to the CRA. But this approach carries a risk. A member of the other party can ask GAO to assess whether the belatedly submitted action is a rule. If GAO determines that the action is not a rule—and therefore need not have been submitted for congressional review—the Senate parliamentarian will likely come to the same conclusion, finding that the Senate’s fast-track procedures are not available. And if Congress nonetheless proceeds to disapprove the action, with the Senate applying fast-track procedures to avoid the filibuster, it does so at the expense of defying the parliamentarian’s determination and thereby weakening the filibuster.
Congress followed this latter approach last year in a high-profile case involving Clean Air Act preemption waivers for vehicle standards that the Environmental Protection Agency granted to California during the Biden Administration. GAO determined in 2023 that these waivers were not rules subject to the CRA. Nonetheless, under the Trump Administration, the agency submitted these waivers for review, and congressional Republicans proceeded to disapprove them, despite a determination by the Senate parliamentarian and another by GAO—GAO’s second such determination—that the waivers were not rules. President Trump signed the resolutions into law, and the Environmental Protection Agency has since submitted to Congress six similar preemption waivers dating back to 2009. Congressional Republicans have introduced disapproval resolutions for each, though none have yet received a vote. The Trump Administration also used this agency-led strategy to invalidate a Biden-era Bureau of Land Management order restricting mining near the Boundary Waters in northern Minnesota. In that case, GAO did not issue an opinion regarding whether the action was a rule.
This alternate avenue for disapproval—in which agencies voluntarily submit their own
Previously unsubmitted actions for review—may be useful when members of Congress are concerned that GAO might conclude that an action is not a rule, as with the California preemption waivers. But members of Congress will likely prefer to go through GAO where possible. First, disapprovals based on an affirmative GAO opinion do not raise the risk of weakening the filibuster, assuming the parliamentarian sides with GAO in finding the action is a rule. Second, GAO’s opinions lend credibility to disapproval efforts. GAO is therefore likely to continue to play a critical and growing role in adjudicating which unsubmitted agency actions are vulnerable to disapproval under the CRA.
Our analysis of GAO’s CRA opinions demonstrates how its role has grown in the past ten years. Before the first Trump Administration, GAO issued only one opinion addressing whether an unsubmitted agency action from a previous administration was a rule subject to the CRA: a Bush-era GAO opinion requested by a Republican representative concerning a Clinton-era agency action. Although GAO determined that the action was a rule, Republicans did not subsequently introduce a disapproval resolution in either chamber, and this strategy remained unused for over 15 years.
This changed during the first Trump Administration. In those four years, GAO issued 15 opinions addressing whether agency actions were rules, more than it had issued in all the years since the CRA’s enactment combined. Of those 15, eight were requested by congressional Republicans and concerned actions taken by the Obama Administration. For seven of those eight actions, GAO concluded that at least some component of the agency action was a rule subject to the CRA. Republicans proceeded to introduce resolutions targeting three of those actions, though only one, concerning an action by the Consumer Financial Protection Bureau related to auto lending, ultimately passed both chambers and was signed into law by President Trump.
The strategy was again left unused throughout the Biden Administration. Although GAO issued a record 31 opinions addressing whether agency actions were rules, GAO did not issue any opinions concerning actions taken by the prior Administration during this period, presumably because Democrats did not request them. Instead, all the opinions addressed Biden-era actions and with one exception responded to requests led by congressional Republicans.
Since the beginning of the second Trump Administration, however, Republicans have once again enlisted GAO to target actions taken by the prior administration. During this period, GAO has issued 25 opinions regarding whether agency actions are rules, 10 of which were requested by congressional Republicans concerning actions taken by the Biden Administration. In eight of those 10 opinions, all of which concerned Bureau of Land Management resource management or leasing plans, GAO concluded that the agency action at issue was a rule. To date, Republicans have passed resolutions disapproving all but two of these actions, which President Trump then signed into law.
Meanwhile, during the second Trump Administration, congressional Democrats have aggressively pursued a strategy with debatable benefits and serious drawbacks. In response to requests by congressional Democrats, GAO has issued ten opinions on whether unsubmitted agency actions issued by the current Administration are rules. In seven of these ten cases, GAO determined that the action was a rule, starting the time window for congressional disapproval. To date, Democrats—and in one case, an independent who caucuses with the Democrats—have introduced disapproval resolutions targeting four of these actions. So far, only one resolution—targeting a policy statement by the Department of Health and Human Services limiting opportunities for public comment on agency actions—has gone to a full vote in either chamber, failing on a 50-50 vote in the Senate, with three Republicans joining all Democrats and independents.
There may be some political value to these requests where the agency action touches on a hot-button political issue that Republicans would prefer to avoid, because if GAO determines that an action is a rule, Democrats can force a vote on a disapproval resolution. But there is a severe downside to this approach: The review period for the actions that GAO determines are rules expires while Democrats do not hold the presidency—or either congressional chamber, for that matter. Even if Democrats were able to convince enough Republicans in both chambers to vote to disapprove an action taken by the Trump Administration, President Trump would almost certainly veto the resolution. And because Congress gets only one shot at disapproving a rule through the CRA, a failed disapproval effort effectively shelters an action permanently from disapproval during a future period when Democrats control Congress and the presidency.
A few conclusions emerge from these recent developments. First, congressional Republicans have made effective use of GAO’s referee function to disapprove unsubmitted agency actions taken by previous Democratic administrations. But congressional Democrats have not done the same for actions of prior Republican administrations during periods when their party controls both chambers and the presidency.
Second, in future administrations, lawmakers of the same party as the President, if they hold the majority in both chambers, should consider requesting GAO opinions for any important but unsubmitted agency actions from the previous administration that do not align with the current administration’s policies. Congressional Republicans are currently pursuing this strategy, but congressional Democrats have never done so.
Finally, when a sitting administration takes an action and does not submit it to Congress, members of the opposition party should consider waiting to request a GAO opinion on the action. If they request an opinion immediately and GAO determines the action is a rule, the review period will run out during a period when, even if Congress votes to disapprove the rule, the President is likely to veto it. Instead, it may be advantageous for lawmakers to wait until a period when their party controls both chambers and the presidency and then request GAO opinions on any important, unsubmitted actions from previous administrations of the opposing party. That way, if GAO determines that the actions are rules, lawmakers can disapprove the rules and the President will likely sign the disapprovals into law.
GAO is likely to continue playing a powerful role in adjudicating which previously unsubmitted agency actions are vulnerable to disapproval. Lawmakers and presidential administrations would therefore do well to keep in mind the strategic opportunities this situation creates.
The authors have included a table and a dataset summarizing GAO opinions addressing whether agency actions are rules subject to the CRA. The authors would like to thank Luna Wang for research that informed this article and for assistance in preparing the table and dataset.
