For twenty years, the Congressional Review Act lay dormant. But recent action from all three branches suggests it is resurgent.
Enacted in response to the Supreme Court’s decision striking down the legislative veto as unconstitutional, the CRA is designed to ensure a modicum of democratic oversight of the administrative state. According to the law, agencies must submit every rule they adopt to Congress before the rule can go into effect. Once submitted, Congress has a brief window to review rules and, if it wishes to disapprove them, streamlined procedures (including a prohibition on filibuster) to do so. If both Houses of Congress and the President concur that a rule should be disapproved, the resulting law bars the agency from adopting any substantially similar rule in the future.
In the CRA’s first two decades, Congress invoked it only once—to disapprove a regulation issued by the Occupational Safety and Health Administration. Agencies appeared to notice Congress’ lack of interest in using the tool and treated the CRA’s dictates as mere suggestion. According to a Brookings Institute study, agencies failed to submit to Congress hundreds of economically significant rules during this time, even as Government Accountability Office and Congressional Research Service reports alerted them to this problem. Noncompliance for economically significant rules is the proverbial tip of the iceberg, as scholars have found that thousands of other rules have not been submitted and some classes of rules—like guidance documents—are almost never submitted.
2017 was a resurgent year for the CRA. Congress and the President invoked it fifteen times to disapprove so-called “midnight rules” issued at the end of the Obama administration. An attempt to repeal the law, by members opposed to Congress interfering with the work of agencies, failed. Interest wasn’t limited to Capitol Hill. Scholars debated the law’s potential reach and what should be done about rules previously not submitted. The Federalist Society hosted a panel on these questions during its Fifth Annual Executive Branch Review Conference in May 2017.
Three recent developments have answered some of these questions, all in ways that suggest the CRA’s potential has barely been tapped.
First, in late 2017, Senator Pat Toomey (R-PA), relying on an opinion from the General Accountability Office, proposed a resolution disapproving a 2013 guidance document published by the Consumer Financial Protection Bureau, which the agency had never submitted under the CRA. This teed up for Congress several questions including whether guidance documents are rules covered by the CRA and whether an agency’s failure to comply with the CRA’s rule-submission requirement means that the rule remains subject to congressional review. Congress answered both questions in the affirmative, passing a joint resolution disapproving the rule that was signed by the President last year.
Second, in April 2019, the Office of Management and Budget issued a memorandum to all agencies acknowledging the CRA’s broad scope. “The CRA applies to more than just notice-and-comment rules; it also encompasses a wide range of other regulatory actions, including, inter alia, guidance documents, general statements of policy, and interpretive rules.” Noting the CRA’s few, narrow exemptions, the memo continues: “These limited and explicit exemptions underscore that all other rules must follow the requirements of the CRA.” The OMB memo directs all agencies, including independent agencies, to submit all such rules to the Office of Information and Regulatory Affairs so that it may satisfy its obligation under the CRA to determine whether the rule is a “major rule.”
Finally, courts have weighed in on whether violations of the CRA’s rule-submission requirement are subject to judicial review. In February, the District Court for the District of Idaho ruled that it could review the Departments of the Interior and Agriculture’s failure to submit federal-land rules to Congress. “[W]ithout review,” the court explained, “an agency would frankly have no reason to comply with the CRA. . . [I]f the agency never submits its plans – as required – the Court is troubled with Defendants’ position that essentially any rule or law can go into effect without oversight or approval and there is no legal remedy available.[.]”
Other courts have disagreed, relying on a provision of the CRA that states “[n]o determination, finding, action, or omission under the [CRA] shall be subject to judicial review.” Representative of those cases is a 2009 D.C. Circuit opinion stating tersely that “[t]he language of § 805 is unequivocal and precludes review of this claim” without further analysis. The Idaho case’s more in-depth study suggests the question is not so simple. Other provisions of the CRA, statements from the bipartisan sponsors in both houses, recent scholarship, and the strong presumption favoring judicial review of agency action—which the Supreme Court has strengthened in several recent unanimous decisions—all counsel in favor of judicial review.
Together, these developments suggest that agencies will have to take their CRA obligations more seriously going forward. As a consequence, the politically accountable branches will have more opportunities to review what agencies do and will, ultimately, be more accountable to the people for their actions.