This post is an adaptation of Kevin’s longer paper arguing that Congress should repeal the Congressional Review Act. You can download the full paper here.
With the 2020 election approaching, the Trump Administration is now racing to finalize agency rules before the deadline after which they could be subject to Congressional Review Act (CRA) disapproval by the next Congress. But even if some new rules could be repealed using the CRA, Congress should be aware of the potential pitfalls arising out of the CRA’s inherent legal uncertainties.
The Congressional Review Act of 1996 provides Congress with a quick way for reviewing and repealing certain agency rules. A little-used statute in the two decades following its passage, the CRA experienced both revival and transformation during the Trump Administration. After President Trump took office, Congress used the CRA sixteen times in little over a year. This included novel and previously unexpected uses like expanding the CRA’s reach to years-old informal guidance documents.
Under the CRA, agencies must submit new rules to Congress for review before they can take effect. Congress may then pass a joint resolution of disapproval by a simple majority in both Houses, generally within sixty legislative days of the rule being submitted to Congress or published in the Federal Register. If the President signs the resolution into law, the rule can’t take effect or remain in effect. The agency also may not reissue the disapproved rule in “substantially the same form” or issue “a new rule that is substantially the same” unless “specifically authorized” by a later-enacted law.
The ultimate consequence of a CRA disapproval is unclear. Neither the CRA’s text nor its legislative history provides direct guidance on the meaning of “substantially the same,” and the phrase has never been tested in court. Commentators have imagined several plausible interpretations, including some that could significantly limit future agency rulemaking. In any event, the CRA introduces an element of uncertainty in rulemaking that will remain until a CRA disapproval is challenged in court. And because joint resolutions of disapproval are subject to judicial review and interpretation like any other legislation, Congress lacks complete control over the effects of its CRA disapprovals once they’ve been passed into law.
“[S]ubstantially the same”
Section 801(b)(2) of the CRA prevents federal agencies from issuing any rule that is “substantially the same” as a disapproved rule. Because no agency has attempted to pass a rule that might be considered “substantially the same” as its predecessor, this provision has never been tested in court, so its meaning has never been clarified.
The CRA itself leaves the meaning of “substantially the same” ambiguous. The statute doesn’t define “substantially the same,” and the phrase’s plain text raises more questions than it answers. For example, at what point would a subsequent rule be considered “substantially” the same? In what way must a subsequent rule not be “the same” as its predecessor?
The CRA’s legislative history provides limited additional guidance. Congress prepared no formal legislative history documents in the course of passing the CRA. Thus, about one month after President Clinton signed the CRA into law, the CRA’s sponsors in the Senate submitted a joint statement for the record to “cure this deficiency.” This joint statement is as close to a legislative history as is available. But because it was drafted after the CRA’s enactment, a court may not give it much weight when trying to interpret the statute.
Members of Congress made “the majority of all the statements ever made interpreting the meaning of ‘substantially the same’” during floor debates leading up to Congress’ first CRA disapproval, which repealed an ergonomics rule promulgated by the Occupational Safety and Health Administration (OSHA). Those opposed to the disapproval adopted drastic interpretations of the CRA, describing the disapproval’s consequences in “almost apocalyptic terms.” Under one view, the disapproval would render OSHA “powerless to adopt an ergonomics rule” unless “Congress [gave] it permission.” Those in favor of the disapproval occupied the other “extreme,” making “statements trivializing the effect of the veto.” For example, “the CRA will not act as an impediment to OSHA should the agency decide to engage in ergonomics rulemaking.”
Simply put, “[t]he scope of this prohibition remains unclear.” Given the wide range of plausible interpretations, we can only speculate as to how a court would assess whether a rule challenged under the CRA is “substantially the same” as a disapproved rule. To be safe, proponents of the administrative state should assume that a more severe interpretation could prevail when this language is ultimately tested. For example, a court might hold that a joint resolution repealing a Trump-era rollback prevents rulemaking in an entire regulatory area, and this could prove far more detrimental than if Congress merely allowed the agency to revise the rule using the normal—albeit more time-consuming—rulemaking process in the first place.
If Congress successfully repeals a rule using the CRA, a claim that a subsequent rule is “substantially the same” would generally be reviewable by the courts. But this isn’t necessarily obvious from the text of the statute. Under section 805 of the CRA, “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”
Lower courts are divided about the extent of this prohibition. The majority of courts that have addressed section 805 have held that its prohibition on judicial review applies to any “determination, finding, action, or omission” by either Congress or a federal agency. Only two courts have held otherwise, concluding that section 805 applies only to determinations, findings, actions, or omissions by Congress.
Under either interpretation, however, section 805’s prohibition on judicial review extends only to determinations, findings, actions, or omissions arising under the CRA—for example, whether an agency violated the CRA’s procedures with respect to submitting final rules to Congress. Section 805 therefore would not prevent a court from reviewing the consequences of a joint resolution of disapproval once it’s enacted into law. Because any joint resolution of disapproval must be passed by both Houses of Congress and signed by the President, a claim that a subsequent rule is “substantially the same” as a disapproved rule could be reviewed by a court like any other validly enacted piece of legislation. Indeed, the Senate sponsors’ joint statement asserts that “[a] court with proper jurisdiction may treat the congressional enactment of a joint resolution of disapproval as it would treat the enactment of any other federal law.” Such a court “may review the resolution of disapproval and the law that authorized the disapproved rule to determine whether the issuing agency has the legal authority to issue a substantially different rule.” In this way, Congress can neither predict nor control the ultimate effects of its CRA disapprovals, as they are subject to judicial interpretation once enacted.
The next Congress may have the chance to quickly repeal agency rules finalized at the end of President Trump’s first term using the CRA. Yet Congress should consider the legal uncertainties inherent in the CRA, as those uncertainties could have unintended—and possibly sweeping—consequences for future agency rulemaking.