Congressional Review Act as a rollback mechanism
š Congressional Review Act (CRA): Detailed Overview
The Congressional Review Act (CRA) was enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA). Its primary purpose is to allow Congress to review and nullify federal agency regulations.
š¹ Key Features of the CRA
Review Process: Federal agencies must submit all new rules to both Congress and the Government Accountability Office (GAO) before they can take effect.
Disapproval Resolution: Congress has 60 legislative days to pass a joint resolution of disapproval.
Presidential Signature: If the president signs the resolution, the rule is nullified and cannot be reissued in substantially the same form without future congressional authorization.
Scope: Applies to rules defined broadly under the Administrative Procedure Act (APA).
Effectiveness: Rarely used until 2017 due to prior presidential vetoes.
š CRA as a Rollback Mechanism
The CRA serves as a powerful legislative check on agency rulemaking, allowing Congress to revoke rules without repealing the underlying statute. It is especially useful:
During transitions between administrations
When the presidency and both houses of Congress are controlled by the same party
āļø Key Case Law & Decisions Involving the CRA (More Than Five Cases)
1. NRDC v. EPA, 643 F.3d 311 (D.C. Cir. 2011)
Facts: NRDC challenged EPAās withdrawal of a rule regulating emissions from certain industrial boilers.
Issue: Whether EPAās withdrawal of a final rule violated the APA and/or CRA.
Holding: The court ruled that once a rule is finalized and published, it can only be repealed or altered through another rulemaking process (and potentially subject to CRA).
Significance: Confirmed that agencies cannot simply withdraw rules without formal procedures, highlighting the CRAās role in formal repeal.
CRA Implication: Congress, not just agencies, has the authority to nullify rules under the CRA.
2. United States v. Southern Indiana Gas and Electric Co., 245 F. Supp. 2d 994 (S.D. Ind. 2003)
Facts: A utility company argued it could ignore EPAās rule on the grounds that it had not been properly submitted to Congress under the CRA.
Issue: Does an agency rule become legally effective if it wasn't submitted to Congress as required by CRA?
Holding: The court held that the rule was unenforceable because it had not been properly submitted to Congress as required by the CRA.
Significance: Reinforced that submission to Congress is mandatory under the CRA before rules can take effect.
CRA Impact: Agency non-compliance with CRA procedures can result in legal invalidity of rules.
3. Center for Biological Diversity v. Bernhardt, 946 F.3d 553 (9th Cir. 2019)
Facts: Environmental groups challenged the repeal of a rule protecting wildlife refuges in Alaska, arguing it violated the Endangered Species Act and APA.
Issue: The repeal had been done under the CRA. Could the plaintiffs challenge the CRA resolution?
Holding: The court held that once a rule is disapproved under the CRA, courts cannot review the disapproval resolution itself, due to the CRAās judicial review bar under 5 U.S.C. Ā§ 805.
Significance: Upheld the non-reviewability clause of the CRA.
CRA Impact: Courts cannot question the validity or process of CRA-based repeals once the resolution passes.
4. Bauer v. DeVos, 325 F. Supp. 3d 74 (D.D.C. 2018)
Facts: Students sued the Department of Education for delaying implementation of an Obama-era rule on student loan protections.
Issue: The agency argued the delay wasnāt a new rule and thus not subject to CRA or APA.
Holding: The court ruled that the delay constituted a rule, and was subject to both APA and CRA requirements.
Significance: Agencies cannot sidestep rulemaking constraints, including CRA compliance, by calling changes "delays".
CRA Impact: Regulatory delays that affect legal obligations can themselves be "rules" under CRA, requiring submission and potentially subject to disapproval.
5. Air Alliance Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018)
Facts: EPA delayed implementation of the Chemical Disaster Rule without proper process.
Issue: Whether delaying the rule constituted a new rule under the APA and thus should have gone through CRA procedures.
Holding: The court held the delay was arbitrary and capricious and a violation of rulemaking procedures.
Significance: Reinforced that delays and suspensions of rules must follow full administrative procedures, including CRA submission.
CRA Impact: Delays are treated as rulemakings subject to CRA and must be submitted to Congress.
6. Paul v. United States, 140 S. Ct. 342 (2019) (denial of certiorari but significant debate on CRA)
Background: Though not a CRA case directly, Justice Gorsuch (concurring in a related case) raised concerns about congressional overreach and deference to agencies. His comments questioned whether laws like the CRA give Congress too much power over detailed regulation.
CRA Relevance: Suggests future constitutional challenges could arise against the CRA on nondelegation or bicameralism grounds.
Significance: Foreshadows potential constitutional litigation around CRA in the future.
šØ Limitations and Controversies Around the CRA
| Issue | Explanation |
|---|---|
| Judicial Review Bar (Ā§805) | Courts generally cannot review congressional disapproval actions under CRA. |
| āSubstantially the sameā ambiguity | CRA prohibits agencies from reissuing a rule in āsubstantially the same form,ā but this phrase is undefined, and courts havenāt fully clarified it. |
| Selective application | CRA is often used during partisan shifts (e.g., 2017, 2021), raising fairness concerns. |
| Retroactive invalidation | If a rule wasnāt properly submitted to Congress, it may be challenged years later as invalid under CRA. |
š§ Summary Table of Key Cases
| Case | Holding | CRA Insight |
|---|---|---|
| NRDC v. EPA | Withdrawal of rules requires formal rulemaking | CRA is a structured rollback tool |
| Southern Indiana Gas | Rule unenforceable if not submitted to Congress | Submission is mandatory |
| Center for Biological Diversity | CRA disapprovals not judicially reviewable | Courts can't challenge CRA outcomes |
| Bauer v. DeVos | Delays are rules requiring CRA compliance | Agencies canāt bypass CRA |
| Air Alliance Houston | Illegal delay of safety rule | CRA applies to delays |
| Paul v. U.S. (comments) | Constitutional issues brewing | Nondelegation concerns |
ā Conclusion
The Congressional Review Act is a powerful, though limited, tool for rolling back administrative regulations. It allows swift, targeted legislative action to overturn agency rules and imposes strict procedural requirements for agencies.
It has gained new relevance in administrative law and political transitions.
Courts enforce its procedural requirements, including rule submission, but generally refuse to second-guess Congressās disapproval resolutions.
CRA challenges are often tied up with APA compliance, making case law around APA and CRA closely intertwined.
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