The Congressional Review Act: Miscellany

a post by Joshua about law on Mar 17, 2017

This is the final post in my series on the Congressional Review Act (CRA), 5 U.S.C. §§ 801-808. In part one, I summarized the Act and listed most of its special definitions. In part two, I described the requirements that the CRA imposes on federal agencies and their rules. Part three covered the congressional procedures prescribed by the CRA, and part four discussed how Congress might deal with rules for which a report under the CRA was never submitted. This post lists the handful of CRA provisions that have not yet been discussed in this series.

Effective Date of Certain Rules

Section 808 exempts some kinds of major rules from delays under section 801. Specifically, rules of the following sort "take effect at such time as the Federal agency promulgating the rule determines":

any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping; or

any rule which an agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

Effects of Enacting a Joint Resolution

If Congress enacts, and the president signs, a joint resolution under the Congressional Review Act regarding a rule, or if Congress enacts one over the president's veto, then:

The rule cannot take effect (or continue in effect), according to section 801(b)(1).
According to section 801(b)(2), the rule cannot be reissued in "substantially the same form," and "a new rule that is substantially the same" as the rule overturned cannot be issued, unless specifically authorized by subsequent law.
Section 801(f) requires that if the rule had already become effective, then, after enactment of the joint resolution, the rule will be treated as though it had never taken effect.

In short, enacting a joint resolution under the CRA not only overturns the rule, but prohibits any new rule that is "substantially the same" from ever being enacted, unless Congress later authorizes such a rule. This prohibition makes the CRA a powerful tool, since it bars future administrations from attempting to re-enact the overturned rule.

Judicial Review and Significance of Non-Enactment

As alluded to in part two, section 805 provides that "[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review." This provision may be a double-edged sword, shielding both congressional action under the CRA and an agency's failure to submit a report to Congress "[b]efore a rule can take effect."

Section 801(g) adds to this that the failure by Congress to enact a joint resolution cannot be used by courts or agencies to infer Congress's intent. For example, if somebody challenges an agency's rule by arguing that it is inconsistent with the statute under which it was purportedly promulgated, a court can't consider the non-enactment of a CRA joint resolution overturning the rule as an endorsement of the rule's legality.

Effect of CRA on House and Senate Rules

Under section 802(g)(1), the special procedures prescribed by the CRA are "deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution." These procedures "supersede[] other rules," but "only to the extent that [they are] inconsistent with such rules."

Section 802(g)(2) explains that these rules changes are made "with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time." The constitutional right referred to stems from Article I, Section 5 of the U.S. Constitution, which provides that "each House may determine the rules of its proceedings." In other words, either the House of Representatives or Senate could unilaterally exempt itself from the CRA's procedures, including the expedited procedures for Senate consideration of a joint resolution.

Extension of Deadlines

Congress sometimes imposes deadlines on agencies, including a deadline for the agency to promulgate rules under a statute. Section 803 extends such deadlines until one year after the enactment of a joint resolution that overturns a rule to which that deadline applies.

Applicability and Severability

Section 806(a) states that the CRA applies "notwithstanding any other provision of law." This language gives the CRA priority over conflicting legislation.

Section 806(b) is a severability clause. Under it, if a provision of the CRA is found to be invalid, the other provisions are not affected by that finding. And if the CRA's application in a particular case is found to be invalid, that doesn't affect its application in other cases. In other words, Congress intends that such invalid provisions or applications be severable from the other provisions and other applications.

And that's it! If you have any questions about the Congressional Review Act, please leave them in the comments below and I'll try to answer them. Otherwise, I hope you've found this series informative. I'll be back with a post on a completely different topic on Sunday, so please look forward to that.