The time to review and kill hundreds of rules under the CRA has not yet begun

The first part of a recent article in The Hill began like many others, suggesting that the window was “closing for Congress to roll back Obama-era regulations” under the Congressional Review Act (CRA). It focused on the approaching deadline for Congress to vote on CRA joint resolutions of disapproval that were introduced to kill Obama’s worst “midnight” regulations. In the first three months of the new administration, Congress and President Trump have killed 13 misguided, burdensome, and job-killing regulations that were sent to Congress near the end of Obama’s tenure.

Humorously, those who never met a regulation they didn’t love are conflicted in their criticism of these 13 laws. In one breadth, they decry how terrible it is that these “popular” rules were killed (by representative branches that apparently didn’t know or care how popular they are). In the next, they insist that it is no accomplishment to reduce the self-inflicted wound on our economy and job creation that 13 laws achieved.

The CRA provides expedited procedures that suspend the filibuster, making it easier to enact these laws, but that has nothing to do with their substance. The 13 laws now forbid the respective agencies from ever issuing a “substantially similar” regulation like those disapproved again without subsequent authorization in law. Is Trump derangement syndrome so strong that is suspends ordinary logic? Are these acts substantively insignificant (in which case, they aren’t worth complaining about) or are they impactful (in which case, we can debate their merits)?

Regardless, the article quoted some who were looking forward to when Congress could no longer used the CRA to review agency rules. But the last section of The Hill article noted that “some groups are arguing that Republicans have yet to fully exhaust the CRA.” In particular, a “coalition of groups led by the Pacific Legal Foundation (PLF) claims that Congress can still use the CRA to repeal rules going back to 1996.” Yes, our influential and growing coalition at RedTapeRollback.com claims that. Because it is true.

No older rules have been sent to Congress yet by the Trump Administration, but there are good reasons for that, including reserving valuable House and Senate floor time for Obama’s midnight rules that were sent to Congress last year and early January and because the Administration is still staffing up. But I’m confident our “claim” will soon be tested and that it is unassailable—in part because it has been set forth in popular and scholarly form and no one has been able to refute it.

The first issue that emerged after our theory was explained by Kimberley Strassel in her January 26 WSJ Potomac Watch column is whether there were many significant rules that were never sent to Congress. PLF and our partner organizations at RedTapeRollback.com have already uncovered many hundreds in a few months since we started looking. Brookings Institute scholars recently identified 348 “significant” rules that were not sent to both Houses of Congress and GAO as required under the CRA—but that excludes three larger categories of rules. In particular, the Brookings study only examined significant rules published in the Federal Register and not sent to Congress or GAO, but many more significant rules required to be sent under the CRA were never published in the Federal Register. The Brookings scholars don’t understand why the failure to send significant rules not published in the Federal Register is important, but even 348 “significant” rules is a lot.

The most important remaining question is how the CRA, with its time-limited suspension of certain normal congressional procedures, could apply to rules that were originally published years ago. An examination of the statute, however, confirms that the first sentence of the CRA provides that “Before a rule can take effect” the issuing agency shall formally submit it to each house of Congress and GAO.  So even if the rules were thought to be in effect before delivery to Congress, they weren’t lawfully in effect.

Beyond that first sentence, however, there are various carefully calibrated time periods in the CRA that do not commence until the rule is formally delivered to Congress. One critical “clock” is the time period when Members can introduce a joint resolution to disapprove a rule, which doesn’t begin until the agency formally submits it to Congress. Torture the text as you may, it’s impossible to conclude that the time to introduce a joint resolution to disapprove a rule can expire before that time period commences. Moreover, the suspension of certain Senate rules is tied to the later date of publication (if publication is required by some other statute) and submission of the rule to both Houses of Congress and GAO. As a matter of simple logic, the later of two events cannot occur if only one (publication) has taken place.

Paul Larkin was the first to publish a thorough and careful explanation of why the expedited procedures to kill a covered rule under the CRA did not commence until it was formally submitted to Congress. We featured his scholarly paper prominently on our RedTapeRollback.com site. It was also discussed at length at a Heritage Foundation public event that was covered by the press, the video of which remains on Heritage’s event archives. The editorial board of The Wall Street Journal examined it and credited Paul’s and my conclusions in two of its editorials on March 1 and April 17.

And to my knowledge (since January 26 or any other time), no respected legal scholar has published anything anywhere to dispute it, except for a casual statement that it can’t be so, which is more wishful thinking than analysis!

Below is my own summation of the four reasons why the CRA special review procedures cannot run or expire before rules are submitted to Congress. Readers are invited to go on line and print the text of the CRA. Compare the analysis below to the Act’s text and you’ll then know why the agency’s failure to submit rules to Congress as the law requires will have consequences—and why the time to review and kill many hundreds of rules not previously sent to Congress under the CRA has not yet begun.

Four Reasons Why the CRA Special Review Period Cannot Run or Expire Before Rules Are Submitted to Congress

1. Almost every trigger date in the CRA begins on the later date of publication (if required) or submission to Congress. The CRA recognizes that publication of a rule is not always required, but formal submission to Congress is.  The deliberate choice of the drafters of the CRA to make so much turn on the “submission” of rules to Congress and to separately define the “submission date” in the section on special Senate procedures cannot be satisfied by publication alone or the passage of time.  Among other things:
   1. MOCs cannot introduce resolutions of disapproval on rules not submitted to Congress, even if they were published in the Fed. Reg. or on the agency website. 802(a) defines the “joint resolutions” that are subject to special procedures as those introduced “in the period beginning on the date on which the report referred to in section 801(a)(1)(A) [that contains the rule] is received by Congress and ending 60 days thereafter.” That date is not at all affected by publication. It is illogical to conclude that the legislative review period can ever precede the time when Congress can introduce a resolution of disapproval.
   2. The period for special procedures in the Senate to consider a resolution of disapproval in section 802 are tied to the “submission or publication date” of the rule, but that is a defined term earlier in that section. Section 802(b)(2) states (with emphasis added) that it is later of the two events:

For purposes of this section, the term “submission or publication date” means the later of the date on which—

(A) the Congress receives the report submitted under section 801(a)(1); or

(B) the rule is published in the Federal Register, if so published.

Something can’t be the later of two events if one event has not occurred. Moreover, the joint resolution definition and the provision defining the period of special procedures to consider it have a quite logical connection and consistency in the CRA.  In both subsections of 802, the clock cannot commence until the rule is formally submitted to Congress. Conversely, publication alone is never sufficient.  Once a rule is sent to Congress, even if it was published years ago, a joint resolution can only then be introduced to disapprove it and special procedures exist for 60 legislative/session days after that submission date.

2. If the CRA’s expedited review period could expire before an agency formally submitted a rule to Congress, contrary to the CRA’s text, it would destroy the CRA. That would be an absurd interpretation even if the text was ambiguous, but the opposite interpretation is crystal clear. The CRA was codified as chapter 8 of the APA, and as such, it was intended to play a crucial role in administrative law reform. The submission requirement is not primarily about notice of the rule’s existence, so “constructive notice” that a rule was published is not adequate. Formal submission is required in the CRA for many important reasons:
   1. One key provision is the Act’s first sentence: “Before a rule can take effect,” the issuing agency “shall” submit a short report on it to each House of Congress and GAO. That first sentence makes the rest of the statute work, and it protects regulated parties from enforcement of a rule that is not submitted to Congress. If its plain meaning is ignored and non-submission to Congress is excused, that will effectively gut the CRA.
   2. Members of Congress cannot “pull in” rules not submitted to Congress by the agencies and introduce joint resolutions to disapprove them. Yet Congress could not perform its oversight function under the CRA if an agency could publish a rule and somehow wait for the congressional review period to expire before submitting it to Congress.
   3. Congress wanted GAO’s help to evaluate all rules, and it required a GAO report on major rules. The CRA, § 802(a)(1)(B), requires agencies to provide GAO additional information on all rules, whether major or not, which Congress could consider as it reviews the rule. The onus is on the agencies to provide all the materials required in both subsections 801(a)(1)(A) and (B) “[b]efore a rule can take effect,” not for GAO to hunt for rules the agency may have published and then beg for information on them—while Congress’s special review period is ticking away.
   4. Under the broad definition of a rule chosen for the CRA, § 804(3), many covered rules are never published in the Fed. Reg. The legislative history of the CRA is clear that the sponsors chose the broad definition specifically to address the agency practice of evading notice-and-comment procedures through the use of guidance documents and the like. That major purpose of the act, to require submission to Congress and shed light on what Wayne Crews calls “regulatory dark matter,” would be defeated if non-submission was excused after some time period.
   5. No one likes their work reviewed, but agency bureaucrats are especially resistant, as one prominent Politico story revealed when Congress used the CRA to overturn a streambed rule in February. There would be a strong incentive to send far fewer rules to Congress if, by not doing so, the review period could be evaded. Any interpretation creating that incentive would destroy the CRA—even the manner that it has been used the last few months. 

3. An interpretation of the CRA that allowed the special procedure clock to be triggered by publication or any means other than submission to each House and GAO would be atextual and unworkable. Congress required certainty for something as important as suspending normal House and Senate rules, and it wanted that time period to be easily ascertainable by events in the House and Senate, not external events. The many reasons Congress chose to require submission of a report to trigger CRA review would be defeated if non-submission is excused:
   1. Some of the information required to be sent on a rule in section 801(a)(1)(B) is not contained in Fed. Reg. publications, including the actual cost/benefit analysis. If publication can trigger review, the additional requirements of 801(a)(1)(B) would be defeated.
   2. As the text of the CRA notes when defining “submission or publication date,” publication in the Fed. Reg. is not required for many rules covered by the CRA. If generic publication satisfied the submission requirement and triggered CRA expedited review, that triggering event or date would be highly uncertain. Would it be triggered by the appearance of a Dear Colleague/Regulated Party letter on the agency website? Upon delivery to the regulated parties? What if the rule was also incorporated in an earlier FAQ on the agency website? What if it was contained in a speech by the agency head?  What if that speech was delivered to Congress, perhaps in Congressional testimony? The list of alternatives would be long, uncertain, and unworkable. Besides, the agencies could then engage in all sorts of tactics to claim that the rule at issue was really published in some obscure manner many months ago, and thus, Congress’s expedited review procedures had expired.
   3. After submission of each rule report to each House under 801(a)(1), it must be forwarded to the chairman and ranking member of the relevant standing committee with jurisdiction over the rule’s subject matter. If submission is not the trigger for the review clocks, would Congress hire staff to forward every agency statement they can find? Who would rule on the sufficiency of that process?

4. The CRA does not include a statute of limitations provision that would deny Congress the opportunity to review a rule that was published in the Federal Registerand has supposedly taken effect but has not yet been submitted to Congress.  Congress adds statutes of limitations frequently when creating a private right of action, but it rarely adds them to limit its own oversight power.  “Statutes” of limitations did not exist at common law and should not be read into or implied to limit Congress’s oversight power.
   1. If there has been reliance, whether modest or extensive, on a rule that was not submitted to Congress, the political branches will take that into account in deciding whether to kill the rule, but the agencies have no excuse to rely on their own failure to submit a rule to Congress to defeat appropriate congressional review when that rule is later submitted.
   2. Private actors could have confirmed on GAO’s public database and public databases for the House and Senate whether a rule was submitted before they complied, and in the future, they have even more reason to do so—but only if the CRA’s text is enforced. Private actors who want Congress to review and disapprove the rule have reliance interests in the text of the CRA, and there is no way to satisfy that interest short of giving the CRA’s text its original public meaning.
   3. No one will be able to rely on the CRA review periods if submission date triggers are not respected. That will lead to greater uncertainty, especially if the alternative rule is unclear.