The Volokh Conspiracy
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Could Congress Use the Congressional Review Act to Expand Agency Authority?
Two professors have proposed using the CRA to authorize agency actions and avoid the filibuster. Would it work?
The Congressional Review Act (CRA) provides a mechanism for the quick repeal of agency regulations with which Congress disagrees. In an op-ed and new paper, two Harvard Law Professors, Jody Freeman and Matthew Stephenson, argue that Congress could use the CRA to authorize new regulatory initiatives. They argue, in effect, that the CRA's deregulatory mechanism may be used as a substitute for affirmative legislation. I have no problem with the argument that text controls over abstract legislative purpose, but I am not convinced their proposal is consistent with either (nor is Adam White, who discusses the proposal in this Notice & Comment post).
Enacted in 1996, the CRA creates an expedited procedure for congressional repeal of recently adopted regulations through the passage of a joint resolution in both houses of Congress. Among other things, CRA resolutions are not subject to filibusters or extended floor debate, and final votes cannot be blocked by the Senate leadership. So if one party controls both houses of Congress—even by a single vote—CRA resolutions can be adopted on a party-line vote.
Because CRA resolutions are legislation subject to bicameralism and presentment, the CRA has primarily been used to repeal regulations adopted by the prior administrations at the beginning of a new presidential term. It was used once in 2001 to repeal a Clinton labor regulation. It was used extensively in 2017 to undo Obama Administration regulations. And it was used three times this year to repeal Trump Administration rules. Also relevant, once a resolution of disapproval is adopted, agencies are barred from repromulgating the disapproved rule or adopting a new rule that is "substantially the same" as that which Congress rejected.
Professors Freeman and Stephenson argue the CRA creates a mechanism whereby a legislative majority could (with executive branch cooperation) authorize agency initiatives, such as the Deferred Access for Childhood Arrivals (DACA) program or CDC eviction moratorium, that might otherwise face problems in court. Specifically, what they propose is the following (from their abstract):
When the agency, the President, and congressional majorities agree on their preferred interpretation of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step maneuver: First, the agency promulgates an interpretive rule that construes the statute to have the opposite of the meaning the agency actually wants—for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. Next, Congress and the President use the CRA to disapprove that interpretive rule—thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This double-negative maneuver would be a lawful way for the executive and legislative branches to clarify, or even to change, statutory law in a manner that bypasses the filibuster and other legislative roadblocks
In other words, their idea is to create a mechanism whereby Congress approves of a particular agency action by disapproving its opposite. Could it work? Perhaps.
Having written about the consequences of legislative dysfunction, I am all for creative ways to induce Congress to legislate. (Chris Walker and I have our own proposal in this regard.) But I am not sure this approach actually works.
Because CRA resolutions are legislation, Professors Freeman and Stephenson argue that, by rejecting a disfavored or "erroneous" agency interpretation of a statute, Congress can use the CRA to enact its preferred interpretation of a statute. In effect, Congress can use the CRA to amend a statute without having to worry about filibusters or the various vetogates that prevent the enactment of substantive legislation.
One immediate question about this approach is whether it properly characterizes the effect of a CRA resolution. By the express terms of the CRA (and resolutions of disapproval eligible for the CRA's expedited procedures), the consequence of a CRA resolution is that the disapproved rule "shall have no force of effect." In other words, when a CRA resolution is adopted, it nullifies the disapproved agency action, restoring the prior legal baseline. It is as if the agency action had never occurred, with the caveat that agencies are not allowed to re-issue the disapproved rule or its equivalent. In this respect the CRA is purely procedural. That's why it's called the Congressional 'Review' Act, not the Congressional 'Amendment' Act.
What Freeman and Stephenson are proposing is quite different from restoration of the pre-rule baseline, however. Rather their suggestion is that the mechanism can be used to alter the legal baseline by rejecting a disfavored statutory interpretation so as to enact its opposite. This seems dicey both because it seems to ignore the relevant operative language – "shall have no force and effect" – and because it requires reading into a CRA resolution a legislative action not spelled out in the text. For those judges wary of finding "elephants in mouseholes," Freeman and Stephenson's double-negative bankshot approach to expanding agency authority would likely be a stretch.
The Professors address this problem by noting that the CRA, by its terms, applies to non-legislative rules, such as interpretative rules, and that a resolution rejecting a disfavored or erroneous statutory interpretation should be understood as legislative endorsement the interprtation's opposite. After all, the resolution would bar the agency from ever again adopting the disfavored interpretative rule without express congressional approval, so this would seem to indicate that the statute should not be interpreted as it would have in the disfavored rule. In other words, were the CDC to issue an interpretative rule providing that the CDC lacks the authority to issue an eviction moratorium, congressional disapproval of that interpretative rule would, in effect, legislate the opposite, confirming the CDC has such authority, and barring the CDC from ever concluding otherwise.
It should be immediately apparent that this approach departs from the baseline-restoration model embodied in the CRA's operative text. In addition, I share Adam White's concerns that Professors Freeman and Stephenson are too quick to assume that such an interpretative rule would be eligible for CRA disapproval, or that disapproving such an interpretative rule would have the desired effect.
Professors Freeman and Stephenson are quite confident that the CRA may be used to reject interpretative rules, guidances and other non-legislative rules, and cite the statute's text and legislative history to this effect. Yet they ignore what the legislative history and broader legal context have to say about why the CRA was intended and interpreted to have this broad scope.
By its terms, the CRA prevents rejected rules from having "force and effect." At the time the CRA was adopted, non-legislative rules often had "force and effect" because courts would often grant Chevron or Seminole Rock deference to agency interpretations embodied in interpretative rules, guidance documents, and other non-legislative rules. Further, just because an agency labeled something as a guidance or interpretative rule (or "Dear Colleague" letter, or whatever), did not mean it would not be used to impose obligations on regulated entities, or that regulated entities would have a viable means of challenging such claims..
As noted in the CRA's legislative history (which the authors cite for the proposition that interpretative rules are covered), the law's sponsors were concerned that some agencies were prone to use interpretative rules, guidances, and policy statements as a way to impose new legal requirements without having to comply with Administrative Procedure Act's procedural requirements. This was a real concern at the time because the CRA was adopted in 1996, before United States v. Mead (which constrained the application of Chevron deference to agency interpretations not embodied in legislative rules) or any of the cases curtailing the application of Auer/Seminole Rock deference. As a consequence, regulated entities often found themselves bound by agency interpretations that were not embodied in legislative rules.
The same portions of the legislative history that say interpretative rules may be subject to resolutions of disapproval explain that the CRA adopted a broad definition of rule to discourage agency circumvention of the APA's procedural requirements by making clear that Congress could act to ensure that such non-legislative rules would be denied any force or effect. But it is not clear how one gets from this understanding of the CRA to the idea that Congress can enact a new interpretation of an existing statute by rejecting an interpretative rule that would otherwise never had had any force or effect of its own.
As already noted, a CRA resolution provides that a targeted rule has no force and effect. So how does this apply to, say, an interpretative rule, adopted without notice and comment, that has no force and effect in the first place? Freeman and Stephenson offer one possibility: The opposite of the rejected interpretation is now what the underlying statute means. An alternative (and, in my view, more plausible) possibility is that the resolution merely serves a prophylactic purpose, ensuring that no future court mistakes the interpretative rule as representing an agency interpretation to which courts must adhere, and no agency seeks to embody the rejected interpretation in a future legislative rule. Understood this way, a CRA resolution would simply maintain the prior baseline, as CRA resolutions generally do. But it would be quite incongruous if the effect of such a resolution, rather than restoring or maintain the pre-action baseline, was rather to delegate new swaths of power to an agency.
Faced with this scenario, I could see judges instead adopt the simple presumption that the CRA resolution did what it said, rendering the prior agency action a nullity, and leaving the relevant legal question (does agency X have authority to take action Y) the same as it would have been had the agency never acted. So, for example, if the CDC issued an interpretative regulation claiming the statutory authority to issue an eviction moratorium, and Congress used the CRA resolution to reject it, some courts might simply conclude that this reaffirms that the ultimate judgment about the scope of the CDC's authority is left to the courts interpreting the statute in the first instance, as the resolution of disapproval would reaffirm that the previously enacted statute controls. And while a court might find the passage of such a resolution probative of the underlying statutory question, it would not be bound by it.
Freeman and Stephenson's approach also presumes that the rejection of an agency interpretation through the CRA necessarily enacts its opposite. But this assumes a simple binary that may not always reflect the range of choices faced by the agency. In their paper, they suggest this problem can be addressed by carefully crafting the interpretative rules they would have Congress reject, and this may well be sufficient in some circumstances, but it will not always work. Disagreement with the underlying statutory interpretation is not the only reason Congress might wish to reject an agency rule.
Does any of this matter? As Freeman and Stephenson note, whether a resolution is eligible for the CRA's procedures is a question that will be answered, in the first instance, by the Senate Parliamentarian. Thus a determined legislative majority could push ahead with this strategy (overruling the Parliamentarian if necessary). Further, it is unlikely any court will disturb such a judgment, as courts generally accept the legislature's representation that a given bill complied with the relevant legislative rules and the CRA expressly limits judicial review of the disapproval process. But, as the above suggests, there may still be some question as to how courts interpret the substantive effect of resolutions of disapproval on preexisting statutes and subsequent agency action. I am not convinced courts will unhesitatingly accept the claim that using the CRA this way has the effects Freeman and Stephenson suggest, at least not in all cases.
I should be clear that the problem is not the use of the CRA for a pro-regulatory purpose. That can certainly be done, as it was with the methane rule. When Congress used the CRA to reject the Trump EPA's methane rule, this had the effect of reinstating the Obama EPA methane rule (and barring a future administration from re-adopting the Trump approach or its equivalent). In other words, it restored the prior baseline. It did not, however, cement the Obama methane rule in place, nor will it prevent a future administration from adopting a new methane rule that adopts a different regulatory approach. It also did not, by its terms, insulate the Obama rule from legal challenge (though it may well be too late for any such challenge to be made).
The issue with the Freeman-Stephenson proposal is not that it could be put to a pro-regulatory use, but that it seeks to use CRA resolutions to alter baselines, rather than to restore them, and that is in tension with the CRA's text and purpose . Of course, if the CRA were to be used this way, there is no doubt Republicans would follow suit at their next opportunity. These sorts of innovations, once successful, tend to be replicated.
Finally, I share Adam White's concerns about whether the use of the CRA this way is consistent with the faithful execution of the laws, by either Congress or administrative agencies, but these concerns are more a matter of prudence and constitutional norms, not what political actors might get away with. Such concerns do not speak to immediate practical effects, but they are serious concerns nonetheless.
In any event, those who are interested in these questions should, of course, read the paper.
