The Congressional Review Act: Dealing With a Missing Rule

This post is part four in a series of posts about the Congressional Review Act (CRA), 5 U.S.C. §§ 801-808. Part one provided an overview of the Act and its special definitions. Part two discussed the CRA's requirements for federal agencies and their rules. Part three summarized the procedures used by Congress in enacting a joint resolution of disapproval under the Act. This post discusses two possible solutions to the problem of agencies failing to submit a report to Congress under the CRA.

As discussed in part two of this series, though the Congressional Review Act ostensibly requires agencies to submit reports about their rules before they can take effect, the Act doesn't include any penalties for agencies that fail to do so. In fact, the CRA lacks any enforcement mechanism whatsoever for that requirement. As a consequence, up to 30% of agency rules that are subject to the submission requirement of the CRA are never reported to Congress, including at least a handful of major rules (PDF). Short of amending the CRA to add an enforcement mechanism, Congress has at least two options in dealing with missing reports, discussed below.

Option 1: Deemed Submission

The Congressional Research Service (CRS) FAQ I've linked to before (PDF) is the source of the first potential solution to the problem of missing agency reports. There, the CRS notes (footnotes omitted):

Congress may still be able to utilize the CRA even if an agency fails to submit a rule. In the past, when a Member of Congress has thought an agency action is a rule under the CRA, the Member has sometimes asked [the Government Accountability Office (GAO)] for a formal opinion on whether the specific action satisfies the CRA definition of a "rule" such that it would be subject to the CRA's disapproval procedures.

. . .

Members have had varying degrees of success in getting resolutions recognized as privileged under the CRA even if the agency never submitted the rule to Congress. It appears from recent practice that, in these cases, the Senate has considered the publication in the Congressional Record of the official GAO opinions discussed above as the trigger date for the initiation period to submit a disapproval resolution and for the action period during which such a resolution qualifies for expedited consideration in the Senate.

The CRS cites 11 GAO opinions on whether certain agency actions qualify as rules under the CRA, including one (PDF) regarding a memorandum issued by the Department of Health and Human Services. That opinion was requested by Senator Orrin Hatch (R-UT) and Representative Dave Camp (R-MI). A week after receiving the GAO opinion that the memorandum was a rule under the CRA, Representative Camp introduced a joint resolution of disapproval, H.J. Res. 118, which passed the House on September 20, 2012, and Senator Hatch introduced a companion resolution in the Senate, S.J. Res. 50. The Senate acted on neither resolution, other than referring Senator Hatch's resolution to the Senate Finance Committee. Nonetheless, Senator Hatch argued that the CRA's expedited procedures would apply to his resolution in the Senate:

On September 4, 2012, the GAO responded to an inquiry from Ways and Means chairman Dave Camp and me.

They determined that the July 12 information memorandum was a rule that should have been submitted to Congress. GAO further found that as a rule, the information memorandum was subject to the Congressional Review Act. The Congressional Review Act provides Congress with an opportunity to review and, where appropriate, disapprove rules issued by the executive branch.

. . .

The Congressional Review Act also provides for fast-track consideration of a resolution of disapproval when a Senator has secured at least 30 Senators on a discharge petition. That means no filibuster. I am pleased to report that I have well over 30 signatures on the discharge petition. Unfortunately, this expedited process does not kick in until later this month.

This method has never been used to overturn a rule under the CRA. Worse, it requires ignoring the text of the CRA, which provides for expedited procedures only for joint resolutions introduced within 60 days of continuous session of an agency's submission of a rule report. While the Senate can ultimately do as it pleases when it comes to its own rules, a better solution to the problem of missing agency reports is available.

Option 2: Late Submission

The second potential solution has been proposed by Todd Gaziano, senior fellow in constitutional law at the Pacific Legal Foundation (PLF). Gaziano, who helped draft the Congressional Review Act, argues that it's possible for Republicans in Congress, working together with President Donald Trump, to overturn any rules for which no report has been submitted, including rules promulgated as far back as 1996, when the CRA was first enacted. In a January Wall Street Journal article, journalist Kimberley Strassel wrote about Gaziano's proposal:

The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. . . .

But what Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. . . .

Here's how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a "report" on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report -- whichever comes later.

"There was always intended to be consequences if agencies didn't deliver these reports," Mr. Gaziano tells me. "And while some Obama agencies may have been better at sending reports, others, through incompetence or spite, likely didn't." Bottom line: There are rules for which there are no reports. And if the Trump administration were now to submit those reports -- for rules implemented long ago -- Congress would be free to vote the regulations down.

PLF has established to crowdsource efforts to locate rules for which no report was ever submitted.

Gaziano's proposal, which PLF refers to as "CRA 2.0," is more consistent with the text of the CRA than is the solution described above by the Congressional Research Service. Rather than ignoring the definition of "joint resolution" in the CRA and deeming a GAO letter to be an agency report, Gaziano's solution relies on that definition.

Even so, as Strassel wrote in her Wall Street Journal article, "[t]he accepted wisdom in Washington is that the CRA can be used only against new regulations," and it's not clear yet if Congress or the president are interested in challenging that understanding.