Deep Dive Episode 161 – Congressional Review Act: First Branch Gets the Last Word

[Music]

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon, January 25, we discuss the Congressional Review Act. My name is Evelyn Hildebrand, and I am the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us Susan Dudley, who will be moderating today’s event, and Mr. Todd Gaziano.

 

Susan Dudley is Director of the George Washington University Regulatory Studies Center and Distinguished Professor of Practice in the Trachtenberg School of Public Policy & Public Administration. She chairs The Federalist Society’s Regulatory Transparency Project Regulatory Process Working Group, is a Senior Fellow with the Administrative Conference of the United States, and a past President of the Society for Benefit Cost Analysis. She served as the presidentially appointed administrator of the Office of Information and Regulatory Affairs from 2007 to 2009.

 

After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

 

With that, thank you for being with us today. Ms. Dudley, the floor is yours.

 

Prof. Susan E. Dudley:  Thanks, Evelyn. I’m pleased to be joined today by Todd Gaziano, who is the Chief of Legal Policy and Strategic Research at the Pacific Legal Foundation.

 

In his legal career, Todd has held positions in all three branches of government, including as a Commissioner in the U.S. Commission on Civil Rights. Particularly relevant, I think, for our conversation today, he was Subcommittee Chief Counsel for the House Regulatory Reform Subcommittee. It was chaired by Federalist Society founder, David McIntosh, in the mid- [inaudible 00:02:12].

 

In that role, he served as a principal drafter of the final Congressional Review Act, CRA, text and its joint legislative history for both chambers of Congress. He’s continued to [inaudible 00:02:29] testify about and litigate CRA issues, especially the last four years.

 

Before I turn to Todd, just some quick background on the Congressional Review Act. As you know, it was passed in 1996. It provides expedited procedures by which Congress consents joint resolution disapproving a recently issued regulation to the president. It was used once in 2001 when the Republican Congress [inaudible 00:02:59] the Clinton administration ergonomics rule.

 

It wasn’t used to disapprove another rule until 2017 when the 116th Congress and President Trump used it quite aggressively to disapprove 14 rules issued towards the end of the Obama administration. It’s been used twice more since then in circumstances that I think we can discuss in a minute.

 

Todd, can you start by telling us a little bit about the motivation for the CRA back in the 104th Congress? I wonder, did the sponsors view it then as a tool for overturning midnight regulations, which is sort of what it’s come to be seen as now?

 

Todd F. Gaziano:  Sure. Thank you for that introduction. Can you hear me? My mic was muted and unmuted.

 

Prof. Susan E. Dudley:  Yes.

 

Todd F. Gaziano:  Okay. Very good. I want to clarify one tiny bit regarding that introduction. I wouldn’t normally relate some of my detailed involvement in the CRA itself except that David McIntosh was always very gracious and encouraged me to do so to promote it generally. For the record, I supported it 25 years ago, I supported it four years ago, and I support it now whether we like individual uses of it or not.

 

Directly to your question, I don’t think they thought the use to deal with midnight regulations in a change of administration was the main purpose. I think they had four other purposes in mind. Many of them are discussed in the legislative history.

 

I’ll also mention that it was a bipartisan bill. David McIntosh was the principal House sponsor, but Harry Reid was one of the Senate sponsors along with Senator Nickles and Senator Stevens. They all wanted to increase congressional accountability for the rulemaking that they had delegated to the executive branch.

 

Some of the other purposes besides midnight regulation use are that they really wanted their colleagues in Congress to see how many rules were being issued. There are different versions of the CRA that would’ve required only significant rules to be delivered to Congress, and they opposed that for two reasons. One, they didn’t necessarily trust the determination of what was significant and what was insignificant, but they also wanted Congress to see the whole body of regulations that were being issued. So that was one purpose.

 

Another purpose was that by requiring rules also to be submitted to GAO, they thought there can finally be a centralized database of rulemaking that both GAO and other scholars could study. That purpose really has been well served.

 

A third idea they had was that it might give Congress and the president a little bit more control over independent agency regulations, and that has come to pass in the last two resolutions of disapproval in the last couple of years. But you may know — well, I know you know, Susan, but many listeners may know that most so-called independent agencies don’t run all of their rules through the OIRA process.

 

But interestingly enough, in the spring of 2019, President Trump issued an executive order that required them, pursuant to the CRA, to submit their rules to OIRA at least with regard to the major rule determination in the CRA.

 

But the idea as far as the disapproval would be is that these independent agencies would still have to send their rules to Congress, and if Congress disapproved an independent agency’s rulemaking, the president might be more willing to sign that resolution.

 

The final idea is that Congress thought the president might not veto every single rule that was disapproved even if it was issued by his or her own agencies, and there might be a couple reason for that, one of which is that the agencies sometimes claim that they have to issue a particular rule under the statute that Congress passed and that the president seemingly has no responsibility. But if Congress has disapproved that rule, then that gives the president an out, and he either needs to own the rule or he would sign the resolution. That would, in effect, change the underlying statutory mandate or amend it in some cases.

 

Finally, it’s possible, at least they thought if Congress used the law that a president might change his or her mind, might well approve the disapproval of a rule, sort of second thought or as a matter of political accommodation. So, they did have the midnight rule situation in mind as well, but I think that was a minor one.

 

Prof. Susan E. Dudley:  So why do you think it has become a midnight regulation tool? And why was it used successfully only once from 1996 to 2017?

 

Todd F. Gaziano:  Well, that was the ergonomics rule in 2001 that Congress and President Bush vetoed. Let me answer the question why wasn’t it used from ’96 to 2017 except once. I have no idea. And that’s a great question. But there are many of us who were frustrated. I know the sponsors, all of them—Senator Nickles, Harry Reid. One thing about Harry Reid, did he have second thoughts about it? He retired in 2016 when there was a lot of talk about Trump using the CRA to overturn a lot of Obama rules, and he gave a floor speech where he noted the CRA is one of his proudest legislative achievements. So, I really don’t know.

 

But the fact of the matter is it got a lot of publicity in 2017. A lot of news reports then said it was an obscure law. I’m not sure that denigrates that it was obscure, but it’s obscure no more. I suppose one reason why it’s at least been used mainly in the midnight situation is we heard four years ago that Senate floor time was still so precious and dear even though there’s limited time for debate. Even though the time for debate on the resolution of disapproval is limited, it’s still dear and I think members of Congress still don’t want to take responsibility for a lot of rulemaking.

 

I think, as Congress becomes more familiar with the process, many of us, we still hope it is more than just a midnight rule mechanism. But its authors did understand the bicameralism and presentment requirement [inaudible 00:11:03] from the Constitution, and it does require a president’s signature.

 

Prof. Susan E. Dudley:  And, in fact, there have been disapprovals by one house that didn’t become a joint resolution because both houses didn’t pass it. Also, there were at least a small handful that did reach maybe President Obama’s desk—I’m not sure of others—and he vetoed them.

 

But, as you alluded to earlier, after the flurry of resolutions in 2017, there have been two more recent ones that were a bit different. They weren’t midnight rules. Can you talk about those?

 

Todd F. Gaziano:  Sure. And they were both from an independent agency, CFPB, and they present very different types of rules and precedents, but they do at least show one or two of these additional uses of the CRA.

 

The first was a CFPB rule that was issued when Richard Cordray was still director, and you remember Cordray was appointed by Obama, so he was sort of a holdover in an independent agency. The then-Republican-controlled Congress, both the House and the Senate, wanted to overturn of their rules on — I’m trying to remember the distinction between the two. One was on auto lending, but the —

 

Prof. Susan E. Dudley:  The one was arbitration agreements and the other was the auto lending. Yeah.

 

Todd F. Gaziano:  Yeah, the first one was the arbitration agreements, and Congress passed it within 60 days of it being sent to Congress even though that was in December of 2017. Oh, I’m sorry. November of 2017.

 

But the last one was a rule on indirect auto lending that was actually issued by CFPB. It was a guidance document issued in 2013. So, it was many years later, five years later, that they disapproved it.

 

There’s 60 days under the normal congressional review period to use the expedited procedures. So how did that work? Well, the CFPB never sent the rule to Congress, and the clock doesn’t start ticking until Congress receives it. I think the simple way that they could’ve proceeded is — eventually, Mick Mulvaney took over CFPB, and he should’ve actually physically sent over that rule. I think he was in charge at the time that 2013 guidance document was overturned.

 

But, in fact, the Senate used a procedure that I questioned, but they simply asked GAO whether the rule should have been issued or sent to Congress, whether it was a covered rule. GAO issued an opinion which GAO opinion in the affirmative was entered in the congressional record and Congress deemed the rule to have been submitted on the date that the GAO opinion was entered into the congressional record.

 

Now, there is no judicial review of Congress’ procedure. There are unresolved issues about judicial review that Pacific Legal Foundation is helping to litigate, but I think we all agree that when a majority of both houses of Congress pass a resolution and the president signs it, that’s called a law.

 

If the Senate, essentially, interprets the law that way, there is no recourse. But the more interesting precedent that I think was established was not using the GAO opinion as a trigger. I think the more interesting one was that it covers so-called guidance documents and that old rules that had not previously been submitted to Congress are not immune. They’re not immune until they’re either delivered or this GAO opinion process is undertaken.

 

Prof. Susan E. Dudley:  Well, that leads me — could you — the mechanics, it’s a little bit arcane, and people, I think, don’t understand fully the mechanics. Could you just walk us through the nuts and bolts of how it works?

 

Todd F. Gaziano:  Sure, I’ll try to, but please interrupt me if I am unclear.

 

The first sentence of the act simply provides that no regulation or rule, as defined, can take effect until it’s sent to Congress and published, if other law requires it to be published, but that would be earlier chapters of the APA. No law can take effect, so that’s sort of the triggering mechanism.

 

Then, once it’s delivered to Congress and GAO, there’s some special procedures for rules determined to be major, but as far as resolutions of disapproval are concerned, all rules are equal. Then, Congress has 60 either legislative days in the House or session days in the Senate, which are the same thing, but they use two different terms. They have 60 legislative days, we’ll call them, to introduce and pass resolutions of disapproval. Those resolutions are simple fill-in-the-blank resolutions, and you can only insert one rule at a time, and you just insert the name of the rule.

 

If those kind of resolutions are introduced, then the expedited procedures take effect for 60 legislative days. Those are especially meaningful or effective in the Senate because the Senate normally has a filibuster. There’s a lot of debate about whether to end the filibuster for most legislation, and I, personally, support it for most legislation because I think it requires compromise, and I don’t like ill-considered legislation.

 

But I think there’s a strong argument that the filibuster should not apply for Congress taking accountability for its own rules. That at least was the bipartisan view of the authors. I should remind folks that President Clinton signed the Congressional Review Act.

 

The filibuster doesn’t apply for resolutions in the Senate during that 60-day period. And there are ways in which the Senate committees can be discharged, or the Senate could simply take a resolution passed by the House even if it doesn’t go through a Senate committee.

 

So those are the basic expedited procedures. The House has its own power to limit debate. Oh, I should add one more. Debate on a resolution of disapproval is limited to a maximum of 10 hours divided equally by proponents and opponents, but it can be limited further by a majority vote in the Senate.

 

Those are the basic reasons why a congressional resolution disapproving a rule can go through Congress without a supermajority and without a lot of time.

 

Prof. Susan E. Dudley:  And, then, if the president signs it, then it’s disapproved. If the president doesn’t sign it, it comes back and would need a supermajority to —

 

Todd F. Gaziano:  That’s right. Like any other law, both houses of Congress could override a veto with two-thirds majority.

 

But with regard to the situation Trump was in, and Biden’s in now, where there’s a complete change of where the president’s party is unified in both the House and the Senate and it’s a change of administration, I think the idea is even though it’s limited debate, the House and Senate probably wouldn’t go through the motions unless they have some indication that Biden would sign the resolution of disapproval.

 

Prof. Susan E. Dudley:  Yeah. Let’s maybe look briefly at the current situation. Any rule issued since August 21 would be eligible for disapproval. You can talk maybe a little bit about lookback. By the tally that my colleagues at the George Washington University Regulatory Studies Center, they estimate that there are about 1,500 significant rules that are eligible. Obviously, a lot more than that because, as you pointed out, rules are broader than just those that are considered significant.

 

Talk to us just a little bit about that; about the lookback provision and maybe what you might expect in this Congress.

 

Todd F. Gaziano:  Sure. By the way, I didn’t know it was 1,500 significant rules. That’s an impressive number.

 

Prof. Susan E. Dudley:  Yeah. We actually have a table of them, so you can look at charts and see which agency they come from and actually look at the list.

 

Todd F. Gaziano:  I go to your website a lot, and I recommend it to listeners, but I haven’t gone recently to look at it. I should’ve. But I knew you were going to cover that.

 

Let’s begin, first, with the lookback provision. We discussed earlier how Congress has this limited 60 legislative or session days to consider resolutions of disapproval under expedited procedures. By the way, that period, it’s not magic, but it was chosen, in part, as a compromise between creating uncertainty with regulations and — major rules, for example, are held up for 60 calendar days, which is more than the APA used to provide, to allow Congress a little bit of time.

 

As most listeners also know, any resolution or legislation at the end of a Congress dies and has to be reintroduced. To prevent either accidental or intentional gaming of Congress’ opportunity to review rules is a provision in the CRA that provides that Congress has a new period of review at the beginning of a session if there wasn’t 60 days in the last session. So that’s how the lookback provision is created.

 

Listeners may also be interested—it was something I found on your site some time ago—a paper that examined how far the lookback provision usually carried, and it was usually May or June of the year before an election because Congress doesn’t often meet in October during an election. It doesn’t often meet very much in a lame duck session, but this year it did. This year it did meet a lot in the lame — maybe the pandemic, confirmation of Coney Barrett. The lookback provision was actually later. Your August 21 date is actually later than it normally is.

 

That’s the lookback provision. Oh, yeah, prospects for whether it’ll be used. I remember a lot of activists, years ago, saying that there was a list of 200 rules, at least, that the Republican Congress should overturn. It eventually turned out to be 14 in that four-month period, and I remember there was a debate about whether it should be a dozen, whether it should be — so they were selective.

 

I hear the same sort of suggestions that — there was a Washington Post op-ed about a week ago that the CRA should be used. But there’s a couple of reasons why even this expedited procedure may be used even less than it was four years ago. I’ll try to tick off a few of those.

 

One is they’re still debating how the Senate’s going to operate in the 50-50 split. Second, they have an impeachment trial in the Senate to take on, and the shortest one was the last one. That was 21 days. Biden, I think, has a little bit more of a clear legislative agenda for his first 100 days than I think Trump did. Trump wanted to do a lot, but he didn’t, I think, have a strong legislative agenda four years ago.

 

Lastly, there is a bar that we haven’t talked about yet that I know you know. If you don’t mind me going into that now?

 

Prof. Susan E. Dudley:  Yeah, yeah.

 

Todd F. Gaziano:  If a resolution is disapproved and signed and it becomes law, the agency is barred from ever issuing a rule that is “substantially the same” ever again without new statutory authorization. Well, a deregulatory administration and a deregulatory Congress might not have many concerns about the effect of that bar, which has never been — it’s not defined in the statute.

 

It’s a new term of law, and it’s never been interpreted by a court because there’s only been one rule that was ever disapproved, and it’s a recent rule, that was ever reissued in anything like the same form. That was a rule issued about a year and a half ago that had to do with drug testing for unemployment compensation applicants. And no one’s challenged that, so we don’t know how broad that bar is.

 

A pro-regulatory regulation, a more pro-regulatory Congress might have a little bit more concern. There was some concern about the impact of that four years ago. I just think it could be a little bit larger. It is the case that agencies who want to change regulations will have to go through a rulemaking.

 

President Biden, on his first afternoon ordered that 101 rules be examined by about five cabinet agencies, so they’ve already begun the process of thinking about what they want to do. The CRA is certainly one tool, and it’s one tool that they can use to get rid of the old rule, but they would have to go through another rulemaking if they want to re-regulate.

 

So, there might be the thought that we don’t want to have any sort of restriction in how we redo the rule, so they’ll just go through that process, the normal rulemaking process rather than the Congressional Review Act disapproval route.

 

Prof. Susan E. Dudley:  Right. Yeah, the normal process is a lot slower having to go through notice-and-comment. But that is one of the reasons why I have thought we didn’t see the CRA used in the transition from George W. Bush to President Obama is that while there were regulations they might have wanted to [inaudible 00:27:23] differently than the Bush administration had, they didn’t want the blunt tool of the CRA to revoke them altogether and not let them do something substantially similar that might be the fall of that.

 

Also, I have to correct myself. Fortunately, listening today is my colleague, Daniel Perez, who is the one who’s been developing our database. My number of 1,500 is all rules published in the federal register. When it comes to significant regulations, that’s more like 215. That was a needlessly shocking number that I offered up earlier.

 

Todd F. Gaziano:  Well, you got our attention. Thanks for the correction.

 

Prof. Susan E. Dudley:  I did.

 

Todd F. Gaziano:  But those numbers are still large. You’ve got several hundred, and I don’t think anyone thinks that they’re going to use the CRA for even several hundred. Some of those that weren’t determined to be significant may be of particular interest or disinterest to Congress as well.

 

Prof. Susan E. Dudley:  Well, that’s right because the definition of “significant rules” really only applies to executive branch agencies, so independent regulatory agencies that you talked about, their rules could be quite substantial but still not be called significant.

 

Todd F. Gaziano:  Yeah, and the CRA — one thing I think you may have asked, but I skipped over. The definition of “rule” in CRA is broader than notice-and-comment rulemaking. Explicitly so. The law chose the definition of “rule” from an earlier part of the APA with very few exceptions: some monetary policy decisions, hunting and fishing – there was a strong lobby that hunting and fishing regulations should not ever be held up.

 

There is one more exception that may be meaningful, and that is any rule of agency organization, procedure, and practice that does not substantially affect the rights and obligations of non-agency parties. That’s also a new term in the law, but what it does include are guidance documents. President Trump issued some executive orders limiting the impact of guidance documents, one of which Biden has repealed. So that’ll be an interesting issue for administrative law scholars to begin with.

 

I don’t know whether all guidance documents are captured in your colleague’s database of rules issued in the federal register because some of them might not be issued in the federal register. But they’re still potentially covered by the Congressional Review Act.

 

Prof. Susan E. Dudley:  Todd, I’d like to follow up on something that you mentioned in passing just a minute ago while we wait for callers. You said that the CRA explicitly exempts rules of agency process. Now, I know that recently several agencies, including at least EPA and the EEOC, have issued regulations and stated in the rule that it is exempt from the CRA because it is an agency process rule.

 

I don’t know if I’ve admitted — I haven’t admitted this upfront yet, but I am not a lawyer. My reaction when people raise that with me is that if Congress chooses to disapprove one of those rules even if the agency called it a process rule, who could stop them? Who would have standing to tell them that they couldn’t? I’d love to know what you think about those process rules generally. You don’t have to say anything specific about the ones I mentioned.

 

Todd F. Gaziano:  You’re not a lawyer, but we all know you’re very learned and brilliant in the law, Susan. You phrased the question in a helpful way, and I’ll give the short answer. I’ll frontload my answer and then try to break it down and explain it.

 

No one can stop Congress if it wants to disapprove a rule. The final result will be that if Congress interprets it can use the expedited procedure and a majority in the House and a majority in the Senate vote on the exact same resolution to disapprove a rule and the president signs it, what we call that is a law, and it will be a law.

 

Let me sort of go back, though, to talk about this determination. There are some determinations in the Congressional Review Act itself that the executive branch can make that are seemingly final. The law does specify that the director of OIRA, where you used to fit, makes the major rule determination.

 

I mentioned earlier that major rules have to be, with a few exceptions, there’s a longer period before they can go into effect once that major rule determination is made. GAO has to issue a report on major rules to Congress, so they get a little special attention. No one, I think, can override the OIRA administrator’s determination on whether a rule is major or not, and the legislative history acknowledges that.

 

But there’s no procedure in the Congressional Review Act itself that says the agencies can make these other determinations on rules that are excluded. So that’s one reason to say Congress gets the final say. Now, that doesn’t mean that Congress ought not to respect determinations that the executive branch makes, but Congress can make the final say.

 

One other thing I’ll say about this particular exception — let me read it again for listeners. The CRA does not apply to “any rule of agency organization, procedure, or practice that does not substantially affect the rights and obligations of non-agency parties.” Well, the legislative history discusses that a little bit. It doesn’t add very much, but the legislative history essentially says if the impact on non-agency parties is — actually, let me back up a minute.

 

That first part about exception actually comes from the APA and relates to what is required to go through notice-and-comment. But the additional phrase of that exception—”that does not substantially affect the rights and obligations of non-agency parties”—is new. So that limits the number of rules that are accepted from the CRA that are not required to go through notice-and-comment.

 

As I said, the legislative history doesn’t give a lot of other information. But if it’s truly trivial, the legislative history says, that if it has a truly trivial effect on non-agency parties, then it is exempt from the CRA. For example, if the agency amends who the contact person is to report X or Y, yes, that has some effect on some outside parties, but it’s really trivial. Who cares whether it’s Joe Smith or Jane Doe and it’s this office or that office, right? Or if there’s another sort of technical change: you have to submit it in triplicate or something like that.

 

But the phrase really focuses on rules that are primarily rules of agency procedure also substantially affect the rights and obligations of non-agency parties. I think on some of the rules that I’ve heard that exemption being applied to, I think there’s a good argument both ways. On some I’m a little bit dubious, but again, Congress — it’s the parliamentarians of each house and, ultimately, each house will be free to make that determination.

 

Prof. Susan E. Dudley:  Evelyn, do we have any questions? Because I have more if we don’t.

 

Evelyn Hildebrand:  We do, yes. We have some callers lining up in the queue, so at this time, I’d like to hand the floor over to our first caller.

 

Devin Watkins:  Hi, this is Devin Watkins from the Competitive Enterprise Institute. My question is — the one thing I don’t understand about the CRA is why there’s a 60-day limit. If there’s a majority in both houses and the president don’t like a regulation, it shouldn’t be existing anymore, in my opinion, regardless of when it was issued.

 

Todd F. Gaziano:  If I can just — this is Todd. Thanks, Devin. I can tell you what some of the sponsors were thinking about. I started to explain some of this earlier. There was an idea that if the process was completely open forever, that would create uncertainty and that would upset reasonable expectations.

 

People, particularly people who’ve relied on a rule for years and years and years and invested hundreds of millions of dollars should have certainty, but that there would be a limited period of time in the 60 legislative days, which is sort of the compromise they set up, where Congress’ attention should really be focused on this.

 

There was sort of an incentive for Congress to make up its mind in that period. I would defend that as a matter of theory even today. We could debate what the particular period of time is, but the idea that Congress should have an up or down vote on a regulation once it comes back to Congress.

 

Prof. Susan E. Dudley:  Thanks, Todd. Evelyn, tell us how many we have, too, so we know how short or long the answers can be. If there’s a long —

 

Evelyn Hildebrand:  Absolutely. At this point, I would like to hand the floor over to the next caller.

 

Caller 2:  Thank you for taking the question. It has to do with guidance documents. I assume by that you mean agency guidance and significant guidance. But the question I have is does or do agency inspector general interpretations of department or agency statutory or regulatory implementation and definition, are they covered by the CRA as well?

 

And to put it in context, for example, the January 8, 2021 Department of Education IG memorandum regarding the application of Bostock v. Clayton County on Title IX.

 

Todd F. Gaziano:  Short answer is I think it’s possible, but we can walk through some of that together. I don’t think most IG reports normally would qualify. I should’ve mentioned one other exception because it’s also an exception, in part, to the Administrative Procedure Act. Rules of particular applicability, like letter rulings to individuals, are still rules under the APA, but they’re rules of particular applicability. Rules of general applicability is the starting point for the CRA.

 

The inspector general report you mentioned sounds like it could be a rule of general applicability, and it probably doesn’t fit any of the other exceptions I can think of, but there’s still another question about whether it’s a rule.

 

For example, proposed rules are statements of general applicability, but they’re not final rules; they’re not final agency statements. For a rule to satisfy the Congressional Review criteria, it’s got to be both a rule of general applicability that doesn’t meet one of these other exceptions and it’s got to be a final agency action on that.

 

I’m just not sure. Susan, what do you think? I’d like your thoughts and two cents on this.

 

Prof. Susan E. Dudley:  Well, what I think is I would call Todd Gaziano if somebody asked me that question, so I defer to you. In fact, Todd, I think I did ask you about tariffs within the last few years. Could you tell us — and I think your answer was no, but I wonder if that’s something you might want to comment on whether a tariff would be a considered a rule.

 

Todd F. Gaziano:  I now can’t remember the specific tariff. What I should also respond to the previous caller. I trust his general characterization, but the devils are in the detail of these things, and one thing that is excluded is presidential determinations. It has to be an agency statement. So, I don’t know. There might be some tariff determinations that are made by the president, for example, that wouldn’t be covered under the CRA.

 

Again, there are rules of individual applicability that might not be covered, so I don’t remember. My general presumption is yeah, it’s probably covered because the CRA tried to cover everything, but let’s work backward and see if it fits one of these exclusions. Sometimes, there clearly are some exclusions. I don’t think everything the Board of Governors or the Federal Reserve does is excluded, but some of their monetary policy decisions are, so whether one thing is or is not is going to depend on the details.

 

Prof. Susan E. Dudley:  Okay. Evelyn, do we have other questions?

 

Evelyn Hildebrand:  We do, yes. We have two more.

 

Paul Smith:  Thank you very much. This is Paul Smith. I’m a retired attorney going through the 12 Steps for Recovering Attorneys. Todd, a question for you. Has the existence of the CRA ever been brought up in court proceedings or any pleadings about it adding to the validity the fact that the CRA was not used with regard to a rule? I know there’s an admonition in the law that says that it should not, but those are frequently ignored.

 

Todd F. Gaziano:  I’m familiar with the — hello again, Paul, I should say. You were present at the inception, too, I remember, a quarter century ago almost. I don’t think I know of a court that cited the absence of CRA, and the CRA does provide that it’s not supposed to be used in that way. But I am going to use your question as a slightly different jumping off point to talk about judicial review, if you’ll indulge me.

 

There is a general bar on judicial review of most determinations, and the clearest way that bar works is to prohibit any court from second guessing Congress’ determinations. That really flows from the Rules Clause of the Constitution, too, that each house gets to make its own rules. In passing the Congressional Review Act, they were amending their own rules.

 

But the legislative history discusses two other areas where the bar doesn’t apply. At Pacific Legal Foundation, we’ve been litigating at least one of these. I have to admit the courts are split on whether the judicial review bar is complete or whether it allows — the one area we’ve been litigating is when agencies fail to submit a rule, can anyone litigate that they’re enforcing it? Because remember, the first sentence of the Congressional Review Act says no rule may take effect until it, the rule and a short, concise statement about it is sent to Congress.

 

Well, the legislative history supports us in our litigation. We’ve won in some district courts, and this is my advocate’s way of saying we have the better answer, but the thorough, more well-reasoned opinions all come down to the conclusion that there is judicial review, and I think that’s also the more modern trend.

 

The short, cryptic, one-sentence court determinations say that there is no judicial review even if agency failure to submit rules.

 

The other area where I said earlier it’s unclear whether there’s judicial review, and that is if an agency tried to reissue almost the exact same rule and someone challenged that. Would there be judicial review? No one’s brought that case yet because no one’s challenged the one rule that was reissued. But the legislative history suggests that there has to be judicial review of that.

 

One way of thinking about where there’s judicial review and where there’s not is is there — agency actors for some purposes, there is judicial review, but that’s sort of independent of any action Congress has taken under the Congressional Review Act. That’s just looking at the effectiveness of their rules or not, but it is still an open question.

 

Thank you for letting me go on about a topic I wanted to go on, and sorry I don’t really know the answer to your question.

 

Paul Smith:  No, I appreciate your comments. Thank you.

 

Prof. Susan E. Dudley:  Yeah, thank you, Todd. All right, Evelyn, back to you.

 

Evelyn Hildebrand:  Back to me. We do have one more caller who is in the queue to ask a question. Caller, you have the floor.

 

Caller 4:  Thanks very much for this. This is very helpful. I’m a bit confused about how you tell where a specific rule is in the CRA window and so when a rule takes final effect. What is the best way to tell if a rule has been transmitted to Congress, and why would there be a delay between the time a final rule is published in the federal register and then sent to the GAO and then the time that the rule is received by Congress?

 

Todd F. Gaziano:  I’ll try to answer that question, but there are congressional review service publications that cover this in a little more detail that I would recommend you could find online. First of all, it used to be that agencies were just negligent in sending them to Congress, so there could be big delays.

 

One thing that the executive — actually, I think it was an OMB guidance. I think I called it an executive order. I don’t remember whether it was. I think it was just an OMB guidance issue that required the independent agencies to send their rules to OIRA for major rule review. They also provided guidance to agencies on what is covered. That reminded more agencies that they should be sending them to Congress.

 

So, there was scholarship years ago about agencies’ failure to submit them to Congress, and a couple of us have testified in Congress about that. I hope that has been lessened.

 

But another small factor is that publication in the federal register sometimes takes weeks. Sometimes the rule is sent to Congress first; sometimes there’s a lot of regulations in the queue to be published. There ought not to be too big a gap.

 

One final reason might be that an agency thinks it meets one of these exceptions, and it doesn’t send it to Congress but it publishes it in the federal register.

 

Those are several reasons. I think the biggest reason — there used to be hundreds of rules published in the federal register, thousands even, not sent to Congress. I think it’s mostly just ignorance of the law or ignorance of the rule or neglect.

 

Prof. Susan E. Dudley:  Yeah, I think the parliamentarian’s decision a few years ago that you mentioned that even what we called guidance documents are rules under the CRA has made agencies take that a lot more seriously.

 

I also think when we get into this 60-day lookback window, agencies are even more scrupulous about making sure that they’re submitting their rule to GAO at the same time that they’re getting it in the federal register.

 

Evelyn Hildebrand:  There are no more — I apologize. There are no more callers in the queue, so I’ll hand the floor back over to you, Susan.

 

Prof. Susan E. Dudley:  Okay. Todd, we’re getting near the end of the hour anyway. Do you have some — are there things that you haven’t talked about that you think we should know about before we conclude?

 

Todd F. Gaziano:  I don’t — well, let me make one general statement that I maybe forgot to mention. Four years ago, there was a lot of Democratic members of Congress who were upset about the way the CRA was being used, but they also just argued that there was a flaw in the Congressional Review Act. Senator Cory Booker, with some other sponsors, introduced the SCRAP Act in May of 2017. A lot of his talking points about it were in how it was being used, but he objected to the entire process and thought it should be overturned.

 

I think we’re going to see a little bit of a role reversal, but I hope that people who like the Trump rules don’t blame the Congressional Review Act. They shouldn’t. And they shouldn’t also waste their time. In other words, they shouldn’t introduce another SCRAP Act. They should argue about the rules on the merits.

 

I think I disliked a lot of the rules that were overturned four years ago. I think I’m probably going to like a lot more of them this time, especially if they were deregulatory rules. I’m a deregulatory kind of guy.

 

But we ought to focus our arguments on why the rules are good or bad, why Congress should or should not overturn them, and not argue about the Congressional Review Act. Maybe Harry Reid will renew his embrace of the Congressional Review Act. I know David McIntosh still is proud of his achievement regardless of what use of it that Congress makes.

 

Prof. Susan E. Dudley:  Yeah, and I think the other argument for it is one you made right off at the beginning, Todd, and that is having Congress be accountable for the administrative laws that are issued, and I think that’s really an advantage of the Act.

 

Todd F. Gaziano:  Your Regulatory Studies Center and others have made use of the database for just a little bit like [inaudible 00:52:00] earlier callers. GAO does keep a searchable database of all rules, so that’s one way you can find out when rules were submitted to Congress.

 

Prof. Susan E. Dudley:  Well, I’ll just put in a little plug for the Regulatory Studies Center’s site that you can find more information on the CRA. And that is regulatorystudies.gwu.edu. If you go there, you can find some more information.

 

With that, Evelyn, if we don’t have more callers, I’ll thank you and thank Todd because I thought I knew about the CRA, Todd, but there were things I learned today, including that hunting and fishing regs are not covered. I think this was very interesting, so thank you.

 

Evelyn Hildebrand:  Wonderful. Thank you both. On behalf of The Federalist Society, I want to thank our speaker and our moderator for the benefit of their valuable time and expertise today.

 

And I want to thank our audience for calling in and participating with your great questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events.

 

Thank you all for joining us today. We are adjourned.

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