The Critical Need for Effective Congressional Review of Agency Rules:
Background and Considerations for Incremental Reform
Morton Rosenberg
Constitution Project Fellow
A Report Prepared for the
Administrative Conference of the United States
July 18, 2012
This Report was prepared for the consideration of the Administrative
Conference of the United States. The views expressed are those of the author and do
not necessarily reflect those of the members of the Conference or its committees. 1,2

The Conference’s Committee on Judicial Review decided to terminate the Congressional
Review Act project at its meeting on September 27, 2011 but endorsed completion of the report
and the possibility of the Chair of the Administrative Conference sharing the research it contains
with Congress. This Final Report represents only the views of its author, Morton Rosenberg, and
not the Office of the Chairman of the Administrative Conference.
2
This Final Report derives in substantial part from the author’s periodic reports for Congress
assessing the experience and efficacy of the CRA since its enactment in 1996, the last of which
was issued in 2008. See CRS Report RL30116, Congressional Review of Agency Rulemaking: An
Update and Assessment of the Congressional Review Act After a Decade (2008). This Report
updates statistical, substantive, and anecdotal materials and reflects further considerations for
necessary, immediate remedial actions in light of recent significant political developments.
1

1

Table of Contents
INTRODUCTION .......................................................................................................................... 3
1.

THE SCHEME OF REVIEW OF AGENCY RULES UNDER THE CRA ........................................... 6
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)

2.

UTILIZATION OF THE REVIEW MECHANISM SINCE 1996 .................................................. 11
(A)
(B)
(C)

3.

SUMMARY OF RULES REPORTED, RESOLUTIONS INTRODUCED, AND ACTIONS TAKEN .......................... 11
THE ERGONOMICS RULE RESCISSION ........................................................................................ 12
ILLUSTRATIONS OF ATTEMPTS TO USE THE CRA TO INFLUENCE AGENCY ACTIONS.............................. 14
PERCEIVED CRA STRUCTURAL AND INTERPRETIVE IMPEDIMENTS................................... 17

(A)
(B)
(C)
(D)
(E)
(F)
(G)
4.

LACK OF A SCREENING MECHANISM TO PINPOINT RULES THAT NEED CONGRESSIONAL REVIEW;
PROPOSALS FOR CHANGE; THE REINS ACT ................................................................................ 17
LACK OF AN EXPEDITED CONSIDERATION PROCEDURE IN THE HOUSE............................................... 22
THE UNCERTAINTY OF THE EFFECT OF AN AGENCY’S FAILURE TO REPORT A COVERED RULE TO CONGRESS
24
THE LEGISLATIVE HISTORY OF THE CRA’S PRECLUSION PROVISION ................................................. 28
THE UNCERTAINTY OF WHICH RULES ARE COVERED BY THE CRA .................................................. 30
THE PROBLEM OF AGENCY NON-REPORTING.............................................................................. 32
THE UNCERTAINTY OF THE BREADTH OF THE PROHIBITION AGAINST AN AGENCY’S PROMULGATION OF A
“SUBSTANTIALLY SIMILAR” RULE AFTER THE RULE HAS BEEN VETOED ............................................ 33
CONCLUDING OBSERVATIONS: ESTABLISHING A WORKABLE COLLABORATIVE ENTERPRISE
39

(A)
(B)
(C)
(D)
(E)

2

REPORTING REQUIREMENTS...................................................................................................... 6
RULES COVERED BY THE CRA .................................................................................................... 6
THE ROLES OF THE COMPTROLLER GENERAL AND THE OIRA ADMINISTRATOR .................................... 7
EFFECTIVE DATES OF MAJOR AND NON-MAJOR RULES .................................................................. 7
RULES THAT HAVE BECOME EFFECTIVE AND THE CARRYOVER PERIOD ............................................... 9
EFFECT OF A CONGRESSIONAL DISAPPROVAL OF A RULE.................................................................. 9
SENATE AND HOUSE PROCEDURES FOR CONSIDERATION OF DISAPPROVAL RESOLUTIONS.................... 10
JUDICIAL REVIEW OF ACTIONS TAKEN UNDER THE CRA ................................................................ 11

THE DEMONSTRABLE NEED FOR CRA REFORM ........................................................................... 39
AN INCREMENTAL APPROACH TO REFORM ................................................................................. 40
UNDERSTANDING THE GOALS OF CRA REFORM .......................................................................... 41
REMEDIAL OPTIONS .............................................................................................................. 43
THE NEED TO ESTABLISH A COLLABORATIVE ENTERPRISE .............................................................. 46

Introduction
The enactment of the Congressional Review Act (CRA)3 in 1996 established a
mechanism by which Congress can review and disapprove virtually all federal agency
rules. The House and Senate sponsors of the legislation made clear the fundamental
institutional concerns that they were addressing by the Act:
As the number and complexity of federal statutory programs has increased
over the last fifty years, Congress has come to depend more and more
upon executive Branch agencies to fill out the details of the programs it
enacts. As complex as some statutory schemes passed by Congress are,
the implementing regulations are often more complex by several orders of
magnitude. As more and more of Congress’ legislative functions have
been delegated to federal regulatory agencies, many have complained that
Congress has effectively abdicated its constitutional role as the national
legislature in allowing federal agencies so much latitude in implementing
and interpreting congressional enactments.
In many cases, this criticism is well founded. Our constitutional scheme
creates a delicate balance between the appropriate roles of the Congress in
enacting laws, and the Executive Branch in implementing those laws.
This legislation will help redress the balance, reclaiming for Congress
some of its policy making authority, without requiring Congress to
become a super regulatory agency.4
The recognition of the CRA sponsors of both the desire to restore congressional
political accountability and the need to establish a scheme of control that would be a
collaborative effort of the political branches is evident. But the initial enthusiasm and
expectations on the Hill waned quickly as doubts of the efficacy of the review scheme as
a vehicle to control agency lawmaking through responsible, effective, and expeditious
legislative oversight soon emerged and was confirmed.5 Since April 1996 over 61,000
rules have been reported to Congress, including some 1,100 major rules, and have
become effective. During that period a total 78 resolutions of disapproval concerning 53
rules were introduced, but only one has been passed,6 an event that may have been sui
3

The CRA was included as Subtitle E of the Small Business Regulatory Enforcement Act of 1996
(SBRFA), Pub. L. No. 104-121, 110 Stat. 857, 868 (codified at 5 U.S.C. 801-808 (2006)).
4
Joint Explanatory Statement of House and Senate Sponsors, 142 Cong. Rec. 6922, 6926 (1996)
(Legislative History). An identical Joint Statement of the Senate sponsors appears at 142 Cong.
Rec. 8196-8201 (1996). Further references to the Legislative History will utilize the earlier
House insertion.
5
See, e.g., Daniel Cohen and Peter L. Strauss, “Congressional Review of Agency Rulemaking,”
49 ADMIN. L. REV. 95 (1996); Morton Rosenberg, “Whatever Happened to Congressional review
of Agency Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform,” 51 ADMIN.L.
REV. 1051 (1999) (Rosenberg).
6
See, Maeve P. Carey and Michelle D. Christenson , “Resolutions of Disapproval Introduced
Under the Congressional Review Act as of May 9, 2012,” Congressional Research Service, May
3

generis because of the unique circumstances accompanying its passage. In contrast, in
the 10 year period 1999 through 2008, Congress enacted at least 190 provisions of law
that prohibited the expenditure of federal funds by agencies from developing proposed
rules, from making a proposed rule final, or from implementing or enforcing a final rule.7
Some maintain that despite the virtual absence of formal veto actions, a number
of major rules have been affected by agency awareness of the review mechanism and
argue that the review scheme has had a significant impact. 8 Others counter that the
potential passage of a disapproval resolution, which is subject to presidential veto, is no
greater than the threat of passage of an ordinary bill, and that this is particularly so in
light of the structural and interpretive impediments to the CRA’s use, which are well
known.9
The most prominent structural obstacles to its potential use are the lack of a
screening mechanism to identify reported rules that may require special congressional
attention; the failure to provide an expedited consideration procedure in the House of
Representatives comparable to that provided to the Senate; and that a joint resolution of
disapproval of a significant or politically sensitive rule is likely to need a supermajority
of both Houses to be successful. Moreover, a number of critical interpretive issues
remain to be resolved. These include the questions whether the failure to report a
covered rule is subject to court review and sanction; what rules are covered by the Act;
and what is the scope of the CRA’s limitation that precludes an agency from
promulgating a “substantially similar” rule after disapproval of the rule.
Renewed interest in legislative review of agency rules in the 112th Congress will
provide Congress with a clear opportunity to address the perceived flaws in the CRA and
redefine its oversight role in the rule development process. The discussion vehicle in all
likelihood will be H.R. 10, the “Regulations From the Executive in Need of Scrutiny Act
of 2011” (REINS Act), which would dramatically alter the rule review process by
deeming all major rules reported to Congress as proposals that cannot become effective
unless Congress passes a joint resolution of approval within a specified legislative time
period. Hearings on the bill were held before the House Judiciary Subcommittee on
Courts, Commercial and Administrative Law in January and March 2011. A companion
15, 2012 (CRS Memo); H. Rept. 112-278, Part 1, 112th Cong., 1st Sess. 7, 11 (2011),
accompanying H.R. 10, the “Regulations From The Executive In Need of Scrutiny Act of
2011”(REINS Act Report).
7
Curtis W. Copeland, Congressional Influence on Rulemaking and Regulation Through
Appropriations Restrictions, CRS Report RL34364 (August 5, 2008).
8
See, e.g., Paul R. Verkuil, The Wait is Over: Chevron as the Stealth Vermont Yankee II, 75 Geo,
Wash. L. Rev. 921,925-26 (2007); Interim Report on “The Administrative Law, Process, and
Procedure Project for the 21st Century,” House Subcomm. on Commercial and Administrative
Law, Judiciary Committee, 109th Cong., 2d Sess. 1409-10 (December 2006) (Committee Print
No. 10) (presentation of Paul R. Verkuil) (Interim Report).
9
Note, The Mysteries of the Congressional Review Act, 122 Harv. L. Rev. 2162, 2166-67 (2009)
(Mysteries of the CRA).
4

measure, S. 299, was introduced in the Senate in February 2011.10 The REINS Act bill
was passed by the House on December 7, 2011 by a vote of 241-184 and is awaiting
action in the Senate.11 Ultimate adoption of the REINS Act scheme into law, however, is
highly problematic.
Part 1 of this Report will provide the Conference with a detailed description of the
statutory review scheme and how its sponsors expected it to operate. Part 2 will describe
how it in fact has been utilized, through statistical evidence, anecdotal examples of
attempted use of the mechanism as a means to influence agency action, and an
assessment of the import of the 2001 annulment of OSHA’s ergonomics rule, the only
veto action ever taken under the Act. In Part 3 particular perceived impediments to
effective 0f the review scheme will be addressed and assessed in depth. It will also
discuss past proposals for reform and review and assess in detail the REINS Act reform
scheme.
Part 4 concludes that, as a consequence of the impediments to CRA review, there
is a demonstrable and urgent need for revision of the statutory scheme. It is suggested
that the urgency for reform is impelled by the growing and widespread perception that
Congress has abandoned responsibility and accountability for its broad delegations of
lawmaking powers to administrative agencies which, in turn, has fostered a public sense
of illegitimacy and operational ineffectiveness of the regulatory process. Remedial
options however are limited by political and pragmatic obstacles and considerations. The
grand design of the proposed REINS Act, which would stall the effectiveness of all final
major rules until enacted into law, would effect an abrupt and radical change to the
historic, long accepted scheme of rulemaking and engender a plausible claim of a
dramatic (even if not unconstitutional) shift of power to the legislature that would assure
an unchallengeable veto by any president, regardless of party affiliation. Politically
acceptable reformation of the present scheme of review should reflect and respect the
constitutional role and competences of the Chief Executive in administering and the laws
enacted by Congress and his duty to see that they are faithfully executed. In turn,
Congress must be publically perceived as diligent in its oversight of the often vague but
necessary delegations of lawmaking authority that implement those delegations. That
diligence must reflect Congress’s continuing responsibility and accountability for its
delegations. The goal of reform should be the establishment of a collaborative enterprise
of the Congress and the Executive. The most critical adjustments can be accomplished
by an incremental process of reformation, the most essential parts of which can be
effected by non-legislative means, through the internal rulemaking powers of each
House.

10

The 112th Congress has thus far seen a high level of interest in regulatory reform proposals. In
addition to H.R. 10, there have been at least 21 bills introduced in the House and Senate in the
area, including a measure, H.R. 214, to create a Congressional Office of Regulatory Analysis. See
“Regulatory Reform Legislation in the 112th Congress,” CRS Report No. R41834, August 24,
2011, by Curtis W. Copeland.
11
See, e.g., George E. Will, “Hauling in the REINS,” Wash. Post, June 7, 2012, at A23.
5

1.

The Scheme of Review of Agency Rules Under the CRA
(a) Reporting Requirements

The congressional review mechanism, codified at 5 U.S.C. §§ 801-808, and
popularly known as the Congressional Review Act (CRA), requires that all agencies
promulgating a covered rule must submit a report to each House of Congress and to the
Comptroller General (CG) that contains a copy of the rule, a concise general statement
describing the rule (including whether it is deemed to be a major rule), and the proposed
effective date of the rule. A covered rule cannot take effect if the report is not
submitted.12 Each House must send a copy of the report to the chairman and ranking
minority member of each jurisdictional committee.13 In addition, the promulgating
agency must submit to the CG (1) a complete copy of any cost-benefit analysis; (2) a
description of the agency’s actions pursuant to the requirements of the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act of 1995; and (3) any other
relevant information required under any other act or executive order. Such information
must also be made “available” to each House.14
(b) Rules Covered by the CRA
Section 804(3) adopts the definition of “rule” found at 5 U.S.C. 551(4) which
provides that the term rule “means the whole or part of an agency statement of general . .
. applicability and future effect designed to implement, interpret, or prescribe law or
policy.”15 The legislative history of Section 551(4) indicates that the term is to be
broadly construed: “The definition of rule is not limited to substantive rules, but
embraces interpretive, organizational and procedural rules as well.”16 The courts have
recognized the breadth of the term, indicating that it encompasses “virtually every
statement an agency may make,”17 including interpretive and substantive rules,
guidelines, formal and informal statements, policy proclamations, employee manuals and
memoranda of understanding, among other types of actions. Thus a broad range of
agency action is potentially subject to congressional review.18

12

5 U.S.C. § 801(a)(1)(A).
5 U.S.C. § 801(a)(1)(C).
14
5 U.S.C. § 801(a)(1)(B).
15
5 U.S.C. § 804(3) excludes from the definition “(A) any rule of particular applicability,
including a rule that approves or prescribes for the future rates, wages, prices, services, or
allowance therefore, corporate or financial structures, reorganizations, mergers, or acquisitions
thereof, or accounting practices or disclosures bearing on any of the foregoing; (B) any rule
relating to agency management or personnel; or (C) any rule of agency organization, or practice
that does not substantially affect the rights or obligations on non-agency parties.”
16
Attorney General’s Manual on the Administrative Procedure Act 13 (1948); See also Batterton
v. Marshall, 648 F. 2d 694, 700-02 (D.C. Cir. 1980).
17
Avoyelles Sportsmen’s League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983).
18
See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993) (memorandum of
understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74 (4th Cir.
1993) (interpretative rules); National Treasury Employees Union v. Reagan, 685 F. Supp 1346
13

6

(c) The Roles of the Comptroller General and the OIRA
Administrator
The Comptroller General and the Administrator of the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget have particular
responsibilities with respect to a “major rule,” defined as a rule that will likely have an
annual effect on the economy of $100 million or more, increase costs or prices for
consumers, industries or state and local governments, or have significant adverse effects
on the economy. The determination of whether a rule is major is assigned exclusively to
the Administrator of OIRA.19 If a rule is deemed major by the OIRA Administrator, the
CG must prepare a report for each jurisdictional committee within 15 calendar days of the
submission of the agency report required by Section 801(a)(1) or its publication in the
Federal Register, whichever is later. The statute requires that the CG’s report “shall
include an assessment of the agency’s compliance with the procedural steps required by
Section 801(a)(1)(B).”20 The CG has interpreted his duty under this provision relatively
narrowly as requiring that he determine whether the prescribed action has been taken, i.e.,
whether a required cost-benefit analysis has been provided, and whether the required
actions under the Regulatory Flexibility Act, the Unfunded Mandates Reform Act of
1995, and any other relevant requirements under any other legislation or executive orders
were taken, not to examine the substantive adequacy of the actions.
(d) Effective Dates of Major and Non-Major Rules 21
The designation of a rule as major also affects its effective date. A major rule may
become effective on the latest of the following scenarios: (1) 60 calendar days after
Congress receives the report submitted pursuant to Section 801(a)(1)22 or after the rule is
(E.D. La 1988) (federal personnel manual letter issued by OPM); New York City Employment
Retirement Board v. SEC, 45 F.3d 7 (2d Cir. 1995) (affirming lower court’s ruling that SEC “no
action” letter was a rule within § 551(4)); Guardian Federal S&L Ass’n v. Federal Savings and
Loan Insurance Corp., (D.C. Cir. 1978) (agency statements that clarify laws are rules under the
APA); Professional and Patients for Customized Care v. Shalala, 56 F. 3d 592, 601-02 (D.C. Cir
1995) (FDA Compliance Policy guide was a rule).
19
5 U.S.C. § 804(2).
20
5 U.S.C. § 801(a)(2)(A).
21
The CRA is a complex statute, and among its chief complexities is its use of at least four
different ways to measure the passage of time to effectuate the different purpose of the review
scheme: calendar days; days of continuous session, which excludes all days when either the
House of representatives or the Senate has adjourned for more than three days; session days,
which include only calendar days in which a chamber is in session; and legislative days, which
end each time a chamber adjourns and begin each time it convenes after an adjournment. It is
important to be aware that different measures may be applicable to the various stages-effective
dates, initiation and action periods, and the carryover period-of the review process. See Curtis W.
Copeland and Richard S. Beth, CRS Report RL34633, Congressional review Act: Disapproval of
Rules in a Subsequent Session of Congress (Aug. 25, 2008).
22
The General Counsel of the Government Accountability Office (GAO) has ruled that the 60day period does not begin to run until both Houses of Congress receive the required report. See
B-289880, April 5, 2002, opinion letter to Hon. Edward M. Kennedy, Chairman, Senate
Committee on Health, Education, Labor and Pensions from Anthony H. Gamboa, General
7

published in the Federal Register; (2) if Congress passes a joint resolution of disapproval
and the President vetoes it, the earlier of when one House votes and fails to override the
veto, or 30 calendar days after Congress receives the veto message; or (3) the date the
rule would otherwise have taken effect (unless a joint resolution is enacted).23
Thus the earliest a major rule can become effective is 60 calendar days after the
later of the submission of the report required by Section 801(a)(1) or its publication in the
Federal Register, unless some other provision of the law provides an exception for an
earlier date. Three possibilities exist. Under Section 808(2) an agency may determine
that a rule should become effective notwithstanding Section 801(a)(3) where it finds
“good cause that notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.”24 Second, the President may determine that a rule should
take effect earlier because of an imminent threat to health or safety or other emergency;
to insure the enforcement of the criminal laws; for national security purposes; or to
implement an international trade agreement.25 Finally, a third route is available under
Section 801(a)(5) which provides that “the effective date of a rule shall not be delayed by
operation of this chapter beyond the date on which either House of Congress votes to
reject a joint resolution of disapproval under Section 802.”26

Counsel. The situation involved a Department of Health and Human Services (HHS) major rule
published in the Federal Register on January 18, 2002 with an announced effective date of March
29, 2002. The House of Representatives, however, did not receive the rule until February 14,
2002. HHS thereafter delayed the effective date of the rule until April 15, 2002, in an attempt to
comply with the CRA. But the Senate did not receive the rule until March 15, 2002. The General
Counsel determined that the rule could not become effective until May 14, 2002, 60 days
following the Senate’s receipt, relying on the language of § 801(a)(1)(A) of the act requiring that
a copy of a covered rule must be submitted “to each House of Congress” in order to become
effective.
23
5 U.S.C. § 801(a)(3).
24
Reviewing courts have generally applied the Administrative Procedure Act’s good cause
exemption, from which this language is obviously taken, narrowly in order to prevent agencies
from using it as an escape clause from notice and comment requirements. See, e.g., Action on
Smoking and Health v. CAS, 713 F.2d 795, 800 (D.C. Cir. 1987). However, since § 805 precludes
judicial review for any “determination, finding, action or omission under this chapter”, there
could be no court condemnation of a good cause determination. But the rule would still be
subject to congressional vacation and retroactive nullification.
25
5 U.S.C. § 801(c).
26
In Leisegang v. Sect’y of Veterans Affairs, 312 F.3d 1368, 1373-1376 (Fed. Cir. 2002), the
appeals court held that § 801(a)(3) “does not change the date on which [a major rule] becomes
effective. It only affects the date when the rule becomes operative. In other words, the CRA
merely provides a 60-day waiting period before the agency may enforce the major rule so that
Congress has the opportunity to review the regulation.” At issue in the case was the date from
which certain veterans benefits would be calculated. The benefit statute provided that it would be
the date of the issuance of the rule. The government argued that the CRA was a superseding
statute and that the effective date was when the CRA allowed it to be operative. The appeals court
agreed with the veterans that the date of issuance, as prescribed by the law, was determinative.
8

All other rules take effect “as otherwise allowed by law” after having been
submitted to Congress under Section 801(a)(4).27 Under the Administrative Procedure
Act, a final rule may go into effect 30 days after it is published in the Federal Register in
final form.28 An agency, in its discretion, may delay the effectiveness of a rule for a
longer period; or it may put it into effect immediately if good cause is shown.
(e) Rules That Have Become Effective and the Carryover Period
All covered rules are subject to disapproval even if they have gone into effect.
Congress has reserved to itself a review period of at least 60 days. Moreover, if a rule is
reported within 60 session days of adjournment of the Senate or 60 legislative days of
adjournment of the House, the period during which Congress may consider and pass a
joint resolution of disapproval is extended to the next succeeding session of the
Congress.29 Such held over rules are treated as if they were published on the 15th session
day of the Senate and the 15th legislative day of the House in the succeeding session and
as though a report under § 801(a)(1) was submitted on that date.30 But a held over rule
takes effect as otherwise provided.31 The opportunity for Congress to consider and
disapprove is simply extended so that it has a full 60 session or legislative days to act in
any session.
(f) Effect of a Congressional Disapproval of a Rule
If a joint resolution of disapproval is enacted into law, the rule is deemed not to
have had any effect at any time.32 A rule that does not take effect, or is not continued
because of passage of a disapproval resolution, may not be reissued in substantially the
same form. Indeed, before any reissued or new rule that is “substantially the same” as a
disapproved rule can be issued it must be specifically authorized by a law enacted
subsequent to the disapproval of the original rule.33 However, if a rule is subject to any
statutory, regulatory, or judicial deadline for its promulgation is not allowed to take
effect, or is terminated by the passage of a joint resolution, any deadline is extended for
one year after the date of enactment of the joint resolution. Thus, disapproval of a
mandated rule allows an agency to “try again,” guided presumably by the disapproval
debate.34

27

5 U.S.C. § 801(a)(4).
5 U.S.C. § 553(d).
29
5 U.S.C. § 801(d)(1).
30
5 U.S.C. § 801(d)(2)(A), (e)(2).
31
5 U.S.C. § 801(d)(3).
32
5 U.S.C. § 801(f).
33
5 U.S.C. § 801(b)(2).
34
5 U.S.C. § 803. See discussion infra at 32-36.
28

9

(g) Senate and House Procedures for Consideration of Disapproval
Resolutions
Section 802(a) spells out the process for an up or down vote on a joint resolution
of disapproval.35 A joint resolution of disapproval must be introduced within 60 calendar
days (excluding days either House of Congress is adjourned for more than three days
during a session of Congress) after the agency reports the rule to the Congress in
compliance with Section 801(a)(1). Timely introduction of a disapproval resolution
allows each House 60 session or legislative days to consider it through use of expedited
consideration procedures, and if passed, allows retroactive nullification of an effective
rule, and the limitation on an agency from promulgating a “substantially similar” rule
without subsequent congressional authorization to do so by law.
The law provides an expedited consideration procedure for the Senate. If the
committee to which a joint resolution is referred has not reported it out within 20
calendar days after referral, it may be discharged from further consideration by a written
petition of 30 Members of the Senate, at which point the measure is placed on the
calendar. After committee report or discharge it is in order at any time for a motion to
proceed to consideration. All points of order against the joint resolution (and against
consideration of the measure) are waived, and the motion is not subject to debate,
amendment, postponement, or to a motion to proceed to other business. If the motion to
consider is agreed to, it remains as unfinished business of the Senate until disposed of.36
Debate on the floor is limited to 10 hours. Amendments to the resolution and motions to
postpone or to proceed to other business are not in order.37 At the conclusion of debate an
up or down vote on the joint resolution is to be taken.38
There is no special procedure for expedited consideration and processing of joint
resolutions in the House. But if one House passes a joint resolution before the other
House acts, the measure of the other House is not referred to a committee. The procedure
of the House receiving a joint resolution “shall be the same as if no joint resolution had
35

For an in-depth discussion of procedural issues that may arise during House and Senate
consideration of disapproval resolutions, see Richard S. Beth, CRS Report RL31160, Disapproval
of Regulations by Congress: Procedure Under the Congressional Review Act, by Richard S. Beth,
October 10, 2001.
36
5 U.S.C. § 801(d)(1).
37
5 U.S.C. § 802(d)(2).
38
5 U.S.C. § 802(d)(3). There is some question whether a motion to proceed is non-debatable
because of the absence of language so stating. Arguably, the non-debatability of the motion is
integral both to the scheme of the expedited procedure provisions as well as to the overall
efficacy of the CRA’s statutory scheme and thus may be implied. Alternatively, debate on such a
motion may be limited by § 803(d)(2) which limits debate on joint resolutions, as well as “all
debatable motions,” to 10 hours. Ultimately, a resolution of this question would be made by the
Senate Parliamentarian, or the Senate itself. However, at the commencement of the debate on
S.J.Res. 6, to disapprove the ergonomics rule, the presiding officer declared that “The motion to
proceed is not debatable. The question is on agreeing to the motion.” The motion was agreed to.
147 Cong. Rec. S 1831 (daily ed. March 6, 2001). At least one other precedent exists in which it
was ruled that a motion to proceed to a budget resolution under the Budget Act was non-debatable
despite the silence of the act on the matter. See, 127 Cong. Rec. S 4871 (May 12, 1981).
10

been received from the other House, but . . . the vote on final passage shall be on the joint
resolution of the other House.”39
(h) Judicial Review of Actions Taken Under the CRA
Section 805 precludes judicial review of any “determination, finding, action or
omission under this chapter.”40 This would insulate from court review, for example, a
determination by the OIRA Administrator that a rule is major or not, a presidential
determination that a rule should become effective immediately, an agency determination
that “good cause” requires a rule to go into effect at once, or a question as to the
adequacy of a Comptroller General’s assessment of an agency’s report. The legislative
history of this provision indicates that this preclusion of judicial review was not meant to
apply to a court challenge to a failure of an agency to report a rule.41 However, district
and appellate court rulings have held that the preclusion provision applies to and prevents
such challenges.42
Finally, the law provides a rule of construction that a reviewing court shall not
draw any inference from a congressional failure to enact a joint resolution of disapproval
with respect to such rule or a related statute.43
2. Utilization of the Review Mechanism Since 1996
(a) Summary of Rules Reported, Resolutions Introduced, and
Actions Taken
As of August 15, 2011, the Comptroller General had submitted reports pursuant to
Section 801(a)(2)(A) to Congress on 1,029 major rules.44 In addition, GAO had cataloged
the submission of 56, 668 non-major rules as required by Section 801 (a)(1)(A). To date,
72 joint resolutions of disapproval have been introduced relating to 49 rules. One rule,
the Occupational Safety and Health Administration’s (“OSHA”) ergonomics standard,
was disapproved in March 2001, an action that some believe to be unique to the
circumstances of its passage. Two other rules have been disapproved by the Senate.
One, the Federal Communication Commission’s 2003 rule relating to broadcast media
ownership was disapproved by the Senate during the 108th Congress but was never acted
upon by the House. The second, a 2005 Department of Agriculture rule relating to the
establishment of minimal risk zones for introduction of bovine spongiform
39

5 U.S.C. § 802(f)(1)(2).
5 U.S.C. § 805.
41
142 Cong. Rec. 6907 (1996).
42
See discussion infra at pp. 23-26.
43
5 U.S.C. § 801 (g).
44
General Accounting Office, Reports on Federal Agency Major Rules, which may be found at
http://www.gao.gov/decisions/majrule/majrule.htm. Between 1999 and 2009 GAO catalogued
over 1000 rules, an average of over 100 per year, that had been published in the Federal Register
that were neither reported to it or to both Houses of Congress as required. In 2010 GAO took
direct action that reduced the number of unreported rules to four. See discussion, supra, at p.32.
Covered rules that are not required to be published in the Federal Register are rarely reported.
40

11

encephalopathy (Mad Cow Disease) was disapproved on March 3, 2005, but its
counterpart, H.J. Res. 23, was not acted upon by the House. A third joint resolution, S.J.
Res. 20, seeking disapproval of a rule promulgated by the Environmental Protection
Agency to delist coal and oil-direct utility units from the new source category list under
the Clean Air Act, was defeated in the Senate by a vote of 47-51 on September 13, 2005.
Also, two motions to proceed to Senate floor consideration of disapproval resolutions
were defeated in the 111th Congress: S.J. Res. 30, concerning a National Mediation
Board rule involving representation election procedure, on September 23, 2010 by a vote
of 43-56; and S.J. Res. 39 concerning a HHS/CMS interim final rule regarding group
health plans and health insurance plans implementing the Patient Protection and
Affordable Care Act, on September 29, 2010, by a vote of 40-59. Three such motions to
proceed were defeated thus far in the 112th Congress: S.J. Res. 27 concerning
Environmental Protection Agency implementations plans for the interstate transportation
of particulate matter and ozone, on November 10, 2011, by a vote of 41-56; S.J. Res.
Concerning a National Labor Relations Board rule involving representation case
procedures, on April 24, 2012, by a vote of 45-54; and S.J. Res. 37 concerning an
Environmental Protection Agency rule establishing standards for hazardous air pollutants
from various sources, on June 20, 2012, by a vote of 46-54.
One House joint resolution, H.J. Res. 37, seeking disapproval of a 2010 Federal
Communications Commission rule concerning the preservation of open internet and
broadband industry practices, was passed by the House on April 8, 2011, by a vote of
240-179. Its Senate counterpart, S.J. Res. 6, has not been acted upon. An Appendix to
this Report provides a chronological chart detailing the dates, sponsors, subjects and
actions taken on the introduced resolutions.
Finally, it is important to note that a CRS study has found that during the period
1998 through 2008 at least 190 proposed or effective rules were stayed by the limitations
on appropriations in annual funding measures enacted during those years.45
(b) The Ergonomics Rule Rescission
OSHA’s ergonomics standard had been controversial since the publication of its
initial proposal for rulemaking in 1992 during the Bush Administration. OSHA
circulated a draft proposal in 1994 which was met with strong opposition from business
interests and the formation of an umbrella organization, the National Coalition on
Ergonomics, to oppose its adoption. In 1995 OSHA circulated a modified draft proposal,
particularly with respect to coverage and regulatory requirements. At the same time,
congressional opposition resulted in appropriations riders that prohibited OSHA from
promulgating proposed or final ergonomics regulations during the fiscal years 1995,
1996, and 1998.46
The riders did not prohibit OSHA from continuing its development work,
however, which included questions related to whether scientific knowledge of
ergonomics was adequate for rulemaking and whether the cost of implementation of a
broad standard would be extraordinarily burdensome to industry. Congress mandated
45
46

See Copeland, supra at note7.
In a close floor vote, the rider proposed for FY1997 was deleted.
12

reports from the National Academy of Sciences which found a significant statistical link
between workplace exposures and musculoskeletal disorders, but also noted that the exact
causative factors and mechanisms are not understood. In 2000, congressional attempts to
pass another appropriation rider, as well as stand-alone prohibitory legislation, failed, and
on November 14, 2000, OSHA issued its final standard which became effective on
January 16, 2001.47 Most employer responsibilities under the new standard, however,
were not to begin until October, 2001.
As soon as the rule was issued two industry groups filed suit in the Court of
Appeals for the District of Columbia Circuit challenging OSHA’s authority to issue the
rule, its failure to follow proper procedures, the rationality of its provisions, and the
adequacy of its scientific and economics analyses. The intervening 2000 elections also
altered the political situation with the election of a President and effective control of both
Houses of Congress in the same political party. Opponents of the standard introduced a
resolution of disapproval under the CRA, S.J. Res. 16, on March 1, 2001. A discharge
petition was filed on March 5, and debate on and passage of the resolution in the Senate
occurred on March 6 by a vote of 56-44. That evening the House Rules Committee
issued a rule for floor action the next day, and after an hour of debate H.J. Res. 35 was
passed on March 7 by a vote of 223-206. The President signed the nullifying measure
into law on March 20, 2002.48
In sum, the veto of the ergonomics standards could be seen as the product of an
unusual confluence of factors and events: control of both Houses of Congress and the
presidency by the same party; the longstanding opposition by these political actors, as
well as by broad components of the industry to be regulated, to the ergonomics standards;
and the willingness and encouragement of a President seeking to undo a contentious, endof-term rule from a previous Administration. Indeed, it was presumed by some that its
future might be limited to presidential transitions that effected similar political
realignments.49
But it appears that even in an almost exact repeat of the circumstances that
fostered the ergonomics rule rescission may be insufficient to impel congressional use of
the CRA. In the concluding months of the George W. Bush Administration, a concerted
public effort was made to finalize rules, many controversial, so that they would become
effective before President–elect Obama and the soon-to-be increasing Democraticallycontrolled Congress took office. As a consequence, the opportunity was presented for
disapproval of the midnight rules through the carryover provisions of the CRA in the
same manner used to rescind the ergonomics rule. However, only one disapproval
resolution was introduced during the carryover period50 which was never reported out of
the House committee to which it was referred. Rather, the President and Congress chose
traditional means to overturn certain of the rules. The President asked agencies to
47

65 Fed. Reg. 68261 (2000).
P.L. 107-5, 115 Stat. 7 (2002).
49
See, e.g., Note, “The Mysteries of the Congressional Review Act,” 122 HARV. L. REV. 2162,
2167 (2009) (Mysteries of the CRA).
50
H.J. Res. 18, 111th Cong., concerning a joint rulemaking by the Departments of Interior and
Commerce dealing with interagency cooperation under the Endangered Species Act.
48

13

commence rulemaking proceedings to repeal some rules; and in at least one instance a
midnight rule was overturned by a proviso in an omnibus appropriations bill that the
President signed into law.51 A commentator has suggested that as long as traditional
executive and legislative vehicles are available rescind midnight rules, Congress will not
take up valuable floor time to deal with individual rules, particularly when Senate
consideration can consume as many as ten hours; and the President will not ask them to
do it if there are alternative administrative means to pursue, concluding that “[e]ven in
transition periods, when the CRA is most likely to be effective, an outgoing
Administration did not take steps to avoid its effect, and the incoming Administration did
not see any benefit in using it.”52
(c) Illustrations of Attempts to Use the CRA to Influence Agency
Actions
In all other cases, if there is any discernible pattern to the introduced resolutions,
it is to exert pressure on the subject agencies to modify or withdraw the rule, or to elicit
support of other Members, which in some instances were successful, and in others not.
For example, H.J. Res. 67 (1997) was aimed at disapproving an OSHA rule setting
occupational exposure limits on methylene chloride, a paint stripper used in the furniture
and airplane industries. Its sponsor, Representative Roger Wicker, contended that the rule
would harm small businesses without increasing protections for workers. The
disapproval resolution never received a floor vote. But the Congressman succeeded in
effecting a compromise through the inclusion of provisions in the FY1998 Labor, HHS
and Education appropriations measure53 which required OSHA to provide on-site
assistance for companies to comply with the new rules without fear of penalty. Mr.
Wicker is reported to have stated that he used the disapproval resolution as a vehicle to
gather support from influential Members, including the chairs of the House
Appropriations and Commerce Committees.54
The disapproval resolution mechanism was effectively utilized to accomplish the
suspension of a highly controversial rulemaking by the then-Health Care Financing
Administration (HCFA). In January 1998, HCFA issued a rule requiring that home health
agencies (HHAs) participating in the Medicare program must obtain a surety bond that is
the greater of $50,000 or 15 percent of the annual amount paid to the HHA by the
Medicare program. In addition, a new HHA entering the Medicare or Medicaid program
after January 1, 1998, had to meet a capitalization requirement by showing it actually had
available sufficient capital to start and operate the HHA for the first three months. The
rule was issued without the usual public participation through notice and comment and
was made immediately effective. Substantial opposition to the rule quickly surfaced from
both surety and HHA industry representatives. HCFA attempted to remedy the
complaints by twice amending the rule, in March and in June, but was unsuccessful in
51

Mysteries of the CRA, supra note 49, 122 HARV. L. REV. at 2174-76 .
Id. at 2176.
53
P.L. 105-78, 111 Stat. 1467 (1997).
54
See Allan Freedman, “GOP’s Secret Weapon Against Regulations: Finesse,” CQ Weekly,
September 5, 1998, at 2318-19 (Freedman).
52

14

quelling the industry concerns. On June 10, Senator Bond, for himself and 13 other cosponsors, introduced S.J. Res. 50 to disapprove the June 1 HCFA rule. Within a short
period, the disapproval resolution had garnered 52 sponsors. On June 17, a companion
bill, H.J. Res. 123, was introduced in the House. Thereafter, according to press reports,
members of the staffs of Senators Bond, Baucus, and Grassley (all members of the Senate
Finance Committee with jurisdiction over the agency) met with HCFA officials and
concluded an agreement that (1) the agency would suspend its June 1, 1998 rule
indefinitely; (2) a General Accounting Office report would be requested by the committee
that would study the issues surrounding the surety bond requirement; (3) on completion
and issuance of the GAO report, HCFA would work in consultation with the Congress
about the surety bond requirement; and (4) any new rule would not be effective earlier
than February 15, 1999, and would be preceded by at least 60 days prior notice. The
agreement reportedly was memorialized in a June 26 letter to HCFA signed by Senators
Bond, Baucus and Grassley.55 The GAO report was issued on January 29, 1999, but the
rule suspension was never lifted. No floor vote on the disapproval resolutions occurred
in either House.
Another illustration of the manner in which the review mechanism has been
utilized is shown by S.J. Res. 60 (1996), concerning another HCFA rule, this one dealing
with the agency’s annual revision of the rates for reimbursement of Medicare providers
(doctors and hospitals), which normally would have been effective on October 1, 1996.
HCFA, however, submitted the rule to Congress on August 30, 1996, and since it was a
major rule, it could not go into effect for 60 days, or until October 29, which meant there
would be a significant loss of revenues because the differential rate increases could not be
imposed for most of the month of October. Section 801(a) (5), however, provides that if
a joint resolution of disapproval is rejected by one House, “the effective date of a rule
shall not be delayed by operation of this chapter...” On the morning of September 17,
1996, Senator Lott introduced S.J. Res. 60, and that afternoon, by unanimous consent, the
resolution “was deemed not passed.”56 The HCFA rule went into effect on October 1 as
scheduled.
An interesting utilization of the CRA process that had an impact and resulted in an
unusual outcome, involved President George W. Bush’s restoration, on February 15,
2001, of President Reagan’s so-called Mexico City Policy, which limited the use of
federal and non-federal monies by non-governmental organizations (NGOs) to directly
fund foreign population planning programs which support abortion or abortion-related
activities. President Clinton had rescinded the 1984 Reagan policy when he took office
in January 1993.57 A President’s authority to determine the terms and conditions on which
such NGOs may engage in foreign population planning programs derives from the
Foreign Assistance Act of 1961.58 The provision vests the authority to make these
determinations exclusively in the Chief Executive. President Reagan delegated his
authority to make the determinations to the Administrator of the U.S. Agency for
55

Freedman, supra note 54, at 2319-20.
See 142 Cong. Rec. S 10723 (daily ed. September 17, 1996).
57
29 Weekly Comp. Pres. Doc. 88 (1993).
58
22 U.S.C. § 2151b(b) and § b(f)(1) (2000).
56

15

International Development (AID), who issued regulations that specified the conditions
upon which grants would be given to NGOs. Thus, when the Mexico City Policy was
rescinded in 1993, it was the AID Administrator that did it, at the direction of President
Clinton. When President Bush restored it in 2001, he did it in a directive to the AID
Administrator59 who simply revived the old conditions by internal agency administrative
action.
A number of Senate opponents of the policy filed a disapproval resolution on
March 20, 2001, S.J. Res. 9, to nullify the Administrator’s action, reasoning that it was a
covered rule under the CRS since the implementing action was taken by an executive
agency official and not by the President himself, and thus was reviewable by Congress. 60
The President responded by rescinding his earlier directive to the AID Administrator and
thereafter issuing an executive order under his statutory authority to implement the
necessary conditions and limitations on NGO grants.61 The presidential action mooted
the disapproval resolution and rendered a subsequent attempt to veto the rule by S.J. Res.
17 ineffective because the CRA does not reach such actions by the President.
A final interesting recent example of an attempt to use of the CRA as a device to
pressure agency conformity with asserted congressional policy designs involved the State
Children’s Health Insurance Program (SCHIP) administered by the Centers for Medicare
and Medicaid (CMS) in the Department of Health and Human Services (HHS). SCHIP is
a program designed to cover the health care costs of uninsured children in families with
income that is modest but too high to qualify for Medicaid. States receive federal
matching funds and for years were given flexibility in designing their SCHIP programs
and were consistently given waivers by CMS to cover uninsured families with children
with incomes exceeding 200% of the federal poverty level (FPL).
In 2007 President Bush vetoed two authorization measures that would have
effectively funded that expanded coverage. In an August 2007 CMS issued a
“clarification” letter to State program administering officials advising them that five
discretionary strategies that had been utilized by states to prevent “crowd out” of private
group health plans were now mandatory for states that expanded eligibility coverage
above the effective level of 250% of the FPL. States had to amend their schemes by
August 2008 “or CMS will pursue corrective action.” In September 2007 CMS rejected a
New York State plan that would have raised the family eligibility to up to 400% of the
FPL, relying on the August clarification letter.
CMS refused to acknowledge that the letter was a rule under the Administrative
Procedure Act (APA) that either had to be reported to Congress under CRA, as was
concluded in opinions issued by the Congressional Research Service and the Office of the
59

37 Weekly Comp. Pres. Doc. 216 (2001).
Compare Franklin v. Massachusetts, 505 U.S. 788, 800 ((1992) and Dalton v. Specter, 511 U.S.
462, 469 (1993), holding that the president is not subject to the APA procedures since he is not
expressly covered by its definition of agency, with Chamber of Commerce v. Reich, 74 F. 3d 1311
(D.C. Cir. 1998) and National Family Planning Council v. Sullivan, 979 F.2d 227 (D.C. 1992),
allowing challenges to agency actions that were issued pursuant to presidential directive.
61
22 U.S.C. § 2151 b(b) and § b(f)(1) (2006).
60

16

General Counsel of GAO, or promulgated pursuant to the notice and comment
requirements of the APA, as asserted in a lawsuit filed by New York and three other
states challenging the binding validity of the letter. Senator John D. Rockefeller,
chairman of the subcommittee with jurisdiction over SCHIP, following a House hearing
on the CMA action,62 filed a disapproval resolution63 with 49 co-sponsors. The
resolution was never reported or discharged out of committee. In January 2009, with
increased Democratic majorities in both Houses, Congress passed authorization
legislation for expanded funding of SCHIP that contained no express mention of the
contested eligibility requirements, which the President signed into law on February 4,
2009.64 That same day the President issued a Presidential Memorandum directing the
Secretary of HHS to withdraw the August 2007 letter. On June 30, 2010 New York State
received CMS approval of its state plan amendment which raised family income
eligibility up to 400% of the FPL retroactive to April 2009.
3. Perceived CRA Structural and Interpretive Impediments
As has been indicated, in the 16 years since its passage, the CRA process has
been used sparingly. Several criticisms and questions concerning the process have been
raised by those supporting the wider use of the regulatory disapproval mechanism. These
have included a need for a screening mechanism for submitted rules; the absence of an
expedited procedure in the House of Representatives for consideration of disapproval
resolutions; the deterrent effect of the need for a supermajority to overcome a veto; the
uncertainty about which rules the law covers; the judicial enforceability of its key
requirements; and the effect of a rule nullification on future agency rulemaking in the
same area, all of which, individually and cumulatively, critics believe, have introduced
uncertainties and impediments to the use of the process.
(a) Lack of a Screening Mechanism to Pinpoint Rules That Need
Congressional Review; Proposals for Change; the REINS Act
Proponents of an expanded use of the CRA process have called for a screening
mechanism that would alert committees to rules that may raise important or sensitive
substantive issues. In their view, the perceived lack of timely and informative substantive
information prevents busy committees from prioritizing such issues. The Comptroller
General’s reports on major rules serve only as check lists as to whether legally required
agency tasks have been done and not as substantive assessments of whether they were
done properly or whether the rules accord with congressional intent.
Lack of knowledge of the existence of the most sensitive rules by jurisdictional
committees or interested Members is rarely the case. Stakeholders, their lobbyists and
public interest groups, among others, fill the notification gap. What critics say is absent
is in-depth scrutiny and analysis of individual rules by an authoritative and presumably
neutral source that may provide the basis for triggering meaningful congressional review.
Hearing on H. R. 5998, Protecting Children’s Health Coverage Act of 2008, 110th Cong., 2d
Sess. (May 15, 2008).
63
S.J. Res. 44, 110th Cong., filed July 17, 2008.
64
Pub. L. 111-3, 123 Stat. 8 (2009).
62

17

Opponents reject this argument and often conclude that the Act, in its current form, is
exactly what Congress intended, and that any lack of action under it does not equate to
lack of knowledge of major rules.
i.

CORA Proposals

Some support for an independent substantive screening body was signaled by the
introduction by Representative Sue Kelly of H.R. 1704 in the 105th Congress, a bill that
would have established a Congressional Office of Regulatory Analysis.65 The bill was
referred to the House Judiciary and Governmental Reform and Oversight Committees,
both of which favorably reported differing versions of the legislation.66 Rep. Kelley
indicated that the absence of such a screening body was a cause of congressional inaction
under the CRA.
In my opinion, this [lack of action] can be explained in large part because of the
fact that nearly all of Congress’s information about the impact of new regulations comes
from the agencies that are developing them. This information is often unreliable because
agencies have a vested interest in downplaying any negative aspects of the regulation
they have proposed. As a result, Congress is at a disadvantage when trying to determine
just how a particular regulation will impact the economy, making it that much more
difficult to implement the CRA.67
Both versions would have established an independent Congressional Office of
Regulatory Analysis (CORA) to be headed by a director appointed by the House Speaker
and the Senate Majority Leader for a term of four years, with service in the office limited
to no more than three terms. The current review functions of the Comptroller General
under the CRA and the Congressional Budget Office under the Unfunded Mandates Act
of 1995 would have been transferred to the proposed CORA. The Judiciary Committee’s
version, in addition to having the Office make “an assessment of an agency’s compliance
with the procedural steps for ‘major rules’” required by the CRA, directed the proposed
CORA to “conduct its own regulatory impact analyses of these ‘major rules.’”68
The bill as reported by the Government Reform Committee would have allowed
the CORA director to use “any data and analyses generated by the Federal agency and
any data of the Office” in analyzing the submitted rule. Both bills provided that a similar
analysis of non-major rules was to be conducted when requested to do so by a House or
Senate Committee or by individual Members of either House. First priority for the
conduct of such analyses was given to all major rules. Secondary priority was assigned
to committee requests. Tertiary priority was given individual Member requests. Finally,
under the Judiciary Committee version, the report was to be furnished within 45 days
65

A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond. 143
Cong. Rec. S1007 (daily ed. Feb. 25, 1998).
66
See H. Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998).
67
Testimony of Rep. Sue Kelly before the Subcommittee on National Economic Growth, Natural
resources, and Regulatory Affairs, House Committee on Government reform and Oversight,
“H.R. 1704, Congressional Office of Regulatory Analysis creation Act,” 105th Cong., 2d Sess. 6
(1998).
68
H.R. 1704, § 4 (a)(3)(A).
18

after Congress received notification of the rule. The Governmental Reform bill would
have allowed 30 days. H.R. 1704 received no floor action during the 105th Congress. A
bill closely similar to H.R. 1704, H.R. 214, has been introduced in the 112th Congress.
Supporters of the CORA model argue that an independent office of regulatory
analysis would serve the congressional need for objective information necessary to
evaluate agency regulations. In their view, a CORA would also provide credibility and
impetus for wider utilization of the review mechanism. Further, by providing intensive
review of certain major rules, it would forestall the possibility of OIRA’s reluctance to
provide an objective evaluation of agencies’ regulations,69 and make the regulatory
process more rational and transparent. Those opposing the establishment of an office of
this kind contend that creation of a new congressional bureaucracy for review purposes
would be unnecessarily duplicative of what the agencies have already done as well as
extraordinarily expensive, raise doubts as to whether a CORA could provide the
necessary assessments within the time frames of the CRA, and whether the appointment
of a CORA director by the leadership of the House and Senate would make the office
political in nature.70 The requirement of the Judiciary Committee’s version that a CORA
do its own cost-benefit analysis from scratch could be pointed to as an unknown cost
factor, as well as a task that may not be possible to perform adequately within the allotted
45 days.
Congress agreed upon a limited test of the CORA concept, late in the 106th
Congress, with the passage of the Truth in Regulating Act of 2000.71 That legislation
established a three year pilot project for the General Accounting Office (now renamed the
Government Accountability Office (GAO)) to report to Congress on economically
significant rules. Under this pilot program, whenever an agency published an
economically significant proposed or final rule a chairman or ranking minority member
of a committee of jurisdiction of either House of Congress could request the Comptroller
General (CG) to review the rule. The CG was to report on each rule within 180 calendar
days. The report had to contain an “independent evaluation” by the CG of the agency’s
cost-benefit analysis. There is only one request ever made pursuant to the provision.
That was submitted in January 2001 by the chairs of the jurisdictional committees of the
House and Senate with respect to the Department of Agriculture’s forest planning and
roadless area rule. GAO advised the requesters that although the Act authorized $5.2
million per year for the program, no monies had been appropriated and it could not
proceed with the request. No further action was taken on the request, and Congress never
enacted an appropriation, thereby forestalling implementation of the project. It may be
noted that the 180-day reporting period did not mesh at all with the time period under the
CRA for consideration of rules subject to resolution of disapproval, although completed
Robert W. Hahn and Robert A. Litan , “The Regulatory Right-to-Know Act and the
Congressional Office of Regulatory Analysis Act, “ Joint testimony before the Senate Committee
on Governmental Affairs, April 1999, at
http//brookings.edu/~/media/Files/re/testimonies/1999/04_righttoknow_litan.pdf.
70
Ibid; Jennifer Coderre, “Senate Panel Continues Debate on Costs, Benefits of ‘Regulatory
Right-to-Know’ Bills,” BNA Daily News Report for Executives, April 23, 1999, p. A-30.
Comments on CORA were attributed to Gary Bass of OMB Watch.
71
P.L. 106-312, 114 Stat. 1248-50 (2000), 5 U.S.C. § 801 note.
69

19

requests for analyses of proposed rules might coincide with such reviews. In any event,
the pilot program established by the act expired in January 2004.
In the 109th Congress, Representative Sue Kelly introduced H.R. 1167, which
would have made permanent the authority of Congress to request GAO to perform
regulatory analyses. The proposed new Truth in Regulating Act (TIRA), if enacted as a
permanent responsibility of the GAO, did not appear to provide a specific appropriation
to require agency performance of the vested task, as was the case when it was previously
established as a “pilot project.” The act would have, in effect, established an unfunded
mandate. Although GAO currently does (and historically has always done) some reviews
of agencies’ rules at Members’ requests under its current appropriations, both the volume
and nature of the reviews under this proposal would likely have been substantially
different and might have affected its ability to conduct other agency reviews. A similar
bill, H.R. 725, would also have made TIRA permanent and would have authorized up to
$5 million for the reviews but was never acted on.
ii.

Joint Congressional Committee Models

In an apparent attempt to avoid the criticisms of the CORA model and to remedy
some of the perceived impediments to the effectiveness of the CRA, Representative
Ginny Brown-Waite introduced H.R. 3356, the Joint Administrative Procedures
Committee Act of 2003, in the 108th Congress which would have amended the CRA by
establishing a joint congressional committee with broad authority to investigate, evaluate
and recommend actions with respect to the development of proposed rules, the
amendment or repeal of existing rules, and disapproval of final rules submitted for review
under the CRA.72 The responsibilities would have been in addition to the current statutory
framework providing for review of new rules that are required to be reported. A new
provision would permit the joint committee to recommend disapproval of new rules to
jurisdictional committees. The Judiciary Committee referred it to its Subcommittee on
Commercial and Administrative Law. No action was taken by either Committee.
Representative Brown-Waite’s proposal was reintroduced in the 109th Congress as H.R.
3148 but again received no action.
Another bill, H.R. 576, introduced by Representative Ney in the 109th Congress,
was similar in many respects to H.R. 3148, but quite different in certain fundamental
ways. Both would have created a 24-member House-Senate joint committee capable of
holding hearings, requiring the attendance of witnesses, and making rules regarding its
organization and procedures. Both also provided for an expedited consideration
procedure in the House. Significant differences appear, however, with respect to the roles
assigned to the joint committees. Under H.R. 3148, the current process established by the
CRA for congressional review of new agency rules would have been maintained: required
reports on new rulemakings would be submitted to each House and such reports sent to
the jurisdictional committees of each House for action. Rules required to be reported
would also be sent to the joint committee. Special rules were provided for discharge
from committees in the Senate and, under proposed H.R. 3148, from House committees.
72

See 147 Cong. Rec. H 2454 (daily ed. October 21, 2003) (introductory remarks on the
measure).
20

Expedited procedures are in effect for floor proceedings in each House. The only part to
be played by the joint committee in this rule review process under H.R. 3148 would have
been to recommend to jurisdictional committees that certain submitted new rules be
subject to disapproval resolutions. Deference to the current roles of jurisdictional
committees was also maintained under H.R. 3148 with respect to the new duties given to
the joint committee to selectively review existing federal agency rules in effect before the
enactment of the CRA and existing major rules of federal agencies promulgated since
April 1996.
Under H.R. 576, the joint committee, rather than the jurisdictional committees of
each House, would have received the report of covered rules submitted for review by
federal agencies as well as cost-benefit analyses and other materials. Jurisdictional
committees would receive copies of these materials from the joint committee. GAO was
to submit its report on major rules to the joint committee, not the jurisdictional
committees concerned. Major rules could have taken effect no earlier than 60 days after
the rule was published in the Federal Register or was received by the joint committee.
Joint resolutions of disapproval were to be reported by the joint committee to the
respective Houses for action. The joint committee could also report “by bill ...
recommendations with respect to matters within the jurisdiction of their respective
Houses which are referred to the joint committee or otherwise within the jurisdiction of
the joint committee.” It would appear, then, that the joint committee would have had the
predominant role in the congressional review process, which might inject a highly
controversial institutional issue - diminution of the role of jurisdictional committees, as
well providing a prime target for interest group lobbying.
iii. Affirmative Approval Proposals/The REINS Act
A third bill related to rule review, introduced by Representative Hayward in the
109th Congress, was H.R. 931 which would have prohibited any regulation proposed by a
federal agency from going into effect until a bill enacted under expedited consideration
procedures applicable to the rule was signed into law. The term “regulation” was given
the broad meaning of the term “rule” as defined in 5 U.S.C. § 551(4). The bill did not
specifically reference the existent CRA process. In fact, it would have superseded it and
required rulemaking agencies to seek approval of all covered “regulations.” There was
no provision for congressional processing in a timely and expeditious manner the
potentially huge number of proposed regulations.
But most recently, the 112th Congress saw the introduction of perhaps the most
ambitious and detailed proposal to enhance congressional oversight and control of agency
rulemaking. Under H.R. 10, the Regulations from the Executive in Need of Scrutiny Act
of 2011 (REINS Act), all major rules that are reported to Congress would be treated as
proposals which, if not approved within a specified period of time, cannot go into effect
and cannot be proposed again in the same Congress. The REINS Act is appropriately
treated here with proposed screening mechanisms because it reflects a determination that
all rules designated as major must be scrutinized.
The REINS Act would supplant the CRA. Rules designated by the OIRA
Administrator as major must be reported to each House and the CG and referred to the
appropriate jurisdictional committee and also to the House Judiciary and Senate
21

Homeland Security and Governmental Affairs Committees. A major rule can become
effective only upon enactment of a joint resolution of approval which must be passed by
the end of 70 session or legislative days after receipt by Congress. If not enacted within
that period, the same rule cannot be considered again in the same Congress. The
President is authorized to make an emergency determination for certain specified exigent
situations that would allow a rule to go into immediate effect, but for no longer than one
90 day period, and does not interrupt the statutory review process.
Both Houses would have the same fast-track consideration procedure. If an
approval resolution has not been acted upon by the referral committees within 15 session
or legislative days, it is automatically discharged and placed on the respective house
calendars. A vote on final passage must be taken within 15 session or calendar days
thereafter. If a motion to proceed is agreed to, the resolution remains the sole business of
the body until disposed of. Two hours of debate are allowed and the resolution is not
subject to amendment. If one House acts before the other, the resolution passed by the
other House will be the one voted on by the receiving House.
The procedure and timing for consideration of non-major rules tracks the CRA’s
current model, which provides expedited fast-track consideration in the Senate, normal
bill processing in the House, and placement on the calendar of the House receiving a
passed disapproval resolution. However, the REINS Act would not provide that a rule
similar to a disapproved rule cannot be considered again unless Congress by law
authorizes it.
Finally, H.R. 10 would adopt two new provisions respecting judicial review.
First, it would make clear that the judicial preclusion provision of Section 805 does not
estop a court from determining that a rule that has not been reported is not effective.
Second, Section 802(g) of the bill provides that congressional approval of a rule does not
shield the rule from normal APA court review for substantive or procedural defects and
may not be included in the record before a court reviewing the rule.
Hearings on the REINS Act were held by the House Judiciary’s Subcommittee on
the Courts, Commercial and Administrative Law on January 24 and March 8, 2011,
which raised differing and contentious views on the constitutionality and practicality of
the proposal.73
(b) Lack of an Expedited Consideration Procedure in the House
Those unsatisfied with the present CRA review process argue that the absence of
an expedited consideration procedure in the House of Representatives may well be a
factor affecting use of the process in that body since, as a practical matter, it will mean
engaging the House leadership each time a rule is deemed important enough by a
committee or group of Members to seek speedy access to the floor. In view of the limits
both on floor time and the ability to gain the attention of the leadership, it is argued that
73

See Hearings, The REINS Act-Promoting Jobs and Expanding Freedom by Reducing Needless
Regulations,” before the Subcomm. on Courts, Commercial and Administrative Law, House
Judiciary Committee, Jan. 24, 2011 (testimony of Professor Sally Katzen and David McIntosh,
respectively opposing and supporting the constitutionality and practicality of legislative approval
mechanisms); REINS Act Report, supra note 6, at 14-18 (discussing constitutional issues).
22

only the most well situated in the body will be able to gain access within the limited
period of review. It is also maintained that a perception that no action will taken in the
House might deter Senate action.74
It has been suggested that this asymmetry may be reflective of the fact that the
Senate has more procedural hurdles to majority rule than does the House, so the drafters
of the CRA may have believed that fast-track procedures were only needed for the
Senate.75 The House Parliamentarian speculated in 1997 that the CRA may have left out
fast-track procedures for the House because the House Rules Committee can limit debate
and expedite bills to the floor at its choosing.76 One commenter, not inconsistent with the
foregoing suggestions, contends that the “CRA is designed to ensure that political
minorities are not able to use congressional procedure to hijack policy.”77 The author
argues that while it is well established that the House is a majoritarian institution, the
House also recognizes that its committees are susceptible to capture by special interests.
A prominent example cited is that if one House passes a disapproval resolution and sends
it to the other House, it is placed on the calendar of that House, and not referred to one its
committees, and is the resolution that will voted on. As a consequence, the author
concludes, “At the very least, Congress believes committee capture is real, because it
adopted the CRA in part to circumvent committees.”78
It is interesting to note, then, that the proposed REINS Act, described above,
would impose expedited procedures on both House and Senate consideration of approval
resolutions, including automatic discharge from the committees of referral after 15 days,
but reverts to the CRA model when non-major rules come under review. Since it is
virtually certain that the REINS Act proposal has the imprimatur of the current House
leadership, it can be speculated that at the heart of the difference is the sense of the
leadership that an approval scheme warrants a fast track to ensure that a mere faction
cannot bring executive agency rulemaking to a universal halt. But leaving the
disapproval process to the vicissitudes of unanimous consent, suspension, special rule, or
discharge petition, which may bring it to a grinding halt, is apparently acceptable because
the effects are insular and confined within the House.79

74

The experience with respect to the repeal of the ergonomics standard, discussed supra, at pp.
12-13 would appear to bear this out. See also, Interim Report, supra note 8 , at 1406-07,
(presentation of Charles Johnson); Rosenberg, supra note 4, 51 Admin. L. Rev. at 1063;
Mysteries of the CRA, supra note 7 , 122 Harv. L. Rev. at 2165-69.
75
See William N. Eskridge, et al., Cases and Materials on Legislation 517 (4th ed. 2007).
76
See Congressional Review Act: Hearing before the Subcomm. on Commercial and
Administrative Law, H. Comm. on the Judiciary, 105th Cong. 50 (1997) (testimony of Charles W.
Johnson III, Parliamentarian, U.S. House of Representatives).
77
Mysteries of the Congressional Review Act, supra note 49, 122 HARV. L. REV. at 2176-77.
78
Id. at 2177-78.
79
Interview with House Parliamentarian John Sullivan, August 9, 2011.
23

(c) The Uncertainty of the Effect of an Agency’s Failure to Report a
Covered Rule to Congress
Section 801(a)(1)(A) of the CRA provides that “[b]efore a rule can take effect,”
the federal agency promulgating such rule shall submit to each House of Congress and
the Comptroller General a report containing the text of the rule, a description of the rule,
including whether it is a major rule, and its proposed effective date. The CRA contains
no internal institutional mechanism to enforce compliance with its reporting requirement,
but its legislative history appears to presume that private parties subject to unreported
rules would be able to seek judicial relief from agency enforcement of ineffective rules.
However, Section 805 states that “no determination, finding, action or omission
under this chapter shall be subject to judicial review.” Early on the Department of Justice
(DOJ) broadly hinted that the language of Section 805 “precluding judicial review is
unusually sweeping” so that it would presumably prevent judicial scrutiny and sanction
of an agency’s failure to report a covered rule.80 DOJ succeeded with its preclusion
argument in two early federal district court rulings, and more recently in two appeals
court decisions, which rested essentially on the plain meaning rule. None of the opinions
of those courts came to grips with the seemingly unequivocal evidence of the contrary
statements by the House and Senate sponsors of the CRA or the fact that such a reading
of the Act could render it ineffectual. In fact, it appears that the legislative history of the
Act was never briefed as an issue in these cases.
Commenters have suggested that the preclusive judicial reading of Section 805
renders the statute ineffectual and encourages agency non-reporting of covered rules.81
This section reviews the rationale of the court rulings, the contrasting evidence of the
statements of the sponsors of the CRA, and the indication that a significant number of
covered, published rules have not been reported82, and concludes that Congress would be
warranted in considering legislation that would clarify its original intention respecting
judicial enforcement.
i. The Case Law on Judicial Enforcement of Failures to Report
In Texas Savings and Community Bankers Assoc. v. Federal Housing Finance
Board,83 three thrift associations and two of their trade associations sued the Federal
Housing Finance Board challenging one of its policies regarding the home mortgage
80

See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on
Immigration and Claims, Senate Judiciary Committee, from Andrew Fois, Assistant Attorney
General, Office of Legislative Affairs, DOJ, and accompanying analysis dated June 10, 1997, at
pp 9-11 (DOJ Memorandum).
81
See, e.g., Sean D. Croston, Congress and the Courts Close Their Eyes: The Continuing
Abdication of the Duty to Review Agencies’ Noncompliance with the Congressional review Act, 62
Admin. L. Rev. 907, 908, 911, 915-17 (2010) (Croston); Rosenberg, supra, n. 3 at 1069-74.
82
Curtis W. Copeland, Congressional Review Act: Rules Not Submitted to GAO and Congress,
CRS Report No. R40997 (December 29, 2009) (detailing over 1000 rules not received by GAO or
both Houses of Congress between 1999 and 2009) (Copeland Study).
83
Texas Savings and Community Bankers Assoc. v. Federal Housing finance Board, 1998 U.S.
Dist. LEXIS 13470, 1998 WL842 181 (W. Texas), aff’d 201 F.3d 551 (5th Cir. 2000).
24

lending industry. The plaintiffs argued, inter alia, that the policy was a rule required to
be reported to Congress under the CRA and the failure to report it precluded its
enforcement. The Government argued that Section 805 was a blanket preclusion of
judicial review. In response to plaintiff’s contention that Section 805 only precluded
review of any “determination, finding, or omission” by Congress, the court held that “the
statute provides for no judicial review of any ‘any determination, finding, action or
omission under this chapter,’ not ‘by Congress under this chapter.’ The court must follow
the plain English. Apparently, Congress seeks to enforce the [CRA] without the able
assistance of the courts.”84 The court made no reference to the scheme of the act or its
legislative history.
The Texas district court’s “plain meaning” rationale was cited with approval by an
Ohio district court in United States v. American Electric Power Service Corp.85 That case
was one of many involving extensive litigation by the Environmental Protection Agency
(EPA), begun in the mid-1990’s, to establish the extent to which a power plant or factory
may alter its facilities or operations without bringing about a “modification” of that
emission source so as to trigger the Clean Air Act’s New Source Performance Standards
and pre-construction “new source review.”86 Among the issues common in those cases,
and raised in this case, was whether EPA’s determination to initiate litigation enforcement
after many years of no enforcement was a substantive change that had to be reported to
Congress under the CRA. It was among 123 affirmative defenses raised by defendants,
nine coal-fired power plants in Ohio, Virginia, and West Virginia, which the Government
moved to dismiss. Citing the Texas Savings case approvingly, the district court agreed
“that the language of Section 805 is plain” and that “[d]eparture from the plain language
is appropriate in the ‘rare cases [in which] the literal application of a statute would
produce a result demonstrably at odds with the intention of its drafters ... or when the
statutory language is ambiguous.’ ... In all other cases, the plain meaning of the statute
controls.”87 The court did not indicate whether it had attempted to discern whether there
was any evidence of congressional intent at odds with the court’s plain meaning reading.
It did, however, provide an alternative rationale: “Furthermore, this Court is not
convinced that the instant enforcement action amounts to rulemaking which would be
covered by 5 U.S.C. 801 et. seq., in the first instance,” without elaboration.88
In United States v. Southern Indiana Gas and Electric Co.,89 the district court
faced the same issue in a motion for summary judgment by the power company
defendant. Rejecting the Texas Savings and American Electric Power precedents, it
found that Section 805 is ambiguous and susceptible to two possible meanings: that
84

Id.
United States v. American Electric Power Service Corp., 218 F. Supp. 3d 931 (S.D. Ohio 2002).
86
For background on the legal development of the issue, see CRS Report RS21424, Air
Pollution: Legal Perspectives on the “Routine Maintenance” Exception to New Source Review,
by Robert Meltz.
87
American Electric Power, 218 F. Supp. 2d at 949.
88
Id.
89
United States v. Southern Indiana Gas and Electric Co., 2002 U.S. Dist. LEXIS 20936; 55 ERC
(BNA) 1597 (S.D. Ind. 2002).
85

25

Congress did not intend for any court review of an agency’s compliance with the CRA or
that Congress only intended to preclude judicial review of its own determination,
findings, actions or omissions made under the CRA after a rule had been submitted to it
for review. Adopting the first alternative, argued for by the Government and adopted by
the Texas Savings and American Electric Power courts, would, according to the district
court, allow agencies “to evade the strictures of the CRA by simply not reporting new
rules and courts would be barred from reviewing their lack of compliance. This result
would be at odds with the purpose of the CRA, which is to provide a check on
administrative agencies’ power to set policies and essentially legislate without
Congressional oversight. The CRA has no enforcement mechanism, and to read it to
preclude a court from reviewing whether an agency rule is in effect that should have been
reported would render the statute ineffectual.”90 The court found that the post-enactment
legislative history91 “buttresses the ‘limited scope’ of the CRA’s judicial review
provision” but was careful to acknowledge that “the lack of formal legislative history for
the CRA makes reliance on this joint statement troublesome.” However, the court made
it clear that “this court reached its conclusion about the limited scope of the judicial
review provision of the CRA based on the text of the statute and overall purpose of the
act. The legislative history only serves to further reinforce the Court’s conclusion.”92
In 2007 and 2009 two federal appeals courts summarily dismissed claims that
rules relied on by defendant agencies were not reported to Congress and were therefore
unenforceable. In Montanans for Multiple Use v. Barbouletos93 the D.C. Circuit rejected
a challenge to a forest management plan promulgated by the U.S. Forest Service on the
ground that the “language of Section 805 is unequivocal and precludes judicial review of
this claim.” The same clear language rationale supported a footnote dismissal of a similar
challenge by the 10th Circuit in Via Christie Regional Medical Center v. Leavitt.94 There
was no discussion in either ruling of the CRA’s legislative history.

90

Id. at 13-14.
The Joint Explanatory Statement of House and Senate Sponsors are identical explanations by
the legislative sponsors of the scope and intent of the CRA’s provisions that appeared in the daily
editions of the Congressional record on April 18 and 19, 1996, some three weeks after SBRFA
passed and was signed into law. In the absence of committee hearings and report, and in light of
the sparse commentary during floor debate, these explanations represent the most authoritative
contemporaneous understanding of the provisions of the law. The permanent edition of the
Congressional Record for the 104th Congress, published five years after the passage of the CRA,
places the Senate sponsors joint explanation on the date it originally appeared in the daily edition.
The House sponsors Joint Explanation, however, is now placed in the Record as part of the final
days floor debate. The differing type face indicates it was a later insertion. It is therefore correctly
treated as post-enactment legislative history and will be treated as such in this Report’s
discussion.
92
Id. note 89 at 15-16 and note 3.
93
Montanans for Multiple Use v. Babouletos, 568 F. 3d 225, 228 (D.C.Cir. 2009).
94
Via Christie Regional Medical Center v. Leavitt, 509 F. 3d 1259, 1271 n. 11 (10th Cir. 2007).
91

26

ii. The Scheme of the CRA Supports Court Enforcement
It is certainly arguable that the view of the limited preclusiveness of Section 805,
as espoused in Southern Indiana, is plausible.95 A potentially stronger case can be made
from a closer analysis of the text and structure of the Act taken as a whole. Although the
court was correct as a general matter that post-enactment legislative history normally is
given less weight, there are a number of Supreme Court rulings that recognize that under
certain circumstances, arguably applicable here, contemporaneous explanations of key
provisions’ intent have been found to be an “authoritative guide” to a statute’s
construction. In one instance the Court relied on an explanation given eight years after
the passage of the legislation.
The plain, overarching purpose of the review provision of the CRA was to assure
that all covered final rulemaking actions of agencies would come before Congress for
scrutiny.96 The scheme provides for the delayed effectiveness of some rules deemed
innately important (“major rules”),97 and temporarily waives the submission requirement
of Section 801 for rules establishing, modifying, opening, closing or conducting a
regulatory program for a commercial, recreational, or subsistence activity related to
hunting, fishing, or camping; or for a rule an agency “for good cause” finds that notice
and public procedure are impractical, unnecessary, or contrary to the public interest.98
Rules promulgated pursuant to the Telecommunications Act of 1996 are excluded from
the definition of “major rule.” But all such rules must ultimately be submitted for review.
And while the scheme anticipates that some (or even most) rules will go into effect before
a joint resolution of disapproval is passed, the law provides that enactment of a joint
resolution terminates the effectiveness of the rule and that the rule will be treated as
though it had never taken effect.99 Further, a rule that has been nullified cannot be
reissued by an agency in substantially the same form unless it is specifically authorized to
do so by law after the date of the disapproval.100
The review scheme also requires a variety of actions by persons or agencies in
support of the review process, and time for such actions to be scrutinized by both Houses
to implement the scheme. Thus, the Comptroller General must submit a report to
Congress on each major rule submitted within 15 calendar days after its submission or
publication of the rule;101 the Administrator of OIRA determines whether a rule is a
“major rule,”102 and after a rule is reported the Senate has 60 session days, and the House
95

See Crostan, supra ,n. 79.
“This legislation establishes a government-wide congressional review mechanism for most new
rules. This allows Congress the opportunity to review a rule before it takes effect and to
disapprove any rule to which Congress objects.” Legislative History, supra note 2, at 142 Cong.
Rec. 6926.
97
5 U.S.C. § 801(a)(3).
98
5 U.S.C. § 808.
99
5 U.S.C. § 801(b)(1), 801(f).
100
5 U.S.C. § 801(b)(2).
101
5 U.S.C. § 801(a)(2)(A).
102
5 U.S.C. § 804(2).
96

27

60 legislative days, to pass a disapproval resolution under expedited procedures. 103 But
Congress has preserved for itself a period of review of at least 60 session or legislative
days. Therefore, if a rule is reported within 60 session days of the Senate (or 60
legislative days of the House) prior to the date Congress, the period during which
Congress may consider and pass a joint resolution of disapproval is extended to the next
session of Congress.104
Thus the statutory scheme appears geared toward congressional review of all
covered rules at some time; and a reading of the statute that allows for easy avoidance
would seem to defeat that purpose. Interpreting the judicial review preclusion provision
to prevent court scrutiny of the validity of administrative enforcement of covered but
non-submitted rules appears to be neither a natural nor warranted reading of the
provision. Section 805 speaks to “determination[s], finding[s], action[s], or omission[s]
under this chapter,” a plain reference to the range of actions authorized or required as
part of the review process. Thus, Congress arguably did not intend, as is more fully
described below, to subject to judicial scrutiny its own internal procedures, the validity of
presidential determinations that rules should become effective immediately for specified
reasons, the propriety of OIRA determinations whether rules are major or not, or whether
the Comptroller General properly performed his reporting function. These are matters
that Congress can remedy by itself. From one perspective, the potential of court
invalidation of enforcement actions based on the failure to submit covered rules is
necessary to assure compliance with submission requirements.
If Section 805 is read so broadly, it would arguably render ineffective as well the
Section 801(b)(2) prohibition against an agency promulgating a new rule that is
“substantially the same” as a disapproved rule unless it “is specifically reauthorized by a
law enacted after” the passage of a disapproval resolution. It is more than likely that a
determination whether a new or reissued rule is “substantially the same” as a disapproved
rule is one that a court will be asked to make.105 Congress appears to have contemplated
(and approved) judicial review in this and other situations when it provided in Section
801(g) that “[i]f Congress does not enact a joint resolution of disapproval under Section
802 respecting a rule, no court or agency may infer any interest of the Congress from any
action or inaction of the Congress with regard to such rule, related statute, or joint
resolution of disapproval.”
(d) The Legislative History of the CRA’s Preclusion Provision
The legislative history of the CRA confirms this view of the limited reach of the
Act’s judicial review preclusion language.
A key sponsor of the legislation,
Representative McIntosh, explained during the floor debate on H.R. 3136 that “Under
103

5 U.S.C. § 802.
5 U.S.C. § 801(d)(1).
105
The disapproval of the ergonomics rule underlines a possible need for judicial review in
certain instances where enforcement is necessary and appropriate to support the statutory scheme.
That rule, which was broad and encompassing in its regulatory scope, raises the question as to
how far can the agency go before it reaches the point of substantial similarity in its promulgation
of a substitute. This issue is addressed in the next section.
104

28

Section 8(a)(1)(A), covered rules may not go into effect until the relevant agency submits
a copy of the rule and an accompanying report to both Houses of Congress.”106
Shortly thereafter, the principal Senate and House sponsors of the CRA published
a Joint Explanatory Statement in the Congressional Record providing a detailed
explanation of the provisions of the Act which serves as its authoritative legislative
history. The Joint Explanatory Statement is clear as to the scope and limitation of the
judicial review provision:
Limitation on judicial review of congressional or administrative
actions
Section 805 provides that a court may not review any congressional or
administrative “determination, finding, action, or omission under this
chapter”. Thus, the major rule determinations made by the Administrator
of the Office of Information and Regulatory Affairs of the Office of
Management and Budget are not subject to judicial review. Nor may a
court review whether Congress complied with the congressional review
procedures in this chapter. This latter limitation on the scope of judicial
review was drafted in recognition of the constitutional right of each House
of Congress to “determine the Rules of its Proceedings”. U.S. Const. Art.
I, §5, cl. 2, which includes each house being the final arbiter of
compliance with such Rules.
The limitation on a court’s review of subsidiary determinations or
compliance with congressional procedures, however, does not bar a court
from giving effect to a resolution of disapproval that was enacted into law.
A court with proper jurisdiction may treat the congressional enactment of
a joint resolution of disapproval as it would treat the enactment of any
other federal law. Thus, a court with proper jurisdiction may review the
resolution of disapproval and the law that authorized the disapproved rule
to determine whether the issuing agency has the legal authority to issue a
substantially different rule. The language of subsection 801(g) is also
instructive. Subsection 801(g) prohibits a court or agency from inferring
any intent of the Congress only when “Congress does not enact a joint
resolution of disapproval”, or by implication, when it has not yet done so.
In deciding cases or controversies properly before it, a court or agency
must give effect to the intent of the Congress when such a resolution is
enacted and becomes the law of the land. The limitation on judicial
review in no way prohibits a court from determining whether a rule is in
effect. For example, the authors expect that a court might recognize that a
rule has no legal effect due to the operation of subsections 801(a)(1)(A) or
801(a)(3).107

106
107

142 Cong. Rec. 6907 (1996).
142 Cong. Rec. 6929 (1996).
29

In sum, there is substantial evidence in the structure of the CRA and the expressed
intentions of the sponsors of the legislation that judicial sanction of agency failures to
report covered rules was integral to the scheme of congressional review of rules and
would warrant congressional remedial legislation to clarify the situation. The need for
such clarification appears buttressed by the revelation of the significant number of
unreported rules in the last decade.108
(e) The Uncertainty of Which Rules Are Covered By The CRA
The drafters of the Congressional Review Act arguably adopted the broadest
possible definition of the term “rule” when they incorporated Section 551(4) of the APA.
As indicated previously,109 the legislative history of Section 551(4) and the case law
interpreting it make clear that it was meant to encompass all substantive rulemaking
documents, which may include policy statements, guidances, manuals, circulars,
memoranda, bulletins and the like and which as a legal or practical matter an agency
wishes to make binding on the affected public.
The legislative history of the CRA emphasizes that by adoption of the Section
551(4) definition of rule, the review process would not be limited only to coverage of
rules required to comply with the notice and comment provisions of Section 553 of the
APA or any other statutorily required variations of notice and comment procedures, but
would rather encompass a wider spectrum of agency activities characterized by their
effect on the regulated public: “The committee’s intent in these subsections is . . . to
include matters that substantially affect the rights or obligations of outside parties. The
essential focus of this inquiry is not on the type of rule but on its effect on the rights and
obligations of non-agency parties.”110
The drafters of the legislation indicated their awareness of the practice of agencies
avoiding the notification and public participation requirements of APA notice-andcomment rulemaking by utilizing the issuance of other documents as a means of binding
the public, either legally or practically,111 and noted that it was the intent of the legislation
to subject just such documents to congressional scrutiny: “The committees are concerned
that some agencies have attempted to circumvent notice-and-comment requirements by
trying to give legal effect to general statements of policy, ‘guidelines,’ and agency policy
and procedure manuals. The committees admonish the agencies that the APA’s broad
definition of ‘rule’ was adopted by the authors of this legislation to discourage
circumvention of the requirements of chapter 8.”112
108

See Copeland Study, supra n.82.
See supra footnotes 15-18 and accompanying text.
110
Joint Explanatory Statement of House and Senate Sponsors, supra n.4, at 142 Cong. Rec.
6930.
111
This practice had been long recognized and criticized in administrative law commentaries. See,
e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the
Like—Should Federal Agencies Use Them To Bind The Public?, 41 DUKE L.J. 1311 (1992). Cf.
also, General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions
Without Proposed Rules, GAO/GGD-98-126 (August 1998).
112
Legislative History, supra n. 4, at 142 Cong. Rec. 6930
109

30

It is likely that virtually all the over 57,000 non-major rules thus far reported to
the Comptroller General have been either notice and comment rules or agency documents
required to be published in the Federal Register. It is certain that perhaps thousands of
rules that were intended by the legislations sponsors have not been submitted for
review.113 Defining an exact number is difficult since such covered documents are rarely
published in the Federal Register and thus may come to the attention of committees or
Members serendipitously or through complaints of interest groups.
Nine such agency actions have come to the attention of committee chairmen and
Members and were referred to the Comptroller General for determinations whether they
were covered rules. In six of the nine cases the CG determined the action documents to
be covered rules, in all cases utilizing “legal and practical” impact standard suggested by
CRA’s sponsors.114

113

An investigation by the House Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs (Government Reform) which revealed that 7,523 guidance
documents issued by the Department of Labor, the Environmental Protection Agency, and the
Department of Transportation which were of general applicability and future effect had not been
submitted for CRA review during the period March 1996 through November 1999. See “NonBinding Legal Effect of Agency Guidance Documents,” http://www.congress.gov/cgi-lis/cpquery/
T?&report=hr1009&dbname=cp106& H.Rept. 106-1009, 106th Cong., 2nd Sess. (2000).
114
For example, in a letter to the Honorable John D. Rockefeller, IV, Chairman, Senate
Subcommittee on Health Care, Committee on Finance, and the Honorable Olympia Snowe,
Ranking Minority Member, Senate Subcommittee on Health Care, Committee on Finance, B316048 April 17, 2008 the GAO General Counsel stated that an August 17, 2007 letter issued by
the Centers for Medicare and Medicaid Services (CMS) to state officials concerning the State
Children’s Health Insurance Program (SCHIP) was “a rule that must be submitted for review
under the CRA before it can take effect because it is a statement of general applicability and
future effect designed to implement, interpret, or prescribe law or policy with regard to the
SCHIP program.” See also, a letter to Honorable Lane Evans, Ranking Minority Member, House
Committee on Veterans’ Affairs, B-292045 (May 19, 2003) (Department of Veterans Affairs
memorandum terminating the Department’s Vendee Loan Program is not a rule that must be
submitted to Congress because it is exempt under § 804(3)(B) and (C) as a rule relating to
“agency management” or “agency organization, procedure, or practice that does not substantially
affect the rights or obligations of non-agency parties.”); letter to Honorable Ted Strickland, B291906 (February 28, 2003) (Department of Veterans Affairs memorandum instructing all
directors of health care networks to cease any marketing activities to enroll new veterans in such
networks is excluded from CRA coverage by § 804(3)(C) which excludes “any agency rule of
agency organization, procedure, or practice that does not substantially affect the rights or
obligations of non-agency parties.”); letter to Honorable Doug Ose, Chairman, House
Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs, Committee on
Government Reform, B-287557 (May 14, 2001) (Department of Interior’s Fish and Wildlife
Service’s Trinity River “Record of Decision” is a rule covered by the CRA because it is an agency
statement of general applicability and future effect designed to implement, interpret, or prescribe
law or policy and is an “agency action[] that substantially affect[s] the rights and obligations of
outside parties.”); letter to the Honorable James A. Leach, Chairman, House Banking Committee,
B-286338 (October 17, 2000) (Farm Credit Administration’s national charter initiative held to be
a rule under the CRA); letter to Honorable David M. McIntosh, Chairman, Subcommittee on
National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on
31

Believing such instances to be only a small portion of unreported agency actions,
GAO, at the behest of the House Government Reform and Oversight Subcommittee on
National Economic Growth, Natural Resources, and Regulatory Affairs, engaged in
discussions with the Office of Management (OMB) during 1998 for the creation of a
uniform reporting form for use by agencies in reporting covered rules to the CG, and for
the promulgation of an OMB guidance document covering such matters falling under the
review provision as the definition of a covered rule, reporting requirements, the good
cause exemption, and the consequences of failing to report a rule, among others. The
failure to issue such a guidance prompted insertion of the following directive in the
FY1999 appropriation for OMB: “OMB is directed to submit a report by March 31, 1999,
to the Committees on Appropriations, the Senate Committee on Governmental Affairs,
and the House Committee on Government Reform and Oversight that . . . issues guidance
on the requirements of 5 U.S.C. § 801(a)(1) and (3); § 804(3), and § 808(2), including a
standard new rule reporting form for use under Section 801(a)(1)(A)-(B).”115 OMB
issued the guidance on March 30, 1999, which included a standard form for reporting.
The guidance, still applicable and unamended, makes it clear that a covered rule
must be reported in order to become effective. But it does not address the possibility that
certain agency documents that may be perceived by the regulated public as legally
binding may also have to be reported. Following the completion of an investigation that
revealed that 7,523 guidance documents issued by three agencies over a period of three
and a half years had not been submitted for CRA review, the Subcommittee concluded
that OMB, “has failed to substantially comply with that statutory directive.”116
(f) The Problem of Agency Non-Reporting
In December 2009 the Congressional Research Service issued a study that
revealed that GAO had catalogued over 1,000 covered rules that it had not received
between 1999 and 2009, almost all of which were not reported to each House of
Government Reform and Oversight, B-281575 (January 20, 1999) (EPA “Interim Guidance for
Investigating Title VI Administrative Complaints Challenging Permits” held to be covered
because it created new, mandatory steps in the procedure for handling disparate impact
assessments which gave recipients new rights they did not previously possess for obtaining
complaint dismissals, a substantive alteration of the previous regulation.); letter to Honorable
Conrad Burns, B-278224 (November 10, 1997) (the American Heritage River Initiative
announced by the Council on Environmental Quality was not a covered rule because it was
established by presidential executive order and direction and the President is not an “agency”
under the APA and is not subject to the provisions of the APA); letter to Honorable Ted Stevens,
Chairman, Senate Appropriations Committee, et al, B-275178 (July 3, 1997) (Tongass National
Forest Land and Resources Management Plan held an agency statement of general applicability
and future effect that implements, interprets, and prescribes law and policy); letter to Honorable
Larry Craig, Chairman, Senate Committee on Energy and Resources, B-274505 (September 16,
1996) (memorandum of Secretary of Agriculture concerning the Emergency Salvage Timber Sale
Program held to be a covered rule because it is of general applicability and interprets and
implements the statutory program).
115
P.L. 105-277, Division A, title III (1997).
116
See H.Rept. 106-1009, supra note 113 at 4-5.
32

Congress.117 During each of those years GAO monitored the Federal Register for
published final substantive rules and compared it with rules it had actually received. A
number of the unreported rules were rules deemed significant by OIRA. GAO notified
OIRA on at least five occasions during this period about the lapses and provided it with
lists of agencies and their unreported rules and encouraged it to use the information to
ensure agency compliance, but it was only in November 2009 that OIRA directly
contacted agencies advising them to comply. The e-mail went to all agencies and did not
directly identify the non-compliant agencies or the unreported rules. Even with that
notice agency response was slight. In 2010 GAO changed its strategy and for the first
time directly contacted non-reporting agencies. The effect was dramatic. In the last nine
months the number of unreported rules has dropped to four.118
There is no evidence that non-compliance was deliberate.119 But it appears
essential that some systematic scheme of monitoring and reporting is necessary. GAO
took on the task voluntarily in 1998 but never advised anyone in Congress of the
emerging situation except in its annual written testimony before Congress. The reporting
lapse and its ad hoc resolution underlines the inter-relatedness of the CRA’s structural and
interpretive impediments. If the solution is simply making an agency aware of its lapse,
someone should be officially given the job of doing it. It could be considered as a task
for a CORA or other screening body that might be created. And the task would be made
easier if the threat to the continued effectiveness of the unreported rule was a reality.
In that vein, some attention also needs to be given to the difficult problem of
identifying in the body of covered rules those agency document issuances that impose,
legally or practically, new obligations and duties on the regulated public. Virtually no
such documents will be published in the Federal Register. Likely the most effective
means of identification will come from the affected public or concerned agency
personnel.
(g) The Uncertainty of the Breadth of the Prohibition Against an
Agency’s Promulgation of a “Substantially Similar” Rule After
the Rule Has Been Vetoed
Enactment into law of a disapproval resolution has several important
consequences. First, a disapproved rule is deemed not to have had any effect at any time.
Thus, even a rule that has become effective for any period of time is retroactively
negated.120 Second, a rule that does not take effect, or is not continued because of the
passage of a disapproval resolution, cannot be “reissued in the same form” nor can a
“new rule” that is “substantially the same” as the disapproved rule be issued unless such
action is specifically authorized by a law enacted subsequent to the disapproval of the

See “Congressional Review Act: Rules Not Submitted to GAO and Congress,” CRS Report
No. R40997, December 29, 2009, by Curtis W. Copeland. The CRA provides that for a rule to
become effective it must be reported to both GAO and the two houses of Congress.
118
Interview with Robert J. Cramer, Managing Associate General Counsel, August 15, 2011.
119
Id.
120
5 U.S.C. § 801(f).
117

33

original rule.121 The full text of this provision states: “A rule that does not take effect (or
does not continue) under paragraph (1) may not be reissued in substantially the same
form, and a new rule that is substantially the same as such a rule may not be issued,
unless the reissued or new rule is specifically authorized by a law enacted after the date
of the joint resolution disapproving the original rule.”
Finally, if a rule that is subject to any mandatory statutory, regulatory or judicial
deadline for its promulgation is not allowed to take effect, or is terminated by the passage
of a joint resolution, any deadline is extended for one year after the date of enactment of
the disapproval resolution.122 Effectively, this means that if a statutorily mandated rule is
vetoed, the agency must “try again,” apparently guided by the floor debates on its
rescission.
Opponents of a disapproval resolution process may argue that successful passage
of a resolution may disable an agency from ever promulgating rules in the “area” covered
by the resolution without future legislative reauthorization since a successful disapproval
resolution must necessarily bring down the entire rule. Or, at the very least, it may be
contended that any future attempt by the agency to promulgate new rules with respect to
the subject matter will be subject to judicial challenge by regulated persons who may
claim that either the new rules are substantially the same as those disapproved or that the
statute provides no meaningful standard to discern whether a new rule is substantially the
same and that the agency must await congressional guidance in the form of a statute
before it can engage in further rulemaking in the area. The practical effect of these
understandings, then, may be to dissuade an agency from taking any action until
Congress provides clear authorization.
A review of the CRA’s statutory scheme and structure, the contemporaneous
congressional explanation of the legislative intent with respect to the provisions in
question, the lessons learned from the experience of the March 2001 disapproval of the
OSHA ergonomics rule, and the application of pertinent case law and statutory
construction principles, suggests three conclusions.
(1) It is doubtful that Congress intended that all disapproved rules would require
statutory reauthorization before further agency action could take place. For example, as
is discussed above, it appears that Congress anticipated further rulemaking, without new
authorization, where the statute in question established a mandatory deadline for
promulgating implementing rules in a particular area. In such instances, the CRA extends
the deadline for promulgation for one year from the date of disapproval.
(2) A close reading of the statute, together with its contemporaneous
congressional explication, arguably provides workable standards for agencies to reform
disapproved regulations that are likely to be taken into account by reviewing courts.
Those standards would require a reviewing court to assess both the nature of the
rulemaking authority vested in the agency that promulgated the disapproved rule and the
specificity with which the Congress identified the objectionable portions of a rule during
the floor debates on disapproval. An important factor in any judicial assessment may be
121
122

5 U.S.C. § 801(b)(2).
5 U.S.C. § 803.
34

the CRA’s recognition of the continued efficacy of mandated statutory deadlines for
promulgating specified rules by extending such deadlines for one year after disapproval.
(3) The novelty of the issue, the uncertainty of the weight a court may accord the
post-enactment congressional explanation, and the current judicial inclination to give
deference to the “plain meaning” of legislative language, make it difficult to anticipate
what a court is likely to hold in such an event.
Since Congress can apparently only disapprove a rule as a whole, rather than
pinpointing any particular portions, there may be no sound basis for the agency to act
without further legislative guidance where a rule deals exclusively with an integrated
subject matter. The statute gives no indication as to how an agency is to discern what
actions would be “substantially the same” and it would run the risk of a successful court
challenge if it guessed incorrectly. It might be further argued that even if the agency
promulgates new rules, which of course would again be subject to CRA scrutiny, and
Congress did not act to disapprove the new rules, that would not provide the necessary
reauthorization since Section 801(g) of the act provides as a rule of construction that in
the event of the failure of Congress to disapprove a rule “no court ... may infer any intent
of Congress from any action or inaction of the Congress with regard to such, related
statute, or joint resolution of disapproval.”
It is fundamental that statutory language is the starting point in any case of
statutory construction. In recent years, the Supreme Court has shown a strong disposition
to hold Congress to the letter of the language it uses in its enactments. In its ruling in
Barnhart v. Sigmon Coal Co.123 the Court advised that the first step “is to determine
whether the language at issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.”124 “The inquiry ceases ‘if the statutory language is
unambiguous and the statutory scheme is coherent and consistent.’”125 In such cases, the
Court has held, resort to “legislative history is irrelevant to the interpretation of an
unambiguous statute.”126 In Barnhardt the Court warned, “parties should not seek to
amend [a] statute by appeal to the Judicial Branch.”127
The plain meaning rule, however, is not an unalterable, rigid rule of construction
and has been held inapplicable where it would “lead to an absurd result,”128 or “would
bring about an end completely at variance with the purpose of the statute.”129 “It is ‘a
fundamental canon of statutory construction that the words of a statute must be read in
their context and with a view to their place in the overall statutory scheme’ ... Thus it is a
more faithful construction of [a statute] to read it as a whole, rather than as containing
123

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002).
Id. at 450.
125
Id.
126
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 808-09 n.3. Accord Connecticut National
Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v. Daas, 198 F.2d 1167, 1175 (9th
Cir. 1999), cert. denied 531 U.S. 999 (2000).
127
Barnhart, supra note 121, 534 U.S. at 462.
128
Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).
129
United Steelworkers v. Weber, 443 U.S. 193, 201 (1978).
124

35

two unrelated parts. It is the classic judicial task of construing related statutory
provisions to make sense in combination.”130 In the instant situation, it is not likely that a
court would hold that the “substantially the same” language of Section 801(b)(2) is
unambiguous, either on its face or in the context of the statutory scheme. The direction
of the provision is not a self-enforcing mandate; it clearly requires a further determination
whether rules have been reissued in “substantially the same form” or whether a new rule
is “substantially the same” as the one disapproved. The ambiguity raised appears to be
who makes those determinations and on what basis.
The language of the provision, however, does not naturally or ineluctably lead to
the conclusion that no further remedial rulemaking can take place unless Congress passes
a new law. This reasoning is buttressed by Section 803(a) which contemplates that
agency rulemaking must take place after a disapproval action if the authorizing
legislation of the agency mandates that rules disapproved had to have been promulgated
by a date certain. That provision extends the deadline for promulgation for one year
“after the date of enactment of the joint resolution,” not one year after Congress
reauthorizes action in the area. A reasonable conclusion is that Congress understood that
after disapproval, an agency, if it was under a mandate to produce a particular rule, had to
try again. The question then is, how was it to perform this task? The answer may lie in
the legislative history of the Act.
As has been indicated, there is no detailed expression of its legislative history,
apart from floor statements by key House and Senate sponsors, before its passage by the
Congress on March 28, 1996 and its signing into law by the President on March 29.
Thereafter, the principal sponsors of the legislation in the Senate (Senators Nickles, Reid
and Stevens) and House (Representative Hyde) submitted identical joint explanatory
statements for publication in the Congressional Record “intended to provide guidance to
the agencies, the courts, and other interested parties when interpreting the act’s terms.”131
Although it is a post-enactment explanation of the legislation, it is likely to be accorded
some weight as a contemporaneous, detailed, in-depth statement of purpose and intent by
the principal sponsors of the law.132
The Joint Explanatory Statement directly addresses a number of issues that may
arise upon enactment of a disapproval resolution and attempts to provide guidance for
both Congress and agencies faced with repromulgation questions. At the outset, the
Statement notes that disapprovals may have differing impacts on promulgating agencies
depending on the nature and scope the rulemaking authority that was utilized. For
example, if an agency’s authorizing legislation did not mandate the promulgation of the
disapproved rule, and the legislation gives the agency broad discretion, the sponsors
deemed it likely that the agency has the discretion whether or not to promulgate a new
rule. On the other hand, the Statement explains that “if an agency is mandated to
130

United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (holding, inter alia, that it is appropriate
for a court to look at the history and background against which Congress was legislating).
131
Legislative History, supra, n.42.
132
See, e.g., North Haven Bd. of Education v. Bell, 456 U.S. 512, 530-31 (1982); Pacific Gas &
Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S. 190, 220
n.23 (1983); Grove City College v. Bell, 465 U.S. 555, 567 (1984).
36

promulgate a particular rule and its discretion is narrowly circumscribed, the enactment
of a resolution of disapproval for that rule may work to prohibit the reissuance of any
rule.”133 Arguably, a congressional mandate to issue regulations that is not narrowly
focused would still be operative. But how would the agency be guided in that
circumstance? The Statement addresses that very question: it is the obligation of
Congress during the debate on the disapproval resolution “to focus on the law that
authorized the rule and make the congressional intent clear regarding the agency’s
options or lack thereof after the enactment of a joint resolution of disapproval.”134
Thereafter, “the agency must give effect to the resolution of disapproval.”135 The full
statement on the issue is as follows:
Effect of Enactment of a Joint Resolution of Disapproval
Subsection 801(b)(1) provides that “A rule shall not take effect (or
continue), if the Congress enacts a joint resolution of disapproval,
described under section 802, of the rule.” Subsection 801(b)(2) provides
that such a disapproval rule “may not be reissued in substantially the same
form, and a new rule that is substantially the same as such a rule may not
be issued, unless the reissued or new rule is specifically authorized by a
law enacted after the date of the joint resolution disapproving the original
rule.” Subsection 801(b)(2) is necessary to prevent circumvention of a
resolution disapproval. Nevertheless, it may have a different impact on
the issuing agencies depending on the nature of the underlying law that
authorized the rule.
If the law that authorized the disapproved rule provides broad discretion to
the issuing agency regarding the substance of such rule, the agency may
exercise its broad discretion to issue a substantially different rule. If the
law that authorized the disapproved rule did not mandate the promulgation
of any rule, the issuing agency may exercise its discretion not to issue any
new rule. Depending on the law that authorized the rule, an issuing
agency may have both options. But if an agency is mandated to
promulgate a particular rule and its discretion in issuing the rule is
narrowly circumscribed, the enactment of a resolution of disapproval for
that rule may work to prohibit the reissuance of any rule. The authors
intend the debate on any resolution of disapproval to focus on the law that
authorized the rule and make the congressional intent clear regarding the
agency’s options or lack thereof after enactment of a joint resolution of
disapproval. It will be the agency’s responsibility in the first instance
when promulgating the rule to determine the range of discretion afforded
under the original law and whether the law authorizes the agency to issue
a substantially different rule. Then, the agency must give effect to the
resolution of disapproval.

133

Legislative History, supra note 4 at 142 Cong. Rec. 6929.
Id.
135
Id.
134

37

The congressional experience with the disapproval of the OSHA ergonomics
standard provides a useful lesson. This rule became the first, and only, rule to be
disapproved thus far under the CRA. The principal sponsor of the resolution, Senator
Jeffords, at the outset of the debate addressed the issue whether disapproval would
disable OSHA from promulgating a new rule. Senator Jeffords referred to the abovediscussed Joint Statement and noted that OSHA “has enormously broad regulatory
authority,” citing pertinent sections of the OSH Act providing expansive rulemaking
authority. The Senator concluded that “I am convinced that the CRA will not act as an
impediment to OSHA should the agency decide to engage in ergonomics rulemaking.”136
What Senator Jeffords apparently understood was that while the agency had broad
authority to promulgate rules, there was no congressional mandate to issue an ergonomics
rule in the underlying law. As a consequence it was possible that no further rulemaking
would occur, as implied by a letter to Senator Jeffords from Secretary Chao which
indicated that a new rulemaking was only one of many options available to the
Department should the rule be disapproved.137 OSHA made it clear on April 5, 2002, that
no rulemaking was in the offing. On April 17, 2002, Senator Breaux and 26 co-sponsors,
many of whom had voted in favor of the disapproval resolution, introduced S. 2184,
which would have directed the Secretary of Labor to promulgate a new ergonomics rule
and specified in detail what should be included, what should not be included, and what
evidence should be considered. Section 1(b)(4) of the bill deems the direction to issue
the rule “a specific authorization by Congress in accordance with Section 801 (b)(2)” of
the CRA.
An interesting contrast with the ergonomics situation was the consideration given
by the key Senate sponsors of the Bipartisan Campaign Reform Act of 2002 (BCRA),138
as to whether to introduce a CRA disapproval resolution with respect to rules issued by
the Federal Election Commission (FEC) on July 17, 2002. The Act required that the FEC
promulgate rules implementing the soft money limitations and prohibitions of Title I of
the act no later than 90 days after its date of enactment.139 The Senate sponsors believed
that the new rules, which became effective on November 6, 2002, undermined the
BCRA’s ban on the raising and spending of soft money by federal candidates and
officeholders and on national party use of soft money. Since the FEC was mandated to
promulgate rules to implement the BCRA by a date certain, it could have been argued
that, in contrast with the general discretion OSHA has with respect to whether to issue
any ergonomics standard, if Congress disapproved the FEC’s soft money rule, the agency
would be obligated to undertake a new rulemaking (to be completed within a year after
the disapproval resolution was signed into law) that would reflect congressional
objections to the rule. At the same time, in accordance with the understanding of the
Joint Statement, it would have been arguably incumbent on Congress in its debates on
any such resolution to clearly identify those provisions of the rule that were objectionable

136

147 Cong. Rec. S 1832-33 (daily ed. March 6, 2001) (emphasis added).
Id. at S 1832.
138
P.L. 107-55, 116 Stat. 81 (March 27, 2002).
139
Id. at § 402 (c)(2).
137

38

as well as those that are not. The sponsors decided to introduce a disapproval resolution
but it was never acted upon.
Whether this line of argument would suffice to withstand a challenge in the courts
cannot be answered with any degree of certainty. Foreseeable obstacles may be the
novelty of the issue; the amount of weight, if any, that a court will accord the postenactment congressional explanation of the CRA; and the current inclination of the courts
to give deference to the plain meaning of statutory language and to eschew legislative
history. A new rule may be challenged on grounds of lack of authority as a consequence
of the disapproval resolution either because Congress failed to articulate its objections to
the rule, thereby providing no standards for the agency to apply in its rulemaking, or that
the new rules were “substantially the same” as the old, disapproved rules and therefore
invalid under the CRA.
The Joint Statement declares that it is the congressional intent to make clear and
specific identification of the options available to the agency, including identification of
objectionable provisions in the proposed rule during the floor debates. In this way
Congress could provide an agency clear and direct guidance as to what it expects in the
repromulgation process as well as a possible defense to a challenge based on the
“substantially the same” language of the CRA.
4. Concluding Observations: Establishing a Workable Collaborative Enterprise
(a) The Demonstrable Need for CRA Reform
This Report has identified structural and interpretive issues affecting the utility of
the CRA. While there have been some instances of the law apparently influencing the
development or implementation of certain rules, the limited utilization of the formal
disapproval process in the 16 years since its enactment is substantial evidence that its
perceived flaws, individually or in combination, have virtually eliminated any credible
threat of possible congressional scrutiny and disapproval as a factor in agency rule
development. The consistent use of appropriations limitations to stall rule development
or the implementation of final rules is corroborative evidence of the ineffectiveness of the
current scheme. The one instance in which an agency rule was successfully negated is
likely a singular event not soon to be repeated. Indeed, when a new President took office
in 2009 and his party had comfortable majorities in both Houses, neither Congress nor
the Chief Executive saw a need to use the CRA against the purportedly offensive
“midnight rules” of the outgoing Administration. The view that the current CRA scheme
provides no better rule review than the regular legislative process appears accurate.
One commenter has opined that if the perception of a rulemaking agency is that
the possibility of congressional review is remote, “it will discount the likelihood
congressional intervention because of the uncertainty about where Congress might stand
on that rule when it is promulgated years down the road,” an attitude that is reinforced
“so long as [the agency] believes that the president will support its rule.”140 That this
observation has substance is reflected in a widely cited study by the former dean of the
140

See Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules,
51 Duke L.J. 1059, 1089-90 (2001).
39

Harvard Law School and now justice of the Supreme Court, Elena Kagan. 141 Kagan
suggests that when Congress delegates administrative and lawmaking power specifically
to department and agency heads, it is at the same time making a delegation of those
authorities to the President, unless the legislative delegation specifically states otherwise.
From this flows, she asserts, the President’s prerogative to supervise, direct and control
the discretionary actions of all agency officials. The author states that “a Republican
Congress proved feckless in rebuffing Clinton’s novel use of directive power-just as an
earlier Democratic Congress, no less rhetorically inclined, had proved incapable of
thwarting Reagan’s use of a newly strengthened regulatory review process.” 142 She
explains that “[t]he reasons for this failure are rooted in the nature of Congress and the
lawmaking process. The partisan and constituency interests of individual members of
Congress usually prevent them from acting collectively to preserve congressional poweror, what is the same thing, to deny authority to the other branches of government.” 143
Kagan goes on to effectively deride the ability of Congress to restrain a President
intent on controlling the administration of the laws:
Presidential control of administration in no way precludes Congress from
conducting independent oversight authority. With or without a significant
role, Congress can hold the same hearings, engage in the same
harassment, and threaten the same sanctions in order to influence
administrative action. Congress,
of course, always faces disincentives
and constraints in its oversight capacity as the Article earlier has noted.
Because Congress rarely is held accountable for agency decisions, its
interest in overseeing much administration action is uncertain; and
because Congress’s most potent tools of oversight require collective action
(and presidential agreement), its capacity to control agency discretion is
restricted. But viewed from its simplest perspective, presidential control
and legislative control do not present an either/or choice. Presidential
involvement instead superimposes an added level of political control onto
a congressional oversight system that, taken on its own and for reasons
just given, has notable holes.144
(b) An Incremental Approach to Reform
The case can be made then that there is an urgent, demonstrated need to restore
the political accountability of the Congress in order to shore up the perception of
legitimacy and competence of the administrative lawmaking process. An effective
congressional rulemaking review process is an essential component of that restoration.
Congress has the tools to accomplish that objective. It has presently chosen, however, a
legislative vehicle, the REINS Act, which is bound to fail of enactment in the current
Congress simply because the current Democratic controlled Senate will not likely pass
such legislation; but even if it did there is a certainty President Obama would exercise an
141

Elana Kagan, Presidential Administration, 114 Harv. L. Rev. 2246 (2001) (Kagan).
Id. at 2314,
143
Id.
144
Id. at 2374.
142

40

unchallengeable veto. The same would be true if the November 2012 general election
brought about Republican control of both the White House and Congress. It is
inconceivable that a president would voluntarily cede the kind of congressional control of
administrative lawmaking embodied in the REINS proposal to Congress. A continued
exclusive legislative focus on achieving a scheme of affirmative approval would be
chimerical and seen as a cynical avoidance of congressional accountability.
This is not to gainsay or dismiss the considerations of proponents of affirmative
rule approval schemes,145 including the author of this Report,146 who view such a regime
as the optimal solution to redress a perceived imbalance in favor of executive control of
rulemaking and an absence of legislative responsibility for broad delegations of
administrative lawmaking power. Rather, it is simply a recognition of the political
impracticality of selling such an abrupt departure from the current administrative
lawmaking regime at a time when a pragmatic, incremental, and accommodative remedy
is urgently needed and readily available, one that could be accomplished for the most part
without the need to resort to new, problematic legislation but through reliance on the
internal rulemaking powers of each House. What follows is a brief foundational sketch
of the rationale and the steps necessary to achieve an accommodation on a review scheme
that would establish an efficient, fair and effective “collaborative enterprise” between the
political branches.
(c) Understanding the Goals of CRA Reform
In 2006 and 2007 suggestions for at least modest legislative remediation of the
perceived flaws in the CRA, if for no other reason than to maintain a credible
congressional presence in the process of delegated administrative lawmaking, were
presented in a number of forums. These included hearings held by the House Judiciary
Subcommittee on Commercial and Administrative Law, a symposium held by the
Congressional Research Service (CRS Symposium), CRS and GAO reports, published
recommendations of the House Judiciary Subcommittee, and academic writings.147
Participating witnesses and panelists concurred that the role of Congress as the nation’s
dominant policy maker was being threatened by widespread agency evasion of notice and
comment rulemaking requirements; the continued pressure for legislative enhancement of
the trend toward substantive judicial review of agency rules; and the frequent calls for
increased presidential control of agency rulemaking.
In particular, studies characterizing current rulemaking procedures as ossified
concluded that rule promulgation has become too time consuming, burdensome, and
unpredictable.148 The thrust of the academic critics, which assigns blame to each of the
145

See, e.g., Paul R. Verkuil, Comment, Rule Ossification: A Modest Proposal, 47 Admin. L. Rev.
453, 457 (1995); Stephen J. Breyer, The Legislative Veto After Chadha, 72 Geo. L.J. 785 (1984).
146
See Rosenberg, supra note 5.
147
See Interim Report, supra note 8; Hearing, (Reauthorization of the Administrative Conference
of the United States) before the House Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary, 109th Cong., 2d Sess. (September 2007) (Reauthorization Hearing).
148
See. e.g., Jerry L. Mashaw & David L. Harst, Regulation and Legal Culture: The case of Motor
Vehicle safety, 4 YALE J. ON REG. 275 (1987); Thomas O. McGarity, Some Thoughts on
41

branches for the increasingly ineffective implementation of statutory mandates, often
identifies the courts as the chief culprits because of judicial intrusions in agency decisionmaking through interpretations and applications of APA’s arbitrary and capricious test.
149
Reviewing courts, it was maintained, will now find an agency to have violated its duty
to engage in reasoned decisionmaking if its statement of basis and purpose is found to
contain any gap in data or flaw in stated reasoning with respect to any issue. The
commentators cite statistical indications that reviewing courts have been holding major
rules invalid up to fifty percent of the time.150 Preliminary indications of a study
commissioned by the House Judiciary Subcommittee, however, appears to suggest a far
less successful challenge rate, but the consequence of the perceived actions of the
reviewing courts has been the encouragement of agencies to utilize alternative vehicles to
make and announce far-reaching regulatory decisions.151 It was also argued that agencies
can use actions such as adjudication of individual disputes or so-called “non-rule” rules,
where purportedly non-binding statements of policy are made in guidances, operating
manuals, staff instructions, or like agency public communications.152 However, the
proposed solutions of these scholars are essentially adjurations to the judiciary to modify
or abandon current doctrinal courses. For example, some scholars suggest that courts
abolish the duty to engage in reasoned decision making and instead conduct a review of
rules solely to determine whether they violate clear statutory or constitutional constraints,
or apply the Chevron defense more consistently and strictly.153
It was also argued that only part of the problem facing Congress is fixing the
CRA’s identifiable structural and interpretive flaws. Part, it is said, may also be
attributable to a lack of congressional interest in confronting and dealing with complex
“Deossifying” the Rulemaking Process, 41 DUKE L.J. 1385 (1992); Richard J. Pierce, Jr., The
APA and Regulatory Reform, 10 ADMIN. L. J. AM. U. 81, 82-84 (1996)(Regulatory
Reform);Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV.
59 (1995)(Deossify Rulemaking); Richard J. Piece, Jr., Two problems in Administrative Law;
Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency
Rulemaking, 1998 DUKE L.J. 300; Paul R. Verkuil, Comment: Rulemaking Ossification-A
Modest Proposal, 47 ADMIN. L. REV 453 (1995).
149
See, e.g., Regulatory Reform, supra note 148, at 83; Deossify Rulemaking, supra note 148, at
65-66.
150
See Peter H Schuck & Donald Elliot, To the Chevron Station: An Empirical Study of Federal
Administrative Law, 1990 DUKE L. J. 984, 1022 (1990) (finding that during 1965,1974, 1984 and
1985, reviewing courts upheld only 43% of agency rules); Patricia M. Wald, Judicial Review;
Talking Points, 48 Admin L. Rev. 350 (1996) (noting that 36 major rules reviewed by the District
of Columbia Circuit during one year, 17 or 47% were remanded in part for reconsideration.) .
151
Reauthorization Hearing, supra note 147 (Testimony of Professor Jody Freeman). The study
was never finalized or published.
152
See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and
the Like - Should Federal Agencies Use Them to Bind the Public? 41 DUKE L.J. 131 (1992);
Robert A. Anthony, “Well You Want the Permit, Don’t You?”: Agency Efforts to Make Nonlegislative Documents Bind the Public, 44 ADM. L. REV. 31 (1992); Michael Aismow, California
Undrground Regulations, 44 ADM. L. REV 43 (1992).
153
See, e.g., Verkuil, supra, 148; Pierce, supra at note 148, Deossify Rulemaking, supra, note 148
at 71-93.
42

and sensitive policy issues that major rulemakings often present. During the CRSsponsored symposium on “Presidential, Congressional, and Judicial Control of
Rulemaking”, one panelist, Professor Jack Beermann, expressed the view that making it
easier for Congress to overturn an agency rule may come at a high political cost. He
asked “Does Congress want to be in the position where [it is perceived] that everything
an agency does is their responsibility since they’ve taken it on and reviewed it under this
mechanism? ... Do they want to have that perception?” He concluded that “I think that
this may just increase the blaming opportunities for Congress.”154
Some of the commenters saw a failure of the Congress to understand and
appreciate the nature of the stakes involved and the dangers inherent in failing to act
decisively to resolve them. Professor Cynthia Farina has argued that it was the
legitimacy of the administrative lawmaking process that is at the heart of the
deossification, nondelegation and new presidentialism debates. Her insight as to the
necessity of viewing the legitimacy and operational effectiveness of the regulatory
process as a “collaborative enterprise” involving the appropriate official actors and
institutional practices may be seen by some as an informing guidepost for action.155
(d) Remedial Options
The following discussion of possible legislative reform options emanates from a
variety of sources including proposals offered by the House Judiciary Subcommittee in
its “Interim Report,”156 academic commentary, legislative hearings, a Congressional
Research Service (CRS) symposium,157 CRS and GAO reports, an examination of an
exhaustive survey of individual state experiences with legislative and executive
rulemaking review programs,158 and the author’s experience in assisting in Congress’s
implementation of the Act. The accompanying comments and considerations are intended
to reflect a neutral assessment of options’ feasibility, both practically and politically, that
would likely be seen as efficient, fair and effective to both political branches. The
options presented are intended to be modest, incremental revisions of the current review
scheme which, where possible, can be accomplished by utilization of the rulemaking

154

In subsequent writings Professor Beermann has argued that it is essential that Congress play a
central role in rule review. See, Jack M. Beermann, The Turn Toward Congress in Administrative
Law,” 89 BOSTON U. L. REV. 727, 758-61 (2009) (“For Congress to be truly responsible for the
administrative state, it must monitor and supervise the process of administrative rulemaking and
administrative policymaking more generally….Concerted attention to by Congress to agency
rules would increase the legitimacy of agency rulemaking, since Congress would be an active
partner in the process and could not credibly feign surprise when confronted with an undesirable
agency rule.”).
155
Cynthia R. Farina, “Undoing the New Deal Through the New Presidentialism,” 22 HARV. J. OF
L. & PUB. POLICY, 227, 232, 235, 238 (1998).
156
Supra note 8.
157
Id. at 1392-1414.
158
Jason A. Schwartz, 52 Experiments with Regulatory Review: The Political and Economic
Inputs Into State Rulemakings (Institute for Policy and Integrity, NYU Law School, Report No. 6,
November 2010) (State Experiences).
43

powers of each House. It is also premised on the understanding that no one option alone
is likely provides an optimal solution; two or more options together may be necessary.
1. Require that only reported “major rules” be subject to the CRA’s expedited
disapproval process. This option was suggested by witnesses, panelists and academic
commenters as a means of limiting the screening burden on committees and on the
assumption that only “major rules” are likely to raise significant congressional review
issues. By giving Congress a much smaller universe of rules to consider, it would make
it easier for Congress to identify rules that require congressional action.159 It has also
been suggested that if Congress thought rule review that is so focused would engender
respect from the courts for its actions, it would provide even more incentive to focus its
efforts on the CRA process. That, in turn, could result in courts treating a congressional
failure to enact a disapproval resolution as an indication that application of their “hard
look” standard of review is unnecessary.160
The limitation of congressional review to major rules can be effected without
legislative action requiring presentation to the President by utilizing the constitutionally
vested authority of “each House [to] determine the rules of its proceedings….” 161 The
current CRA’s expedited consideration procedures are an exercise of each House’s
rulemaking power which may be altered at any time by individual House action.
However, standing alone, the proposal does not address the critical impediment
issues identified above, such as the need for fast track consideration in the House and a
screening and evaluation mechanism for reported rules. It also raises additional concerns.
At present, the CRA allows only the Administrator of OIRA to designate which rules are
to be deemed “major.” Moreover, even a rule that may be conceded to be “minor,” in the
sense of its having minimal economic impact, may well have significance to
congressional constituencies. Indeed, more than half of the 53 rules challenged by
introductions of resolutions of disapproval were nonmajor rules. It also eliminates
review of non-rule rules that were of such importance to the CRA sponsors. But each of
these concerns can be ameliorated by changes effected through one or more of the
following exercises of the Houses’ rulemaking powers. If this is seen as a difficulty, the
expedited consideration rules may be amended by each House to provide that reported or
unreported nonmajor rules may receive expedited consideration upon the timely filing of
a petition for consideration by a specified number of members in each House.
2. By internal rule of the House of Representatives provide an expedited
procedure equivalent to that of Senate for fast track consideration of resolutions of
disapproval. The model language is provided by the REINS Act proposal. The rationale
for the reluctance of the House to institute such a procedure—to maintain the traditional
majoritarian nature of the body—is anomalous in this situation and is belied by numerous
159

See., e.g., Interim Report, supra note 8, at 1410 (presentation of Paul R. Verkuil). See also
Paul R. Verkuil, The Wait is Over: Chevron as the Stealth Vermont Yankee II, 75 Geo. Wash. L.
Rev. 921, 926 (2007) (Verkuil).
160
Ibid, Verkuil at 924-27.
161
U.S. Constit., Art. I, sec. 5, cl. 2. This power has been broadly construed by the courts. See,
e.g. United States v. Ballin, 144 U.S. 1, 5 (1892); and Nixon v. United States, 506 U.S. 224
(1993). See also Rosenberg, supra note 5, 51 Admin. L. Rev. at 1086-88.
44

other current self-imposed fast track provisions162, and by the inclusion of such a
provision for the House in the REINS Act proposal.
3. By a concurrent resolution establish a Congressional Office of Regulatory
Analysis (CORA). The CORA would be modeled after the Congressional Budget Office
(CBO) as an independent legislative support body of the Congress. Its sole purpose and
focus would be regulatory analysis of reported major rules and perhaps other screening
tasks, including making determinations whether agency issuances, such as guidances and
policy statements, are covered rules needing review.
Like CBO, its political
independence and expert professional staff likely would add legitimacy and respect for its
analyses and recommendations. It would be funded through the annual legislative
appropriation. A benchmark for the amount funding that may be necessary to effectively
support a CORA could be that provided to the Office of Management and Budget’s
(OMB) Office of Information and Regulatory Affairs (OIRA), its regulatory analysis
analog in the executive branch. OIRA does not have a specific line item in the budget, so
its funding is part of OMB’s appropriation. In FY 2012 that figure was $8 million.163
Currently OIRA has a staff of 50 desk officers and branch chiefs that review about 3000
agency information collection requests each year and between 500 and 700 significant
rules each year.164
4. Amend the CRA to direct that reports to Congress and GAO of covered rules
are to be submitted electronically to GAO, and that GAO would publish reports weekly in
the Congressional Record. The House Parliamentarian and other witnesses and
symposium panelists indicated that the paperwork burden on the Parliamentarian’s office,
as well as the uncertainties of proper receipt by Congress and timely redirection to the
appropriate committees, and other problems with paper submissions, could be relieved by
electronic submissions. The House has passed such legislation several times, most
recently in the 111th Congress, but it never has been acted upon by the Senate.165 There is
no indication or claim, however, that publication in the Congressional Record, by itself,
will resolve the problem of properly informing committees and members of the basis and
need for close scrutiny of particular rules.
5. Amend the CRA to make it clear that failing to report a covered rule renders
that rule unenforceable and subject to judicial sanction. The legislative history of the
CRA clearly states that such supportive judicial action was not to be covered within the
Act’s judicial review preclusion provision. Proponents of the CRA consider this lack of
an enforceable reporting requirement a key factor undermining the purposes of the CRA.
The REINS Act proposal contains such an enforcement provision. This option will
require legislative action.
162

For a full compilation current House fast track see Jeffersons Manual and Rules of the House
of Representatives, 111th Congress, Legislative Procedures Enacted into Law, pp.1097-1266.
163
Executive Office of the President, The Budget for Fiscal year 2012, Office of Management
and Budget, 1112-13 (2011).
164
See Curtis W. Copeland, Federal Rulemaking: The Role of the Office Information and
regulatory Affairs, CRS Report RL32397, June 9, 2009, at p.28.
165
See H. R. REP. NO. 111-150 (2009), Congressional Review Act Improvement Act, House
Committee on the Judiciary, accompanying H.R. 2247.
45

(e) The Need to Establish a Collaborative Enterprise
The ultimate goal of a reformation of the congressional rulemaking review
process should be the establishment of a “collaborative enterprise” between the Congress
and the Executive. Such a resolution will rest on an understanding that broad delegations
of lawmaking authority to agencies are necessary and appropriate, and will continue for
the indefinite future. It also will rest on an understanding that agency lawmaking is no
less political in nature than congressional lawmaking, even in areas involving
sophisticated issues of science and technology, and draws on the acknowledged strengths
and competences of both constitutional actors. Thus, when Congress speaks by
legislative act, whether it is by joint resolution of approval or disapproval, it is acting in
its representative function and is rendering political judgments that are presumptively
reflective of the people’s will. It is the defining exercise of democratic power.
The President, in his supervisory and managerial role, is best situated to perform
his constitutional duty to ensure that the administrative bureaucracy is faithfully
executing congressional directions. Where those directives are typically vague and
require the supplying of substantive content and explanation, the presidential role is
implicitly expanded. To assure that national programs are effectively and efficiently
carried out, the Chief Executive’s encompassing presence in the agencies is welcome and
legitimate. The Chief Executive assists the agencies in leading the discussion with
respect to setting priorities, allocating limited resources, balancing competing policy
goals, resolving conflicting jurisdictions and responsibilities of agencies.
Any reformation of the current rulemaking review scheme must draw upon the
lessons learned from the ineffective CRA and the insights supplied by the debates on
ossification, non-delegation and the new presidentialism, which hopefully provide a
framework for realizing a scheme for a collaborative enterprise. Elsewhere I have noted
that effective congressional oversight sustains and vindicates Congress’s role in our
constitutional scheme of separated powers and checks and balances. That scheme
envisions and establishes a perpetual struggle for policy control between Congress and
the Executive. The framers of our Constitution had a basic distrust of government as a
result of their colonial, early state and Articles of Confederation experiences. This
distrust motivated the structure of the federal government in the Constitution; that is, the
separating of governmental powers of the three branches to avoid concentrations and
abuses of power and to facilitate “checks and balances” among branches.
In practice, the powers of the two political branches are too incomplete for one to
gain total control of the departments and agencies of the executive branch unless one
branch abdicates its constitutional responsibilities or prerogatives to the other.
Legislative oversight is the mechanism that attempts to assure that Congress’s will is
carried out. A more complete and accurate picture, then, is not of congressional
dominance, or of executive recalcitrance, but of a dynamic process of continuous
sparring, confrontation, negotiation, and ultimate accommodation.166
166

Morton Rosenberg, When Congress Come Calling: A Primer on the Principles, Practices, and
Pragmatics of Legislative Inquiry, 63-65 (The Constitution Project, 2009).
46

In this spirit a collaborative enterprise should be established respecting review of
administrative lawmaking. The scheme of review of the CRA should reflect and respect
the constitutional role and competences of the Chief Executive in administering the laws
Congress has enacted and his duty to see that they are faithfully executed. In turn,
Congress must be publically perceived as diligent in its oversight of the often vague but
necessary delegations of lawmaking authority to implement those delegations. Thus,
most importantly, that diligence must reflect Congress’s continuing responsibility and
accountability for those delegations. Congress must maintain a credible final say over the
implementation of its policy decisions. The public perception that Congress is taking
responsibility for the actions of the administrative bureaucracy is essential to sustaining
the continued public acceptability of the modern administrative state. As one commenter
has explained:
The legitimacy and acceptability of the administrative process depends on
the perception of the public that the legislature has some sort of ultimate
control over the agencies.
It is through the Congress that the
administrative system is accountable to the public. If members of
Congress “be corrupt, others may be chosen.”
The public may not,
however, directly remove agency officials. The public looks to its power
to elect representatives as its input into the administrative process. The
public will perceive restrictions on Congress’s power to influence agency
action as reducing the accountability of agency officials. This will
negatively affect the legitimacy of agency actions, as well as seriously
erode the notion of popular sovereignty. Even administrators, who may
not perceive legislative intrusions into the administrative process as being
particularly desirable recognize congressional supervision as a necessary
function in a democratic society. The nature of the government requires
that the legislature maintain a careful supervision over agency action.167

167

Comment, Judicial Limitations of Congressional Influence on Administrative Agencies, 73
Northwestern L. Rev. 931, 941 (1979).
47

Selected Source Readings
Cohen, Daniel and Strauss, Peter L. “Congressional Review of Agency
Regulations.” Administrative Law Review 49 (Winter 1996): 95-110.
Croston, Sean D. “Congress and the Courts Close Their Eyes: The Continuing
Abdication of the Duty to Review Agencies’ Noncompliance with the Congressional
Review Act.” 62 Admin. L. Rev. 907 (2010).
Note, “The Mysteries of the Congressional Review Act”, 122 Harv. L. Rev. 2162
(2009).
Parks, Julia A. “Lessons in Politics: Initial Use of the Congressional Review Act.”
Administrative Law Review 55 (Fall 2003): 187-210.
Pfohl, Peter A. “Congressional Review of Agency Rulemaking: The 104th
Congress and the Salvage Timber Directive.” 14 Journal of Law and Politics (Winter
1998): 1-31.
Rosenberg, Morton. “Whatever Happened to Congressional Review of Agency
Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform.” 51
Administrative Law Review (Fall 1999): 1051-1092.
U.S. Congress. “Interim Report on the Administrative Law, Process, and
Procedure Project for the 21st Century.” House Judiciary Committee, Subcommittee on
Commercial and Administrative Law, 109th Cong., 2d Sess. (December 2006)
(Committee Print No. 10).

48