Retroactive Rule Repeal Not Open and Shut Case

By Cheryl Bolen

A legal theory about using the Congressional Review Act to repeal old rules retroactively has caught the attention of some lawmakers, but there are complicating factors and open questions that would have to be decided first, according to a former specialist at the Congressional Research Service.

The theory, founded by Todd Gaziano, executive director at the Pacific Legal Foundation in Washington, is that periodically over the last 20 years, agencies issuing a rule failed to submit a report to Congress as required by the CRA. That, according to the theory, means those rules are not lawfully in effect and Congress could still disapprove them.

“The question is: Is that sufficient to open up the whole scope of these [rules] for an indefinite period?” Richard Beth, a recently retired, 37-year veteran of the Congressional Research Service, said in an interview with Bloomberg BNA. “What are the limits on this?”

There are practical questions as well as remedies that have been and are available to Congress that complicate this seemingly straightforward theory on retroactive use of the CRA, Beth said.

Congress Not Court

Undisputed is that the CRA clearly requires any federal agency issuing a rule to submit a report with the text of the rule and any cost-benefit analysis to the House, Senate, and Government Accountability Office before the rule can take effect.

The report starts the clock on the opportunity for Congress to disapprove the rule. Gaziano’s theory is that for rules not lawfully in effect, Congress still has the opportunity to vitiate them by passing resolutions of disapproval.

“You could certainly make the argument that if the rule that should have been submitted wasn’t submitted, that it should never have taken effect,” Beth said.

But there are three reasons this is more complicated than it seems, Beth said.

First, the CRA states that “no determination, finding, action, or omission” in the act is subject to judicial review, which means the courts can’t rule and it will be up to Congress to decide, Beth said.

Sleeping on Its Rights

Second, there is the question of whether the effectiveness of the rule can be in doubt indefinitely, or whether at some point the argument could be made that Congress has “slept on its rights,” Beth said.

There is a mechanism that has developed in practice when Congress, or a committee of Congress, notices that a rule it’s interested in has been published or has taken effect or an agency is proposing to implement a rule or guidance without it having been submitted, Beth said.

In these cases, the committee can ask the GAO to submit the report on the rule required by the CRA, Beth said.

Moreover, it has been established, by practice at least, that the request to the GAO serves as the trigger for the time periods specified by the CRA, Beth said.

Practical Remedy

“Therefore, if a rule that should’ve been submitted isn’t submitted, there is, in practice, a remedy,” Beth said.

But if nobody uses that mechanism to repair the defect of a rule not being submitted in the time period when it should have been submitted, then couldn’t you argue that at some point, the Congress has slept on its rights? Beth said.

“It might well not be thought reasonable to just come back 15, 20, 50 years later and say, ‘Hey, wait a minute,’” Beth said.

Legislative Remedy

The third reason is a question of procedure, because Congress could, at any time, not under the statute, but under its normal procedures, consider and pass a resolution with the same text as a CRA disapproval resolution, directing that the rule have no force or effect, Beth said.

“And that would certainly be good law and would suffice to vitiate the regulation,” Beth said. “Congress can always legislate in a way that overrides a regulation,” he said.

A normal resolution, however, would not have the advantage of the fast-track procedures of the CRA, which prevents amendments and limits debate in the Senate to no more than 10 hours.

Up to Parliamentarian

The question would be: If such a resolution were introduced for a regulation that should have been submitted years ago, but wasn’t, would that resolution still be eligible for the fast-track procedure in the Senate? Beth said.

“And that would have to be determined by the parliamentarian,” Beth said, adding that it is entirely unpredictable what the parliamentarian might advise.

“The provision in the act that [proponents of the theory are] citing is certainly there, but what are the practical consequences? It would ultimately depend, in practice, on judgments made within Congress,” Beth said.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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