This article in the Wall Street Journal WSJ CRA has resulted in a number of inquiries regarding whether or not the CRA can be used to rescind rules whose promulgation were not properly reported to the Congress.
CRE utilized this mechanism some six years ago.
Relevant Background Materials:
The utilization of the CRA to rescind or revise existing rules is an issue that is not going to fade into the sunset.
As Peter Shane has stated: “The argument in the WSJ is not frivolous, although it might seem absurd that Congress in 2017 could actually use the same argument to fast-track its disapproval of any regulation that went unreported under the Clinton and Bush Administrations.”
Limitation on judicial review of congressional or administrative actions (p.28)
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.
Editors Note: CRE was established by a group of organizations which believed that the CRA would be used widely and that they wanted access to analysts who could conduct the necessary reviews.