While Congress did not want to expose its own actions to judicial review, Section 805 does not foreclose judicial review of a claim raised by a private party as a defense in an agency enforcement action that the rule the agency seeks to enforce never went into effect because the agency failed to comply with the CRA’s requirements.
The Congressional Review Act of 1996 (CRA) enables Congress expeditiously to nullify administrative rules that it finds unnecessary or unwise. As explained in an earlier Heritage Legal Memorandum on the CRA, the act requires federal agencies to report every new “rule” to the Senate and House of Representatives so that each chamber can review it and schedule an up-or-down vote to nullify it under the statute’s fast-track procedures, which avoid the delays traditionally occasioned by the Senate’s filibuster rules and practices. Under the CRA, a joint resolution of disapproval signed into law by the President invalidates the rule and bars an agency from thereafter adopting any substantially similar rule absent a new act of Congress.
The CRA was Congress’s second structural attempt to rein in administrative agencies. Initially, Congress sprinkled throughout the U.S. Code “legislative vetoes”—provisions that allowed Congress (or sometimes simply either chamber) to nullify an agency action that it found wrongheaded. The legislative veto was a controversial device, however, and in INS v. Chadha, the Supreme Court of the United States held that it is an unconstitutional attempt at lawmaking because it violates the Bicameralism and Presentment Clauses of Article I. The CRA was Congress’s response to Chadha. The act was designed so that Congress would possess the same authority to invalidate agency actions that it had under a legislative veto but would now exercise that power in a manner that satisfied the bicameralism and presentment requirements that the Supreme Court found critical in Chadha.
The CRA’s terms and provisions raise a number of interesting legal issues. One of them involves the act’s judicial review provision. Section 805 of Title 5 speaks to that issue and appears to foreclose judicial review of any matter governed by the CRA, as some federal courts have held. A close reading of the text of the act read against its background reveals, however, that Congress sought to preclude judicial review only of any action taken by Congress or the President in connection with the CRA, not of actions taken by agencies.
Accordingly, a defendant in an enforcement action should be able to raise an agency’s failure to comply with the CRA submission requirement as a basis for claiming that the “law” the defendant allegedly violated had not yet gone “into effect.” Congress, in fact, could not preclude review of such a claim. The Fifth Amendment Due Process Clause prohibits the government from taking anyone’s “life, liberty, or property without due process of law.” Whatever else that clause may mean, the minimum requirement it imposes is that there must be some “law” justifying the government’s “depriv[ation].” A rule that has not yet gone into effect because the issuing agency has not yet complied with the CRA submission requirements cannot serve as a “law” that allows the government’s action to go forward.
Judicial Review of Agency Action
The Administrative Procedure Act of 1946 (APA) regulates the process that agencies can use to issue regulations governing the day-to-day work of agencies and members of the public. It also supplies private parties with a cause of action to sue an agency in federal court on the ground that a rule is arbitrary and capricious or exceeds the agency’s statutory authority. Parties seeking to challenge an agency rule ordinarily rely on the APA’s mechanism for judicial review. The APA also makes it clear, however, that Congress can preclude review under the APA through a different statute, and sometimes Congress does so.
A provision of the CRA appears to be a statute that precludes judicial review under the APA. The 15 words of Section 805 of Title 5 provide as follows: “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” The question posed by Section 805 is quite simple: What does it mean? The answer, however, is a tad more complicated.
The Text of the CRA
The text of the CRA is the natural and best place to start. Before deciding what courts can and cannot do, it is helpful to see what an agency and Congress must do under the CRA to nullify a rule. There are several steps in that process.
The CRA Review and Repeal Process. The CRA review and repeal process works as follows: “Before a rule can take effect,” the parent agency must submit to each House of the Congress and the Comptroller General a report containing a copy and description of the rule, its proposed effective date, and certain other information. Although a “major rule”—that is, a rule with a material effect on the national economy—generally cannot take effect for 60 days, the President can advance the effective date if he makes one or more CRA-specified findings that justify urgency.
Upon receipt of the agency’s report, each chamber of Congress must provide copies to the chairman and ranking member of its standing committee with jurisdiction over the rule. Within 15 days of his receipt of the agency’s report, the Comptroller General must provide those committees with a report on each major rule that must say whether the agency has complied with its CRA responsibilities. Fast-track procedures then can be used to force a vote on a joint resolution of disapproval.
After 30 days, if the appropriate Senate committee has not sent the rule to the Senate floor for a vote, 30 Senators can accomplish that result by signing a discharge petition. If one chamber receives a joint resolution passed by the other, the receiving chamber must vote on the joint resolution it received. If Congress enacts a joint resolution of disapproval, the resolution goes to the President for his signature or veto. If the President signs the joint resolution, the “rule” is nullified, and the agency cannot later issue a “substantially similar” rule absent an intervening act of Congress.If the President vetoes the joint resolution, the rule can go into effect unless his veto is overridden.
Now that we know how the process works for Congress and the President under Sections 801 and 802, we can turn to the judicial foreclosure provision of the CRA to see what role, if any, Congress intended the judiciary to play under Section 805.
The CRA Judicial Review Provision. The Supreme Court has never discussed Section 805, but a handful of lower federal courts have done so. There is no consensus, however, with respect to the proper interpretation of that provision. A majority of courts, including the D.C. and Tenth Circuit Courts of Appeals, have decided that the straightforward text of Section 805 bars them from reviewing the merits of a claim that an agency did not submit a rule to Congress even though the CRA clearly demands that action. Those courts, however, have not scrutinized Section 805 in any depth. They have essentially limited their analysis to a reading of Section 805’s text in isolation from the other provisions of the CRA, as well as its purpose.
By contrast, a few other lower courts, including the Second Circuit by implication, have disagreed with the majority. They have held that the text of Section 805 does not demand the odd, counterintuitive result that agencies may violate the CRA with impunity, thereby completely frustrating the CRA’s purpose. To them, Section 805 forecloses judicial review of Congress’s actions once an agency has complied with the CRA without also precluding review of the question of whether the rule-issuing agency has complied with the CRA by submitting a report containing the rule to Congress. Those courts have the better view of the statute.
Section 805 is quite clear in one respect. It states that no “determination, finding, action, or omission under this chapter” is subject to review by a court. The CRA does not define those terms, so under the traditional rules of statutory interpretation, they should be given their ordinary dictionary meaning.Given those terms, Section 805 is exceptionally broad, possibly as broad as the English language would allow. The text reaches every “action” or “omission under this chapter”—which would appear to embrace anything that Congress could do or could fail to do—but also includes every “determination” or “finding,” apparently in an effort to reach whatever else Congress might do that could not be characterized as an “action” or “omission.” Accordingly, Section 805 would appear to reach every decision or step—including deciding or doing nothing at all—that could be associated with the CRA. No decision or judgment, no action of any kind, no failure to act or omission—nothing that could be done under the CRA would be eligible for judicial review. Accordingly, Section 805 seems quite straightforward regarding what is not subject to judicial review.
Where the act is unclear, however, is with respect to whose “determination, finding, action, or omission under this chapter” is not subject to judicial review. There are a limited number of possibilities because there are only a few parties who could take (or fail to take) a relevant action “under this chapter.” They—the three most important players in this game—are (1) the rule-issuing agency, (2) Congress, and (3) the President. The “federal Agency promulgating [the] rule” at issue must “submit to each House of the Congress and to the Comptroller General a report” containing a copy and description of the rule, its proposed effective date, and certain other information, thereby giving Congress the opportunity to review the rule. That report goes to Congress, which may pass a joint resolution of disapproval to invalidate the rule. If both chambers pass the resolution (thereby satisfying the bicameralism requirement), the resolution goes to the President (thereby satisfying the presentment requirement). If the President signs the joint resolution, the “rule” is nullified, and the agency cannot later issue a “substantially similar” rule absent an intervening act of Congress. If the President vetoes the resolution, Congress can override that veto, but an override requires a two-thirds vote of each house.
The CRA also refers to a few other entities: (1) the chairman and ranking member of the congressional committee with jurisdiction over the rule, (2) each chamber of Congress, (3) the Comptroller General, and (4) the Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. None of those entities plays a major role in the operation of the CRA, and they play only tertiary roles in the CRA process. The chairman and ranking member of the relevant committees serve only as recipients of the reports submitted by the rule-issuing agency. Neither chamber of Congress acting alone can pass legislation. The Comptroller General must provide Congress with a report analyzing the agency’s report, but the Comptroller General cannot take any action to advance or delay Congress’s review and cannot vote on the passage of a disapproval resolution. Only Senators and Representatives may vote on a bill, and they are chosen by the people of their state or district. By contrast, the President appoints the Comptroller General, and no member of the Senate or House of Representatives can also simultaneously serve as Comptroller General. Accordingly, for purposes of the CRA, only the rule-issuing agency, Congress, and the President play an important role, which means that only one or more of those parties is the likely focus of the judicial-review preclusion, CRA Section 805.
Which of those three entities would Congress have wanted to immunize from judicial review? Start with Congress. It is eminently clear that Congress did not want any of its actions to be subject to judicial review. Congress expressly exempted itself from judicial review when it adopted the APA in 1946, and the CRA carried forward the same exemption. CRA Section 804(1), Title 5, states that the term “Federal agency” has the same definition under that law that the APA uses for “any agency,” and according to Section 551(a) of the same Title, Congress specifically excluded itself from the definition of that term. Another way to put it is that Congress expressly exempted itself from review when it passed the APA and did not add itself back into the APA judicial review process when it adopted the CRA. Congress’s work product—“Law[s]”—are subject to judicial review, but not a “determination, finding, action, or omission under this chapter” or anything else that Congress (or any of its Members) may do.
Now move to the President. Congress has not treated the President exactly as it has treated itself, but the Supreme Court has made up the difference. Congress did not expressly exempt the President from review under the APA by excepting him from the definition of an “agency,” as it did for itself. But the Supreme Court held in Franklin v. Massachusetts, four years before the CRA became law, that the term “agency” does not include the President. The bottom line is that the APA does not subject the President’s actions to judicial review, and the CRA does not add him back in either.
Who is left? The rule-issuing agency. A private party can sue an agency under the APA because the act creates a cause of action for parties injured by an agency’s allegedly unlawful action. An injured party can seek relief (other than money damages) if the agency has exceeded its statutory authority or acted in an arbitrary and capricious manner.
The Purpose of the CRA
The above interpretation of the CRA also follows from the purposes that Congress intended the act to serve. Congress enacted that law only after the Supreme Court held unconstitutional the “legislative veto” provisions that Congress traditionally had used to position itself to nullify an agency action that it (or sometimes simply either chamber) found wrongheaded. Once the Supreme Court closed off that route, Congress had to find another way to cabin agency excesses and mistakes. The CRA was designed to give Congress the same authority to invalidate agency actions that it had before, but this time to do so in a manner that satisfied the Article I bicameralism and presentment requirements that the Supreme Court found critical to the federal lawmaking process in Chadha. Before Chadha was decided, the three relevant parties were the rule-issuing agency, Congress, and the President. The CRA did not change that. The important parties for CRA purposes remain the rule-issuing agency, Congress, and the President.
The bottom line is this: The best reading of Section 805 is that it precludes judicial review of any decisions or actions taken by Congress (including the Comptroller General) or the President in connection with the CRA. While Congress did not want to expose its own actions to judicial review, Section 805 does not foreclose judicial review of a claim raised by a private party as a defense in an agency enforcement action that the rule the agency seeks to enforce never went into effect because the agency failed to comply with the CRA’s requirements. In fact, it would violate the Fifth Amendment Due Process Clause to interpret the CRA in a manner that foreclosed a private party from raising that defense in an enforcement action.
Constitutional Limitations on Congress’s Power to Foreclose Judicial Review
Supporters of preclusion of review statutes like Section 805 of the CRA ordinarily defend that decision on the basis of a “greater includes the lesser” form of argument. That is, they maintain that because Congress has the “greater” power not to pass the CRA at all, Congress necessarily has the “lesser” power to enact it but to exclude the courts from the enforcement process, leaving enforcement decisions and authority in the hands of Congress and the President. That argument is a sensible one in a broad range of cases.
But it may not be persuasive in this one. Since 1953, when Harvard Law School Professor Henry Hart first discussed the issue of the extent of Congress’s power over the jurisdiction of the federal courts in depth, constitutional law scholars have vigorously debated whether Congress can preclude judicial review of a private party’s claim that a government official has violated the Constitution. The argument in favor of preclusion rests on two propositions: Under the Article I Necessary and Proper Clause, Congress can grant federal officials whatever authority they need to complete the government’s business, and under the Article III Judicial Vesting Clause, Congress can refuse to create lower federal courts at all and therefore can limit the jurisdiction of the ones it does create. Together, the argument goes, Congress may deny lower federal courts jurisdiction over claims that a government official has acted unconstitutionally in order to ensure that government officials can perform their duties free from suit.
There is a strong argument, however, to the contrary. The authority granted to Congress by Articles I and III is limited by the restraints found elsewhere in the Constitution, particularly in the Bill of Rights. The Fifth Amendment Due Process Clause, for instance, provides that the government cannot deprive a private party of “life, liberty, or property without due process of law.” If Congress cannot enact a statute directly authorizing a government official to violate that clause, the argument goes, Congress cannot indirectly achieve the same result by enacting a law foreclosing all judicial review of a claim that the government has acted unconstitutionally by violating that clause. Doing so would have the effect of leaving enforcement of the Due Process Clause completely up to Congress and the President, the very people whom the authors of the Due Process Clause knew were the ones most likely to violate its terms. That result, the argument concludes, is nonsensical.
It turns out, however, that the CRA does not require an answer to the question that Professor Hart broached more than 50 years ago. There is a presumption that the APA affords a private party the right to obtain judicial review of a claim that an agency has not complied with another law. To be sure, the CRA modifies that presumption with respect to any “determination, finding, action, or omission,” but Section 805 has that effect only insofar as one or more of those actions is done “under this chapter.” An agency does not, however, promulgate any rules “under” the CRA; rather, it promulgates rules by relying on the substantive lawmaking authority that Congress granted the agency elsewhere in an implementing statute. The text of Section 805, therefore, is not as clear as it might seem at first blush.
Atop that is another consideration. The Supreme Court has made it clear that it will not construe an act of Congress as foreclosing all judicial review of a constitutional claim unless the text of the relevant statute is pellucid in that regard. That is critical here. Unlike the President, a federal agency has no inherent authority; it possesses only whatever power Congress has granted it. Accordingly, as explained in detail below, an agency cannot infringe on someone’s “life, liberty, or property” unless it can identify some “law” that justifies its action. The Due Process Clause is relevant here because it prevents an agency from acting in an ultra vires manner. In order to understand why that is the case, it is first necessary to examine the history of the Due Process Clause to learn how it bears on this issue.
The History of the Due Process Clause. The Fifth Amendment Due Process Clause is a lineal descendant of Magna Carta. In contrast to our Declaration of Independence, which was a statement of principles offered to justify a rebellion, Magna Carta was a peace treaty designed to end a civil war. Widely known for his tyrannical behavior, King John provoked the English barons to rebel, and they gained the advantage by persuading the city of London to join their side. In 1215, politically weakened and recognizing that discretion is the better part of valor, King John agreed to the barons’ demands in a meadow called Runnymede. Originally thought to be a failure because the civil war resumed shortly afterwards, Magna Carta has become one of the foundational documents of Anglo–American legal history. Later English law has treated Magna Carta as “‘the Bible of the English Constitution.’”
Article 39 is the best-known feature of Magna Carta. Seeking to restore the customary rights of Englishmen and prevent the Crown from arbitrarily detaining and punishing someone not first adjudged guilty of a crime (a not-uncommon occurrence under King John), Article 39 provided that “[n]o free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.” Article 39 “was a plain, popular statement of the most elementary rights.” One scholar noted a century ago that “[t]he main point in this [document], the chief grievance to be redressed, was the King’s practice of attacking his barons with forces of mercenaries, seizing their persons, their families and property, and otherwise ill-treating them, without first convicting them of some offence in his curia.” The guarantee that the Crown could administer punishment only in accordance with “the law of the land” meant, as Sir Edward Coke, one of the foremost legal scholars of his time, put it, that “no man [could] be taken or imprisoned, but per legem terrae, that is, by the common law, statute law, or custom of England.” Expressed in today’s language, Article 39 protected “life (including limb and health), personal liberty (using the phrase in its more literal and limited sense to signify freedom of the person or body, not all individual rights), and property.”
Article 39 of Magna Carta later became a foundational part of American constitutional law. Familiar with Coke’s legal theories, the Founders saw Article 39 as exemplifying the principle of English constitutionalism that the Crown and Parliament were obligated to respect the “natural and customary rights recognized at common law.” The Framers’ generation used the phrase “the law of the land” or “due process of law” in numerous important political documents, such as the Virginia Resolutions of 1769 and the Declaration and Resolves of the First Continental Congress of 1774, the Declaration of Independence, later-enacted state constitutions, and ultimately the Fifth Amendment.
Like its ancestor term “the law of the land” in Magna Carta, the concept of “due process of law” binds the government to act according to law. Most contemporary discussion of the Due Process Clause focuses on the debate about whether the clause should be limited to a procedural guarantee of fundamentally fair proceedings or should also embrace a substantive component that forbids arbitrary legislation. What tends to be overlooked in that debate, however, is that the clause guarantees “due process of law.” That last word is an important one. The ancestor of the clause, Article 39 of Magna Carta, obligated the government to act pursuant to “the law of the land” rather than the whims of the Crown. The barons had suffered under the latter for too long and rebelled precisely to force King John to comply with the common law before he could deprive anyone of his life, liberty, or property. The Founding Generation carried that principle forward into the Due Process Clause of the Fifth Amendment. If there is no “law” permitting the federal government—here, a federal agency—to trespass on a person’s three protected interests, the government cannot lawfully do so. In that sense, the fundamental guarantee of the clause is that the government cannot make up the justifications for its actions as it goes along. Due process demands that there be some already-existing law for the government to infringe on someone’s life, liberty, or property. Otherwise, the government’s actions are inconsistent with the “due process of law” (or, as would have been said in 1215, “the law of the land”).
The Relevance of the Due Process Clause. That conclusion has important implications when it comes to the preclusion of judicial review. It is one thing to read a statute as precluding judicial review under the APA of (for example) an agency’s decisions made outside the context of an enforcement action, which would simply channel a party’s constitutional objections to an agency’s action into a specific review mechanism that Congress decided was the best forum in which to consider such objections. It is an entirely different matter, however, to interpret a statute as foreclosing any judicial review of a constitutional claim raised as a defense in a government enforcement action, particularly when the defendant has had no prior opportunity to raise that claim. The Supreme Court has been exceedingly reluctant to construe an act of Congress to deny a party any opportunity to assert a constitutional claim in that context. The reason is that the federal courts are an integral component of our tripartite government, the ability to engage in judicial review is an essential feature of a federal court, and those courts should not conclude that Congress and the President have combined to deny the courts any opportunity to play their historic role unless no other conclusion is possible.
In the case of the CRA, another conclusion is possible. The text of the act demonstrates that it does not foreclose judicial review of constitutional claims. Section 806(b), the severability component of the CRA, states that “If any provision of this chapter or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this chapter, shall not be affected thereby.” A severability provision would be completely unnecessary if a court could not hold a component of the CRA unconstitutional. Put another way, it would make little sense to include a provision addressing the situation in which a court decided that the text or application of the CRA is “invalid” if no court could hold a component of the CRA unconstitutional. That interpretation of the CRA, moreover, makes eminent sense. The CRA was designed to rein in administrative agencies, not courts. Accordingly, both the text of the CRA and its underlying rationale show that the federal courts may adjudicate constitutional claims that might arise in connection with the CRA.
The Bottom Line
Where does that leave us? It would seem that the following issues are not subject to judicial review:
- The decision to be made by each chamber regarding whether an agency has “submi[tted]” a satisfactory “report,” as required by Section 801(a)(1)(A);
- The decision to be made by each chamber regarding whether and when an agency has “submi[tted]” to the Comptroller General the additional information required by Section 801(a)(1)(B);
- The decision to be made by each chamber regarding whether the Comptroller General has “provide[d]” a report that satisfies Section 801(a)(2)(A);
- The decision to be made by each chamber regarding whether the agency has satisfactorily provided the Comptroller General with the “information” required by Section 801(a)(2)(B);
- The decision to be made by each chamber regarding the application of CRA fast-track procedures to its floor debates, time for debate, and similar parliamentary procedures, as authorized by Section 802(b)(4);
- The decision to be made by each chamber regarding whether to pass the “joint resolution” authorized by Section 802;
- The determinations regarding whether 20 calendar days have passed since a report was sent to the Senate authorizing committee and whether 30 Senators have signed a petition to discharge the joint resolution for a floor vote, as authorized by Section 801(c);
- The decisions of the Senate committee chairman regarding compliance with the CRA, as set forth in Section 801(d);
- The determination by the President regarding whether the agency’s rule should take effect immediately due to the need to avoid “an imminent threat to health or safety or other emergency,” a need “for the enforcement of criminal laws,” “demands of national security,” or the requirement to comply with a statute “implementing an international trade agreement,” as provided by Section 801(b)(2)(A) through (D); and
- The determination of the OIRA Administrator whether a rule is a “major” rule for purposes of Section 804(2).
By contrast, it would seem that the following issues are subject to judicial review:
- Whether an agency has “submi[tted]” a “report,” as required by Section 801(a)(1)(A);
- If a joint resolution of disapproval has been signed into law, whether a later-issued rule is “substantially the same as” the one already disapproved, in accordance with Section 801(b)(2); and
- If a joint resolution of disapproval has been signed into law and a later-issued rule is “substantially the same as” the one already disapproved, whether “the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule,” in accordance with Section 801(b)(2).
The result, accordingly, is this: Regardless of whether a party can bring a pre-enforcement challenge to an agency rule on the ground that it never became law because the agency failed to comply with the CRA, that party should be able to raise the agency’s noncompliance as a defense to an agency action seeking to enforce that rule.
Congress was clear in its statement as to what actions taken “under the CRA” were not subject to judicial review—any “determination, finding, action, or omission”—but unclear about whose actions would be precluded. The three relevant parties are the rule-issuing agency, the Congress, and the President. Congress did not adopt the CRA to permit the federal courts to review actions that it or the President took. Neither Congress nor the President was subject to judicial review under the APA before the CRA became law, and the CRA did not modify the APA in that regard.
By contrast, the remaining party—the rule-issuing agency—is one that Congress would not have intended to shield from judicial review. Parties injured by an agency rule before the CRA became law could sue the agency under the APA and obtain relief if the agency exceeded its statutory authority or acted in an arbitrary and capricious manner. The text of the CRA does not change that principle for agency actions that do not arise “under” the CRA. An agency’s rulemaking does not rest on authority granted by the CRA; rather, its rulemaking authority comes from other implementing statutes passed by Congress delegating such authority to that agency.
It is true that Congress can foreclose judicial review under the APA by creating an alternative judicial review mechanism. Congress also might be able to eliminate judicial review entirely for statutory-based claims. The Due Process Clause, however, would entitle an aggrieved party to defend against an agency’s reliance on any rule that had not yet become a “law” because the agency had not complied with the CRA’s requirements. Whatever else the Due Process Clause may mean, it requires that an agency justify any deprivation of life, liberty, or property by relying on an existing law that entitles the government to the relief it seeks. The CRA demands that an agency submit a new rule to Congress “[b]efore a rule can take effect,” so rules that have not been submitted in compliance with the CRA cannot justify the government’s effort to deprive someone of life, liberty, or property.
—Paul J. Larkin, Jr., is a Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.