Solving the Congressional Review Act’s Conundrum

Cary Coglianese, University of Pennsylvania Carey Law School


Congress routinely enacts substantive statutes that require federal agencies to adopt regulations. When agencies issue regulations under these statutes, their rules are then subject to potential disapproval by Congress under a process outlined in a separate procedural statute known as the Congressional Review Act (CRA). If Congress passes a CRA disapproval resolution, this voids the disapproved regulation and triggers a provision in the CRA that prohibits the agency from adopting any subsequent regulation that is “substantially the same” as the disapproved one. But a CRA disapproval resolution does nothing to eliminate the agency’s obligation under the substantive statute to put a regulation in place. And many times, the substantive statute does more than merely require that an agency adopt a regulation; it also provides considerable detail instructing the agency as to what the mandated regulation should require. What emerges in these cases is a conundrum—the CRA conundrum—created by a tension between the CRA and the detailed provisions of the substantive statute requiring adoption of a regulation. If an agency is obligated under the substantive statute to adopt a regulation meeting that statute’s detailed strictures, how can it respond to a disapproval resolution without offending the CRA’s ban on issuing a rule that is substantially the same as the disapproved one?

This Article identifies the CRA conundrum and then shows how agencies can tackle it, using, as an example, the predicament that the Securities and Exchange Commission faced over an energy extraction disclosure regulation that was called for under the Dodd-Frank Act but was subsequently disapproved by a later Congress. The key to resolving the conundrum is to recognize that Congress’s choice of imprecision in the CRA—that is, its choice to use the word “substantially”—allows agencies to follow the more specific language contained in a substantive statute. The test for substantial similarity must be measured against the discretion the substantive statute affords the agency. As a general procedural statute, the CRA can only impose obligations on an agency with respect to matters over which the agency retains discretion. An agency that finds itself facing the CRA conundrum simply needs to make sure that any reissued rule is no longer substantially the same with respect to those portions of the regulation over which the substantive statute allows the agency room to maneuver. Even with highly detailed statutory provisions, an agency will almost always still have some discretion over some of the regulation’s terms. That discretion must then be exercised in a substantially different way, even if by only making available opportunities for waivers or by extending deadlines for compliance. In the end, by viewing “substantial” from the proper perspective, the CRA conundrum can be readily solved.