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Jonathan Wood: Yes, the CRA applies to guidance documents

Jonathan Wood, attorney at Pacific Legal Foundation, recently published a blog responding to those who say the Congressional Review Act cannot be applied to guidance documents. In a post to PLF’s Liberty Blog, he asked “Can agencies avoid congressional oversight by adopting rules without public notice?” Although the answer to this should clearly be “no”, an article from E&E News quoted multiple law professors who seem to think the answer is yes.

Georgetown Law’s [David] Vladeck balked at the notion that agencies would be required to send guidance documents to Congress. “Guidance documents are not rules,” he wrote in an email. “The law is clear that guidance documents are not rules because they impose no enforceable obligations.”

The definition of “rule” used in the CRA is taken directly from the Administrative Procedure Act of 1946, which defines a “rule” broadly.

“He’s right,” Richard Pierce, a distinguished law professor at George Washington University, said. “I testified when Congress passed the CRA, and I urged Congress to narrow the definition of rule because I knew it was absurd to expect agencies to submit every guidance to Congress.”

Mr. Wood writes, “Actually, they’re both wrong. It’s true that the CRA and the Administrative Procedure Act use very similar definitions for ‘rule.’ But the professors have erred in confusing whether something is a “rule” with whether it must be formally adopted through notice-and-comment procedures.”

He explains:

Under the APA, informal rules like guidance documents do not go through this formal process. But that’s not because they’re not rules. Rather, the APA explicitly exempts some types of rules from the process. In particular, the statute exempts “interpretative rules, general statements of policy, [etc.]” from notice and comment. As a result, the D.C. Circuit has explained, “‘[i]nterpretative rules’ and ‘policy statements’ may be rules within the meaning of the APA . . . although neither type of ‘rule’ has to be promulgated through notice and comment rulemaking.” The CRA, on the other hand, does not exempt these rules from the requirement that all rules be reported to Congress before they can go into effect.

You can read the full blog post at PLF’s Liberty Blog.

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