Paul Larkin, senior legal research fellow at the Heritage Foundation, has published a new report discussing the limitation on judicial review for certain actions and determinations under the Congressional Review Act. There is a split of judicial authority on the scope of the limitation. Larkin convincingly argues that the provision prevents judicial review of congressional actions and determinations relating to CRA procedures as well as actions and determinations by White House staff, including by OMB/OIRA, but that it cannot reasonably read to bar due process of law claims that the regulation at issue was not lawfully in effect due to an agency’s failure to deliver it to Congress.
A summary of the paper reads:
Neither Congress nor the President was subject to judicial review under the Administrative Procedure Act before the Congressional Review Act became law, and the CRA did not modify the APA in that regard. However, an agency’s rulemaking authority derives from other implementing statutes passed by Congress delegating such authority to that agency. Congress can foreclose judicial review under the APA by creating an alternative judicial review mechanism; it 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. Because the CRA demands that an agency submit a new rule to Congress “[b]efore a rule can take effect,” 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.
You can read the full report at The Heritage Foundation.