CRA Resolutions Against Agency Guidance Are Meaningless

After years of dormancy, the Congressional Review Act (CRA) has helped Congress overturn multiple Obama-era regulations. Congress has even overturned an agency guidance document, leading many observers to assert that an enormous amount of additional guidance documents are vulnerable. But we believe that using the CRA to overrule agency guidance documents and interpretations will be an empty gesture. The CRA is meant to attack “legislative”-type policymaking, rules that have legal consequence of their own. A guidance document, by contrast, only informs the public about policies or preferences that an agency could maintain with or without the guidance. Invalidating the message—or even the messenger—does not change the underlying agency activity. The CRA gives Congress a time-limited opportunity to nullify any agency rule via a joint resolution that simply states that the rule “shall have no force or effect.” A “rule that does not take…

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