Reframing the Question: Why Chevron - And Not a One Size Fits All Interpretation of 'Substantially the Same' - Should Guide a Court’s Interpretation of the CRA’s Limitations on Future Rulemaking

Abstract

The Congressional Review Act (the “CRA”) is a Congressional oversight tool used to overturn rules issued by federal agencies. Beyond the immediate effect of blocking an undesirable agency rule, the CRA bars an agency from issuing another rule in “substantially the same form” as the disapproved rule. But the scope of this provision’s future effect on agency rulemaking remains unclear: the statute is silent as to what criteria should be considered in evaluating whether or when a subsequent rule falls into the “substantially the same” category, and the provision has gone untested in court. Rather than proposing a uniform interpretation of the same, this Article proposes courts adopt a case-by-case approach to allegations that an agency is barred from enacting a particular rule due to a prior CRA resolution. Specifically, the Article argues that courts should apply Chevron and, where appropriate, defer to an agency's conclusion that a rule is not substantially the same as a rule blocked by an earlier CRA resolution. In reaching this conclusion, the Article contends a CRA resolution effectively amends an agency's organic statute, thereby permitting courts to apply Chevron to an agency's determination of whether a rule does or does not fall within the CRA's prohibitive scope.