The Congressional Review Act and Judicial Review

Abstract

Pending before the Supreme Court of the United States is a certiorari petition in a case entitled Kansas Natural Resources Coalition v. U.S. Department of Interior (KNRC). KNRC involves the issue of whether an agency’s refusal to comply with the requirements imposed on agency rulemaking set forth in a federal statute known as the Congressional Review Act (CRA) is subject to judicial review. By a 2-1 vote, the Tenth Circuit ruled that the CRA forecloses judicial review of an agency’s failure—or refusal—to comply with the requirements of that statute. That issue is of considerable legal, practical, and policy importance—and the Tenth Circuit majority got it wrong. A defendant can raise as a defense in an administrative or civil action, and in a criminal prosecution, the defense that the rule on which the agency relies has not gone “into effect,” as the CRA provides, because the agency did not submit the rule to Congress, for its review. If so, a potential defendant can bring an action under the Administrative Procedure Act to have the agency’s rule held invalid without needing to wait for the “hammer” to fall, as a unanimous U.S. Supreme Court held in Sackett v. EPA. It is impossible to believe that Congress ordered the courts to “see no evil” by an agency, or that it matters whether a private party raises that claim in an answer or a complaint. When read as a whole, the CRA and the APA permit the courts to call out an agency for breaking the law.