Yesterday the en banc Sixth Circuit considered Ohio Telecom Association v. FCC. A case about the FCC’s Biden-era data-breach rule, it’s perhaps the most important case to date dealing with the Congressional Review Act (CRA).
In particular, it deals with the preclusive scope of CRA resolutions, or the extent to which the statutory bar on “substantially similar” regulations killed by Congress using the CRA actually has an effect on future regulations.
The data-breach rule came in the wake of the FCC’s Obama-era data-privacy rule, which included a breach-notification provision. That rule (power grab, really) was the subject of sustained congressional oversight led by then-Senator Jeff Flake and resulted in a successful repeal in 2017 under the CRA. By repealing the data-privacy rule, Congress barred a future “substantially similar rule,” presumably including the breach-notification section. The Biden FCC disagreed and simply promulgated a new breach-notification rule.
The panel opinion in the Sixth Circuit concluded that Congress did not bar the breach-notification rule because they only barred the data-privacy rule, and had it wanted to bar the breach-notification rule it could and should have done so specifically. This is silly and — as the drafter of the CRA resolution — I said so in amicus briefs both supporting en banc review and at the en banc stage.
In short, pace Judge Stranch, who wrote the panel opinion, there isn’t much flexibility (or any) in writing CRA resolutions. In order to get around the filibuster they need to conform to the text of the statute, which is what this CRA resolution did. Furthermore CRA resolutions are not subject to amendment whereby subrules like data breach could be specified. If CRA resolutions needed to proceed section by section, it would eat up floor time and render the CRA a nullity. On the other hand, if administrations can evade CRA bars by simply repromulgating every part that, too, would be a nullity.
Interesting congressional questions came up a couple of times in the en banc argument. Chief Judge Kethledge (a former Senate staffer himself) seemed very troubled by the idea that you can’t do essentially a line-item CRA. As he put it, the statute is blank as to what you’re repealing, and the APA defines parts as rules, so why can’t you CRA a part?
The short answer is because the Senate parliamentarian says so. The idea has crossed the mind of senators in the past who may not want to take the bitter with the sweet in repealing a big, sprawling rule. Whenever the issue has been raised with the parliamentarian, though, she has said no. That’s probably why — to the best of my knowledge — no such resolution has even been introduced, let alone passed both houses and signed by the president. The parliamentarian decides whether a CRA resolution is privileged and thus subject to the filibuster; therefore she decides what can actually be CRA’d. She says it’s complete rules.
Another congressional issue was whether Congress could have disapproved of the Biden data-breach rule. Judge Moore asked about why it couldn’t have simply killed that rule if it didn’t like it or thought it was improper? Judge Hermandorfer rightly responded that the CRA itself warns against drawing inferences from congressional inaction in 5 U.S.C. § 801(g). (“If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval.”)
The question also misses the point. We never contemplated a CRA against the data-breach rule because the rule was barred by the prior CRA! Why would Congress repeal a rule that has already been repealed and barred? “Belts and suspenders” is a common enough legal principle, but in the Senate, “floor time” is the coin of the realm. Expending floor time to do something that’s already happened just doesn’t make sense.
In the end, this is an important case that will have important effects on the CRA. It also presents the kinds of questions about Senate procedure and practice that courts rarely have to deal with. I hope the Sixth Circuit gets it right.