OIRA Watch

If implemented the aforementioned use of the CRA will result in a game changing approach to the retrospective review of regulations and if it is implemented it is imperative that OIRA examine this matter in detail and establish operating procedures which are equitable since OIRA might be responsible for its enforcement upon demand be it retrospectively or prospectively. It should be noted that in the long run agencies will improve their reporting systems and the same party will not always control both houses of Congress and the White House; consequently the Administration should make it clear that judicial review of the denial of  Requests for Correction filed pursuant to the Data Quality Act provides the long term solution. In other words who is better equipped to identify troublesome regulations which have been in effect for years than are the affected stakeholders? It appears that if the requirements of the CRA are to be enforced, it will not be through the courts. A report prepared for the Administrative Conference of the United States quotes a statement from the sponsors of the Act:

Section 805 provides that a court may not review any congressional or administrative ―determination, finding, action, or omission under this chapter. Thus, the major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget are not subject to judicial review. Nor may a court review whether Congress complied with the congressional review procedures in this chapter. This latter limitation on the scope of judicial review was drafted in recognition of the constitutional right of each House of Congress to―determine the Rules of its Proceedings‖. U.S. Const. Art. I, §5, cl. 2, which includes each house being the final arbiter of compliance with such Rules.

The limitation on a court’s review of subsidiary determinations or compliance with congressional procedures, however, does not bar a court from giving effect to a resolution of disapproval that was enacted into law. A court with proper jurisdiction may treat the congressional enactment of a joint resolution of disapproval as it would treat the enactment of any other federal law. Thus, a court with proper jurisdiction may review the resolution of disapproval and the law that authorized the disapproved rule to determine whether the issuing agency has the legal authority to issue a substantially different rule.

Editors Note: CRE was established by a group of organizations which believed that the CRA would be used widely and that they wanted access to analysts who could conduct the necessary reviews.