I have a rule of thumb that when I hear a stupid argument three times or more, I will blog about it so I don’t have to keep repeating myself. In this case, the argument that the CRA would not undo the FCC’s 2017 Net Neutrality Repeal Order/Declaratory Ruling because it is not a “rule,” and the CRA only applies to “rules.” See 5 U.S.C. 801.
This argument falls into the stupid category because the CRA defines what it means by “rule.” See 5 U.S.C. 804. In typical legal fashion, Section 804 refers you to 5 U.S.C. 551. Section 551(4)(a) defines “rule” as follows:
“rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.
Section 804 excludes rules relating to agency organization (which clearly does not apply to the 2017 Net Neutrality Repeal Order), or decisions applicable to a specific individual or group of individuals (such as merger decisions) (again, clearly does not apply here), or specific tariff/rate making/wage setting proceedings (again, clearly not applicable here). It clearly is a “statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy.”
Put another way, did the agency action require notice and comment? Is it governed by the Administrative Procedure Act? Congratulations! You have a “rule” for purposes of the CRA.
Understanding the Theoretical Basis For Why This Is A Stupid Argument.
The actual reason arguing that the Congressional Review Act (CRA) doesn’t apply to the repeals of rules and declaratory rulings is “stupid” because the statute explicitly says that it does apply. But to really understand the mechanics of why this is not just a case of a failure of reading comprehension, but a failure to understand the basic principles of Administrative Law, requires a bit of legal theory. Mind you, this is all Admin Law 101 stuff. I only include it here so that those who keep scratching their heads about this and refuse to believe the statute actually says what it says understand why the statute says what it says.
Agencies do lots of activities that are governed by the Administrative Procedures Act (APA), which is where 5 U.S.C. 551 comes from. For convenience sake, we call all of these “rules” (hence the statutory definition for purposes of the APA), even if they are not what we colloquially think of as “rules.” Remember, the APA was written by lawyers, for lawyers, about how to do agency law. Nothing is going to be in any way remotely intuitive for normal people who have not had their brains totally rewired by law school. Expecting the word “rule” to mean the dictionary definition of “rule” is like expecting the word “game” when used by economists to mean “checkers” or the word PROM when used by techies to mean “a high school party that will be much more interesting when you retell it 15 years from now than when it actually happens.”
Basically, agencies have “formal rulemaking,” which is done through adjudication, and “informal rulemaking,” which is done via notice and comment. A declaratory ruling is, indeed, an adjudication — but that does not make it any less a “rule.” Likewise, a decision to eliminate previous rules is still a “rule” and the act of doing this is via “rulemaking.” As the FCC found last year when it implemented the CRA eliminating the FCC’s broadband privacy rules, when Congress passes a resolution of disapproval, it eliminates everything that the agency said in the entire item. So if the CRA passes, the entire 2017 Net Neutrality Repeal Order and Declaratory Ruling will be treated “as if it had never taken effect.”
So to conclude, I agree it is an uphill fight to get the CRA passed and signed by President Trump. But hey, it was always supposed to be impossible to get actual net neutrality rules the court would sustain, and it was always supposed to be impossible to get broadband declared Title II. Then it was supposed to be impossible for the Title II decision to survive judicial review. As I often say, if I limited my advocacy to what was “possible” I’d never get anything done. But if it actually does pass, and get signed, then the 2017 Net Neutrality Repeal Order goes bye-bye like a bad dream.
Stay tuned . . .
