Notice & Comment

The Temptation of “Good-Faith Faithless Execution”

In an era when Congress seems nearly incapable of producing significant legislation, because the Senate’s filibuster effectively requires significant bipartisan support, it is only natural to feel the temptation to simply short-cut the entire institutional ordeal. 

And it feels all the more urgent on an issue like immigration, where the stakes are especially high and opinions are polarized after more than a decade of argument. It’s especially difficult for those of us who want the “Dreamers” to have a refuge in America and a path to American citizenship, yet who also want American government to live up to its constitutional ideal, too.

So my interest was piqued by a new suggestion, from Professors Jody Freeman and Matthew Stephenson, that the Biden Administration and Congress could simply legislate a permanent DACA fix, yet avoid the filibuster, by novel use of the Congressional Review Act. 

In a new SSRN paper (summarized in a Washington Post op-ed), they offer their counterintuitive but simple plan: the Biden Administration Department of Homeland Security should promulgate a new interpretative rule, proposing the opposite of the policy the Administration actually wants: namely, the Biden Administration should issue a rule declaring that DACA is illegal under existing law. 

Then, per the CRA, the Administration would submit its new rule to the Democratic-controlled House and Senate, who would vote for a resolution rejecting DHS’s rule—a resolution that, per the CRA, is exempt from normal filibuster rules—and the President would sign it. Suddenly the DHS’s purported anti-DACA interpretation would be nullified and, most importantly, future administrations would be prohibited from once again adopting the anti-DACA rule without further congressional legislation. (Because of Congress’s action and the President’s signature, the argument goes, the substantive immigration statutes would be effectively amended.) 

If you are new to the Congressional Review Act, then read the GWU’s helpful CRA primer to unpack what I just raced through. 

This approach is a close echo of arguments we saw early in the Trump Administration, from the Heritage Foundation’s Paul Larkin and the Pacific Legal Foundation, to use the CRA to nullify and block progressive policies. Under the Trump-era proposals—which the Wall Street Journal’s Kimberly Strassel celebrated as “A GOP Regulatory Game Changer”—Trump’s agencies would review their stockpile of policies for old interpretive rules and other policies that had not originally been subjected to CRA review, and send them finally to Congress for nullification. 

Stephenson and Freeman are now proposing something very similar, but with a twist: instead of focusing on old rules that the agencies had previously promulgated in good faith, they urge agencies to promulgate completely new rules, with no actual intention to support them, simply to trigger the CRA process. And like the WSJ’s Strassel, they call their own approach “a game changer.” 

Given their novel twist, Freeman and Stephenson’s proposal might seem doubly counterintuitive, because (1) presidents generally don’t use the CRA to strike down their own agencies’ rules; and, not unrelatedly, (2) having an agency promulgate rules that it doesn’t actually believe in seems the very definition of bad faith, not the “faithful” execution of the laws. 

Freeman and Stephenson anticipate both of these objections, more or less. On the novelty of an Administration using the CRA to nullify its own agencies’ new rules, they reply in their long paper: “We acknowledge, right at the outset, that our proposed use of the CRA would be a dramatic departure from prevailing assumptions about how the statute was supposed to operate.” 

And on the unsettling notion of a president’s agencies promulgating new rules that they don’t actually intend support or intend to enforce, they note the “instinctive objection” but argue that such use of the CRA is actually good faith, not bad faith: “The maneuver is, to be sure, a maneuver. But it does not involve any subterfuge or obfuscation,” because the point of it all, as the agency itself would make clear in the preface to its own new rule, is that the agency is adopting this rule for no reason other than to trigger the CRA veto process—and, they emphasize, the agency’s new rule “is never intended to go into effect.”

Stephenson and Freeman anticipate various other questions and attempt to answer them. I have a few more.

1. Can an agency lawfully promulgate a rule that it does not actually believe in, without violating the Supreme Court’s anti-pretext doctrine?

Two years ago, in the census case, the Supreme Court roundly rejected the Trump Commerce Department’s attempt to add a citizenship question to the census, because the agency’s stated explanation for its decision was palpably pretextual:

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. …  We cannot ignore the disconnect between the decision made and the explanation given. … The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise.

With that recent (and, in my opinion, correct) opinion in mind, how could the Freeman-Stephenson proposal withstand scrutiny? Wouldn’t it be the epitome of a pretext for agencies, in the authors’ words and emphasis, to “promulgat[e] a rule that announces the opposite of the interpretation that the agency actually wants”?

 They do not cite the Supreme Court’s Department of Commerce case, but their implicit response is clear in their explicit directions to the Biden Administration: each time the agency tees up an unintended rule for CRA disapproval, “the agency might, and almost certainly should, preface this interpretive rule with a preamble that expressly states that the agency is promulgating this interpretation in order to give Congress an opportunity to disapprove it via CRA resolution.” 

In other words, by their theory, the agency isn’t being pretextual—it’s being very honest in rule’s preface that the only the new rule’s substance is pretextual. Or, one might say, it’s the faithless execution of the existing substantive statute, but in good-faith execution of the CRA process for changing the law.

Frankly I don’t know whether such a candidly two-faced approach would be lawful as a matter of existing administrative law. There’s no easy precedent to point to, because of course no Administration has ever attempted such a gambit. 

But it is hard for me to imagine how an agency could credibly write an interpretive rule that justifies the interpretation under the basic rules of administrative law, while at the same time make clear from the outset that the agency doesn’t actually believe what it’s saying in the substantive part of the rule. And to the extent that the agency does make a convincing case for the substantive interpretation that it actually opposes, it is hard for me to imagine how such an explanation would not be illegally pretextual under the Department of Commerce case. 

Perhaps the real answer is that the Supreme Court’s pretext doctrine and other standards of administrative law don’t actually matter here, because no rule proposed in such circumstances would ever get judicial review: either the rule would be quickly nullified by Congress’s CRA resolution, or the rule would repealed by the agency before the courts actually hear such a case. (As the authors explain in a footnote, the ideal would be to use interpretative rules, not notice-and-comment rules, because they “can be issued quickly” and “can be withdrawn immediately if for some reason Congress fails to pass a disapproval resolution.”)

Such an explicitly cynical mindset on the part of government officials would raise questions of its own, but we’ll set that aside for now and move on to a more technical question.

2. Would such a rule actually be eligible for CRA review, under the statute’s own terms, when the agency declares that the rule has no intended “effect”?

Freeman and Stephenson parse the CRA’s terms to explain why statute would allow the Biden Administration to tee up new interpretive rules simply to get them nullified by Congress. But as far as I can tell, they do not grapple with their biggest statutory problem.

The CRA process applies to “rules,” which the statute defines by reference to 5 U.S.C. § 551: namely, “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 … .”

That is, no doubt, a very capacious definition. But note that it specifically limits the CRA’s coverage to rules that have “general or particular applicability and future effect.” 

This is a problem for Freeman’s and Stephenson’s approach, because the entire premise of their gambit is that the agencies would be proposing rules that would not be given “effect.” The authors say this repeatedly:

  • “Critically, in all of these scenarios, the agency’s rule has no independent importance, and is never intended to go into effect.”
  • “[B]ecause the agency never intends the rule to go into effect, none of the advantages that might accrue from going through the time-consuming and cumbersome notice-and-comment process apply.
  • “[T]he agency can and should include a proviso in the preamble to the rule clarifying that the rule will not take effect immediately. This delay would give the agency more breathing room in case something goes awry.”
  • “The agency is not acting in bad faith; far from it. Critically, again, the rule is never intended to go into effect.”

To be blunt, I do not understand how an agency could announce that it its rule will not go into effect, yet also satisfy the CRA’s express limitation to rules with “future effect.” Perhaps the agency would try avoid this problem by simply not admitting that it intends for the new rule to have no effect, but that returns us to the problems of pretext and bad faith.

(To be clear, my question here sets aside the other statutory question: namely, if the recent Kisor decision made clear that “a key feature of [interpretive] rules is that (unlike legislative rules) they are not supposed to ‘have the force and effect of law.’” If so, then how can post­­-Kisor interpretative rules have an “effect” sufficient to trigger CRA review?)

My first two questions for Freeman and Stephenson apply to their CRA proposal in general, not just their specific DACA context. But next I have a DACA-specific question:

3. How could DHS lawfully propose a rule to amend the DACA policy without going through notice-and-comment?

As I noted in passing above, Stephenson and Freeman encourage agencies to trigger this CRA gambit through interpretative rules, rather than the notice-and-comment process, because notice-and-comment is a big hassle and might limit the agency’s ability to race through the CRA process or to repeal its rule if Congress balks. As the authors explain, their approach “would give the agency more breathing room in case something goes awry.”

But that approach, relying on an interpretative rule instead of a legislative rule to change DACA, raises a practical question: can DHS actually propose a rule to fundamentally change DACA without going through notice-and-comment?

After all, that was a major problem for the Trump Administration in its own DACA gambit, as it eventually learned the hard way, in its Supreme Court litigation. DHS had attempted to modify the Obama Administration’s DACA policy without notice and comment; but, the Court rightly explained, the original DACA policy “created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence,” so DACA itself was “a substantive or legislative rule,” and thus any rule purporting to change DACA’s substance would itself be a legislative rule. (I suspect that if DACA itself had received full review of the then-eight-member Court in 2016, it might have suffered a similar fate.)

If the Biden Administration wants to promulgate a rule to repeal DACA—promulgating it simply to trigger a CRA process, but promulgating it all the same—then wouldn’t that rule need to go through the full notice-and-comment process before the agency could finalize it and send it to Congress? 

Again, the blunt answer might be “no, the proposed rule would not actually be a legislative rule, because it is not actually intended to go into effect.” But that would bring us back to the previous problem: the CRA only applies to rules with “future effect.” On its own terms, the CRA can’t apply to a rule that is never intended, from the start, to have any effect at all.

So the real rejoinder might simply be, “wake up, the courts will never get a chance to review the issue; and when the agency sends the rule to Capitol Hill, the House and Senate can do whatever their majorities want to do.” (Indeed, Stephenson and Freeman emphasize that the Senate Parliamentarian should not worry himself about administrative-law problems. Evidently the parliamentiarian is expected to remain a fiercely good-faith institutionalist in all of this.) 

Once again, I suppose that such an answer would settle some questions but raise others. With that in mind, here is one more, which I’ve alluded to a couple times already:

4. Does any of this actually resemble the President’s constitutional duty to faithfully execute the laws and faithfully execute of his office?

The President, like each of his predecessors, swore a constitutional oath to “faithfully execute the office of President of the United States,” and he is constitutionally obligated to “take care that the laws be faithfully executed.” Does that have any relevance here?

I understand that “faithful execution” is a very nuanced and complicated part of constitutional self-government, not easily susceptible to court-enforced legal rules. But law professors and others have spent the last several years writing about faithful execution—and for very good reasons! So let’s worry about faithful execution here, too.

Given all of the recent concerns and discussion about a president’s willingness to abide by constitutional duty of faithful execution, and broader concerns of institutional decay in our constitutional system, the current moment strikes me as the worst possible time for presidents to start having their agencies promulgate rules that the Administration neither believes in nor intends to enforce, simply to avoid the Senate’s procedural rules for new legislation.

Admittedly, this is less a legal question than a constitutional one. 

Professors Freeman and Stephenson clearly have put a lot of thought into parsing the precise terms of the CRA, and they have formulated an approach that seems—at least at first glance—to perform formalistically all of the gestures necessary to promulgate a faux rule that Congress can strike down, in order to dodge the filibuster and tie future administrations’ hands. It is a clever argument in service of a noble cause—the protection of a generation of people who, brought to America as children and wanting desperately to stay here. 

But too often lawyers, so keen to open doors for their causes or their clients or their Administration, lose sight of the real constitutional corrosion that happens by way of clever legal arguments. Sometimes people know the price of everything but the value of nothing; sometimes people know the rules of everything, but neglect other things.

Again, this last concern is less legalistic than constitutional. But emphatically so.

Addendum: A friend points out that the Freeman-Stephenson plan is precisely the same plan that the Trump White House considered, and ultimately did not pursue, in 2017. Axios later described it then as an “evil genius” plan.

Adam J. White is a senior fellow at the American Enterprise Institute and co-executive director of GMU’s Gray Center for the Study of the Administrative State.

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