Substantially the Same
Today the Senate is expected to vote to disapprove under the Congressional Review Act (CRA) the CFPB’s rule subjecting large payment apps to direct CFPB supervision. In addition, the House Financial Services Committee will today hold a markup of various measures, including a CRA resolution to disapprove the overdraft rule finalized by the CFPB late last year
Under the CRA, if a resolution disapproving a rule is adopted by both houses of Congress1 and signed into law by the President, the rule cannot take effect or have continued effect. Also, if an agency has one of its rules disapproved under the CRA, the agency cannot turn around and reissue the rule in “substantially the same form.” Nor can the agency issue a new rule “that is substantially the same” as the disapproved rule.2
This post is about the CRA’s “substantially the same” prohibition and how Congress, academics, agencies, and courts interpret it.
The CRA’s Legislative History, With an Asterisk
In a 2011 article in the Administrative Law Review, Adam M. Finkel and Jason W. Sullivan sketch out the history of the CRA. The short version of the story is that after being included in various House and Senate bills that failed for unrelated reasons to become law, the text of what is now the CRA finally made it over the line in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA).
SBREFA itself was a part of the larger Contract With America Advancement Act. Finkel and Sullivan explain that because “more controversial parts of the Contract with America occupied Congress’s attention” there was no floor debate in Congress regarding the CRA. Likewise, there was no official Committee report or other formal legislative history explaining why Congress enacted the CRA provisions that it did, or what it intended them to mean.
Faced with this situation, a few weeks after the CRA became law the chairs of the Congressional committees with jurisdiction over the CRA inserted into the Congressional Record a joint statement3 explaining how the committees (or at least the committee chairs who authored the joint statement) intended for the CRA to be interpreted.
With respect to the substantially the same prohibition, the joint statement offers this explanation:
The committees intend the debate on any resolution of disapproval to focus on the law that authorized the rule and make the congressional intent clear regarding the agency’s options or lack thereof after enactment of a joint resolution of disapproval. It will be the agency’s responsibility in the first instance when promulgating the rule to determine the range of discretion afforded under the original law and whether the law authorizes the agency to issue a substantially different rule. Then, the agency must give effect to the resolution of disapproval.
Academic Commentary
In the same Finkel and Sullivan article referenced above, the authors laid out what they saw as seven possible interpretations of the substantially the same prohibition, ranging from very permissive to very restrictive of future agency action. Ultimately, Finkel and Sullivan adopted the view that the best understanding of the CRA is one that “permits an agency to reissue a rule that is very similar in content to a vetoed rule, so long as it produces a rule with a significantly more favorable balance of costs and benefits than the vetoed rule.”
A later Michael J. Cole article in the Administrative Law Review in 2018 largely agreed with the approach described by Finkel and Sullivan, although Cole noted that there may be rare cases where looking to the cost-benefit ratio would not be appropriate.
A 2022 article in the Administrative Law Review from Cary Coglianese explored the “CRA conundrum” in the context of the SEC’s efforts to adopt a resource extraction payment disclosure rule consistent with both the Dodd-Frank Act and Congress’s repeal of the SEC’s prior effort in this area. The SEC’s work to thread this needle will be discussed in more detail below.
If interested in additional academic writing about the CRA, footnotes 11-13 in Professor Coglianese’s article provide citations to a “considerable corpus” of CRA-focused legal commentary, but the three articles mentioned above are the ones most relevant to the substantially the same issue.
CRA Repeals and Reissuances During the First Trump Administration
In the first 20 years of its existence the CRA was little used, with only one rule repealed under its procedures. This changed in President Trump’s first term as the CRA was used sixteen times to overturn regulatory actions from President Obama’s administration.
In most areas that marked the end of the line for these repealed rules, but in two instances during the first Trump Administration agencies that had seen their rules repealed by the CRA again took up rules on the same subject matter. In doing so, each agency had to confront the CRA’s substantially the same prohibition.
The DOL UC Drug Testing Rule
In 2012, Congress adopted compromise legislation that permitted states to drug test applicants for unemployment compensation under certain limited circumstances. Most relevant here, the statute allowed states to conduct drug testing if suitable work for the applicant was in an occupation that “regularly conducts” such testing. The 2012 law left it up to the Secretary of Labor to determine which occupations those were.
In 2016 the Department of Labor adopted a final rule defining the relevant occupations, but Republicans believed DOL’s list of occupations would have too strictly limited the states and so upon taking power in 2017 used the Congressional Review Act to repeal the 2016 rule.
DOL then proposed in 2018 and adopted in 2019 a new set of rules defining more broadly those occupations that regularly conduct drug testing, thus “enabling States to enact legislation to require drug testing for a far larger group of UC applicants than the previous final rule permitted.”
In the preamble to the final rule DOL acknowledged a comment on the 2018 proposal claiming DOL lacked authority to issue the new rule, given the CRA repeal of the previous rule. DOL rejected this argument. First, it pointed to the legislative history of the 2017 repeal, quoting an individual member of Congress who as part of the debate on the CRA resolution of disapproval had criticized the 2016 rule as “incredibly narrow” in its definition of occupations for which drug testing was regularly conducted. Second, DOL looked to the dictionary definitions of substantially, saying that those definitions “suggest that a rule is ‘substantially the same’ where it is for the most part the same as the prior rule.” And here, DOL said, the significant change in scope of the 2019 rule compared to the 2016 rule meant that DOL had cleared that bar.
The SEC Resource Extraction Payment Disclosure Rule
The Dodd-Frank Act added a new Section 13(q) to the Securities Exchange Act of 1934. Section 13(q) directs the SEC to adopt rules requiring publicly traded companies engaged in the commercial development of oil, natural gas or minerals to disclose certain payments made to foreign governments or the U.S. government.
The SEC adopted a final resource extraction payment disclosure rule in 2012, but that version of the rule was vacated in 2013 after a federal judge in D.C. found that the SEC had made at least “two substantial errors” under the Administrative Procedure Act.
After experiencing the 2013 setback, the SEC eventually in June 2016 again adopted final rules. (This after being directed by a different federal judge in 2015 to act with more urgency.) But those 2016 rules also met an untimely end, as in early 2017 Congress used the CRA to repeal them.
The CRA repeal of the 2016 rules rendered them without any effect, but the repeal did nothing to change the underlying statutory requirement in Section 13(q) that the SEC adopt resource extraction payment disclosure rules. So the SEC for the third time had to commence a rulemaking process and eventually in December 2020 once again adopted final rules.
In the preamble to the 2020 final rules, the SEC provided what was at that time the most detailed explanation to date of how a regulatory agency had interpreted the CRA’s substantially the same prohibition. In the course of its discussion, the SEC adopted these positions:
Contrary to some commenters’ suggestions, to comply with the substantially the same prohibition it is not enough for an agency to merely revise the rationale (including the economic analysis) for a rule. The agency must also make changes to the “substantive operation” of the rule.
Further, those changes to the substantive portions of the rule must be made to at least one of the “central discretionary determinations” over which the agency has authority. It is insufficient to make “adjustments to a significant number of ancillary or secondary components of the rule.”
Here, the SEC believed there were two central discretionary determinations “at the heart of the … disclosure system” the SEC had adopted in 2016: (1) whether to publish individual issuers’ payment disclosures (vs. keeping individual issuers’ disclosures anonymous and publishing only aggregate anonymized data) and (2) the level of granularity with which to define “project” - that is, whether to require payment disclosures on a contract-level basis, or to instead require them at a higher level of generality.
The SEC chose not to make changes to what it saw as central discretionary determination (1), sticking with the 2016 rule’s requirement that individual issuers publish their disclosures. With respect to central discretionary determination (2), however, the SEC chose to significantly modify the definition of “project,” moving away from the contract-level disclosures required by the 2016 rules and instead adopting rules that require disclosure at the level of major subnational jurisdictions.
One other thing about the SEC’s effort to thread the needle is worth mentioning here. When the SEC in 2019 proposed what would become the 2020 final rules, it cited to the CRA’s post-enactment legislative history, discussed above, and said that as directed by that legislative history the SEC “looked to the concerns raised by members of Congress during the floor debates on the joint resolution [to repeal the 2016 Rules] to assist us in developing a rule that is not ‘substantially the same’ as the 2016 Rules.” In the 2020 final rule, however, the SEC disclaimed reliance on this approach.4
The Substantially the Same Prohibition In the Courts
Had this post been written a few years ago, it would have finished with the above, as a federal court had never opined on the scope of the substantially the same prohibition. Now, however, at least one court (sort of) has, and another may do so soon.
The Ninth Circuit’s Safari Club Decision
In May 2016, the Fish and Wildlife Service adopted a rule that codified a ban on the baiting of Kenai brown bears and imposed other hunting restrictions (the Kenai Rule). Later in the year, the Fish and Wildlife Service adopted a separate rule that included a broader ban on brown bear baiting in all Alaskan wildlife refuges and imposed other hunting restrictions (the Refuges Rule).
In early 2017, the State of Alaska and Safari Club International sued the Fish and Wildlife Service over the Kenai Rule. A few weeks later, Congress used the CRA to repeal the Refuges Rule. (The Kenai Rule was beyond the reach of the CRA’s fast-track disapproval procedures, and so was left untouched.)
Although not their main argument, Alaska and Safari Club eventually contended before the Ninth Circuit on appeal that by repealing the Refuges Rule in 2017 Congress had effectively amended the underlying statute relied upon by the Fish and Wildlife Service to issue both the Kenai Rule and the Refuges Rule. Therefore, Alaska and Safari Club argued, the 2017 CRA repeal of the Refuges Rule had the effect of repealing the Kenai Rule as well.
In April 2022, the Ninth Circuit rejected this argument.
The first problem for the State is that the 2017 joint resolution only pertains to the Refuges Rule and does not mention the Kenai Rule. … [T]his joint resolution does not indicate congressional intent concerning the Kenai Rule. … This principle, standing alone, defeats the State’s argument that the 2017 joint resolution concerning the Refuges Rule repealed the Kenai Rule by implication.
… The State does not allege that FWS is still enforcing the Refuges Rule. The Kenai Rule is not a “new rule” relative to the Refuges Rule because the Kenai Rule is the older of the two rules, a fact the State admits. Nor are the Refuges Rule and Kenai Rule substantively identical. The Refuges Rule blanketly excluded the baiting of brown bears and State predator control programs from all national wildlife refuges in Alaska. … The Kenai Rule does not do this. It only forbids baiting of brown bears in the Kenai Refuge and prohibits the hunting of coyotes, lynx, and wolves within the Skilak WRA. … For these reasons, the 2017 joint resolution that disapproved of the Refuges Rule does not void the Kenai Rule.
Given the facts underlying the case, the Ninth Circuit’s Safari Club decision is of debatable relevance to the substantially the same issue, but to this point Safari Club is the only court of appeals decision even vaguely approaching the topic.
That may soon change.
The FCC’s Data Breach Reporting Rule and a Pending Sixth Circuit Decision
The FCC’s 2016 Privacy Order and the 2017 Repeal
In a 2016 order, the Federal Communications Commission adopted a package of rules to “require broadband Internet Service Providers (ISPs) to protect the privacy of their customers” (the 2016 Privacy Order). As described in an FCC press release, one of the rules included in the 2016 Privacy Order imposed “[c]ommon-sense data breach notification requirements to encourage ISPs to protect the confidentiality of customer data, and to give consumers and law enforcement notice of failures to protect such information.”
In 2017, Congress used the CRA to repeal the FCC’s 2016 Privacy Order. Consistent with the usual practice for CRA repeal resolutions,5 the text of the resolution of disapproval simply stated the name of the 2016 Privacy Order and its Federal Register citation.
The New Data Breach Reporting Rules and the FCC’s Rulemaking Position
In late 2023, the FCC adopted new data breach reporting rules which were published in the Federal Register in 2024.
In addition to other substantive and process-based complaints regarding the new data breach reporting rules, commenters - as well as dissenting FCC commissioners - argued that the FCC’s new rules were barred as a result of the CRA repeal of the 2016 Privacy Order.
The FCC addressed these comments in the Federal Register release adopting the final rules.
First, the FCC argued that the CRA is “best interpreted” as prohibiting the FCC from reissuing the 2016 Privacy Order “in whole, or in substantially the same form, or from adopting another item that is substantially the same as the 2016 Privacy Order.” Under this view, it does not matter if the 2024 data breach rules are identical to the data breach rules from 2016, so long as the new data breach rules are not accompanied by the rest of the rules in the 2016 Privacy Order. The FCC was explicit about this at paragraph 125: “the CRA would permit the Commission to adopt a breach notification rule that is the same as the breach notification rule that was adopted by the 2016 Privacy Order…”
As support for its position, the FCC cited to, among other things, the CRA’s post-enactment legislative history. The FCC noted that the legislative history directs agencies to look to what is said during the debate over the CRA resolution of disapproval to determine what exactly Congress wanted to prohibit the agency from doing again in the future. Doing that here, the FCC concluded that “supporters of the [2017 CRA repeal] resolution did not mention the breach notification provision apart from a brief reference” and therefore could not have meant to ban its reissuance.
Second, as a fallback position, the FCC argued that even if the understanding of the CRA described above is incorrect and the CRA does prohibit the FCC from adopting substantially the same data breach rules as were included in the 2016 Privacy Order, there is no CRA issue here because there are “substantial differences” between the 2024 data breach rules and the data breach rules in the 2016 Privacy Order. In support of this argument, the FCC pointed to a customer notification requirement in the 2024 rules that it believed was “materially less prescriptive” than what was in the 2016 rules. The FCC also added that the 2024 rules include a good-faith exception to the definition of data breach that was not in the 2016 rules.
Trade Group Challenges
Several broadband trade groups sued to block the FCC’s new data breach rules; the suits were eventually consolidated in the Sixth Circuit.
The trade groups have other arguments about why the rules are beyond the FCC’s authority to issue, but as relevant here the opening brief argues that even assuming the statute at one point gave the FCC the authority to adopt these sort of rules, the FCC no longer has this authority, given the 2017 CRA repeal of the 2016 Privacy Order.
Criticizing the FCC’s interpretation of the CRA as “textually untenable,” the trade groups argue that it “cannot be right” that the FCC is allowed to simply reissue the same data breach rules as it did in 2016, “so long as it does so in a narrower order that does not include the other rules that were incorporated within the 2016 Broadband Privacy Order.”
With respect to the FCC’s fallback position that, in any case, there are substantial differences between the 2016 data breach rules and the 2024 data breach rules, the trade groups contend that in fact there are “hardly any differences” between the two rules, as demonstrated by the FCC having “devoted just three sentences of its Order to identifying purported distinctions between” the 2024 and 2016 rules.
Notably, the trade groups contrast the FCC’s approach to the substantially the same issue with the SEC’s approach in the context of the resource extraction payment disclosure rule. The trade groups say that the SEC, unlike the FCC here, “took seriously its obligation” under the CRA by changing one of the central discretionary determinations at the heart of the proposed rule.
The FCC’s Litigation Position
In its own briefing in the Sixth Circuit litigation on the CRA issue, the FCC generally has stuck with the same positions it took in the Federal Register release adopting the final rules.
First, the FCC argues that Congress’s 2017 repeal of the 2016 Privacy Order bars the FCC only from reissuing “substantially the same rule as a whole.” Any other result, the FCC says, citing to Finkel and Sullivan, would be “not just ‘draconian’ but ‘nonsensical.’” The FCC also claims to find support in the Ninth Circuit’s Safari Club decision, arguing that though the circumstances were different in that case, Safari Club ultimately stands for the proposition that a “rule that contains some but not all of the same measures as a disapproved rule is not ‘substantively identical’ within the meaning of the CRA.”
Second, the FCC argues that, regardless, the 2024 data breach rules are not substantially the same as the 2016 data breach rules. Here, as it did in the Federal Register release, the FCC mentions the less prescriptive notification requirement and the new good faith exception. The FCC also adds a new argument: the 2024 rules “apply to breaches affecting far fewer customers—500 or more, compared to 5,000 or more in the 2016 Order—and include extensive recordkeeping requirements.”
Responding to the trade groups’ argument about the SEC’s 2020 approach to the resource extraction payment disclosure rule, the FCC maintains that the example set by the SEC actually reinforces the correctness of the FCC’s position. As the FCC sees it, the SEC’s 2020 rule complied with the substantially the same prohibition by changing a key definition (project), and the FCC did the same thing here by changing the key definition “breach” to include a good-faith exception.
The Trade Groups’ Reply
In their reply brief, the trade groups say that it is the FCC’s position, not theirs, that would lead to absurd or nonsensical outcomes.
The only “absurd results” in play here are the ones generated by the FCC’s reading of the CRA. On that reading, if the FCC issues an order adopting four rules (Rules A, B, C, and D), and Congress disapproves that order in its entirety, the FCC could circumvent that outcome by issuing two new orders—one readopting Rules A, B, and C, and another separately readopting Rule D. Or the FCC could respond by issuing a single order encompassing Rules A, B, C, D, and E (where E is a new rule adopted to avoid precisely replicating the prior order). In either case, the FCC would say that none of its new orders is “substantially similar” to the original order Congress disapproved. Those results are absurd.
The trade groups also say that the FCC, in making its fallback argument that the 2016 data breach rules and the 2024 data breach rules are not substantially similar, “myopically focuses” on a few small differences between the two rules. It is true, the trade groups acknowledge, that there is now a good-faith exception to the definition of breach, but the trade groups say that the fundamental definition of breach remains “nearly identical” to the definition in the now-repealed rule.
Nor do the trade groups think much of the FCC’s argument that it complied with the substantially the same requirement by adopting a more burdensome rule than the one Congress repealed in 2017.6
Another of the differences identified by the FCC (at 60) indicates that the 2024 Reporting Rule is more burdensome on regulated parties, in that it sets a lower threshold for reportable data breaches as to the number of affected customers. It cannot be the case that the FCC can clear the CRA’s “substantially the same” bar by adopting a rule that keeps the general framework of the disapproved rule while subtly increasing burdens on regulated parties.
Oral Argument
The Sixth Circuit (Judges Griffin, Stranch and Mathis) heard oral argument in the case in December 2024. A recording of the argument is available here. Counsel for the trade groups discusses and responds to questions regarding the CRA issue from around 17:40 to around 30:00, and counsel for the FCC discusses and responds to questions regarding the CRA issue from around 45:20 to around 52:20.
It is dangerous to make predictions based on oral argument, but Judge Griffin seemed unconvinced by the FCC’s lead argument on the CRA issue,7 while Judge Stranch seemed, at the very least, open to the FCC’s fallback position that the two rules in question are not substantially the same.8
A decision in the case is expected later this year, although there is no guarantee that the court’s decision will address the CRA issue.9
Wrapping Up
This post has sought to summarize the most relevant reference points for attempting to interpret the CRA’s “substantially the same” language, but if we are being honest it might be the case that many of the reference points discussed in this post wind up not mattering very much, depending on the approach to statutory interpretation taken by a reviewing court.10 (Assuming there can be a reviewing court at all.11)
Even so, the context provided by these reference points is useful background to keep in mind going into the debates Congress may have today and in the coming weeks about the CRA repeal of various Biden Administration banking rules. If you take seriously what are, for now, the leading interpretive approaches to the substantially the same issue, then individual members of Congress may have an unusual amount of power. Statements from members about what they dislike (or like) about the rules up for repeal may wind up being used as evidence in the future by an agency seeking to justify why a new rule is not substantially the same as a previous one.
Even before the CRA was enacted, Congress had the authority to overturn rules adopted by regulatory agencies, but what makes the CRA especially useful for rolling back regulations are its provisions making available special fast-track procedures for resolutions disapproving recently adopted rules. Crucially, these fast-track procedures, if available, allow resolutions to be adopted in the Senate with a bare majority.
The substantially the same prohibition does not apply if a new rule is “specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” 5 USC 802(b).
The link in the text above is to the joint statement inserted into the record in the House. The joint statement was inserted into the Congressional Record in the Senate as well.
See pages 24-25 of the preamble to the final 2020 rules:
Commenters have identified a number of reasons why they believe these congressional floor statements are not relevant to the current rulemaking, including: (1) these floor statements are not necessarily consistent with the views of most members of Congress and are not legally binding in any case; (2) the floor statements themselves give no clear indication of how the Commission should modify the rules; and (3) the concerns expressed in these floor statements about costs and competitive effects may be based on estimates and economic analyses in the 2016 Rules Adopting Release that have been called into question by actual cost data and information regarding the potential anti-competitive effects derived from resource extraction issuers’ experiences with the disclosure regimes in Europe and Canada.
When the Commission adopted the 2016 Rules, it reasonably relied on the data available to it in the administrative record and that data may have informed the views subsequently expressed by members of Congress regarding the projected potentially high costs and significant risk of competitive harm as a result of the implementation of Section 13(q). Since that time, however, additional data and other information that has become available regarding resource extraction companies’ experiences with the European and Canadian disclosure regimes indicate that the cost and anti-competitive effects of payment disclosure, while still relevant considerations, may well be lower than the Commission projected in 2016.
Thus, in formulating the final rules (and in contrast to our approach in the proposing release), we have not based our discretionary determinations for the final rules on previously expressed concerns, including from various members of Congress, about the economic effects of the 2016 Rules (although we do acknowledge various points where those concerns may align with our discretionary determinations)…
5 USC 802(a) provides in relevant part that a joint resolution of disapproval is to take the form of “‘That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect.’ (The blank spaces being appropriately filled in).”
For what it’s worth, I think the FCC’s argument and the trade groups’ response on this specific point might be the most interesting thing in the whole case. On the one hand, it seems to me the trade groups are totally right that it is extremely unlikely the GOP Congress that repealed the 2016 data breach rules meant for the FCC to then turn around and make the rules different by making them more burdensome.
But at the same time, if we are all good textualists now, if we dutifully shun the legislative history, and if we just look at the statute that simply says without further explanation that an agency cannot adopt a rule that is substantially the same as a previous rule, then is the FCC necessarily wrong to say that one way for an agency to clear the substantially the same bar is to make its new rule more burdensome or more far-reaching in scope of application, even if that might not be what Congress wanted?
For example, at 18:50 counsel for the trade groups says that the FCC’s position is “a recipe for circumvention of the statute,” and Judge Griffin jumps in to say, “It certainly is.”
At 25:10 Judge Stranch comments that “there are some pretty big distinctions” in motivations and focus of the 2016 and 2024 rules. And then from 27:10-27:55 Judge Stranch lists off various differences between the two rules.
The Sixth Circuit could, for example, hold that the FCC lacks and always lacked the underlying statutory authority to adopt the rules, even before the 2017 CRA repeal.
Even if the Sixth Circuit does not opine on the substantially the same issue, there are other courts that also may one day weigh in, but that may be a longer ways off. For example, in June 2024 North Dakota, Idaho and Montana sued the Bureau of Land Management over its Conservation and Landscape Health rule. The complaint in that case alleges, among other things, that BLM’s issuance of the Conservation and Landscape Health rule is illegal under the CRA’s substantially the same prohibition, given that Congress in 2017 repealed what the plaintiff states assert was a previous version of a substantially similar rule. The case has now been stayed for 60 days upon the government’s motion. In addition, various conservation groups have been permitted to intervene in the case. It is not clear what the next steps will be.
For instance, at various points above this post referred to the CRA’s legislative history. But a lot of judges these days are pretty skeptical in general regarding the utility of legislative history, and even those who might otherwise be open to its use may not be as open to the use of post-enactment legislative history like we have here.
Also, although as noted above both the FCC and the broadband trade groups in the Sixth Circuit case have cited the SEC’s approach as supporting their position, in the current era of significantly less deference to regulatory agencies it is not clear a court would give a statutory interpretation from an agency much weight at all — particularly where the agency in question is not even involved in the case.
The CRA provides that “No determination, finding, action or omission under this chapter shall be subject to judicial review.” 5 USC 805.
Most, though not all, courts have interpreted this section of the CRA as prohibiting them from getting involved in determining whether an agency has complied with the procedural requirements of the CRA. For example, it has generally been tough to get judicial review of a claim that an agency has disregarded the CRA’s requirement to submit rules to Congress for its review. See pages 65-67 of this 2018 Administrative Law Review article by Michael J. Cole for a discussion of some relevant cases. See also this 2-1 Tenth Circuit decision a few years after Cole’s article was published.
But even assuming the courts have gotten that question right, the question of whether a new rule is substantially the same as a previously disapproved rule might be one where courts are less hesitant to intervene. In such a case, arguably the matter for which judicial review is being sought is not an “action… under [the CRA]” but is instead the agency’s fundamental statutory authority to adopt the rule, something a court might reason is squarely within its power to review.
For what it is worth, the Ninth Circuit’s Safari Club decision did not mention the judicial review prohibition, and the FCC has not raised the issue in its briefing in the Sixth Circuit case. Note also that, though not relevant to the cases discussed in this post, the Ninth Circuit has previously rejected an argument that the CRA forecloses judicial review of constitutional claims.