Academic journal article Harvard Law Review

The Mysteries of the Congressional Review Act

Academic journal article Harvard Law Review

The Mysteries of the Congressional Review Act

Article excerpt

When President George W. Bush came into office, one of his Administration's first actions was to delay and withdraw the last-minute regulations that President Clinton had enacted in his final weeks in office. (1) And as President Bush's term came to an end, his staff took steps widely viewed as intended to ensure the Obama Administration would have a more difficult time undoing Bush's rules than the Bush Administration had undoing Clinton's eight years earlier. (2) The pattern is familiar, dating to the first hostile presidential transition from John Adams to Thomas Jefferson. (3) But President Bush's 2001 transition was the first to contend with a new wrinkle: the Congressional Review Act (4) (CRA), a 1996 law that was intended to make it easier for Congress to overturn administrative action. In practice, the CRA mechanism is most relevant in times of presidential transition. (5) In 2001, President Bush became the first President to use the CRA--to overturn the Clinton Administration's ergonomics rule. In 2008, although it took steps to ensure its last-minute, or "midnight," rules would not be easily overturned, the Bush Administration could do little to obstruct the use of the CRA against its rules. (6) Whether the Bush Administration had anything to worry about--that is, whether the Congressional Review Act plays a meaningful role in the legislative and regulatory processes--is the subject of this Note.

In barest outline, the Congressional Review Act permits Congress to enact a "resolution of disapproval," which if passed by both houses of Congress and signed by the President--or two-thirds majorities in both houses to overcome a presidential veto--would overturn any rule promulgated by a federal administrative agency. (7) Described in this fashion, as it is most commonly described, the CRA mechanism appears to do precious little. It has merely recreated the constitutionally defined procedure for Congress to enact a law. The CRA, then, presents several mysteries: Why would the CRA create a new legislative process identical to the one prescribed in Article I of the Constitution? Why would Congress believe the CRA process--involving majority votes in both houses of Congress--would be more efficient than unilateral executive action that could achieve the same end? Ultimately, why does such a thing as the Congressional Review Act exist?

The conventional view of the Congressional Review Act is that it grants Congress special power in its perpetual battle with the executive and that this power is always latent, a mechanism that lurks in the background of the regulatory process. (8) The CRA grants Congress no such power. However, the CRA does create some effective power, though not in the forms regularly ascribed to it. First, the law gives successor Presidents and Congresses, when acting together, an easier route to overturn the midnight rules of an outgoing administration. Second, the law imposes new restraints on the so-called "independent" agencies. That the CRA mechanism has never been used to overturn independent agency rules suggests those agencies are not as independent from the President as they are thought to be. That the CRA has been used only once to overturn a midnight rule suggests that traditional means of lawmaking--ordinary legislation and notice-and-comment rulemaking--are not as ossified as many believe. Finally, that the CRA was viewed as necessary at all speaks to a widespread belief, justified or not, in the ossification and dysfunction of the administrative process. (9)

Part I of this Note describes the origins of the Congressional Review Act and the conventional view of its purpose. Part I concludes that the CRA provides Congress special power principally in times of presidential transitions. Part II shows, through the experiences at the beginning and end of the Bush Administration, that even in times of presidential transitions, when the CRA might be most effective, the Act is little needed. …

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