Recusal Legislating: Congress’s Answer to Institutional Stalemate
48 Pages Posted: 4 Mar 2011 Last revised: 6 Feb 2013
Date Written: March 2, 2011
Americans have grown accustomed to, but no less tired of, congressional gridlock. Although the Framers intentionally designed a system that would make lawmaking difficult, they did so with an eye toward ensuring broad consensus before policy enactment. There are times, however, when organizational structures and norms combine with electoral constraints and ambitions to create legislative stalemate despite widespread agreement on not only the need to act, but also on the substance of the necessary policy. These occasions rightfully spark frustration from both inside and outside Congress. Yet it has gone largely unnoticed that, recognizing this problem, Congress has devised a mechanism for overcoming deadlock by “recusing” itself from particular areas of policy development. In these cases, Congress combines delegation of substantial policymaking authority to a non-administrative agency with expedited congressional consideration of the delegatee’s self-effectuating proposal. Drawing on three contrasting examples, this Article creates a framework for understanding the concept of recusal legislating. It identifies the key motivations and benefits of recusal legislating and considers the device’s role in resolving future legislative impasses.
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