Reawakening the Congressional Review Act

Abstract

The Congressional Review Act of 1996 (CRA) is Congress’s most recent effort to trim the excesses of the modern administrative state. The act does so by creating a fast-track procedure that enables Congress to set aside any new rule it finds unwise before the rule can go into effect. The act directs federal agencies to submit to Congress and the Comptroller General a copy of every new rule so that the latter can examine it and the former can quickly schedule a vote on a joint resolution to disapprove it. The expedited process allows the Senate and House of Representatives to pass a joint resolution of disapproval that is presented to the president for his signature or veto. If the president signs the resolution or Congress overrides his veto, the rule becomes null and void, thereby preventing whatever harm that Congress believed that the rule would inflict.

The CRA raises a number of novel legal issues. This Article will address the ones that are most important today. Part I summarizes the background to the CRA and why Congress adopted that law. Part II then explains how the CRA works and what effect it has on agency rulemaking. Part III reviews the length and breadth of the CRA by discussing the meaning of the critical term “rule” and the retroactive reach of the act. Part IV analyzes the act’s judicial review provision. That Part maintains that Congress has precluded judicial review of any action taken by Congress or the president under the CRA, but not of an agency’s compliance with that law. In fact, Part IV concludes that Congress could not preclude review of such a claim without violating the Fifth Amendment Due Process Clause. Part V offers — and responds to — the argument that the CRA is unlikely to allow Congress to do much more than eliminate rules that agencies adopt in the twilight of an outgoing administration. The Article concludes in Part VI by saying that the CRA should be helpful in corralling agency excesses, but new legislation could achieve that result more effectively and efficiently.

Keywords: Congressional Review of Regulations, Regulatory State, Regulations, Administrative State, Legislative Veto, Congressional Review Act