The Untapped Potential of the Congressional Review Act

Abstract

The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disapproving agency rules. The near-universal assumption is that the CRA is relevant only when a new President seeks, with the support of Congress, to cancel regulations promulgated during the previous administration. Yet the CRA has substantially greater unrealized potential to reverse adverse judicial rulings, or, more ambitiously, to entrench preferred statutory interpretations. When the agency, the President, and congressional majorities agree on the correct reading of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step process: First, the agency promulgates an interpretive rule construing the statute to mean the opposite of what the agency actually favors—for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. (In the case of an adverse judicial ruling on the statute’s meaning, the agency’s rule could simply restate the court’s reading of the statute.) Next, Congress and the President use the CRA to disapprove that interpretive rule—thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This strategy would be a lawful way for the executive and legislative branches to override judicial rulings regarding the meaning of the agency’s authorizing statute, and more generally to clarify or alter statutory law in a manner that bypasses the filibuster and other legislative roadblocks.

Keywords: Congressional Review Act, Legislation, Administrative Law, Legislative Process