Could Congress Use the Congressional Review Act to Expand Agency Authority?
The Congressional Review Act (CRA) provides a mechanism for the quick repeal of agency regulations with which Congress disagrees. In an op-ed and new paper, two Harvard Law Professors, Jody Freeman and Matthew Stephenson, argue that Congress could use the CRA to authorize new regulatory initiatives. They argue, in effect, that the CRA’s deregulatory mechanism may be used as a substitute for affirmative legislation. I have no problem with the argument that text controls over abstract legislative purpose, but I am not convinced their proposal is consistent with either (nor is Adam White, who discusses the proposal in this Notice & Comment post).
Enacted in 1996, the CRA creates an expedited procedure for congressional repeal of recently adopted regulations through the passage of a joint resolution in both houses of Congress. Among other things, CRA resolutions are not subject to filibusters or extended floor debate, and final votes cannot be blocked by the Senate leadership. So if one party controls both houses of Congress—even by a single vote—CRA resolutions can be adopted on a party-line vote.
Because CRA resolutions are legislation subject to bicameralism and presentment, the CRA has primarily been used to repeal regulations adopted by the prior administrations at the beginning of a new presidential term. It was used once in 2001 to repeal a Clinton labor regulation. It was used extensively in 2017 to undo Obama Administration regulations. And it was used three times this year to repeal Trump Administration rules. Also relevant, once a resolution of disapproval is adopted, agencies are barred from repromulgating the disapproved rule or adopting a new rule that is “substantially the same” as that which Congress rejected.
Professors Freeman and Stephenson argue the CRA creates a mechanism whereby a legislative majority could (with executive branch cooperation) authorize agency initiatives, such as the Deferred Access for Childhood Arrivals (DACA) program or CDC eviction moratorium, that might otherwise face problems in court. Specifically, what they propose is the following (from their abstract):
When the agency, the President, and congressional majorities agree on their preferred interpretation of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step maneuver: First, the agency promulgates an interpretive rule that construes the statute to have the opposite of the meaning the agency actually wants—for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. 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 double-negative maneuver would be a lawful way for the executive and legislative branches to clarify, or even to change, statutory law in a manner that bypasses the filibuster and other legislative roadblocks
In other words, their idea is to create a mechanism whereby Congress approves of a particular agency action by disapproving its opposite. Could it work? Perhaps.
Having written about the consequences of legislative dysfunction, I am all for creative ways to induce Congress to legislate. (Chris Walker and I have our own proposal in this regard.) But I am not sure this approach actually works.
Because CRA resolutions are legislation, Professors Freeman and Stephenson argue that, by rejecting a disfavored or “erroneous” agency interpretation of a statute, Congress can use the CRA to enact its preferred interpretation of a statute. In effect, Congress can use the CRA to amend a statute without having to worry about filibusters or the various vetogates that prevent the enactment of substantive legislation.
One immediate question about this approach is whether it properly characterizes the effect of a CRA resolu
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