Resurrecting a Relic of the Past: The Harvard Law Review on the Congressional Review Act

Editor’s Note: Former Senator Nickels and former Congressman McIntosh were instrumental in the establishment of CRE a number of years prior the first successful use of the CRA.

 Harvard Law Review article of the past summarizes in a very concise manner the merits of the Congressional Review Act:

The CRA provides that when a disapproval resolution is sent from the Senate to the House, or vice versa, the receiving chamber cannot refer the resolution to a committee.

Second, the CRA prohibits filibusters of disapproval resolutions in the Senate, setting time limits for debate and eliminating many procedural hurdles.

Third, the CRA creates a special extended review period for major rules that are submitted to Congress in the final sixty days of a congressional session.These rules can be disapproved within seventy-five legislative days of when the next session of Congress convenes.

Fourth, disapproval resolutions can only be enacted as standalone measures, using a template provided in the statute.

Unsurprisingly, Senator Nickles, who championed the CRA and suggested five years earlier that it could be used to overturn the then-ephemeral ergonomics rule, pushed the disapproval resolution through Congress.  Senator Nickles introduced a resolution in the Senate because it was there that the Republicans had a closer margin, and he felt that if he could move the bill out of the Senate, the House would be sure to pass it. But given the CRA structure, starting in the Senate made strategic sense for other reasons as well. The CRA explicitly forbade Senate filibusters and allowed Senate committees to be circumvented upon the signature of thirty Senators, which Senator Nickles quickly obtained. A disapproval resolution that originated in the House would be referred to a committee, but a resolution sent to the House from the Senate could, under the CRA, proceed proceed directly to a floor vote in the House.

Without the CRA, Senate Republicans would have needed to contend with the possibility of a Democratic filibuster. On the March ergonomics vote, Senate Republicans were four votes short of overcoming a potential filibuster.

The above demonstrates that the implementation of the CRA at its inception was a creature of the Congress with little Executive Branch participation in overturning regulations; some commentators  believe Congress continues to dominate the scene. The CRA is an excellent example of a frequently maligned Congress performing its constitutional duty to oversee the administrative state. When CRA actions are initiated in the Senate the statute provides a mechanism for the Congress to swiftly address the criticism that it delegates too much authority to Executive Branch agencies.

The CRA is an important mechanism within the administrative state; it has a use greater than a statute that merely provides control over midnight regulations. One key to its expanded its use over a lengthy period of time is to have CRA actions originate in the Senate as was the case with its first successful use in overturning the ergonomics rule. Nonetheless, the statute allows ten hours of debate in the Senate–a serious drawback on the constant use of the CRA to control the administrative state. That said, centralized regulatory review remains the mainstay for controlling the administrative state in conjunction with the implementation of a regulatory budget, judicial review and a revamping of law school curricula.

N. B. A forthcoming article, The Mysteries of the Data Quality Act, this time written by CRE not the Harvard Law Review.

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