January 9, 2018


Until 2017, the Congressional Review Act (CRA) was an afterthought, even to those who follow administrative law.  The CRA allows Congress, acting through streamlined procedures, to eliminate certain recent regulations.  Before 2017, the CRA was almost never used because, unsurprisingly, a president whose administration has promulgated a regulation is unlikely to agree that the regulation should be nullified.  Because Congress knows that a veto is waiting, there often is little appetite to go through the CRA process.  In 2017, however, that changed, at least for regulations promulgated at the end of the Obama Administration.  Hence, last year, the CRA was used more than a dozen times.

Paul Larkin has posted a detailed article (just published in the Harvard Journal of Law & Public Policy) discussing why the CRA is important and some of the legal issues it poses.  Here is the 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.

If you want to understand the CRA, this article is a good place to start.

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