REAWAKENING THE CONGRESSIONAL REVIEW ACT.

• Author: Larkin, Paul J., Jr.

INTRODUCTION I. THE PROVENANCE OF THE CONGRESSIONAL REVIEW ACT: THE LIFE AND DEATH OF THE LEGISLATIVE VETO II. CONGRESS'S RESPONSE TO THE DEMISE OF THE LEGISLATIVE VETO: THE CONGRESSIONAL REVIEW ACT OF 1996 III. THE REACH OF THE CONGRESSIONAL REVIEW ACT A. The Lateral Breadth of the CRA: What Is a "Rule"? B. The Vertical Reach of the CRA: When Does the Congressional Review Period Commence? IV. JUDICIAL REVIEW UNDER THE CRA V. OPPOSING VIEWS OF THE SCOPE OF THE CONGRESSIONAL REVIEW ACT A. A Broad Reading of the CRA Is Unreasonable B. A Broad Reading of the CRA Is Reasonable 1. The Text of the CRA 2. The Effective Date of the CRA 3. The Number of Rules Subject to CRA Review 4. The Burden on Agencies 5. The Relevance of Appropriations Bills 6. The Absence of a "Statute of Limitations" on Congress's Review 7. Prior Infrequent Use of the CRA 8. Gamesmanship 9. Agency Nullification 10. Remedial Legislation VI. THE LONG-TERM USEFULNESS OF THE CONGRESSIONAL REVIEW ACT VII. CONCLUSION INTRODUCTION

A longstanding criticism of the administrative state has been that it imposes unduly burdensome costs on the American economy through the issuance of a blizzard of unnecessary rules that stifle investment and reduce employment. (1) That criticism has been advanced regardless of which political party occupies the White House. (2) During the presidential campaign and initial period of his administration, President Donald Trump made clear that he intends to address that problem. In fact, he and senior members of his administration have vowed to remake the administrative state as we currently know it. (3)

In a series of executive orders, the President directed senior agency officials to aggressively review the effects that excessive federal agency regulations have had on economic growth, to eliminate unnecessary rules, to ensure that agencies do not act in an ultra vires manner, to respect the values of federalism, and to always measure and be guided by the costs and benefits of any rules an agency considers. (4) As an additional step in his regulatory reform program, President Trump signed fifteen congressional joint resolutions designed to nullify agency rules promulgated during the last year of former President Barack Obama's administration. (5) Of particular concern were the so-called "midnight rules," ones that were issued in final form between the November 2016 election and the January 2017 inauguration. (6) Congress passed those joint resolutions under a little-known and, until recently, even less often used statute known as the Congressional Review Act of 1996 (CRA). (7)

The 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 schedule a vote on a joint resolution to disapprove it without delay. The expedited process allows the Senate and House of Representatives to quickly 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 (hopefully) preventing whatever harm that Congress believed that the rule would inflict. Because the process created by the Act differs from the one that Congress ordinarily uses to consider legislation, the CRA raises a number of novel legal issues. This article will address the ones that are most important today. (8)

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. (9) 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.

1. THE PROVENANCE OF THE CONGRESSIONAL REVIEW ACT: THE LIFE AND DEATH OF THE LEGISLATIVE VETO

   Regulatory agencies are a necessity in contemporary America. For legal, structural, and political reasons, neither Congress nor the federal courts can decide which people should be charged with a crime, which compounds are hazardous waste, which pharmaceuticals are safe and effective, which weapons systems are most reliable, which grant applicants should be funded, or which individuals are disabled. Executive branch officials are necessary to make those calls. For many people, however, agencies are a necessary evil. There is the risk that they may make a hash out of a particular assignment or pursue their own form of "empire building" by expanding their jurisdiction beyond what Congress authorized. Further, the public has little to say about what agencies do, which people should fill those departments, and who should be dismissed.

   Congress has that authority, along with a box of tools at its disposal to supervise an agency. Congress must establish agencies and approve their budgets. (10) Members therefore have the opportunity to set or revise an agency's priorities, secure promises from senior agency officials about its work during the upcoming fiscal year, and publicly embarrass at budget or oversight hearings agency officials whose organization has engendered public hostility. (11) Every member can also introduce legislation that would clip an agency's wings, and an important member's minatory presence can deter an agency from going on a frolic and detour. Also, members have almost unlimited access to various media outlets, which are more than happy to report how "troubled" a member is at the goings-on in a particular agency and how the agency has abused its authority in one fashion or another. The Senate also has a weapon that the House of Representatives lacks: confirmation hearings. (12) Senators can obtain concessions from officials as a condition of receiving their votes for the position to which officials aspire. Every member and every committee also has staff that can negotiate with an agency's personnel over the direction it has taken or will take, and staff members who are dissatisfied with an agency's response are in a position to persuade their boss that an agency has "gone rogue." If the congressional staff are not familiar with a particular example of agency overreach, there are numerous private businesses, organizations, and individuals that are more than willing to let the staff know what is going on in the fourth branch.

   Nonetheless, during the New Deal Congress came up with an additional means of restraining agencies: the legislative veto. Borrowing from the presidential veto, a legislative veto would allow both chambers--and, sometimes, just one--to nullify a specific agency action that a majority found unauthorized or unwise. (13) The rationale for the legislative veto was in part a version of "the greater includes the lesser" argument. The argument was that Congress should be free to reserve a legislative veto because Congress need not create a particular agency or empower one to adopt rules. Part of the justification was practical. Delegation is risky because of the difficulty of ensuring that agency officials adhere to Congress's mandates--what economists call a "principal-agent problem"--so Congress felt a need to nullify unwise agency actions before they became effective. The Supreme Court had also refused to limit the type or amount of authority that Congress could delegate to agencies, so the legislative veto served as a means of compensating for the absence of any cap on what agencies could be allowed to do. (14) The legislative veto seemed perfect for the job. Congress certainly thought so. It took full advantage of that option, adding legislative veto provisions to hundreds of different statutes. (15)

   The legislative veto, however, was controversial. Presidents saw it as an infringement on their executive authority. (16) When used to overturn an agency adjudication, the legislative veto could also be criticized as an effort by Congress to play the role of an Article Ill court. (17) The constitutionality of that practice finally reached the Supreme Court in 1983, and, unfortunately for Congress, the legislative veto did not survive. The Supreme Court ruled in INS v. Chadha (18) that Article I defines the process by which Congress may legislate, that Article I requires bicameral passage of legislation and presentment of that legislation to the President for his signature (or veto, followed by a possible congressional override), and that Congress cannot end-run the Article I procedure through a legislative veto, however practical that option might be. (19) The result was drastic: the numerous legislative veto provisions that Congress had added to legislation--whether the one- or two-chamber variety--were now unenforceable. (20)

2. CONGRESS'S RESPONSE TO THE DEMISE OF THE LEGISLATIVE VETO: THE CONGRESSIONAL REVIEW ACT OF 1996

   The CRA was Congress's attempt to devise a lawmaking procedure that would approximate a legislative veto as closely as Chadha would allow. (21) The CRA falls between the quick-acting...