The Untapped Potential of the Congressional Review Act

Abstract

The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disap-proving 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. 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 stat-ute to prohibit a regulation that the agency would like to adopt. Next, Congress and the Presi-dent 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 road-blocks. This Article develops this legal argument, and also discusses the practical, political, and normative implications of this novel use of the CRA.