Paul J. Larkin
Introduction: The Provenance, History, and Purpose of the Congressional Review Act
The number of pages in the Federal Register containing new rules promulgated annually by federal agencies greatly outpaces the corresponding number of pages in the Statutes at Large containing a year’s new legislation.REF Both major political parties are guilty.REF One explanation for that imbalance is that Congress commonly punts to an agency the responsibility to decide important or divisive issues that have bewitched Members because of honest uncertainty over their resolution or entrenched partisan disagreement.REF For that reason alone (although there are more), some administrations govern the nation via agency regulations or guidance documents instead of by legislation. The result is that “[a]gency rulemaking has effectively replaced congressional lawmaking as the primary mode of American governance.”REF
That phenomenon is likely to occur during the final year of an Administration as the outgoing President attempts to write his legacy into the history books, particularly as he or she turns the White House keys over to the incoming person belonging to the other major party. From at least the November of a presidential election year through the following January 20 when a new Administration takes office, agencies try to pass what have been termed “midnight rules” to carry forward into law policies that might not—or assuredly would not—be endorsed by the incoming President.REF At such times, a federal statute known as the Congressional Review Act (CRA) might come into play to prevent an outgoing Administration from leaving above-ground or submerged mines to sink or obstruct the revisionary policies of the incoming Administration.REF
Enacted in 1996 with bipartisan support,REF the CRA was Congress’s second major attempt through general legislation to corral agency governance through rules.REF The first such device was the “legislative veto.” Sprinkled through the U.S. Code were nearly 300 provisions that enabled both chambers of Congress, » Read More
https://www.heritage.org/the-constitution/report/the-return-the-congressional-review-act
