Revisiting the Congressional Review Act

Abstract

It now has been over 25 years since Congress first enacted the Congressional Review Act, an effort to reclaim congressional oversight of agency rulemaking in a post-Chadha world. For many years, the CRA remained a relatively obscure statute, but an explosion in use has now transformed it into an important component of our administrative state. This has made it imperative for those both within and without Congress to understand the law. Yet the real-world operation of the CRA remains little understood.
 This Article attempts to shed light on this opaque yet consequential statute. Drawing on interviews with governmental and private actors, it provides an inside look into the real-world operation of CRA review. In so doing, it discovers implementation practices that would surprise even those with detailed knowledge of the letter of the law.
 These discoveries change our understanding of the CRA’s strengths, weaknesses, and possibilities—and the Article explores the lessons offered by these discoveries. These include lessons for statutory reform, with the Article identifying aspects of the law that should be addressed by Congress to promote good governance under the Act. They also include lessons for partisan actors, uncovering unknown opportunities for creative use of the CRA, often to offset manipulative uses that have emerged in recent years. Through this analysis, the Article provides insights into the CRA that will be necessary as the law continues to play an unexpectedly important role in congressional oversight of the administrative state.