Why Not a “Nuclear Option” for Legislative Vetoes?

For the sake of clarity, I start with questions presented in this blog, which serve as a useful guide:

• Is it constitutional for one Congress to bind the procedural rules of a subsequent Congress?
• If not, then isn’t the Congressional Review Act (CRA) unconstitutional?
• Given all of the Congressional Review Act’s imperfections, why not a “nuclear option” for legislative vetoes of major regulations?

As a staunch proponent of Article I oversight of Article II administrative agencies, I support the Congressional Review Act, which allows Congress to pass a legislative veto of significant regulations within 60 working days of their promulgation and transmission to Congress.

The problem is that my support emanates from a position of ignorance, as the statute makes no sense to me. Allow me to explain my confusion.

Congress could veto any regulation it wants, whenever it wants. Agencies didn’t materialize out of thin air. They are all congressional creations. An agency’s authority to regulate results from a delegation of lawmaking power from Congress via authorizing legislation. And an agency’s capacity to regulate results from congressional appropriations. Because agencies are a function of congressional intent, it follows that Congress has the authority to undo any agency action.

In light of Congress’s power over agencies, why is the Congressional Review Act necessary?

One partial and anachronistic reason for the Congressional Review Act is that the bill allowed individual lawmakers to bypass powerful committee chairs who otherwise exercised near-complete control over the legislature’s relationship with administrative agencies under their jurisdiction. The statute empowers individual Members to get a vote on a resolution of disapproval, regardless whether or not his or her effort was condoned by the Committee Chair of relevant jurisdiction. Since 1996, however, authority has been centralized in both the House and the Senate, such that this justification no longer applies.

From what I can discern, the primary impetus behind the CRA was to circumvent the filibuster. It is no secret that passing legislation is generally more difficult in the Senate. As intended by the Founding Fathers, the Senate is the saucer that cools the hot cup o’ tea that is representative democracy, and the filibuster is a manifestation of this senatorial purpose. For some time, the Senate has exercised its constitutional prerogative to shape its own rules in order to impose on the upper body a requirement that 60 votes are needed to end debate on a bill. Undoubtedly, readers of this blog appreciate how the filibuster increases the difficulty of enacting legislation that rolls back regulations.

In order to get around the filibuster, the Congressional Review Act establishes a fast-track procedure by which 30 senators can get a simple majority vote on a resolution that disapproves (and therefore disallows) a “major” federal regulation. Again, there is a time limit on these resolutions—they must be passed within 60 in-session days on the congressional calendar.

Here’s the thing: The Constitution expressly gives authority to each Chamber of Congress to fix its own rules of procedure, but the Congressional Review Act seems to permanently change the rules of the House and the Senate. I use the weasel verb “seems to” because the statute is decidedly unclear how it relates to the Congress’s constitutional power to make its own rules. According to Congressional Review Act § §802(g),

(g) This section is enacted by Congress—

(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

I formatted the important parts. The law claims to be “an exercise of the [House and Senate’s] rulemaking power.” Then it says that the legal text “supersedes” procedural rules with which it conflicts. But then the statute “recogni[zes] the constitutional right of either House to change the rules.”

How can the Congressional Review Act “supersede” other congressional rules, if it “fully recognizes” the constitutional right of either House to change the rules? These two provisions do not make sense together.

For that matter, is one Congress permitted to legislate permanent rules changes for future Congresses, given that the Constitution gives that authority to each House to exercise as it sees fit? I don’t know, but I don’t think so.

Yet even aside from this alleged constitutional flaw, the Congressional Review Act is too constrained on its own terms. Why, for example, does it make any sense for Congress to be limited to vetoing regulations within 60 working days of their transmission to Congress? As I see it, this oversight should be ongoing. After all, Article II agencies have tremendous discretion to shape regulatory programs within their existing framework. In a similar vein, I find the Congressional Review Act’s requirement that anything akin to a vetoed regulation cannot be re-promulgated by the agency to be too inflexible. While I appreciate where this directive is coming from, I think its rigidity would scare off risk-averse lawmakers from engaging in this sort of welcome oversight.

In sum, the Congressional Review Act has some issues. With these problems in mind, I have a solution to propose. If the problem is the filibuster, the why not go “nuclear” on regulatory review, as with appointees to Senate confirmable administrative positions and also the Supreme Court? That is, why not remove the filibuster for all legislation that would veto a major regulation at any time during that rule’s lifespan?

[I should add a disclaimer. The Congressional Review Act is not in my wheelhouse. As such, it is entirely possible that I’m missing something obvious with my Constitutional criticisms. If so, I will update accordingly.]