The mysteries of the congressional review act

Harvard Law Review

Volumn 122, Issue 8, 2009, Pages 2162-2183

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EID: 67650556176     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (172)

1. See Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, The White House, to Heads and Acting Heads of Executive Departments and Agencies (Jan. 20, 2001), in 66 Fed. Reg. 7702 (Jan. 24, 2001);
2. William M. Jack, Comment, Taking Care that Presidential Oversight of the Regulatory Process Is Faithfully Executed: A Review of Rule Withdrawals and Rule Suspensions Under the Bush Administration's Card Memorandum, 54 ADMIN. L. REV. 1479, 1484 (2002). Ultimately, the Bush Administration finalized without amendment the vast majority of Clinton-era rules that it had delayed under the Card memorandum.
3. See Jason M. Loring & Liam R. Roth, Empirical Study, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 WAKE FOREST L. REV. 1441, 1458-59 (2005).
4. See Memorandum from Joshua B. Bolten, Chief of Staff, The White House, to Heads of Executive Departments and Agencies (May 9, 2008), available at http://www.federaltimes.com/blogs/fedtimes/wp-content/ uploads/2008/12/bolten-memo.pdf;
5. Matthew Madia, For Bush-Era Regulations, the Clock Is Ticking, OMB WATCH, May 28, 2008, http://www.ombwatch.org/node/3703.
6. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
7. 5 U.S.C. §§ 801-808 (2006).
8. See RICHARD S. BETH, CONG. RESEARCH SERV, THE CONGRESSIONAL REVIEW ACT AND POSSIBLE CONSOLIDATION INTO A SINGLE MEASURE OF RESOLUTIONS DISAPPROVING REGULATIONS 1 & n.5 (2009), available at http://assets.opencrs.com/rpts/R40163-20090126. pdf.
9. This insight receives only passing mention in the existing literature on midnight regulation. See, e.g., Robert V. Percival, Presidential Management of the Administrative State: The Not-SoUnitary Executive, 51 DUKE L.J. 963, 1002 (2001) ("Because the president can veto resolutions disapproving rules under the CRA, it is unlikely to be used frequently... except in circumstances where a new President seeks to block rules issued by a prior administration.");
10. see also Loring & Roth, supra note 1, at 1449. The CRA does explicitly privilege periods of transition in one respect: any regulation finalized within the last two months of a session of Congress is treated as if it were finalized fifteen legislative days after the succeeding session of Congress begins. 5 U.S.C. § 801(d). Therefore, any regulation finalized in the final two months - or longer depending on how legislative days are counted - of the outgoing administration may be disapproved by the new Congress, even if the rule has already gone into effect.
11. As described in Part II.B, infra, the Bush midnight rules were neither structured to avoid rescission, nor could they have been, given how far back the CRA reachback mechanism extends.
12. 5 U.S.C. § 801.
13. See sources cited infra note 35.
14. But see Stephen M. Johnson, Ossification's Demise? An Empirical Analysis of EPA Rulemaking from 2001-2005, 38 ENVTL. L. 767 (2008);
15. Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modem Administrative State, 94 VA. L. REV. 889, 964 (2008).
16. See 142 CONG. REC. 8197 (1996) (statement of Sens. Nickles, Reid, and Stevens).
17. See JESSICA KORN, THE POWER OF SEPARATION 4-5 (1996).
18. Cf. INS v. Chadha, 462 U.S. 919, 968 (1983) (White, J., dissenting).
19. See id.
20. Veto provisions varied from statute to statute. Some required disapproval by both the Senate and House of Representatives for agency action to be overturned. Some required the disapproval of only a single house. Many statutes even permitted disapproval by the action of only a single congressional committee. Joseph Cooper, The Legislative Veto in the 1980s, in CONGRESS RECONSIDERED 364, 365-67 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 3d ed. 1g85).
21. 462 U.S. 919.
22. Id. at 951.
23. See, e.g., id. at 968 (White, J., dissenting).
24. KORN, supra note 11, at 33-34.
25. JOEL D. ABERBACH, KEEPING A WATCHFUL EYE 135 tbl.6-2 (1990) (calculating the effectiveness of various methods of congressional oversight).
26. See Chadha, 462 U.S. at 955 n.19.
27. KORN, supra note 11, at 42-43.
28. Pub. L. No. 104-121, no Stat. 857 (1996) (codified at 5 U.S.C. §§ 801-808 (2006); 15 U.S.C. § 657 (2006)).
29. See 142 CONG. REC. 8197 (1996) (statement of Sens. Nickles, Reid, and Stevens);
30. id. at 6817 (statement of Sen. Levin).
31. Id. at 8197 (statement of Sens. Nickles, Reid, and Stevens).
32. Id. at 6817 (statement of Sen. Levin).
33. Id.
34. 5 U.S.C. § 801(a)(1)(A).
35. Id. § 801(a)(3). A major rule - consistent with Executive Order 12,866, 3 C.F.R. 638 (1993), reprinted in 5 U.S.C. § 601 (2006), which institutes OMB review of major rules - is one with an annual effect of $100 million or more on the economy, a "major" impact on prices, or other "significant adverse" effect on the economy. 5 U.S.C. § 804(2). OMB determines whether a rule is major for purposes of the CRA, and OMB's determination is not subject to judicial review.
36. See id. §§ 804-805.
37. 142 CONG. REC. 8197 (statement of Sens. Nickles, Reid, and Stevens).
38. Id.
39. See, e.g., Jack M. Bcermann, Congressional Administration, 43 SAN DLEGO L. REV 61, 84 (2006) ("Substantively, the CRA is unnecessary because Congress always had the power to legislatively override agency rules.");
40. cf. Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 289 (1996) ("It is unclear, however, how much this provision would add, since Congress can already enact legislation to prevent any and all regulations from becoming law.... [A] new statutory provision for congressional review adds nothing to Congress' existing authority").
41. 5 U.S.C. §§ 551-559, 701-706.
42. Id. § 553(d).
43. See 142 CONG. REC 6815 (statement of Sen. Nickles) ("As all of my colleagues are well aware, the Congress at any time can review and change, or decide not to change, rules or their underlying statutes.").
44. See, e.g., Vernon Mogensen, State or Society? The Rise and Repeal of OSHA's Ergonomics Standard, in WORKER SAFETY UNDER SIEGE 108, 131 (Vernon Mogensen ed., 2006) ("[T]he CRA gives Congress and the president the unprecedented power to overturn newly enacted regulations.");
45. Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1726 (2004) ("[Although Congress has only once formally invoked its power to block a rule, the power to do so has nonetheless cast a substantial shadow.");
46. Paul R. Verkuil, The Wait Is Over: Chevron as the Stealth Vermont Yankee //, 75 GEO. WASH. L. REV. 921, 924-27 (2007);
47. Cindy Skrzycki, Will Congress Wake Up to Its Rule-Blocking Weapon?, WASH. POST, Feb. 13, 1998, at G1 ("The Congressional Review Act was supposed to be a single-shot assault weapon for members of Congress who want to block, or at least delay, federal regulations.").
48. This intuitive point is supported by the thesis, developed by Professors Daryl Levinson and Richard Pildes, that political control matters more to the separation of powers than institutional structure. Levinson and Pildes argue that only in times of divided government do the branches impose real checks on each other. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006). Conversely, the CRA's main effect occurs when a President of one party is succeeded by a President and Congress of the other party. In times of divided government, the CRA may be ineffective even in transition periods. The Carter-Reagan transition, in 1981, was the last time the White House changed political parties and the new President's party did not also control Congress. It is conceivable that the CRA mechanism could be used outside of presidential transitions to overturn the action of an independent agency, whose officers the President cannot unilaterally remove. This possibility is discussed in Part III.
49. Two other provisions of the CRA are largely irrelevant to this Note. Section 801(a)(1)(B) requires an agency to provide the Comptroller General and the Congress with copies of a final rule's cost-benefit analysis and other required regulatory analyses. Section 801(b)(2) prohibits an agency from reissuing a rule "substantially the same" as one that Congress has disapproved.
50. 5 U.S.C. § 802(c).
51. The legislative history does not explain this asymmetry. See 142 CONG. REC. 6815 (statement of Sen. Nickles);
52. MORTON ROSENBERG, CONG. RESEARCH SERV., CONGRESSIONAL REVIEW OF AGENCY RULEMAKING 21 (2008), available at http://assets.opencrs.com/ rpts/RL 30116-20080508.pdf.
53. However, given that the Senate is seen as having more procedural hurdles to majority rule than the House does, the drafters of the CRA may have believed that fast track procedures were only needed for the Senate. See WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION 517 (4th ed. 2007). The House parliamentarian speculated in igg7 that the CRA may have neglected fast-track procedures for the House because the House Rules Committee can limit debate and expedite bills to the floor at its choosing.
54. See Congressional Review Act: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 50 (1997) (testimony of Charles W. Johnson III, Parliamentarian, U.S. House of Representatives).
55. 5 U.S.C. § 802(f)(1).
56. Id. § 802(d).
57. Id. § 801(d)(1).
58. Id. § 801(d)(2)(A).
59. Id. § 802(a).
60. 142 CONG. REC. 8199 (1996) (statement of Sens. Nickles, Reid, and Stevens).
61. This was one reason offered to explain why the Democrat-controlled Congress did not repeal more Bush Administration midnight regulations in early 200g. See Midnight Rulemaking: Shedding Some Light: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 11 ith Cong. (2009) (statement of Rep. Jerrold Nadler, Member, H. Comm. on the Judiciary)
62. [hereinafter Hearing (Nadler)], available at http://judiciary.house.gov/hearings/pdf/Nadlerogo204.pdf.
63. See 142 CONG. REC. 8199 (statement of Sens. Nickles, Reid, and Stevens).
64. See CURTIS W. COPELAND & RICHARD S. BETH, CONG. RESEARCH SERV, CONGRESSIONAL REVIEW ACT: DISAPPROVAL OF RULES IN A SUBSEQUENT SESSION OF CONGRESS 6-7 (2008), available at http://assets.opencrs.com/rpts/RL34633-20080go3. pdf. Given that the reachback allows a new Congress seventy-five days to review rules finalized in the last two months of the previous Congress and that Presidents are now inaugurated on January 20, U.S. CONST, amend. XX, § 1, the new administration and Congress will typically have two months to disapprove midnight regulations.
65. ROSENBERG, supra note 3g, at 6.
66. Id. at 6-7.
67. See Morton Rosenberg, Whatever Happened to Congressional Review of Agency Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform, 51 ADMIN. L. REV. 1051, 1058-60 (1999). Rosenberg concludes that in all cases besides the ergonomics rule, the predominant reasons for a disapproval resolution's introduction have been "to exert pressure on the subject agencies to modify or withdraw the rule, or to elicit support of members. In some instances, this strategy was successful."
68. Id. at 1058. Unsuccessful disapproval resolutions are thus indistinguishable from ordinary unsuccessful legislation, whose introduction alone may be sufficient for an agency to conform to congressional will. This reaffirms the contention that the CRA has little effective power outside of the context of presidential transitions.
69. Ergonomics Program, 65 Fed. Reg. 68,262 (Nov. 14, 2000);
70. see also Mogensen, supra note 35, at 130.
71. See Ergonomics Program, 66 Fed. Reg. 20, 403 (Apr. 23, 2001).
72. Deirdre Davidson & Tatiana Boncompagni, The Swift Demise of OSHA Rules, LEGAL TIMES, Mar. 12, 2001, at 1 (internal quotation marks omitted).
73. Id. (internal quotation marks omitted).
74. ROSENBERG, supra note 3g, at 44-45.
75. 142 CONG. REC. 5049 (1996) (statement of Sen. Nickles) ("[I]f the Department of Labor comes up with a final rule that is similar to the ergonomics language they have been floating, I think a lot of us would say, 'Stop that. Wait a minute.'"). Note that Senator Nickles made this statement more than four years before the final rule was published.
76. Ergonomics Program, 65 Fed. Reg. 68,262, 68,262 (Nov. 14, 2000).
77. Id.
78. Mogensen, supra note 35, at 117.
79. Ergonomie Safety and Health Management, 57 Fed. Reg. 34,192 (Aug. 3, 1992).
80. See Ergonomics Program, 65 Fed. Reg. 68,262, 68,264.
81. See R.W. Apple, Jr., How Lasting a Majority?, N.Y. TIMES, Nov. 10, 1994, at A1.
82. See ROSENBERG, supra note 39, at 14;
83. Mogensen, supra note 35, at 120-21.
84. Steven A. Holmes, Distracted Congress Pushes To Delay Spending Talks, N.Y. TIMES, Nov. 14, 2000, at A27;
85. Eric Schmitt, Budget Deal Stalls on Timing of a Worker-Safety Provision, N.Y. TIMES, Nov. 1, 2000, at A24.
86. Holmes, supra note 65;
87. Schmitt, supra note 65.
88. See Schmitt, supra note 65.
89. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (holding that an agency may only rescind a rule promulgated via notice-and-comment rulemaking through a new notice-and-comment rulemaking and that a presidential election is an inadequate explanation for why such a rescission is not arbitrary or capricious).
90. Schmitt, supra note 65.
91. Davidson & Boncompagni, supra note 54 (alteration in original).
92. Id.
93. See id.
94. See id.
95. Id.
96. See generally Richard L. Hasen, Vote Buying, 88 CAL. L. REV. 1323, 1338-48 (2000).
97. See Holmes, supra note 65.
98. Loring & Roth, supra note 1, at 1456-57. The comparison between 1993 and 2001 has obviously limited value for explaining the relative effectiveness of the CRA. In 1993, Democrats held fifty-seven seats in the Senate, compared with the Republican fifty-seat "majority" in 2001.
99. See United States Senate, Party Division in the Senate, 1789-Present, http://www.senate.gov/pagelayout/history/one-item-and-teasers/ partydiv.htm (last visited May 15, 2009). Absent the CRA, the Republicans might have had a more difficult time repealing the ergonomics rule, but as the text points out, it seems quite likely the Republicans would have found some other mechanism to overturn the ergonomics rule given their intense opposition to it.
100. See ROSENBERG, supra note 39, at 15.
101. Cf, e.g., THE FEDERALIST NO. 70 (Alexander Hamilton).
102. See DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS 7-9 (1999).
103. See, e.g., JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 199, 224-54 ();
104. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525 (1997).
105. Lizette Alvarez with Steven Greenhouse, Senate G.O.P. Moving to Nullify Clinton Rules on Worker Injuries, N.Y. TIMES, Mar. 3, 2001, at A1 (internal quotation marks omitted).
106. See Memorandum from Joshua B. Bolten, supra note 2.
107. See Midnight Rulemaking: Shedding Some Light: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 111th Cong. (2009) (statement of Gary D. Bass, Executive Director, OMB Watch)
108. [hereinafter Hearing (Bass)], available at http://judiciary.house.gov/hearings/pdf/Bass090204.pdf.
109. BETH, supra note 5, at 3.
110. Presidents Reagan, Clinton, and George W. Bush, the last three Presidents to succeed a President of a different party, each imposed a moratorium on regulations that were promulgated by their predecessor but not yet effective. See Jack, supra note 1, at 1482 & n.11. President Obama did, in fact, do the same thing.
111. See Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, The White House, for the Heads of Executive Departments and Agencies (Jan. 20, 2009), in 74 Fed. Reg. 4435 (Jan. 26, 2009). It remains undecided whether it is legal for an incoming administration to postpone or withdraw rules that have been finalized but are not yet effective.
112. For one view, see Jack, supra note 1, at 1498-1511.
113. These groups have various political agendas. Yet the political valence of the particular rules they identify as problematic is largely irrelevant for present purposes. These lists are mentioned merely to demonstrate that politically salient regulation did occur in the final months of the Bush Administration.
114. Hearing (Bass), supra note 83, at 3-4 tbl.1.
115. Id. app.
116. This number is generated by searching the Federal Register over the given date range for rulemaking notices that include the phrases "major rule" and "Congressional Review Act" in the same paragraph and then reading each of those notices to determine whether it is the finalization of a major rule for purposes of the CRA. This method certainly undercounts the number of major rules finalized because some agencies do not identify proposals as major rules for purposes of the CRA, or they use different terminology to do so. The precise number of rulemakings finalized is largely irrelevant to the conclusion that the Bush Administration did, in fact, promulgate several major rules in its final months that could be overturned using the CRA mechanism.
117. See generally COPELAND & BETH, supra note 48.
118. As of April 3, no disapproval resolutions had passed either chamber in 2009. Only a single disapproval resolution had been introduced, H.R.J. Res. 18, 111th Cong. (2009). Because the seventy-five-day period defined by 5 U.S.C. § 801(d) (2006) counts only days when Congress is in session, the date on which that period ends cannot be determined prospectively. It will occur, however, after this Note has gone to press.
119. See Hearing (Nadler), supra note 46, at 3.
120. See Rescission of the Regulation Entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law," 74 Fed. Reg. 10,207 (proposed Mar. 10, 2009) (to be codified at 45 C.F.R. pt. 88).
121. See, e.g., Memorandum for the Heads of Executive Departments and Agencies (Mar. 3, 2009), in 74 Fed. Reg. 9753, 9753 (Mar. 6, 2009).
122. Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, § 425, 123 Stat. 524, 748-49 (rescinding Toxics Release Inventory Burden Reduction Final rule, 71 Fed. Reg. 76, 932 (Dec. 22, 2006)).
123. See ESKRIDGE, supra note 39, at 517.
124. See John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505, 511-12 (2004);
125. see also SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE UNITED STATES SENATE (1997);
126. Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181 (1997).
127. WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS 24 (7th ed. 2007).
128. BINDER & SMITH, supra note 97, at 20.
129. See id. at 4.
130. See generally id. at 188-95.
131. Keith Krehbiel, Are Congressional Committees Composed of Preference Outliers?, 84 AM. POL. SCI. REV. 149, 149 (1990)
132. see RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES (1973);
133. WOODROW WILSON, CONGRESSIONAL GOVERNMENT 102-03 (Transaction Publishers 2002) (15th ed. 1900);
134. J.R. DeShazo & Jody Freeman, The Congressional Competition To Control Delegated Power, 81 TEX. L. REV. 1443 (2003); John Londregan & James M. Snyder,
135. J.R. DeShazo & Jody Freeman, The Congressional Competition To Control Delegated Power, 81 TEX. L. REV. 1443 (2003);
136. John Londregan & James M. Snyder, Jr., Comparing Committee and Floor Preferences, 19 LEGIS. STUD. Q. 233 (1994);
137. David E. Price, Policy Making in Congressional Committees: The Impact of "Environmental" Factors, 72 AM. POL. SCI. REV 548 (1978);
138. Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 AM. POL. SCI. REV. 85 (1987).
139. Krehbiel, supra note 102, at 150-51.
140. See Shepsle & Weingast, supra note 102;
141. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765 (1983).
142. Krehbiel, supra note 102, at 159.
143. See KEITH KREHBIEL, INFORMATION AND LEGISLATIVE ORGANIZATION 150 (1991).
144. Richard L. Hall & Bernard Grofman, The Committee Assignment Process and the Conditional Nature of Committee Bias, 84 AM. POL. SCI. REV. 1149, 1163 (1990).
145. See MASHAW & HARFST, supra note 80, at 16-17.
146. ROGER G. NOLL, REFORMING REGULATION 41 (1971).
147. See id. at 40-41.
148. Weingast & Moran, supra note 104.
149. Bryan D. Jones et al., The Destruction of Issue Monopolies in Congress, 87 AM. POL. SCI. REV. 657, 669 (1993);
150. see also Kathleen Bawn, Choosing Strategies To Control the Bureaucracy: Statutory Constraints, Oversight, and the Committee System, 13 J.L. ECON. & ORG. 101, 120 (1997) (describing the preference of members to impose statutory constraints on agencies over which their own committees do not have jurisdiction as a route to circumventing the industryagency-committee "iron triangles").
151. But cf. Steven J. Balla, Legislative Organization and Congressional Review of Agency Regulations, 16 J.L. ECON. & ORG. 424, 437 (2000) (reporting that, for the first four disapproval resolutions introduced in the House, members of relevant committees were just as likely to have cosponsored the resolutions as nonmembers).
152. Cf. Martin B. Gold & Dimple Gupta, The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Over Come the Filibuster, 28 HARV. J.L. & PUB. POL'Y 205 (2004).
153. See David S. Law & Lawrence B. Solum, Judicial Selection, Appointments Gridlock, and the Nuclear Option, 15 J. CONTEMP. LEGAL ISSUES 51, 52 (2006).
154. Cf. JON ELSTER, ULYSSES AND THE SIRENS 37 (rev. ed. 1984) ("[B]inding oneself is a privileged way of resolving the problem of weakness of will. . . .").
155. Geoffrey P. Miller, Introduction: The Debate over Independent Agencies in Light of Empirical Evidence, 1988 DUKE L.J. 215, 216.
156. See, e.g., Susan Bartlett Foote, Independent Agencies Under Attack: A Skeptical View of the Importance of the Debate, 1988 DUKE L.J. 223.
157. See Miller, supra note 117, at 217.
158. For. example, under Executive Order 12, 866 §§ 3(b), 4(c), 6, 3 C.F.R. 638, 641, 642, 644-48 (1993), reprinted in 5 U.S.C. § 601 (2006), independent agencies do submit their annual regulatory agendas to OMB, but they do not need to submit major rules for preclearance by OMB, as executive agencies do. Similarly, the Card Memorandum's instructions, although mandatory for executive agencies, were merely precatory for independent agencies.
159. See Memorandum from Andrew H. Card, Jr., supra note 1.
160. Miller, supra note 117, at 217 n.12;
161. see also Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 45.
162. See 5 U.S.C. § 804(3).
163. 142 CONG. REC. 6907 (1996) (statement of Rep. McIntosh);
164. Daniel Cohen & Peter I. Strauss, Congressional Review of Agency Regulations, 49 ADMIN. L. REV. 95, 96 (1997).
165. Compare Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 587-91 (1984),
166. with Elena Kagan, Presidential Administration, 114 HARV L. REV 2245, 2308-09 (2001).
167. For a similar discussion, see Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).
168. ROSENBERG, supra note 39, at 6.
169. See id. at 7-14 tbl. 1.
170. There are alternative explanations for the scarcity of disapproval resolutions. Members of Congress might actually like to disapprove more agency actions but benefit more from maintaining the current equilibrium than they would from disapproving individual rules. Under the current equilibrium, the members of Congress who care most about individual issues sit on the committees that set the policy over that domain. Members may tacitly agree not to disapprove rules promulgated about subjects within the jurisdiction of other members' committees in order to maintain a policy monopoly within the domains of most concern to a member. See Thomas W. Gilligan & Keith Krehbiel, The Gains from Exchange Hypothesis of Legislative Organization, 19 LEGIS. STUD. Q. 181 (1994).
171. Though this theory is possible, Professor Bryan Jones and colleagues persuasively demonstrate that when issues achieve high political visibility -likely the only time a disapproval resolution would be viable -jurisdictional monopolies deteriorate - that is, members of Congress do not appear to exhibit cartel-like behavior in this regard. Jones et al., supra note 112.
172. See, e.g., James C. Miller, III, A Reflection on the Independence of Independent Agencies, 1988 DUKE L.J. 297, 299.