ICYMI: Cramer Authors Policy Essay in Harvard Journal on Legislation

WASHINGTON, D.C. – Last year, U.S. Senator Kevin Cramer (R-ND) and the North Dakota congressional delegation embarked on a mission to overturn the Biden-era Bureau of Land Management (BLM) Resource Management Plan (RMP) for the state. This effort marked the first use of the Congressional Review Act (CRA) to overturn an RMP. Cramer’s successful strategy fulfilled the intent of the CRA to check the executive branch when agencies color outside the lines of the authority Congress delegated. To highlight this legislative success, Cramer authored a policy essay in the Harvard Journal on Legislation . His essay outlines the rationale for using the CRA to overturn an RMP while illustrating the options Congress has at its disposal to reassert its Article I authority. This is the second essay Cramer has authored on cooperative federalism, following his 2022 piece , published in the Harvard Journal of Law & Public Policy . On the courts restoring authority Congress surrendered: “Although the courts have started to restore balance, Congress needs to reassert the authority it surrendered. We must reassess the tools we have to exert our constitutional authority in the face of a runaway bureaucracy with a near evenly divided Congress. North Dakota’s RMP CRA is a case study in the untapped possibility of the CRA and offers a glimpse at the potential restoration of the checks and balances. “Over the coming decades, Congress proceeded to allow agencies to determine policy details of its imprecise legislation out of a desire for efficiency and political expediency. But in doing so, Congress either failed to see or did not care how this slowly chipped away at its own power over relevant questions of law. The result has been a failure of transparency and democratic principles. Agencies were handed authority without accountability, and challenging the rule in court was generally the only recourse to prevent a runaway bureaucracy. Each time Congress passes legislation directing the agencies to engage in rulemaking, it places itself out of the picture to some degree. ” On the Congressional Review Act : “Every time Congress passes a CRA resolution, it is a stop sign to the bureaucracy. If the bureaucracy colors so far outside the lines that Congress passes and the President signs a successful CRA, the result is not just a repudiation of the present, but also a warning to future efforts of a similar nature. “The power of the CRA lies in its permanence. A freshly sworn-in president has a variety of tools to roll back the work of his predecessor. But unlike an executive order to repeal another executive order or a freeze on rulemaking, a successful CRA is the equivalent of playing both offense and defense at the same time. It eliminates a finalized rule and significantly reduces the likelihood of similar rules all in a single legislative act.” On overturning the North Dakota Resource Management Plan: “The recent overturning of the North Dakota RMP is a case study in the previously untapped power of the CRA and the ability of Congress to ensure agencies act within the confines of their authority and in line with congressional intent. We were confident the RMP violated the Federal Land Policy and Management Act (“FLPMA”) and multiple use, and we were determined to use the tools at our disposal to overturn it. “The central challenge with the multiple use requirement is how to balance the uses, particularly given the direct tension between them. Land used for grazing often cannot be used for conservation, just as land used for energy development may conflict with recreation. However, FLPMA is exceedingly clear that multiple use certainly does not mean single use or withdrawal altogether.” On limiting the unfettered spread of the bureaucracy: “The CRA effort was labeled “a 745-million-acre can of worms” because we had the audacity to check the bureaucracy. The implication was clear: how dare Congress ensure the BLM stay within the confines of the laws Congress wrote? Our CRA did not open a can of worms. In fact, it had the opposite effect. With each CRA resolution, Congress is putting the worms back in the can by permanently limiting the bureaucracy’s regulatory options. The knee-jerk defense of the bureaucracy, even when it is in the wrong, comes at the expense of Congress and is contrary to the Supreme Court’s rulings in West Virginia , Sackett , and Loper Bright . “The “can of worms” that has been opened is not Congress’s assertion of authority over agency action, but the unfettered spread of the bureaucracy. While our CRA resolution will not completely eliminate bureaucratic creep, it is a stark reminder that Congress can and, importantly, should use available tools to remind the executive that its rulemaking authority is delegated from the legislative branch, not the other way around. “The courts have paved the way for correction, now Congress is taking back control of its authority by using the CRA to safeguard congressional intent. But the real lesson to be learned falls at the feet of the executive branch. Judicial limitations like the major questions doctrine, and legislative limitations like the CRA and REINS Act would not be necessary if the executive branch simply recognized the limits of its power. The sooner it learns that the absence of a prohibition is not a license for bureaucratic creep, the better the whole system will work as our Founders designed.” Click here to read the policy essay.