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48 Harv. J. on Legis. 1 (2011)

handle is hein.journals/hjl48 and id is 1 raw text is: ARTICLE RECUSAL LEGISLATING: CONGRESS'S ANSWER TO INSTITUTIONAL STALEMATE MICHAEL J. TETER* Americans have grown accustomed to, but no less tired of congressional gridlock. Although the Framers intentionally designed a system that would make lawmaking difficult, they did so with an eye toward ensuring broad consensus before policy enactment. There are times, however, when organizational struc- tures and norms combine with electoral constraints and ambitions to create leg- islative stalemate despite widespread agreement on not only the need to act, but also on the substance of the necessary policy. These occasions rightfully spark frustration from both inside and outside Congress. Yet it has gone largely unno- ticed that, recognizing this problem, Congress has devised a mechanism for overcoming deadlock by recusing itself from particular areas of policy devel- opment. In these cases, Congress combines delegation of substantial policymak- ing authority to a non-administrative agency with expedited congressional consideration of the delegatee's self-effectuating proposal. Drawing on three contrasting examples, this Article creates a framework for understanding the concept of recusal legislating. It identifies the key motivations and benefits of recusal legislating and considers the device's role in resolving future legislative impasses. I. INTRODUCTION If pro is the opposite of con, what's the opposite of progress? Con- gress. This old joke taking aim at America's legislative branch holds some truthful bite. One need only compare the laundry list of campaign promises made during an election season to the actual laws enacted during a congres- sional session to understand why the joke endures. Too often, on too many issues, the federal lawmaking process grinds to a halt, as legislative action succumbs to congressional inaction. Progress is lost to Congress. Voters are not the only ones who are frustrated by congressional stale- mate;' lawmakers also want legislative success.2 Although what prevents action is often substantive disagreement about the necessity or substance of a proposed law, stalemate sometimes occurs despite widespread agreement on the need for, and substance of, a given policy. In these instances, it is con- * Visiting Assistant Professor of Politics and Law, Pomona College. B.A., Pomona Col- lege, 1999; J.D., Yale Law School, 2002. The author would like to acknowledge the faculty at Yale Law School for providing a forum to workshop this piece. Special thanks to William Eskridge, Carol Rose, Dan Esty, Chai Feldblum, Robin West, Laura Kalman, and Cecily Bas- kir for providing crucial feedback and suggestions on various iterations. 1 See, e.g., Jeffrey M. Jones, Perceived Inaction Largely Behind Low Ratings of Congress, GALLUP NEWS SERVICE, Feb. 5, 2007, http://www.gallup.com/poll/28600/perceived-inaction- largely-behind-low-ratings-congress.aspx. 2 See, e.g., William Anderson et al., The Keys to Legislative Success in the U.S. House of Representatives, 28 LEGIS. STUD. Q. 357, 359-60 (2003).

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