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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