Congress doesn’t do anything anymore. Despite Republican control of the House, the Senate, and the presidency, Congress seems to be fading into the background of the current political landscape. At the same time, the Supreme Court has been asserting its power, especially regarding oversight over administrative agencies. In the process, the Court has called for clear congressional approval of agency rules and interpretations, but Congress has not answered. However, Congress did something interesting recently. Congressional Republicans used a little-known statute to circumvent the Senate filibuster and strike down about two dozen regulations adopted by Democratic administrations. The Congressional Review Act (CRA) creates an expedited procedure with which Congress and the President can void agency rules and prevent future administrations from reissuing them. But this procedure is a one-way ratchet. Congress can disapprove a regulation with a House majority and fifty votes in the Senate, but it needs sixty votes in the Senate to reinstate or approve the same regulation. The problem of the CRA lies in this asymmetry — it mandates a majority for me and a filibuster for thee. This dynamic is inherently deregulatory. It is easy to destroy yet difficult to build. But within the problem lies a solution: a positive version of the CRA. Congress should pass an amendment to the CRA establishing similar fast-track procedures for resolutions authorizing agency rules and interpretations. This legislation would correct the CRA asymmetry and help Congress reassert its power over the administrative state vis-à-vis the Court.
I. The CRA, Then and Now
The Congressional Review Act is a statutory framework that allows Congress to bypass typical procedural roadblocks to disapprove agency rules. After the Supreme Court stripped Congress of its power to build legislative vetoes into statutes without the President’s signature in INS v. Chadha, the legislative branch sought a new means of exercising control over its delegations to agencies. As distrust in agency bureaucracy grew over the next decade, Congress settled on a new framework through which to “redress the balance” between the legislative and executive branches by “provid[ing] a formal Congressional review process of regulations used by Federal agencies.” Thus, the CRA was born. The statute requires agencies to submit rules to Congress for review and postpones enactment of major rules for sixty legislative days. If a new Congress takes office during this time, the clock restarts.
During that review period, Congress may take advantage of a fast-track procedure that waives the Senate filibuster and expedites the legislative process. First, the statute includes a committee override provision to prevent a hostile committee from blocking a disapproval resolution. Second, the CRA disallows amendments to resolutions. Finally, and most importantly, it includes time limits for debates, preventing filibusters of disapproval resolutions in the Senate. Therefore, disapproval resolutions may pass with a simple majority. Once passed by Congress, the resolution goes to the President for ratification or veto, consistent with Chadha. If a rule is disapproved, the agency may not pass a rule that is “in substantially the same form” in the future. The CRA also strips the courts of jurisdiction to review actions taken under the statute.
After only a handful of successful CRA resolutions in the statute’s first thirty years, use of the CRA exploded in 2025. Congress passed twenty-two disapproval resolutions in the first year of President Trump’s second term. One set of disapprovals was particularly stunning. Congressional Republicans disapproved three Biden-era waivers allowing California to set its own vehicle emissions standards under the Clean Air Act. The GAO had previously ruled that the CRA did not apply to Clean Air Act waivers, as they were adjudicative orders exempted from the CRA. When the EPA under President Trump submitted three such waivers to the GAO for review, the office reaffirmed its holding in a new GAO opinion, and the Senate Parliamentarian agreed. However, in a move that threatens to end the filibuster, the Republican majority voted to disapprove the waivers anyway, and President Trump signed the resolutions into law. Therefore, not only are the waivers revoked, but a future administration may not restore them. And, pursuant to the CRA’s jurisdiction-stripping provision, this action is likely immune from judicial review.
II. The Problem
This nontraditional use highlights the CRA’s fundamental shortcoming: It is solely deregulatory. Congress can only use the statute’s fast-track procedure to invalidate regulations, not pass or approve them. And once a rule is disapproved, the agency cannot issue it again. Thus, the only way to reinstitute that rule is for Congress to restore the agency’s authority to promulgate it. But there is no fast-track procedure for that. A resolution approving a rule or granting rulemaking authority would be subject to committee procedures, amendments, and the Senate filibuster. Thus, it takes fifty votes to tear down a rule but sixty votes to build it up again. Republicans canceled the California waivers with fifty-one votes, but future Democrats will need sixty votes to restore it. That, or they could end the filibuster. Good luck.
Yet the legislative intent motivating the CRA was not necessarily deregulatory. The statute was about reasserting congressional control over rulemaking after the demise of the legislative veto. Though the statute’s legislative history is limited, statements of statutory purpose from lawmakers at the time describe the CRA as a means of “review” over agency action. Notably, no statement discusses limiting or shrinking the administrative state. Rather, relevant participants emphasize the importance of democratic participation in the rulemaking process. Giving Congress a say in rulemaking compels agencies to be “responsive to citizens and businesses . . . without compromising the statutory mission given to those agencies.” Thus, part of Congress’s role is to ensure that the agency is affirmatively carrying out its statutory duty in line with congressional intent. The joint House and Senate committee statement explains that the CRA is meant to tip the balance of rulemaking power back toward Congress, “reclaiming for Congress some of its policymaking authority, without at the same time requiring Congress to become a super regulatory agency.” Part of exercising policymaking authority is doing just that: making policy. If Congress wishes to restore “congressional accountability” over agency rulemaking, that would reasonably include Congress affirming that it wants an agency to take an action. The CRA framework included only the ability to disapprove rules, but its intent was about molding regulations, not just erasing them.
The CRA renaissance comes amid an era of congressional irrelevancy and a period of upheaval in administrative law. Due to the Senate filibuster and overriding loyalty to party over branch of government, congressional power has faded in comparison to the Executive and the Judiciary. Congress’s diminished stature has been undeniable during the second Trump Administration. In developing the Major Questions Doctrine and overruling Chevron, the Supreme Court has taken on the role of policeman over the administrative state, supplanting Congress. The Court has reserved for itself the authority to define the contours of congressional grants of authority, at times defying the plain text of the statute.
Creating a more efficient mechanism for Congress to resolve statutory ambiguities and clarify the limits of congressional delegation would help Congress reclaim its legislative and oversight functions. And the ability to redraw statutory limits for the modern era would help Congress mold agency priorities in line with its intent. Because Chadha mandates presidential approval of legislative action, any legislation based on the CRA framework would have limited utility in reining in an administrative state that seeks to accomplish presidential priorities. But such a mechanism might help claw back the legislative authority that the Court has usurped. Further, these actions would not tie the hands of future Congresses or administrations, as they may reverse the rule again by simple majority. This framework would solve the deregulation problem of the CRA by creating a reciprocal positive framework and by allowing Congress to reinstate rules previously disapproved under the CRA. Finally, it would be more effective at reallocating power back toward Congress than the current CRA, as Presidents would have incentives to cooperate with Congress in order to fortify their agencies’ rules.
III. The Solution
Congress should amend the CRA to create a parallel, positive structure that would allow Congress to utilize CRA fast-track procedures to grant statutory authorization to an agency rule or interpretation.1 The statutory language in the CRA that establishes disapproval resolutions can easily be tweaked to allow the passage of approval resolutions. The statute would authorize passage of a joint resolution that reads “That Congress approves the rule promulgated by __ relating to __, and grants congressional authorization to the agency to implement such rule.” This language mirrors that of a CRA disapproval resolution, but grants affirmative authority to promulgate the rule rather than withdrawing it. The statute would also give Congress a second option to pass a resolution not only allowing but statutorily codifying the rule. Such a resolution would read “That Congress approves the rule promulgated by __ relating to __, grants congressional authorization to the agency to implement such rule, and withdraws congressional authorization to repeal or promulgate rules inconsistent with such rule.” This second option would lock in the agency’s rule or interpretation and prevent future administrations from rolling it back, mirroring the “substantially the same form” provision of the CRA. Congress would have the choice between (1) insulating the agency action from judicial review while retaining flexibility for the agency and (2) limiting the rulemaking discretion of the agency on top of preventing judicial invalidation of the rule. Thus, Congress would have the ability to check the judicial branch and rein in the discretion of the agency if it so chooses. The same limitations on filibuster, committee override procedure, and restriction on amendments found in the CRA would all apply to the passage of these joint resolutions. As under the CRA, Congress may pass a joint resolution regarding a rule not submitted to Congress by the agency. The amendment also would retain the judicial-review prohibition of the CRA.
Congress will have three opportunities to review agency rules. The amendment would retain the existing reporting and delayed implementation provisions of the CRA. Then the first review period will commence once the rule is submitted: Congress would have the same sixty-legislative-day period as in the CRA to pass a resolution approving the rule. Second, another sixty-legislative-day period will begin when a court strikes down a rule. The clock will start when a court issues a final judgment invalidating the agency rule for lack of statutory authorization or as an incorrect interpretation of law. Therefore, if the Supreme Court strikes down a rule or denies cert, or if the filing deadline for appeal passes, Congress will have the chance to negate the effect of the decision by making its intent clear. Congress would not directly overrule the Court’s judgment; it would merely grant the statutory authorization or clarify the interpretation that the Court found lacking. The agency could then reissue the rule that the Court vacated. Third, CRA action itself triggers an indefinite review period. If Congress approves or disapproves a rule through a CRA resolution, Congress would reserve the right to revisit that rule under the CRA, retaining the benefits of the fast-track procedure. Therefore, if a CRA resolution strips an agency of the authority to promulgate a rule “in substantially the same form,” a future Congress can restore that authorization with fifty votes in the Senate. The choice of these three periods seeks to maintain symmetry with the CRA while ensuring that this proposal remains a useful tool to rebalance control over agency action away from the Court and toward Congress.
Congress could use this framework to bless new rules, shore up old ones, restore rules struck down by courts, and reverse past CRA disapprovals. First, once an agency submits a rule to Congress pursuant to the CRA, Congress could pass an approval resolution, allowing it to take immediate effect. This type of early action would be especially useful for controversial rules that are likely to draw immediate judicial challenges. A preemptive approval resolution would help avoid a preliminary injunction that would prevent the rule from taking effect for months or even years during litigation. Second, Congress may choose to use the lock-in option to solidify an existing rule before a new administration takes office and seeks to reverse it. The resolution would not prevent a future Congress from passing its own resolution to undo the lock-in procedure, but it would insulate the original rule from reversal by the agency unless Congress acts again. Third, Congress may use a resolution to authorize an existing rule or agency interpretation invalidated by a court for lack of statutory authorization. Finally, Congress could restore an agency’s authority to promulgate a rule “in substantially the same form” as a prior rule struck down under the CRA, or it could reverse a rule calcified by a CRA approval. Allowing Congress to reinstate by simple majority those rules struck down by that same vote threshold would correct the fundamental asymmetry of the CRA.
The legal effect of approval resolutions would largely mirror that of CRA disapproval resolutions. Currently, CRA disapprovals invalidate the rule itself but not the agency’s underlying reasoning; the rule is “treated as though such rule had never taken effect.” Therefore, rules in a different context with similar reasoning are unaffected. In the positive framework, Congress could approve a rule or interpretation in one context, but it would have no bearing on Congress’s approval or lack thereof for the same reasoning or interpretation in other contexts. Both approval and disapproval resolutions would have the force of law, as they currently do under the CRA. But that force of law is cabined to the rule itself. The lock-in option of the positive framework would mimic the CRA’s “substantially the same” provision barring the future enactment of similar rules, whereas the resolution option that retains agency flexibility would not preclude the agency from changing its position in the future.
IV. Legality
This proposal is legally sound. Agencies receive delegated authority from Congress to make rules and interpretations. The theory of the CRA is that Congress may withdraw that authorization by statute, but the reverse is also true. Congress may amend or expand its grant of delegated authority using legislation. This holds true when a court has struck down a rule or interpretation. When a court rules that an agency action lacks statutory authorization from Congress, the legislative branch may pass a statute to grant that authorization. And when a court rules that an agency interpretation of a statute is incorrect, Congress may amend that statute to align with the agency’s interpretation. Not only can Congress do this, but it often has. An approval resolution under this framework would be functionally the same as amending the underlying statute delegating authority to an agency, but it would circumvent procedural roadblocks.
Congress has the power to pass this legislation by simple majority. As long as there is bicameralism and presentment, internal rules alone prevent Congress from legislating with just over fifty percent of each chamber. And Congress may change those rules as it pleases. The main obstacle to majority rule in Congress is the Senate filibuster, which the Senate may discard by simple majority. The House also has the power to alter its own rules, so both chambers may remove committee requirements and prohibit amendments. This statute would not grant Congress any new powers; it would merely alter internal rules regarding the passage of joint resolutions. Passing a procedural framework rather than waiving the rules for each discrete approval vote has significant efficiency benefits — it may be more challenging to build a majority to override the rules for a specific substantive purpose than for the broader value of reasserting congressional control over the administrative state. Those votes would also be subject to committee requirements and amendments, raising the time and resource costs of each legislative action. Passing one overarching statute — going through the typical procedure but without the filibuster — to allow fast-track procedures in the future would boost efficiency while following the law and leaving congressional procedures largely intact.
V. Critiques
One critique might be that Congress intended the CRA to be a tool of deregulation. The legislation was designed and enacted during a period of bipartisan skepticism of federal government regulation. And lawmakers at the time discussed the utility of exercising veto power over agency rules. Therefore, the asymmetric nature of the CRA may be a feature, not a bug, of the statutory scheme. But the statute’s explicit purpose is to “redress the balance” of power among the branches, “reclaiming for Congress some of its policymaking authority.” Restoring Congress’s authority to direct agencies as they exercise rulemaking power would be even more powerful than merely giving Congress a veto. Further, while Congress was most concerned with the “delicate balance between” Congress and the Executive at the time, Congress would be wise to guard its power against the judiciary. If the original CRA sought to reassert Congress’s control over the executive branch, then today’s Congress should pass an amendment to recover that control from the judiciary.
To be sure, this powerful new instrument may produce negative consequences. Giving Congress an efficient means of overruling the Supreme Court’s statutory holdings creates clear incentives for abuse. Both parties could use this framework to empower the administrative state to vigorously pursue their policy goals. Congress could also use it to lock future administrations into a specific rule or interpretation. But the latter statement is also true of the current CRA, and this version would at least allow a future Congress to reverse the resolution with the same vote threshold by which it was passed. And one’s degree of concern about the former statement depends on one’s fundamental views about our system of government. Those who want to speed Congress up will welcome a more active congressional role in agency rulemaking. And those who favor slower, more deliberate congressional action — or little congressional action at all — will be inherently skeptical of this proposal. But this waiver of the filibuster is contextually limited and mirrors an existing mechanism that Congress has used sparingly. For those concerned about setting up congressional rebukes of the Court, this proposal is about, in Professor Christopher Walker’s words, “Congress accepting the reviewing court’s invitation to decide the major policy question more definitively.” Congress is not usurping the Court; it is making the Court’s job easier. For those who fear creating “a government of a bureaucratic character alien to our system” in the administrative state, this proposal strengthens the power that elected members of Congress may exert over agency decisionmaking. To be sure, greasing the wheels of government can be nerve-wracking when the opposing party is pulling the levers. But nobody wins when the machine breaks down. The country and the world face urgent challenges (climate change, AI safety, affordability, housing, to name a few), and these challenges require urgent solutions.
Conclusion
Many may disagree with the substantive policy goals of Congress and the Trump Administration’s recent uses of the CRA. Others may criticize congressional Republicans for playing dirty by overruling the GAO and Senate Parliamentarian. But the core of the maneuver was sound. The CRA is not only legitimate, but democratic, and even normatively good. The only problem is that it only goes one way. Adding a mechanism to allow Congress to approve agency rules would correct that asymmetry. And it would also take a step toward rebalancing the lopsided relationship between Congress and the Court in the field of administrative law. At this point, any little bit helps.