Congress rarely uses the Congressional Review Act to disapprove of federal agency rules. When it does, reporters call the CRA “obscure” and argue Congress is “pushing the bounds of a little-known statute.”

That’s wrong. The CRA isn’t a loophole. It’s a democratic tool. It requires both chambers of Congress and the president to agree that a regulation has gone too far. That’s not an abuse of power. It’s a constitutional check. And like any check, it needs to function properly.

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Right now, it does not — but it could, with a simple reform.

The CRA allows members of Congress to introduce a resolution disapproving of administrative rules that have been submitted to Congress (though there is controversy over what counts as a rule that must be submitted to Congress under the CRA). The president can then sign or veto this resolution. Once a CRA resolution has been passed, a future agency or president cannot issue a rule that is “substantially the same” unless approved by a new law that has gone through the full legislative process, ensuring the democratic accountability that the Constitution demands.

Since its passage in 1996 with unanimous support, the CRA has been used to overturn just 36 rules. Its use increased modestly during the Trump and Biden administrations, but overall, the story of the CRA is one of underuse — despite a long history of Congress delegating, and then struggling to reclaim, its authority.

During the rise of the administrative state between the 1930s and 1983, Congress broadly delegated its rulemaking authority to various administrative agencies.

In doing so, Congress inserted various legislative vetoes allowing it to reject the president’s exercise of these new authorities. These vetoes didn’t require input or a signature from the president. Congress could easily claw back its authority that it delegated to the new administrative state.

But trouble was brewing by the 1970s. As then-law professor Antonin Scalia warned, the system was becoming “overloaded” to “the point at which each major new program entails an overall diminution of democratic control.” Congress failed to heed this warning and the administrative state continued to grow out of control.

Then, in 1983, the Supreme Court issued Immigration and Naturalization Service v. Chadha, which ruled legislative vetoes unconstitutional under the presentment clause of the Constitution, which requires all bills passed by Congress to “be presented to the President of the United States” for his signature or veto “before it becomes a Law.” The Court didn’t strike down broad delegations of power — just Congress’s clawback mechanism.

This compounded a serious problem with the administrative state. As law professor Phillip Hamburger notes, it is easy for Congress to delegate power to the administrative state but nearly impossible for Congress to take power back.

In response, Congress passed (and President Bill Clinton signed) the CRA. But the CRA contains a fatal flaw: Unlike previous legislative vetoes, the CRA requires participation from the president. In practice, Congress can only effectively disapprove of executive actions with a veto-proof majority. After all, what president is going to sign the CRA for a rule created by his own administration?

Given the rarity of veto overrides (Congress has overridden only eight vetoes since the Clinton administration), the only period in which CRAs are ever really passed is when a new administration takes over with an allied Congress. That is because, during a brief “lookback window,” a new president and Congress can override the rules issued within the last few months of the last Congress.

But this window is too short — and unnecessarily confusing. Even experts struggle to pinpoint exactly when it opens and closes, since it’s determined by congressional parliamentarians. There’s no good reason Congress and the president should be limited when reviewing regulations. If an agency oversteps, Congress should be able to act, regardless of the calendar.

The Congressional Review Reform Act would do exactly this. The bill strikes the time limits and properly allows Congress and the president to issue CRA resolutions on any rules and regulations produced by the administrative state and submitted to Congress.

HOW E-VERIFY CAN BE OUTSMARTED, AND HOW CONGRESS CAN FIX IT

This would allow Congress and the president to retroactively rein in the administrative state on various issues whenever it goes too far until new legislation is passed. This restores the intention of the legislative vetoes without running into the presentment clause concerns that the court raised in Chadha or then-professor Scalia’s concern about the overwhelming waterfall of regulation.

For too long, the administrative state has governed us in the shadows. The Congressional Review Reform Act would bring it into the light.

Nick Clifford is federal policy counsel at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberties against government overreach and abuse.