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Reform proposals related to legislative control of the administrative state

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What are the five pillars of the administrative state?

Ballotpedia's five pillars of the administrative state provide a framework for understanding the authority, influence, and actions of administrative agencies, as well as the policies and arguments surrounding them. The five pillars focus on the control of administrative agencies related to the (1) legislative, (2) executive, and (3) judicial branches of government, (4) the public, and (5) other agencies or sub-agencies.

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Legislative control of agencies is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power between administrative agencies and the legislative branch.

Legislative control is a central concept in the debate over the nature and scope of the administrative state. It includes two primary components: (1) delegation and nondelegation and (2) legislative oversight (including legislative approval and veto requirements). Delegation and nondelegation refer to the extent to which a legislature grants authority to agencies and whether such delegation is constitutionally permissible. Legislative oversight refers to a legislature's ability to monitor, approve, or reject agency actions through mechanisms like the REINS Act, resolutions of disapproval, and legislative vetoes.


This page contains reform proposals related to legislative control of the administrative state. Ballotpedia has identified five major types of reform categories related to legislative control:


Legislative oversight and approval of rules

This reform category focuses on measures that would increase legislative involvement in the rulemaking process, ensuring that the legislature has a say in the creation and approval of regulations.

Direct legislative approval

Direct legislative approval involves requiring the legislature to formally approve new rules before they can be implemented.

Require legislature's approval of new rules

See also: REINS Act

The Regulations from the Executive in Need of Scrutiny Act (REINS Act) is a legislative proposal to increase congressional oversight of federal agency rulemaking. It would require legislative approval of major agency rules—defined as those with an annual financial impact of $100 million or more—before such regulations can take effect. The REINS Act seeks to amend the existing Congressional Review Act (CRA), which allows Congress to nullify certain regulations after implementation. The REINS Act would shift this process, requiring preemptive approval by Congress for major rules.[1][2]

Require the executive to send major rules to the legislature for a vote before implementation

This approach would have the president or governor enforce the nondelegation doctrine by sending all major rules to the legislature for a vote. An example of this approach follows below:

  • Hudson Institute distinguished fellow Christopher DeMuth argued at a policy conference that presidents could pressure Congress to limit delegation by publicly stating that any major rule drafted by an agency would not go into effect until Congress voted to approve the rule.[3] Such a presidential declaration would effectively block new rules unless they received an affirmative vote in Congress.[3]

Require legislative approval of "costly" ordinances

This proposal would require the legislature to approve ordinances deemed costly before they can be enacted.

Force the legislature to vote on major changes in regulations

This approach argues that the delegation of legislative authority effectively shields the legislative branch from public accountability. The legislature should, therefore, have to vote on major administrative and regulatory rules to lift that shield. A version of this approach is expanded upon below:

  • David Schoenbrod wrote that “The regulation trick lets current members of Congress and Presidents shift blame to federal agencies for the burdens required to vindicate rights to regulatory protection and the failures to deliver the promised regulatory protection. Implementing the proposal by James Landis, the New Deal expert, as fleshed out by then judge Stephen Breyer, the Honest Deal Act would require members of Congress to cast roll call votes on major regulatory changes, whether to strengthen or weaken regulation."[4]

Legislative disapproval and nullification

This section addresses ways to allow the legislature to disapprove or nullify regulations.

Allow the legislature to disapprove of multiple rules through one resolution

See also: Congressional Review Act

This proposal aims to expand the Congressional Review Act—a law that allows Congress to pass a joint resolution of disapproval to overturn a new federal agency rule and block the issuing agency from creating a similar rule in the future—to disapprove of multiple rules through a single joint resolution.

  • The Midnight Rules Relief Act is a legislative proposal that aims to allow Congress to disapprove of multiple rules through one joint resolution of disapproval. Representative Andy Biggs (R) introduced the bill on January 9, 2023. It passed the House 210-201 on December 17, 2024, but the Senate did not vote on it before the legislative session ended.[5]

Allow the legislature to veto new rules

See also: Legislative veto, Immigration and Naturalization Service (INS) v. Chadha

The legislative veto allows legislatures to block or modify executive actions or agency regulations without passing new laws. It can be a provision in a bill enabling one or both legislative chambers, or a committee, to veto or amend rules, regulations, or executive orders. This form of oversight lets legislatures disapprove agency actions they deem improper or beyond authority. [6]

Prohibit or remove guidance-type agency actions

This reform proposal provides legislative bodies with the power to disapprove or remove agency actions that are similar to rules but not formally classified as such.

Procedural mechanisms

This category looks at methods to streamline the regulatory process and make it more responsive to legislative oversight.

Create fast-track procedures to repeal rules

This proposal would establish expedited processes for repealing rules that are no longer necessary.

Create dedicated state legislative committees to review new agency rules

This reform proposal would create state-level legislative committees specifically tasked with reviewing new agency rules.

Require agencies to contact the primary sponsor of the legislation that a proposed rule is implementing

This reform proposal would create a requirement for agencies to notify the legislator who sponsored legislation that a proposed rule enacts.

Statutory authority and nondelegation doctrine

This reform category focuses on ensuring that legislative authority is clear and that agencies do not exceed their delegated powers.

Statutory clarity and specificity

This sub-category includes reforms that aim to ensure rules are based on clear, specific statutory authority.

Have the legislature pass specific laws that limit the need for agency interpretation

This approach argues that specific laws could limit or eliminate the need for agency interpretation. One claim argues that the nature of the statute being passed matters; rules statutes require more specificity from lawmakers whereas goals statutes delegate greater authority to agencies to interpret legislative intent. An example of this is expanded on below:

  • David Schoenbrod wrote that "A rules statute approach to air pollution could, for example, limit the emissions from cars per mile traveled, limit the emissions from power plants per BTU of energy produced, or tax the quantity of emissions from particular sources. Goals statutes, in contrast, leave selection of the controls on conduct to those who apply the statute. Some examples are authorizing an agency to limit emissions on the basis of the "public interest," the "protection of public health," or "an efficient consideration of health, welfare, and the costs of control"; these terms do not state whose conduct must be curbed or in what way.”[8]
"Even a rules statute that leaves room for interpretation requires the legislature to make its intentions about the treatment of most situations reasonably clear, while goals statutes allow the legislature to stay on an abstract plane where there may be no formal statement as to the disposition of any situation."[8]

This approach also suggests that specific laws could be used to eliminate the need for agency interpretation.

  • The Write the Laws Act aimed to prohibit “an act of Congress from containing any delegation of legislative powers,” according to the bill. Senator Rand Paul (R) introduced the bill on February 9, 2023.[9]

Require agencies to cite explicit authorization by statute or constitution

This reform proposal would require agencies to explicitly cite statutory or constitutional authorization for every rule they issue.

Require debate on the statutory/constitutional authority of rules

This proposal would mandate legislative debate on the statutory or constitutional authority underlying new rules.

Nondelegation doctrine enforcement

This category looks at ways to enforce the nondelegation doctrine, which restricts the delegation of legislative powers to agencies.

Apply a strict nondelegation doctrine to agency cost-benefit analyses

This approach calls for a strict application of the nondelegation doctrine to agency cost-benefit analyses in order to determine whether agencies have exercised legislative authority beyond objective statutory interpretation.

  • Professor Victor Flatt argued that, “If it is true, as some claim, that there is empirical evidence of a bias of benefit-cost application to routinely overprice agency actions implementing statutes to protect human health and the environment, then a court should be able to take that fact as evidence of misusing of the benefit-cost analysis to make a policy decision not legitimately given it by Congress and thus engaging in the exercise of legislative power in violation of the non-delegation doctrine.”
“The combination of these factors would seem, at best, to create skepticism that our courts could start applying the non-delegation doctrine to limit the use of benefit-cost analysis. However, there are positive signs that this could work. First, the application of benefit-cost analysis is not in any particular agency's area of expertise, and it should not be given deference because of this issue, which itself is based on a deference to supposed congressional preference. In determining whether evidentiary numbers are accurately used, a court has as much expertise as an agency and is called on to render such judgments routinely.”
“A skepticism to benefit-cost analysis that demonstrates bias or less than best practices would allow a court to see when an agency is going beyond objective application of a statute and into the arena of legislative policy, in violation of the nondelegation doctrine. Even if a court does not conceptualize the control of agency discretion in the APA as another version of non-delegation, such bias in a particular direction would still indicate acting outside of agency discretion contrary to law.”
“There is some hope for benefit-cost analysis as a tool if it is used in a precise way. The criticism of benefit-cost analysis being manipulated and inadequate for certain kinds of analyses is correct. What is striking is that agencies should not be engaged in this kind of manipulation of policy making in the first place. It is a violation of the separation of powers doctrine in our Constitution, and this determination could be made by a rigorous application of the non-delegation doctrine to such agency action. All it requires is for our courts to recognize the proper standard that governs what an agency can and should be engaged in when applying benefit-cost analysis and then a willingness to examine so-called "objective" evidence for accuracy. Doing this might go a good way in curbing abuses of benefit-cost analysis and improving its use in practice.”[10]

Develop and enforce a nondelegation doctrine for the executive branch

This approach argues that a nondelegation doctrine for the executive branch needs further development but might already exist in Article II—specifically the Vesting Clause—and place limits on executive branch delegations of power, not just those of Congress. A version of this approach is expanded on below:

  • Dina Mishra writes, “[L]imits to the delegation of executive power to private administrators of law might exist in Article II. Those limits—in particular, their scope and the interplay among them—have been left underdeveloped by existing scholarship."
“Drawing force from the Vesting Clause, and informed primarily by the Take Care and Appointments Clauses, the doctrine might involve two inquiries: (1) Does the delegated task implicate “[t]he executive Power” that the Constitution vests in the President—a power, in the words of the Take Care Clause, to “take Care that the Laws be faithfully executed”? (2) If so, is the delegee a proper subordinate to the President, so that his performance of such executive tasks does not divest the President of “[t]he executive Power”?"
"[A] rigid unitary executive approach—which demands complete presidential control over every task connected with the execution of law—is not the only coherent way to understand Article II’s Vesting Clause to restrict delegations of executive power. Under the Supreme Court’s Article II precedent, the doctrine’s inquiries might depend instead on the nature of the task and the form, degree, and directness of presidential oversight or control available over the task or over the one performing it, flexibly allowing for certain trade-offs among those control mechanisms, so long as the President remains accountable for the execution of law."[11]

Develop a better line-drawing test

See also: Line-drawing arguments concerning the nondelegation doctrine

One of the main areas of inquiry and disagreement concerning to the nondelegation doctrine is how to draw the line between a legislative act that engages in permissible delegation versus one that trips over the line into impermissible delegation. This approach argues that developing better ways of distinguishing between legislative statutes that confer permissible powers to an agency through delegations of authority and those that violate the nondelegation doctrine through impermissible delegations will make enforcing the nondelegation doctrine easier. There are several versions of this approach expanded upon below:

Claim: a good line-drawing test can create more consistent outcomes when enforcing nondelegation
  • Scholar and attorney A.J. Kritikos argued in a law review article that “Developing a good test is the first step in achieving consistent outcomes for delegation challenges. ... Florida has developed a fairly stable non-delegation jurisprudence because its test is harder to manipulate than the intelligible principle test. While the Florida Supreme Court’s test is functionally equivalent to the Marshall test, Florida courts have more fully imbued the test with content, and thus, the two tests should be merged to provide a fuller template for contemporary federal courts. Regardless of how one characterizes the test used in Florida, that state’s jurisprudence provides substantial evidence that courts can enforce the nondelegation doctrine reasonably consistently – with no subsequent parade of horribles – thus rebutting the U.S. Supreme Court’s primary reason for not enforcing it.”[12]
Claim: use of an elastic Marshall test can lead to consistent application of the nondelegation doctrine
  • Kritikos argued that “Florida, in particular, has been able to consistently apply the non-delegation doctrine by asking whether a given statute makes the fundamental and primary policy decision, which is similar to the Marshall test’s inquiry.” “Florida courts have adopted a sliding scale approach in their non-delegation jurisprudence, so where a statute deals with very technical issues, like cost-recovery mechanisms for nuclear power plants, the courts give the legislature more leeway to delegate broadly. Furthermore, the test can become more stringent in some contexts, such as when a legislature delegates crime making authority to an executive agency. The Marshall test, as applied and fleshed out in Florida, thus proves to be rather elastic.”[12]

Force the legislature to revisit delegations of power to agencies

Some critics of delegation, like David Schoenbrod, argue that delegation allows unelected agency employees to make significant policy decisions.[13] This reform proposal seeks to address that concern. It would use sunset provisions to force legislatures to review laws that delegate authority to agencies. Sunset provisions set expiration dates for laws and require legislatures to vote to keep those laws in place beyond that time. To make sure agencies are following congressional instructions, the legislature could review expiring laws and compare their requirements with related regulations.[14]

This approach would not restore a strict version of the nondelegation doctrine. Instead, these proposals try to make agencies follow the intent of legislatures through time as the agencies create regulations based on delegated authority.

An example of this approach follows below:

  • Law professors Jonathan Adler and Christopher Walker wrote, "[B]road congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that were wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction."[14]
"To address this distinct, temporal problem of delegation, we suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, we argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also strengthen the partnership between Congress and the regulatory state."[14]

Have courts apply the specificity canon to narrow broad delegations

John Manning argued that, “Although its rationale is rarely explained, the canon preferring the specific over the general furthers nondelegation interests, even though it displaces statutory authority that an agency or court might otherwise enjoy. The central aim of the nondelegation doctrine is to promote specific rather than general legislative policymaking-that is, to induce Congress to filter more precise policies through the process of bicameralism and presentment rather than leaving such policies to be elaborated by agencies or courts outside the legislative process. Detailed legislation is more likely to reflect the results of a specific choice or compromise. Permitting an agency to rely on general authority to disrupt the balance struck by a more specific statute may therefore undermine a precise outcome reached through bicameralism and presentment.”[15]

Let courts rebuild nondelegation doctrine piece by piece

David Schoenbrod wrote that “City of Boerne v. Flores, striking the Religious Freedom Restoration Act of 1993, and Morrison v. United States, striking the Violence Against Women Act, held that statutes passed pursuant to section 5 of the Fourteenth Amendment must be aimed at implementing the rights in the Fourteenth Amendment, not supplementing them. They left Congress free to regulate in ways colorably necessary to enforce those rights. New York v. United States and Printz v. United States held that Congress may not require state legislatures to legislate of state executive branch officials to execute federal law. [...] Although these cases symbolize federalism rather than realize it, they are nonetheless important to those who place a high value on it. They keep alive the claim that our national government is one of limited powers. [...] As with federalism, the Court has also taken baby steps in the delegation context. It has kept alive the idea that Congress should not delegate its legislative powers not only by saying so in cases such as Loving and Clinton v. City of New York, but also by giving the idea operational meaning in some of the cases discussed in the previous section. These decisions are all baby steps because they are all framed in terms that do not commit the Court to stopping Congress from delegating to agencies.”[16]

Apply the nondelegation doctrine on a case-by-case basis

This approach argues that there is no need for a sweeping nondelegation doctrine. Instead, the doctrine can be reformulated to be used as needed on a case-by-case basis.

Claim: a case-by-case approach would allow statutory ambiguity to be reviewed as implicit delegations
  • Ilan Wurman argued that, "there is no need for such a powerful, facial doctrine. Nondelegation can be refashioned to be as-applied. An as-applied nondelegation doctrine would work by treating statutory ambiguities, just as Chevron does, as implicit delegations—each of which can be independently assessed for a nondelegation violation.
“The implications of an as-applied nondelegation doctrine are numerous and highly attractive. It would replace the major questions doctrine, which the literature has rightly rejected, with a rigorous and coherent theory. It would better serve nondelegation interests by dramatically reducing any adverse consequences from finding a violation of the nondelegation doctrine.[17]

Regulatory analysis and economic impact

This reform category focuses on improving the analysis of regulations and ensuring that their economic impact is carefully considered.

Cost-benefit analysis

This sub-category emphasizes requiring cost-benefit analysis to evaluate the effectiveness of proposed regulations.

Require cost-benefit analysis of rules

This reform proposal would require agencies to prepare a cost-benefit analysis for all new rules and present it to the legislature before the rules can be enacted.

New rules contingent on benefits outweighing costs through legislative review

This proposal would make the implementation of rules contingent upon the benefits outweighing the costs, as determined by legislative review.

Establish legislative office for economic analysis of regulations

This reform proposal would establish a legislative office to review the economic impact of proposed regulations.

Simplified process for evaluating new regulations

This reform proposal advocates for a streamlined, low-cost process to assess new regulations, offering an alternative to the more resource-intensive full cost-benefit analysis.

Regulatory oversight and standards

This section focuses on ensuring that there is appropriate oversight and standards for how regulations are developed and enforced.

Create a legislative office to review regulations

This approach would establish a Congressional Regulation Office (CRO) in order to provide members of Congress with expert analysis of regulations produced by the administrative state.[18] With access to an internal source of information, proponents of the idea argue that Congress could understand what various agencies were doing with delegated legislative authority and exercise more control.[18]

  • Philip Wallach and Kevin Kosar argued in National Affairs that a CRO would accomplish the following purpose, "[A] new Congressional Regulation Office, or CRO, would offer the most direct route to allow Congress to compete in the regulatory arena, as it has not done for many years. By no means would the CRO make legislators the equals of agency officials in terms of specialized knowledge; elected officials will remain generalists trying to understand the work of specialists, so it will always be an asymmetric relationship. But right now, Congress has little chance of even being able to sort out which criticisms of the administrative state's outputs are worth crediting. This leaves two predominant orientations: blind trust and blind anger, neither of which is likely to sway agencies that view Congress mainly as a minor chronic annoyance."[18]
"To have the wherewithal to more constructively steer agencies in their fulfillment of statutory duties and to rewrite legislation when necessary, Congress needs an internal office devoted to regulatory policy. The CRO would serve as a Madisonian structural response to the profound power imbalance between the first and second branches."[18]

Legislature should impose data quality and metrics standards that agencies must apply to evaluate/justify rules

This reform proposal would require the legislature to set data quality and metrics standards for agencies to follow when justifying new or renewed rules.

Focus regulation review and budget adjustments on key areas

This reform proposal argues that regulation reviews should be targeted to focus on popular areas like occupational licensing and criminal justice. Additionally, it suggests cutting quotas and adjusting budgets to make these reviews more effective and focused on economic impact and efficiency.

Legislative oversight of regulatory procedures

This reform category addresses how legislatures can assert authority over the transparency, justification, and continued validity of regulatory activity.

Legislative standards for rule justification

This sub-category describes proposals that give legislatures the authority to require agencies to justify their rules based on effectiveness or policy fit.

Require legislative determination that agency rules are the best means to achieve policy goals

This proposal would require agencies to submit evidence to the legislature or a legislative review body showing that a proposed rule is the most effective means of achieving the stated policy objective before it can take effect.

Require legislative approval for rule renewals with equal or stronger justification

This proposal would mandate that agencies provide justification equal to or greater than the original rationale when seeking to renew existing rules, subject to legislative approval or review.

Legislative review of regulatory lifespan and costs

This sub-category outlines reforms where legislatures set conditions for rule expiration, review, or budgeting to maintain control over the regulatory landscape.

Require sunset dates for all regulations set by legislation

This proposal would require that all new regulations include a legislatively mandated sunset date, after which the rule expires unless reauthorized by the legislature.

  • The Pacific Legal Fund argues that "Excessive rules clutter the regulatory code, imposing needless costs and uncertainty on personal and business activities. When too many rules build up over time without being repealed, economic growth slows down, fewer businesses open, and wealth inequality is increased as excessive rulemaking disproportionately burdens low-income households. Sunset review ensures that burdensome and ineffective rules are eliminated and not left to needlessly clutter the regulatory code."[19]

Require legislative adoption of a regulatory budget

This reform would implement a system of regulatory budgeting, under which the legislature sets caps or limits on the cumulative cost of regulations and reviews agency compliance.

Mandate legislative oversight of zero-based rulemaking

This proposal would require that agencies justify each rule from scratch as if it were new, with legislative oversight to approve or deny continuation of existing rules under a zero-based framework.

Set legislative default to block reinstatement of repealed rules unless reauthorized

This reform would establish a default presumption that repealed rules cannot be reinstated unless the legislature explicitly reauthorizes them under new justification standards.

Require agencies to submit retrospective reviews to the legislature

This proposal would mandate that agencies conduct retrospective reviews of existing rules and report the findings to the legislature, which would have authority to act on ineffective or unnecessary regulations.

Require legislative oversight of agency rule reviews

This reform would require agencies to regularly review their existing rules and submit the results for legislative review or action.

Require legislative review of agency program evaluations

This proposal would require agencies to review the effectiveness of their programs and submit evaluation results to the legislature for oversight and potential legislative changes.

This approach does not restore the nondelegation doctrine, but it would require agencies to review major rules to see how effective they are in practice. Such a measure would be a way to hold agencies accountable to Congress for the exercise of delegated authority. An example of legislation with that requirement follows below:

  • Senate Bill 1420, The SMART Act of 2019, aimed to require agencies to publish ideas about how to measure the anticipated benefits of new major rules, including how to collect the necessary data to conduct such a review.[20] Senators Kyrsten Sinema (D-Ariz.) and James Lankford (R-Okla.) introduced the bill on May 13, 2019, but did not pass.[20][20]
The act instructed agencies to perform cost-benefit reviews of major rules to determine whether they were accomplishing their objectives, were no longer necessary, or needed to be improved.[20] It followed other federal standards and defined major rules as those that have or are likely to have the following results:[20]
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
  • Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
The provisions of the SMART Act would have applied to rules that met those criteria as determined by the administrator of the Office of Information and Regulatory Affairs (OIRA).[20] OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies. The act aimed to exempt guidance documents, which include interpretive rules, policy statements, and agency rules of organization, from its review requirements.[20]

Transparency and compliance

This reform sub-category focuses on increasing transparency and ensuring compliance with existing regulations.

Make sure agencies follow Congressional Review Act procedures when issuing guidance

See also: Guidance (administrative state)

This reform proposal subjects presidential task forces to legislative oversight mechanisms, increasing legislative control of executive branch bodies

  • U.S. Senator Dan Sullivan (R-Alaska) on June 16, 2022, introduced the Checks and Balances Act (S. 4427), which proposed to amend the Congressional Review Act (CRA) to make guidance issued by presidential task forces subject to a resolution of disapproval—a process that allows members of Congress to vote to nullify certain federal agency rules. The bill did not pass the 117th United States Congress, but it was reintroduced on March 7, 2023, by Sen. Sullivan.[21][22]

Require sunrise analysis submitted to the legislature for new proposed regulatory areas

This reform proposal would require agencies to submit a sunrise analysis to the legislature before implementing new regulatory areas.

Restrict agency lobbying

This reform proposal argues that agencies should be restricted from engaging in lobbying activities, ensuring that regulatory decisions are not unduly influenced by outside interests.

State and local government legislative control

This category includes reforms that strengthen the role of state and local legislatures in overseeing regulatory activity and managing the influence of federal or executive actions on state and local governance.

State legislative oversight

This reform sub-category addresses state-level legislative control and oversight of regulations that may be impacted by federal actions.

Create dedicated state legislative committees to review new agency rules

This approach would not require state legislatures to comply with a nondelegation doctrine, but it would create special committees within state legislatures to monitor how administrative agencies use delegated rulemaking authority. Called Joint Committees of Administrative Rules (JCARs), these bodies would review proposed rules before they go into effect and have the power to block them.

  • The American Legislative Exchange Council (ALEC) included provisions for establishing JCARs in a model state Administrative Procedures Act published in 2018. New administrative agency rules would only go into effect if the JCAR decided not to void them. Members of the JCARs would come from both houses of the state legislatures.[25]
The ALEC proposal would limit JCARs, only allowing them to void new agency rules for the following six reasons:[25]
  • Lack of statutory authority
  • An emergency relating to public health, safety, or welfare
  • Failure to comply with express legislative intent or to substantially meet procedural requirements
  • Conflict with state law
  • Arbitrariness and capriciousness
  • Failure to make a written record of its consideration of public comments

State legislature must approve agency acceptance or use of federal funds

This proposal would require state agencies to obtain explicit approval from the state legislature before accepting or spending federal funds, ensuring that legislative leaders retain control over how federal money influences state programs and priorities.

Require legislative review of agency state-by-state comparisons before repromulgating rules

This proposal would require agencies to conduct comparative analyses of how other states regulate a given issue and submit those findings to the state legislature for review and approval before repromulgating a regulation, giving lawmakers a direct role in evaluating whether proposed rules reflect best practices.

State and local cost accounting requirement

This reform proposal would require legislatures to receive a formal accounting of the state and local costs associated with implementing federal grant programs.

Local government reform

This sub-category addresses local government control and oversight of regulations that may be impacted by state actions. The reform proposals under this category focus on ensuring local governments are not burdened by state or federal mandates and that local ordinances are fiscally responsible and consistent with state laws.

Require the state to reimburse local governments for the costs of state/federal mandates

This reform proposal argues that the state should reimburse local governments for the costs associated with implementing state or federal mandates. This ensures that local governments are not unfairly burdened with expenses resulting from mandates they have no control over.

Require economic analyses for ordinances

This approach mandates that local governments conduct economic analyses for ordinances before they are enacted. This ensures that local laws do not impose unintended financial burdens on the community and are evaluated for their economic impact.

Require legislative approval of "costly" ordinances

This proposal argues that local ordinances which would impose significant financial costs should require state legislative approval. This ensures that potentially costly local regulations are subject to oversight at the state level before being implemented.

Prohibit local ordinances from being more restrictive than state law

This reform proposal would prohibit local ordinances from being more restrictive than state law. This ensures consistency across the state and prevents local governments from enacting regulations that are unnecessarily stringent compared to state requirements.

Impose sunset deadlines on local regulations

This proposal suggests imposing sunset deadlines on local regulations, requiring them to be reviewed and potentially repealed after a set period. This ensures that local regulations remain relevant and do not become outdated or unnecessarily burdensome.

See also

Footnotes

  1. ↑ Congressional Research Service, "Disapproval of Regulations by Congress:Procedure Under the Congressional Review Act," October 10, 2001
  2. ↑ GovTrack, "H.R. 26: Regulations from the Executive in Need of Scrutiny Act of 2017—Overview," accessed July 14, 2017
  3. ↑ 3.0 3.1 C. Boyden Gray Center for the Study of the Administrative State, "Panel 3: Rediscovering Congress's Institutional 'Ambition'," May 2, 2019
  4. ↑ Harvard Journal of Law and Public Policy," “How to Salvage Article I: The Crumbling Foundation of Our Republic”, accessed January 25, 2019
  5. ↑ Congress.gov, "H.R.115 - Midnight Rules Relief Act of 2023," accessed August 31, 2023
  6. ↑ Law and Contemporary Problems, "The Legislative Veto: Invalidated, it Survives," 1993
  7. ↑ The New York Times, "Supreme Court, 7-2, Restricts Congress's Right to Overrule Actions by Executive Branch," June 24, 1983
  8. ↑ 8.0 8.1 New York Law School, "Goals Statutes or Rules Statutes: The Case of the Clean Air Act," 1982
  9. ↑ Congress.gov, "S.329 - Write the Laws Act," accessed August 31, 2023
  10. ↑ William and Mary Bill of Rights Journal, "The ‘Benefits’ of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit-Cost Analysis," 2007
  11. ↑ Vanderbilt Law Review, "An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law," November 23, 2015
  12. ↑ 12.0 12.1 Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment, "Missouri Law Review," Spring 2017
  13. ↑ David Schoenbrod, "Delegation and Democracy: A Reply to My Critics; Symposium - The Phoenix Rises again: The Nondelegation Doctrine from Constitutional and Policy Perspectives: Democracy and Delegation", 20 CARDOZO L. REV. 731, 732 (1999)
  14. ↑ 14.0 14.1 14.2 C. Boyden Gray Center for the Study of the Administrative State, "Delegation and Time," Jonathan H. Adler and Christopher J. Walker, CSAS Working Paper 19-14, May 2, 2019
  15. ↑ “The Nondelegation Doctrine as a Canon of Avoidance”, "Supreme Court Review," 2000
  16. ↑ New York Law School, "Politics and the Principle That Elected Legislators Should Make the Laws," 2003
  17. ↑ Texas Law Review, "As-Applied Nondelegation," accessed January 25, 2019
  18. ↑ 18.0 18.1 18.2 18.3 National Affairs, The Case for a Congressional Regulation Office," Fall 2016, accessed May 31, 2019
  19. ↑ Pacific Legal Foundation, "Three Pillars of Reform", accessed June 25, 2025
  20. ↑ 20.0 20.1 20.2 20.3 20.4 20.5 20.6 Congress.gov, "S.1420 - A bill to amend title 5, United States Code, to improve the effectiveness of major rules in accomplishing their regulatory objectives by promoting retrospective review, and for other purposes," accessed May 20, 2019
  21. ↑ GovTrack, "S. 4427," accessed January 23, 2023
  22. ↑ Congress.gov, "S.676 - Checks and Balances Act," accessed August 28, 2023
  23. ↑ 23.0 23.1 23.2 23.3 Office of Management and Budget, "Memorandum for the Heads of Executive Departments and Agencies," April 11, 2019
  24. ↑ 24.0 24.1 The Hill, "How independent are government agencies? OMB's move on 'major' rules may tell us," Bridget C.E. Dooling, April 13, 2019
  25. ↑ 25.0 25.1 ALEC, "Administrative Procedures Act," accessed September 15, 2020
v • e
The Administrative State
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Pillars
Reporting
Laws
Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
Cases
Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms
Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography
Agencies
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