Why a Democratic Congress Cannot Easily Undo a President's Deregulation

Elections have consequences, and so does the Constitution. A good many commentators this week are asking what a Democratic Congress will do to the regulatory rollbacks of a Republican President. The honest answer begins with a question about structure: what, exactly, is a deregulation, and what does it take to reverse one?

Reports on and after November 4 say that Democrats won control of the House and the Senate in the November 3 midterm elections. The 120th Congress begins on January 3, 2027. Donald Trump remains President. This post is not about who won or why. It is about the mechanics: why a change in congressional control does not automatically undo what an administration has done by rule, and where the other party's real leverage lies.

Definitions

Let me define four terms, because the confusion in this debate is mostly a confusion of terms.

• A rule is an agency's binding, generally applicable regulation, issued under authority Congress delegated by statute, usually through notice-and-comment under the Administrative Procedure Act.
• A rescission is an agency's formal action to repeal or withdraw a rule. It is itself a rule, and it must go through the same process.
• A statute is a law passed by both houses of Congress and signed by the President, or enacted over his veto.
• Deregulation by an administration usually takes one of these forms: rescinding a rule, declining to enforce one, or revising a rule to make it less burdensome.

The key fact is this. A President and his agencies can undo a rule by agency action, subject to the APA and court review. Congress can undo a rule, or restore one, only by statute. Those are different procedures with different thresholds, and the difference is the subject of this post.

Premise one: a bill needs the President's signature

The Constitution's rule for making law is in Article I, Section 7, and it has not changed since 1787. Clause 2 provides:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated...

And it provides the override: "if approved by two thirds of that House, it shall become a Law."

So suppose a Democratic Congress passes a bill restoring a rule the administration repealed. The bill goes to the President. He may sign it, in which case there is no controversy. Or he may veto it. To override the veto, each house must vote by two-thirds. In the Senate, that is a very high bar, and in the House it is higher than a majority by a wide margin. Overrides are rare in American history: Congressional Research Service tallies of the Senate's records show roughly 110 overrides out of more than 2,500 vetoes, about 4 percent, and you may check the current count on the Senate's website. The structure favors the President on this narrow question, as the Framers intended. Hamilton explained in Federalist 73 that the veto protects the executive against the legislature's encroachments and works as a check on hasty or unjust legislation.

Notice what this means in practice. To restore a repealed rule by law, Congress needs either a President willing to sign or a supermajority large enough to overcome him. A simple majority of each chamber is not enough.

Premise two: the filibuster stands behind the veto

There is a second hurdle before the veto, in the Senate. Most legislation requires 60 votes to end debate, under the Senate's Rule XXII. That is a rule of the Senate, not a clause of the Constitution, and the Senate may change it. But as long as it stands, a bill to reverse deregulation needs bipartisan support even to reach the President's desk, unless it qualifies for a special procedure. I will not give seat counts, because I do not need them. The structure is sufficient: the minority party in the Senate retains a tool of its own.

The special procedure that matters is the Congressional Review Act, which I discuss next, because it is the one route to a simple-majority vote in the Senate.

Premise three: the Congressional Review Act still needs a signature

The Congressional Review Act of 1996 allows Congress to disapprove an agency rule by a joint resolution of disapproval. The resolution gets expedited consideration in the Senate: limited debate, no filibuster. That is why the Act has been the favorite vehicle for a new majority to reverse the last administration's late rules.

But the CRA has a feature that people forget. A joint resolution of disapproval must be presented to the President, exactly like any other law. That is the rule from INS v. Chadha (1983), which held that Congress cannot act with the force of law without bicameralism and presentment; see INS v. Chadha Killed the Legislative Veto and Left Congress Fewer Tools. So if a Democratic Congress passes a resolution disapproving a deregulatory rule, a Republican President can veto it. The override, again, needs two-thirds of each house.

The CRA's design is a good fit for a Congress that is fighting the previous administration, whose President is of the other party. It works when the new Congress and the sitting President agree. It is nearly useless when they do not. In 2017 and 2018 the Act was used successfully 16 times, according to Ballotpedia's count of the resolutions President Trump signed, because Congress and the President were of the same party and the rules they disapproved had been issued by the prior administration. That arrangement will not recur in 2027.

There is a further technical point I flag for the lawyers. If a resolution disapproving a rescission became law, then, under the Act's own text, a disapproved rule is treated as though it had never taken effect, and one reading is that the repealed rule would then be revived. That is a contested reading, and it has not been tested thoroughly in court. It gives a future Congress a theory but not a result, because the signature requirement still applies.

Premise four: undoing a rule requires an agency action, and the courts will review it

Now look at the other side of the ledger, and at why the administration's deregulation, though safe from Congress, is not safe from everything. A rescission is an agency action, and an agency action is reviewable. The leading case is Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., decided in 1983.

In that case, the National Highway Traffic Safety Administration had required passive restraints, meaning airbags or automatic seatbelts, in new cars, and then, after a change of administration, rescinded the requirement. The Supreme Court held that the rescission was arbitrary and capricious under the Administrative Procedure Act. Justice White's opinion said the agency had given no consideration whatever to an obvious alternative, namely requiring airbag technology alone, and had not given a reasoned explanation for abandoning the requirement. The principle: an agency changing course must show that it considered the relevant factors and the alternatives, and explain its reasoning. A rescission is not automatically valid just because the new administration prefers a different policy.

That rule cuts in a direction conservatives should appreciate, and it applies to the Trump administration's rescissions as it did to the Reagan administration's in State Farm. A deregulatory rule that is sloppily done is vulnerable in court. A deregulatory rule backed by a full record, a considered response to comments and a reasoned explanation is much more durable. In 2020, in Department of Homeland Security v. Regents of the University of California, the Court again held an agency's rescission arbitrary and capricious, this time the rescission of the DACA policy, by a 5 to 4 vote, because the agency had failed to consider important aspects of the problem, including the reliance interests of recipients and alternatives such as keeping part of the policy. The lesson is bipartisan. Both parties have lost in court by cutting corners on a reversal.

This matters for the argument about Congress because it identifies where the real contest over deregulation takes place. It is not in the Capitol. It is in the agencies' dockets and in the federal courts. After Loper Bright Enterprises v. Raimondo (2024), which overruled Chevron, courts read statutes for themselves rather than deferring to agency readings, which cuts both ways: a deregulatory rule that rests on a plausible reading of the statute stands on firmer ground than before, and so does a regulatory rule.

Premise five: the real leverage is the purse

If the veto and the courts limit what a Democratic Congress can do directly, where does it have power? The answer is the oldest power of any legislature: money.

Article I, Section 9, Clause 7 provides: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The agencies can do only what Congress funds them to do. That gives the House and Senate, working together, a real, if blunt, instrument. They may do the following.

1. Attach riders to appropriations bills: provisions that prohibit the use of funds to carry out a particular rule, or that direct funds to a particular program. Riders are common, and both parties have used them.
2. Cut or condition funding for particular offices or programs, including enforcement of the deregulated area.
3. Require reports and certifications as a condition of spending, which creates a record and a basis for oversight.
4. Hold hearings and issue subpoenas under the oversight power, drawing public attention to a rescission and its effects.

But even here the structure favors the status quo. An appropriations bill is a bill. It requires both houses and the President's signature. A rider that the President opposes may lead him to veto the bill, and the choice then becomes one of a government shutdown or a compromise. A shutdown is politically costly to whichever side is blamed, and history suggests that majorities and Presidents alike are often reluctant to risk it. So riders become bargaining chips: a Democratic majority may secure some, and the President may refuse others.

The confirmation power is the other lever, and it belongs to the Senate alone. If Democrats hold the Senate, the President's nominees for agency posts will face a Senate majority from the other party. That affects who runs the agencies, which in turn affects how aggressively deregulation proceeds. See The Acting Officials Who Run Agencies Without the Senate's Consent for the ways Presidents respond when the Senate will not confirm.

The steelman: Congress is supposed to be the dominant branch

A fair reader will object that I have described a structure that insulates the executive from the legislature, and that is backwards. Article I vests "all legislative Powers" in Congress. Madison wrote in Federalist 51 that in a republican government the legislative authority necessarily predominates. If an administration can strip away regulations that Congress authorized, and Congress cannot easily restore them, the executive has a power that the Framers feared.

That is an argument a thoughtful person might make, and I take it seriously. Here are three answers.

1. The agency's rescission power is also a delegation from Congress. The same statute that authorized the rule authorized the agency to revise it, subject to the APA. A rescission within the bounds of the statute is the exercise of power Congress conferred, not a seizure.
2. Congress retains the decisive power, but it must use it as the Constitution requires. It can write a more specific law. If the statute says "the agency shall regulate X in manner Y," the agency cannot deregulate it. The remedy for a rescission Congress dislikes is a statute that removes the agency's discretion, and that statute needs the President's signature or two-thirds of each house. The difficulty is the design of the lawmaking process, not a special protection for deregulation. The same difficulty applies when a Republican Congress wants to repeal a regulation a Democratic President favors.
3. The symmetry is the point. The structure that makes it hard for a Democratic Congress to reverse a Republican President's rescissions is the structure that makes it hard for a Republican Congress to reverse a Democratic President's regulations. Both parties have benefited. A conservative who values stable rules over swings of policy should see it as a feature.

I would add, as a matter of principle, that conservatives have complained for years that rules pile up faster than laws are passed. If the law is that rules last until the agency repeals them or a statute displaces them, the same is true in the other direction. Consistency has costs.

What this does and does not mean

Let me be careful about the limits of the argument, because there is a temptation to overstate.

It does not mean deregulation is permanent. A later President can reissue rules through a new rulemaking, subject to the same APA requirements. A future Congress with a friendly President can pass a statute. The courts can vacate a deregulatory rule that lacks a reasoned explanation. All of that is possible.

It does not mean Congress is powerless. Appropriations, oversight, confirmations and hearings are real. They change the cost and the politics of what an administration does.

It does mean the path is narrow. Direct reversal requires a statute, and a statute requires a signature or a two-thirds vote in each house. The easier path, for opponents of deregulation, runs through the courts and through public pressure on the agencies.

That last point carries a lesson for the people who favor deregulation as well. The way to make a rescission last is to build the record, answer the comments, and explain the reasons, so that it survives the arbitrary-and-capricious test. The best defense of a deregulatory rule is a thorough rulemaking file. See The Congressional Review Act Lets Congress Veto a Rule, if It Moves in Time for the mechanics of the CRA, and Congress Changes Hands, but Citizens Can Still Petition to Cut Red Tape for what citizens can do in the meantime, including filing comments that strengthen the record.

A word on perspective

Americans have a habit of treating each election as if it ended the constitutional order or rescued it. The structure the Framers built is slower than that. It resists sudden change in either direction, because they feared the passions of a majority as much as the ambition of an executive. Federalist 10 and Federalist 51 both rest on the idea that a large, divided government makes it hard for any faction to seize control quickly. That is irritating when your side loses an election. It is a comfort when your side holds the pen.

The Federal Register carried 3,248 final rules in 2024 and, by the Competitive Enterprise Institute's count, 2,441 in 2025, figures that show how much of American law is made by rule rather than by statute. That is the real context of this debate. When rules, rather than laws, set the terms of daily life, the procedures that govern how rules are made and unmade matter as much as the contest over who controls Congress.

The case in brief

1. A rule can be rescinded by agency action, but a rule can be restored by Congress only by statute, and a statute needs the President's signature or two-thirds of each house under Article I, Section 7.
2. The Senate's 60-vote threshold for most legislation and the veto together make direct reversal of a deregulatory rule difficult for a Congress of the other party.
3. A Congressional Review Act resolution is also a bill that must be presented to the President, so it works only when Congress and the President agree.
4. The courts are the real check on rescissions: under Motor Vehicle Manufacturers Association v. State Farm (1983), an agency that repeals a rule must give a reasoned explanation and consider alternatives.
5. A Congress controlled by the other party still has the power of the purse, oversight and confirmation, so the contest moves to appropriations, hearings and the quality of the agency's record.

What you can do: Look up a deregulatory proposal at an agency you follow on regulations.gov and file a specific, evidence-based comment, because a strong record is what keeps a rescission standing in court.