December 06, 2010
Would The REINS Act Do Anything?
Posted by David Zaring

The next two years would seem to offer gridlock in Congress, which tends to turn a President's thoughts abroad, to foreign policy, and more interestingly for our readers, to agency rules, which don't require Congressional authority.  Perhaps unsurprisingly, then, word comes that the GOP wants to end the power of agencies to pass major ($100 million or more) rules.  I'm not sure such a statute would pass, but I think that it's both constitutional and probably quite a bad idea.

Geoff Davis (R-KY) has introduced the new statute, the Regulations from the Executive In Need of Scrutiny (REINS) Act, that would require Congress to approve all major rules passed by agencies that aren't fighting a war, being the Fed, or implementing a trade deal.  The speaker has endorsed it, and he has 80 odd co-sponsors as of this writing.  And the WaTimes just editiorialized in favor.

So people are at least talking about this thing, which essentially reverses a presumption that already exists by statute.  Now, major rules have to be presented to Congress before enactment, and if it doesn't do anything, they are enacted.  This would force agencies to get Congressional approval before implementing any big deal regulations. 

The constitutional problem with Congressional review of executive branch action basically lies in the Chadha decision, which eliminated the legislative veto.  That means that if Congress wants to reverse an agency rule, it has to pass a statute disallowing the rule, and the REINS Act is set up that way - it provides a fast process for this Congressional approval requirement.  However, of course, merely creating the requirement of Congressional statutory action for all the important regulations would radically amend all the existing authority the executive branch currently has.

You'd want to see if that impinged on the president's take care powers (here's Saikrishna Prakash with an article on that), but I don't really think it would, since that branch's administrative powers are defined by Congress and wouldn't exist without its instruction.  You'd also want to see if the major rule trigger to the statute created its own constitutional problems.  About that, I'd have to cogitate a bit more carefully, but remember, Congress can basically pass statutes to do anything it wants, and the REINS Act is basically a statute-passing process, and reservation of authority.

And so the real problem with the REINS Act is that it essentially undoes the administrative state.  Congress would have to pass nuclear reactor rules as statutes, ditto clean air regs (and amending the Clean Air Act has been legislatively impossible, so it is easy to imagine that it would be very hard to do this), presumably the SEC's proxy access rules, and so on.  Agencies would become, in essence, a Congressional Research Service, and the legislature would be forced to make decisions about what kind of nursing home facility reimbursements should be permitted on a region by region basis, rather than delegating that deicision to experts.  Which was the whole point of creating institutions like the SEC and EPA in the first place.

But we'll see if this is just saber rattling or an effort to really change administrative law.  TPM has a good write up here, if you're interested.

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