January 26, 2011
The REINS Act Is Gathering Steam?
Posted by David Zaring

I've been keeping one eye on the 

Regulations from the Executive In Need of Scrutiny (REINS) Act, [which] 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. 

Now Volokhian Jonathan Adler has testified to Congress on behalf of the bill, and the number of co-sponsors is growing.  It's a priority in the House.  

Will we soon be living under a REINS Act?  This Act would be legal - Congress can basically pass statutes to do anything it wants, and the REINS Act is basically a statute-passing process, and reservation of authority - that takes power away from agencies and puts it in the hands of the legislature.  A ton of power, in fact - the power to do anything at all, really.

Apart from whether we would want a REINS Act - and I think we would not - there are a few interesting legal intricacies involving the statute that are coming up.  Here are two:

1.    Could regulated industry could take agencies to court if they promulgated rules then approved by Congress under the Act?

I don't see how it could.  The Act provides that approval of any major rule would take the form of a joint resolution of Congress signed by the President.  That's a statute, and the challenge would be to the statute, not the reg, even, it seems to me, if the statute only pointed at the reg and said "approved."  You can't challenge Congress for failing to provide for notice and comment, or lacking a concise description of the rule, or whatever.  And under the REINS Act, it would be Congress passing major rules as statutes, with the agency only providing a draft of the rule to the legislature.

2.  Can Congress pass a statute that requires it to approve or reject a major rule on a fast track basis?

Here, the answer is probably that it can.  Fast track has its constitutional detractors, but Congress has been binding itself to that mast for trade deals for years.  And the BRAC process for closing defense bases also requires a no-amendment, up or down vote by both houses.  So Congress has done something like the REINS Act before, though I'm sure the Senate wouldn't enthuse about foreclosing debate in that chamber.

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