This year Congress introduced legislation called The REINS Act (Regulations of the Executive in Need of Scrutiny Act, H.R. 10 and S. 299). Its proponents argue that it will address the problem of an increasingly unaccountable bureaucracy. Federal agencies currently issue many regulations with profound societal and economic impacts, yet do so on the basis of extremely broad authority granted by Congress—authority sometimes granted decades ago. Here’s how it would work. Any “major” regulations issued by an agency could not take effect until approved by a Congressional joint resolution which would then be presented to the President. “Major” rules are so categorized if their annual cost is estimated by the Office of Management and Budget to exceed $100 million. Further, REINS outlines a procedure to ensure the process isn’t monkeyed with by legislative chicanery. The joint resolution is automatically introduced into each house of Congress once the major rule is finalized; the committees are given limited time for discussion; and the resolutions are privileged in the sense that they are not subject to amendment and procedural motions designed to slow the process.
Proponents of the Act give the example of the EPA and the Clean Air Act to prove their point. The Clean Air Act was first signed into law in 1970 and saw significant revision in 1977 and 1990, but not since. Yet the EPA continues to issue rules under its authority. Few members of the current Congress held office when the Clean Air Act was last supplemented, and Congress hasn’t taken any action to affirm all of the regulation since then.
Other ways of confronting this problem of an increasingly unaccountable bureaucracy have failed. The “legislative veto”—where Congress stipulates that either the House or the Senate may veto an administrative action or rule—was struck down by the Supreme Court in INS v. Chadha (1983). And the non-delegation doctrine—the idea that Congress cannot delegate lawmaking power to any other branch or governmental body—has only been used twice in our history to invalidate a Congressional statute (both times in 1935—in Schechter Poultry v. US and Panama Refining Co. v. Ryan).
Opponents of the REINS Act argue that it will upset a perfectly sensible arrangement that allows Congress to deal in generalities but leaves the tough, technical, policy decisions to the experts. As Noah Sachs put it in The New Republic, “The REINS Act would turn this sensible division of roles on its head, by mixing congressional politics with agency decisions that, ideally, should be data-driven technical judgments.” Sachs perfectly exhibits the Progressivism of the early 20th century and its distrust of the ordinary political process as outlined in the Constitution. As Steven Hayward put it recently, “At the core of ‘Progressivism,’ as it was called then and is again today, was the view that more and more of the business of individuals and society was best supervised by expert administrators sealed off from the transient pressures of popular politics.”
Can the REINS act address the problem it claims to address? Shouldn’t Congress be less willing to delegate such broad authority in the first place? Is there any chance a more vigorous understanding of the non-delegation doctrine could take hold in the courts? What say you Ricocheters? And where are Epstein, Yoo, and Freedman when you need them?
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Dec '10
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
It will be another example of good plan, bad execution. The only way to stop the administrative state from taking over the whole of American society is to devolve power and authority back to the states and the people. As that is unlikely to actually happen we will just limp into the abyss. Our experiment in limited government began to fail as soon as the word limited was removed from the equation.
Sep '10
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
I have not read the entire bill, but judging from the sponsors it might address the problem. If the legislation forces a vote in both houses it will put members on record as either being for or against the regulations. The process we have now allows legislators to evade responsibility.
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
I'm all for the legislation. I agree with King Prawn that the goal is to restore federalism, but REINS could be an important part of the solution. How has Washington seized so much power? The first step is the judiciary's enlargement (since the New Deal) of Congress's powers and the disregard of the Tenth Amendment. But this problem was made infinitely worse by the rise of the bureaucracy, particularly the "independent agencies." Consider the FCC, for example, whose commissioners are insulated from democratic accountability and who can adopt regulations to "implement" legislation enacted many decades ago. Even under a conservative president, the independent agencies are free to pursue liberal agendas.
My preference is to get rid of "independent agencies." The heads of all executive departments should be confirmed by the Senate, and be subject to at-will termination by the President. But why not also have something like REINS? It doesn't turn Congressmen into technocrats (pace the New Republic), but it forces them to vote up or down on costly new regulations -- and then justify those regulations to the folks who have to foot the bill.
Sep '11
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
I wholeheartedly agree with you about "independent agencies" and a reinvigorated executive removal power. The problem isn't so much executive power and as supposedly apolitical independent power. Two problems with the REINS Act. Won't it likely exacerbate the problem of the much too broad initial delegations? Members of Congress will think why not delegate broadly if we have REINS as a kind of safety valve. And second, won't one see a dramatic increase in regulations estimated at just under the magic $100 million figure?
Dec '10
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
The problem you note with nonmajor rules flourishing is a big one. On the plus side, this would commandere a lot of congress' time and attention. It would be time lost to promulgating new legislation that would require new administrative rules. It might staunch the bleeding a little, but it doesn't entirely eliminate new cuts from the sword of idiotic legislation.
May '10
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
I like the Bill. I agree that we should be devolving power back to the states- but that is not going to happen unless Congress stops using the Taxing and Spending clause to send money to states.
There are a lot of activities that still have to be federal. Much of the work of EPA involves the commons, across state lines; even if we agree that EPA does too much, it has to exist- there is too much "already in the can" to unwind in a short time. The only way to stop or slow the agencies from overreaching as they did in the CAA CO2 Endangerment Finding, wbhich was made up out of whole cloth and fraud, is to make it feasible for Congress to reach back in and kill bad administrative law.
There are limited mechanisms in some laws today that purport to address elements of this issue, but Senate rules and leadership jury-rigs the system to make it impossible to vote things down. This approach is the only thing i can think of that might work, if we can pry it out of committee and get it passed.
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
I'm not troubled by the first concern, because I don't think it is possible for Congress to delegate more broadly than they already do. Just look at the sweeping delegations in Dodd-Frank. Congress already *thinks* it has a safety valve by virtue of oversight & appropriations.
As for the second concern, there is always a risk of gaming the system, but the REINS review is based on OMB's cost estimate, not that of the regulator. Of course, I realize that regulators may try to evade review by breaking up major regulations into smaller chunks, but that kind of evasion could inspire its own political backlash.
As a practical matter, I am not optimistic that we will be able to get rid of independent agencies. But REINS could pass.
Dec '10
Re: Administration, Regulation, and Accountability (Warning: This post may cause drowsiness.)
Now that I've read the bill fully I can find nothing immediately wrong with it. However, I cannot prevent my knee jerk reaction to any legislation that purports to limit government power. To quote Bing Crosby in White Christmas, "Everyone's got a little larceny operating in them, surely you know that?" Will congress use this new power to craft legislation (rules and regulations) that would never pass muster in a full debate but can be inserted after the fact through the bureaucracy? Does this provide congress with yet another commodity to peddle?