Tomorrow afternoon (back willing) I will be in Washington, D.C. to testify before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the Regulations from the Executive In Need of Scrutiny (REINS) Act. This bill would require congressional approval before new “major” regulations – those regulations expected to cost in excess of $100 million per year — could take effect. It also creates an expedited process for consideration of new regulations, much like that which has been used in conjunction with “fast track” trade negotiation authority, to ensure that both Houses of Congress take up-or-down votes within a short time frame. For more detail on the bill, here is a brief white paper I wrote for the Federalist Society on the REINS Act’s central provisions.
The primary purpose of the Act is to ensure greater political accountability for major regulatory initiatives. Federal regulatory agencies only have that power delegated them by Congress, but regulatory agencies are not always particularly responsive to Congressional concerns. Nor are members of Congress always willing to take responsibility for how the power they have delegated gets exercised. Requiring a straight up-or-down vote on new major regulations is a way to address both problems and the expedited procedures ensure that traditional legislative logjams and special interest obstruction won’t prevent consideration of significant regulatory initiatives. This is why I believe the REINS Act is more about transparency and political accountability than anything else.
I have no idea whether the REINS Act has much hope of passage. The bill was part of the Republican leadership’s “Pledge to America” and was just introduced in the House, where I would think its prospects are good. The Senate presents a more significant challenge, as does the White House. At present, most support for the REINS Act appears to come from those who believe federal regulation is out of control and needs to be restrained. Given that the REINS Act does not offer a mechanism to bottle up regulations with holds, filibusters or other roadblocks, supporters have adopted the implicit assumption that federal agencies are engaged in more aggressive regulation than the public supports. From what I’ve seen of the other side (and I have not seen much as of yet), some opposed to the REINS Act likewise assume that regulatory initiatives they would support could not command majorities in Congress. I don’t know whether this assumption is accurate, but it would say something if there were to be widespread agreement that federal agencies are regulating in a manner the American people do not support.
Additional posts on this legislation, my testimony and the hearing will follow.
UPDATE: My testimony is available here.
Abdul Abulbul Amir says:
This seems to be a bandaid approch. A better solution would not allow any administrative rulemaking that has the force of law, but direct the administrative agencies to submit proposed regulation as proposed legislation. There is no need for a special track for regulation legislation.
January 23, 2011, 8:29 pmPersonFromPorlock says:
While we’re at it, how about a bill requiring that all Supreme Court decisions be enacted – up or down – as laws? There aren’t many decisions in a given year and most of them would be approved without debate. But along with those, controversial rulings like Kelo would have to earn the approval of elected officials before becoming effective.
January 23, 2011, 8:33 pmTatil says:
Umm, you want the legislators to vote on a law that the legislators have already passed and the court upheld???
January 23, 2011, 8:39 pmTatil says:
A lot of the times bills are passed without the all of the details written in stone on purpose so that the regulatory agencies fine tune them later. Legislators do not want to deal with minute technical details and they do not want to vote each time somebody invents a new chemical, gadget or a business model. They just do not have the expertise or the time.
Just because a group legislators scream that an agency is coming up with brand new rules does not make it so.
January 23, 2011, 8:46 pmShelbyC says:
Er, because Congress doesn’t have the power to pass such a law?
January 23, 2011, 8:49 pmCornellian says:
This seems to be a bandaid approch. A better solution would not allow any administrative rulemaking that has the force of law, but direct the administrative agencies to submit proposed regulation as proposed legislation. There is no need for a special track for regulation legislation.
That would just lead to agencies acting based on internal policies rather than upon public regulations adopted after notice and comment. That’s not an improvement in transparency or accountability.
I’d much rather have a regulation stating I can’t have more than X parts per million of pollutant N in my product than just a bare statute saying I can’t sell unsafe products.
January 23, 2011, 9:01 pmGoneWithTheWind says:
Why not require all bills/laws be in English so the poor serfs can understand them?
Why not sunset all laws after five years and require congress to pass them again and hopefully clean them up and make them readable?
I get the impression you think congress is too busy to do their job. We in fly-over country would like to see them all go home and leave us alone and pass no new laws. How about we compromise and set a limit that all the laws passes in a single year cannot exceed 500 pages total.
Why not require any congressman who wishes to speak or submit anything in writing do so under oath? How could they object to be required to speak the truth under penalty of perjury?
One last suggestion; require that any time any member of congress conducts any public business (which is anything they do essentially) That it requires a witness and be recorded into the public record.
January 23, 2011, 9:16 pmStephen Lathrop says:
One downside of the proposed law is that there already exist well-established procedures for bribing members of Congress without breaking the law. Come to think of it, some of the proponents of this law may even think that’s more of a feature than a bug. But bribing bureaucrats is presumably harder to do, at least legally, although revolving door hiring certainly figures in.
January 23, 2011, 9:18 pmDw says:
Couple it with a Senate rule change guaranteeing similar treatment for Presidential nominations to the Executive Branch and it might have a chance.
January 23, 2011, 9:22 pmJosh Bornstein says:
I wonder why Republicans did not suggest such a law during the times of profligate spending in the W. Bush administration, when they also held both houses of Congress (ie, when it would have been certain of passage with Republican support)? Or does this question answer itself?
I suspect that this current Republican Congress will support any law that impeded Obama’s ability to move his agenda forward. (Of course, this a *totally* different issue than whether or not the law itself is a good idea . . . maybe all presidents/administrations should indeed be hobbled in this way.)
January 23, 2011, 9:24 pmElemenope says:
We in fly-over country would like to see them all go home and leave us alone and pass no new laws.
But whatever would flyover country do without Federal farm subsidies and education grants and military bases in their back yards?
January 23, 2011, 9:27 pmDw says:
@PersonFromPorlock:
Let me count the ways that your proposal would be unconstitutional…
For one thing, its application in criminal cases would violate the Bill of Attainder clause.
January 23, 2011, 9:31 pmDw says:
@Elemnope: best comment on the thread!
January 23, 2011, 9:35 pmBruce Hayden says:
Actually, no it doesn’t. In a different era, I would have agreed with you. When the Republicans came into power in Congress after the 1994 elections, Tom DeLay made it clear that anyone who wanted to lobby the new Republican majority in the House, would have to show that they were supporting the Republicans more than the Democrats. In short, the new masters were just like the old, and business was open as usual.
But DeLay is likely on his way to prison, and the Tea Party is in the driver’s seat as far as how business is conducted, at least in the House. At least over the next couple of years, Republicans revert to business as usual at their own peril. And, with Orin Hatch already facing a primary challenge, a lot of Republicans on the right in Congress are getting the message.
Oh, and in retrospect, there wasn’t prolific spending under Bush, even with a Democratic Congress, at least in comparison with the mind numbing levels of spending over the last 2 years. Many of us thought that it was bad then. But it has gotten many times worse, with roughly another 5% of GDP being gobbled up by the federal government since the last days of Bush (43).
January 23, 2011, 9:36 pmJonathan H. Adler says:
I would certainly support a Senate rule requiring up or down votes on all nominations within a reasonable period of time.
Actually, some Republicans have supported this sort of measure before, going back at least to the mid-1990s. Perhaps of greater interest, the bill’s central provision is largely modeled on an approach suggested by then-Judge Breyer in a 1984 speech.
JHA
January 23, 2011, 9:38 pmToday's Tom Sawyer says:
So, how would the REINS Act not go astray the line drawn in INS v. Chadha? While it solves bicameralism issues, it does not resolve the presentment issues inherent in the legislative veto?
January 23, 2011, 9:57 pmJmaie says:
I wonder why Republicans did not suggest such a law during the times of profligate spending in the W. Bush administration,
Do you see any difference between spending and regulation?
January 23, 2011, 10:06 pmJonathan H. Adler says:
Yes it does. All joint resolutions (save those that propose constitutional amendments) are subject to presentment.
JHA
January 23, 2011, 10:23 pmChrisIowa says:
There should be a Congressional rule removing from office any representative proposing an act with a Strained name designed to result in a cutesy acronym.
January 23, 2011, 10:46 pmPJens says:
Mr. Adler,What is wrong with your back? I suggest you go find a good Rolfer.
And to Elemenope: We in fly over country will do very well without those farm subsidies. American farmers will succeed and out compete any and all comers from around the world without government handouts. Our schools already spend far less per student than the coast states outlay. Regarding military bases, you may not have noticed, but the east and west liberals hate defense spending. Better to have military bases and personnel where they are welcome and greatly appreciated.
January 23, 2011, 10:47 pmOwen H. says:
I think he was asking why they didn’t actually do something, as opposed to simply making “the right noises”, as you mention.
January 23, 2011, 10:53 pmGuy says:
From what I’ve seen of the other side (and I have not seen much as of yet), some opposed to the REINS Act likewise assume that regulatory initiatives they would support could not command majorities in Congress.
Is this the only rationale you can think of? Is it possible that some think it is preferable to write broad mandates for the agencies and delegate it to experts to figure out how best to execute them, rather than have Congress micromanage everything?
January 23, 2011, 11:03 pmOhiolawdog says:
Prof. Adler:
I just read your short piece for the Federalist Society. Has anyone critical of this Act written in response?
I’m sympathetic to Justice Rehnquist’s criticism of congressional over-delegation in AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 672 (Rehnquist, J., concurring) (“This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of Mr. Justice Stevens, the Chief Justice, Mr. Justice Powell, and Mr. Justice Marshall demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.”).
Although the REINS Act is not necessarily directed at the exact issue that Rehnquist was addressing, I’ve always felt that he was correct. But you seem pessimistic about this Act passing. So I want to understand why it’s a bad idea.
January 23, 2011, 11:10 pmBruce Hayden says:
That is a decent theory, until you start to see the agencies getting politicized. I am also interested why you think that the agencies have that sort of expertise.
Do you really believe that Congress, when passing the laws utilized to support the regulations, actually expected that CO2, the natural result of our breathing, would someday be determined to be a pollutant in need of massive regulation? And, of course, you then have to look at exactly the sort of expertise brought to bear there by the EPA. Did they actually use their own experts? It doesn’t appear to be the case. Rather, they seemed to utilize the IPCC documents, many of which appear to have been based on less than credible sources.
One problem is that when an agency is given broad discretion, that discretion can be utilized for political purposes. Partly, this is the result of the top levels of the agencies being under Presidential control (and his ability to engage in recess and interim appointments to bypass the Advise and Consent power of the Senate). And, partly this is a result of the fact that the more mandates and discretion that an agency has, the less accountable its people become. And, that is because the more mandates and goals there are for an agency, and its people, the more they can pick and choose what they want to do.
I think that a lot on the right would argue that the basic problem here is that current Administration has installed fairly radical heads of some of the departments and agencies, and that they are endeavoring to utilize the discretion given them by statute to take the government far in directions that those enacting those laws never envisioned, and that are contrary to the will of the American people right now, and Congress.
Of course, elections have consequences, and many on the right knew that this would not be a centrist Administration. But many in the middle did not.
In any case, the reality seems to be that the House is at war with the Administration, and is trying to rein them in. Sure, a lot of it is political, but they view their mandate of the last election to do just that.
January 23, 2011, 11:29 pmBruce Hayden says:
I, for one, think that it is a good idea. The problem though is that it has little chance at passage. The Senate is probably unlikely to go along with the House here, and since it is designed to limit Executive power, a veto is almost guaranteed. This is especially true, since the exercise of administrative discretion is pretty much the only way that this Administration is going to accomplish any more of its goals over the next two years.
January 23, 2011, 11:33 pmanon says:
What is the penalty for failing to have that vote?
Does the regulation pass upon failure to hold the vote, or does the regulation get blocked?
Hey!? What about the war powers act!? Can we force congress to actually take their already legally required votes?
January 23, 2011, 11:44 pmGuy says:
I wasn’t making an argument about the merits of this legislation, I’m just suggesting that there are reasons for agency discretion that don’t simply reduce to wanting to avoid political accountability. I don’t think very many would argue that agencies shouldn’t be able to make regulations at all, so the question is where do you draw the balance – Congress is the one that authorizes discretionary spending and delegates regulatory authority to begin with.
January 23, 2011, 11:46 pmAndy McGill says:
I have a lot of experience on this as a federal agency attorney: The executive orders, the regulatory review, the Rescissions Act provisions, etc.
The bottom line is that since the Supreme Court decision in Chahda, Congress can’t really review agency regulations, but it can make whatever internal rules it wants for Congress to pass a statute changing a regulation.
The regulatory review is 99% too boring for Congress to actually do anything about so it is mostly a joke. But the 1% is things like EPA enacting global warming regulations. So this is really a broad law to change the internal Congressional dynamics about a few very important regulations.
Don’t expect it to affect anything but the most extreme edge of federal regulations.
January 24, 2011, 12:13 amRicardo says:
The problem with this statement is that federal fiscal years end at Q3. TARP was enacted by Bush with bipartisan support in Q4 of 2008 which gets treated as FY 2009 even though it was a policy enacted in 2008.
Moreover, the latest projection from the CBO shows spending under current law dropping to 23% of GDP in 2012 and then 22.5% in 2013 (mostly because of the stimulus expiring but also maybe due to assumptions about winding down certain military operations). As of now, Obama will finish his first term having increased spending by less than 2.5% of GDP — that’s slightly higher but still comparable to Reagan, Bush I and Bush II.
January 24, 2011, 12:44 amHoward says:
They wrote the law telling the EPA what to do. If the EPA is not following the law, then someone can sue.
Yes, by all means, let’s have Congress decide which experts are credible. Who is more qualified to say which scientist to believe than a Congressman?
But if the EPA’s own experts say that global warming is a problem, you’ll say okeydoke?
So your argument now is that elections don’t really count because the people didn’t know what they were getting? I’m sure a lot of people thought Bush would be more moderate than he turned out to be. In fact, as I recall, Bush said that global warming was a problem that had to be dealt with. But that, of course, was before the disinformation campaign really hit high gear.
January 24, 2011, 12:49 amRicardo says:
What crazy idea will they come up with next? Regulating the amount of fecal matter that can be dumped in streams and rivers?
January 24, 2011, 12:57 amCornellian says:
Better to have military bases and personnel where they are welcome and greatly appreciated.
By all means. Instead of defending the coasts and the borders we should have all our military bases in the interior, where they will surely be needed to undertake such tasks as defending Kansas from Missouri.
January 24, 2011, 1:04 amCornellian says:
The regulatory review is 99% too boring for Congress to actually do anything about so it is mostly a joke. But the 1% is things like EPA enacting global warming regulations. So this is really a broad law to change the internal Congressional dynamics about a few very important regulations.
Don’t expect it to affect anything but the most extreme edge of federal regulations.
Thus we see the real test for federal regulations. Congress wants to know if any reporters will show up if it holds a hearing about those proposed regulations. If the answer is “no”, then Congress isn’t interested in stopping or changing them. They’ve got better things to do, i.e. better ways to attract media coverage.
January 24, 2011, 1:10 amJonathan H. Adler says:
The REINS Act is entirely consistent with that, as it provides the expedited review process for the regulation developed by the expert agency and does not allow Congress to amend the regulation, only vote up-or-down. What it would eliminate is the fiction that administrative regulation is just about technocratic expertise. Determining what sorts of regulations to adopt, or whether to adopt any at all, is a policy choice. When the stakes are large, our policymakers (the Congress) should be responsible for the policy decision that is made.
As for arguments against it, beyond what I’ve mentioned above and discuss in the FedSoc piece, most of what I’ve seen thus far misrepresents the content of the bill. But I plan one or more posts addressing some of these concerns.
This sort of procedure is actually used quite a bit to force a vote (e.g. fast-track). The War Powers Act raises different issues and may not be constitutional.
JHA
January 24, 2011, 7:29 amlgm says:
Good luck with that back.
A couple questions:
1. How is the cost of a regulation defined. Anti pollution regulations prevent “external” costs not born by the regulatee. Does the draft bill only count costs to the regulatee? Does it specify how cost claims are to be verified?
2. Would this bill supersede other laws that call for specific regulations? I’m thinking of the clean air act, which courts have interpreted as calling for regulations on CO2 emissions (global warming).
January 24, 2011, 8:57 amkatahdin says:
I’ll agree about the ag subsidies, but are you sure that LA and NYC really want ICBM bases, B-52 bases, and so on? Combined arms maneuver areas? Missile test ranges? Sonic booms? I always figured those were put in rural areas for the same reasons landfills were – the city folks don’t want them nearby, land is cheaper, and so on.
January 24, 2011, 9:12 amAbdul Abulbul Amir says:
Lazy legislators are an issue. No doubt about that. The problem is accountability. The idea behind an elected legislature is it can be held accountable by the voters. Leaving “details” that that can imprison or impoverish the citizens is an evasion of responsibility and accountability.
This is easily handled by requiring the regulatory bodies to submit the regs as proposed legislation. Legislators don’t need to deal with the details before the fact. For example Dodd Frank requires a ton of new rule making. There is no reason the Congress that these new rules could not be submitted to Congress and voted on before taking effect.
January 24, 2011, 9:48 amanon says:
“What is the penalty for failing to have that vote?
Does the regulation pass upon failure to hold the vote, or does the regulation get blocked?
this sort of procedure is actually used quite a bit to force a vote (e.g. fast-track). ”
Thanks for your response, my point/concern is what happens if the vote is not held? Is that a possibility? What is the punishment? Does not holding the vote effectively veto the regulation, or does not holding the vote effectively pass the regulation? What are the incentives? How is accountability arranged?
January 24, 2011, 10:24 amPersonFromPorlock says:
It’s only a factor if the Court’s reading of the law is significantly different from what Congress intended. If it isn’t, then no problem, Congress rubber-stamps the decision.
You’re probably right, as it stands. I’m just suggesting a desirable end (making the Court’s decisions subject to review by an accountable body) and leaving it up to the experts here to provide the details. Not unlike Congress and the agencies….
January 24, 2011, 11:00 amanon2 says:
Anon, if a new major rule isn’t approved within 70 days, then under the bill (at new 5 USC 801(b) — see http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.10:), the regulation could not take effect. It’s not a “presumed effective unless blocked” arrangement, it’s a “presumed ineffective unless approved” system.
Of course the biggest potential problem here is Chadha — see Mark Tushnet’s critique at http://balkin.blogspot.com/2010/07/republican-regulatory-reform-and.html As the Court noted, “Congress must abide by its delegation of [regulatory] authority [to the agencies] until that delegation is legislatively altered or revoked.” 462 US 955. Numerous statutes have delegated authority to numerous federal agencies to issue major and minor regulations implementing various statutes. Would the REINS Act silently revoke every single one of these delegations? If Congress means to do that, it should/must do that openly and explicitly.
Another, more practical issue involves some of the “major” rules that would come up. For example, many federal regulatory agencies are funded through licensing fees and other “user” fees that must be adjusted every year. These fees often have more than $100 million impact, so each year they would be “major” rules under the REINS Act. The Act would effectively strangle each of these agencies’ budgets by making them hope and pray that Congress will affirmatively approve their fee rules every year. When Congress can’t even pass appropriations bills (way more important to keeping the government functioning), reasonable people have solid grounds for questioning its ability to do things like passing statutes approving annual fee rules. Remember that the very reason we rely on agencies to run the show is because Congress is so hopelessly inept and irresponsible.
January 24, 2011, 11:24 amzuch says:
Perhaps you might touch on what rationale permits regulations that address small effects to go through unscathed, but which hampers [i.e., puts in the hands of Republican Congressmen -- you know, the guys that have been hiring lobbyists for their chiefs of staff] implementation of regulations in situations where huge effects are in play. Oh, you know, like assigning financial responsibility for catastrophic events or lifting damages caps, things that might have ‘costs’ in excess of $100M/year.
Thanks in advance!
Cheers,
January 24, 2011, 11:48 amElemenope says:
I’ll agree about the ag subsidies, but are you sure that LA and NYC really want ICBM bases, B-52 bases, and so on? Combined arms maneuver areas? Missile test ranges? Sonic booms? I always figured those were put in rural areas for the same reasons landfills were — the city folks don’t want them nearby, land is cheaper, and so on.
Of course not. If there are reasonable tactical and/or practical reasons to put bases where they put them, then so much the better. I live on the coast, and there is a Navy base, NUWC (quite welcome, I might add) about ten miles away.
What I was objecting to was this notion put forth that flyover country wants, in any way, to be left alone. They love sopping up goodies from the Fed. They just don’t want the other half of what comes with federal attention. The fundamental argument is “give us our subsidies, our jobs, and our education dollars, AND THEN leave us alone!”. That’s asinine.
January 24, 2011, 1:02 pmreality check says:
San Fransisco, New England, and Montana are under no more threat than Kansas or Missouri from invasion or attack.
Civilian complaints about military bases and of the consequences of training are big deals… and they’ve chased away military bases and training sites before.
The defense capacity of our military does not diminish by relocating them to friendlier areas – it increases.
January 24, 2011, 1:38 pmHoward says:
If that were true, we wouldn’t have needed a base closings commission. There is no Congressman, of any party, who won’t go to the mat to keep a base from closing. What are the names of all the bases that have been chased away by local opposition?
January 24, 2011, 2:32 pmJonathan H. Adler says:
Thanks.
1) The cost estimates are those produced by the Executive Branch, which typically means the agency, in consultation with OMB. Cost here is a rough proxy for the magnitude or significance of the policy decision underlying the rule.
2) Yes, as a general matter the bill would supersede existing authority and statutory mandates.
If no vote was ever held, the regulation could not take effect. However, the bill amends the House and Senate rules to privilege the resolution, limit time for debate, bar filibusters, and block procedural objections. What this means, as I understand the House and Senate rules, is that the vote would get called unless either a) there was a vote to suspend the rules, or b) the leadership tried to move on and there was no objection from any member. So, barring a unanimous desire in one house to silently block a rule without a vote, there would be a vote and the regulation would take effect unless a majority in one house or the other objected.
As for the issue of whether Congress has time for this sort of thing, federal agencies issue several thousand final rules each year — just over 3,500 in 2009. Of these, only several dozen are classified as “major rules.” Between 2001-2009, there were between 50 and 80 major rules per year; the number in 2010 seems to have climbed a bit. Given that the bill strictly limits debate and bars amendments (so as to ensure the straight up-or-down vote) I don’t think it would be difficult for Congress to address all major rules. In fact, what I would expect is that most major rules would go through without so much as a hiccup, and that Congress would only step in to stop a handful of measures.
JHA
January 24, 2011, 2:36 pmHoward says:
Unless you agree that all regulations are inherently bad, it seems ridiculous to say that you can kill a regulation just by tying up Congress for a sufficient amount of time.
How about this: a regulation goes into effect unless Congress disapproves it by a majority vote with the agreement of the President, or by a 2/3 vote without. Better yet, we can allow repeal of regulations that are already in effect.
Oh, wait, we’ve already got that. It’s called a law. So what’s the advantage of this proposal exactly?
January 24, 2011, 2:37 pmohwilleke says:
A legislative veto on regulatory power can work pretty well. Colorado’s legislature, for example, has one that works quite smoothly. But, given the INS v. Chadha issues, holding the legislative veto unconstitutional in many circumstances, the details matter quite a bit in determining if the law is really constitutional. Determining when a mere executive policy becomes a regulation is also a non-trivial exercise.
January 24, 2011, 2:42 pmHoward says:
Ah, I see. JHA hadn’t posted his latest comment when I wrote mine above.
So here’s the proposal: If, hypothetically, party A controls one house of Congress, and party B controls the other house and the Presidency, then party A can block any major regulation from going into effect, even one pursuant to a valid law.
What a wonderful way to increase transparency and accountability! When did the idea for this arise?
January 24, 2011, 2:58 pmHoward says:
But let’s not call it a “legislative veto.” Let’s call it what it is: a one-house veto. Or we could call it “Another Try at Repealing the Job-Destroying Health Care Bill.” Honestly, Prof. Adler, how dumb do you think we are?
January 24, 2011, 4:30 pmGoneWithTheWind says:
Elemenope: You are wrong. Most in flyover country do not get subsidized by the federal government but are penalized to pay for those subsidies. The federal government should not be in the business of subsidizing farmers, businesses or welfare recipients. If there were just some way to limit the federal government to those things they are constitutionally allowed to the federal budget would be cut in half.
There is of course a way to do that for it is exactly the purpose of the Supreme Court. But some 75 years ago the Supreme court became part of the problem instead of part of the check and balance.
January 24, 2011, 6:05 pmzuch says:
… make sure that no “major regulations” get promulgated, given a bught-and-paid-for Republican majority in the House (who think nothing of simply out and hiring industry lobbyists for their chiefs of staff).
Cheers,
January 24, 2011, 6:41 pmElemenope says:
@GoneWithTheWind
Really? Because oddly enough, the actual numbers tell a different tale. It looks to me as though those flyover states make out pretty well, getting a positive return (in some cases, like New Mexico, the Dakotas, and Mississippi, a ridiculous positive return) on each tax dollar paid to the fed.
In contrast, the Northeast, Mid-Atlantic, and Pacific states get royally shafted, taking real losses on each fed tax dollar paid. Guess where that money goes.
January 24, 2011, 6:41 pmzuch says:
Do you mean it would explicitly amend any prior statute that fell under the aegis of this (over $100M nominal cost)? How so? By repealing such? By amending such (and if so, how specifically)?
Thanks in advance,
January 24, 2011, 6:58 pmzuch says:
I don’t know about “flyover country” but red states generally get more from the feds than they put in, while blue states get the opposite. And blue states tend to be on the coasts.
Cheers,
January 24, 2011, 7:01 pmlgm says:
I’m interested in what cost means. If the Executive says that the cost is X, does X include opportunity loss from not building a polluting factory or selling based on false advertising? Are there negative contributions to (subtractions from) X based on estimated gains to others (not being polluted or buying inappropriate products)?
January 24, 2011, 7:17 pmByomtov says:
So both houses would have to approve the regulation? Is that right? Wow. There’s a bad idea.
JHA,
it would say something if there were to be widespread agreement that federal agencies are regulating in a manner the American people do not support.
How would a vote in the Senate establish that?
And let me add my voice to lgm’s in asking exactly what “costs” mean here.
January 24, 2011, 8:11 pmJonathan H. Adler says:
Typically costs and benefits are estimated separately. This makes sense for identifying those regulations of the greatest significance, as the high cost simply means it’s a “big” decision, not that it’s a bad one. Think of it in budgetary terms. We generally pay more attention to decisions over big ticket items, while passing over the nickel and dime stuff. This doesn’t mean the latter are better deals, only that the consequences of being wrong are less. Same here. If a regulation covers a major sector of the economy, there is more reason to have members of Congress have to approve.
The $100m threshold applies to regulations, not statutes. The Act would effectively set new requirements before major rules adopted pursuant to existing statutes could take effect, and this is done by adopting an across-the-board requirement, as could be done by amending the Administrative Procedure Act, which sets default rules for agency rulemakings.
It would have the same practical effect as a unicameral veto, as my write-up linked above notes, but avoids the constitutional problem identified in Chadha. This isn’t about health care, however, as the idea’s been floating around for some time. Then-judge Breyer wrote about it in 1984, it was proposed in various forms in the 1990s, and again in 2005 (when, incidentally, a Republican was in the White House).
The proposal increases transparency and accountability because it forces members of Congress to actually vote on major rules — rules that often implement broad and vague statutory mandates. This is far more transparent than the existing regulatory process or traditional legislative drafting.
JHA
January 24, 2011, 8:14 pmzuch says:
But you talked about “supersed[ing] existing [...] statutory mandates. Which is what prompted my question(s). Would it apply to legislation already passed (including any statutory mandates present in such), modifying or amending them in some way? If so, how? If some legislative provision specifies that a regulation must be promulgated, and — say, one house — refuses to sign off on the proposed regulation, what happens? Can we direct the sergeant-at-arms to arrest the recalcitrant lawmakers who are disobeying federal law?
Could some subsequent enabling legislation just state that it doesn’t require the REINS procedure? If not, why? If so, what’s the point?
Cheers,
January 24, 2011, 8:54 pmWatson Ladd says:
You sir, have never heard of airworthiness directives
January 24, 2011, 9:30 pmWatson Ladd says:
You sir, have never heard of airworthiness directives
January 24, 2011, 9:30 pmByomtov says:
JHA,
It would have the same practical effect as a unicameral veto,
Maybe you could explain why you think a unicameral veto is a good idea.
January 24, 2011, 9:34 pmAaron Armitage says:
Here’s a thought: Chadha was just plain wrongly decided. If Congress has the authority to delegate legislative power (word games aside, that’s what regulation is), they certainly have the authority to set limits on that delegated authority, including requiring the delegee to check back on some or all of the delegated decisions.
If they can delegate authority to the executive, then a fortiori they can delegate to one of their own chambers: no chambers is further away from bicameralism than one chamber. The alleged presentment issue is likewise obviously specious: a regulation isn’t presented at all, certainly not by the houses of Congress, and to make a second-order check on the delegated legislation subject to presentment but not the delegated power itself is absurd.
January 24, 2011, 10:55 pmJonathan H. Adler says:
I’m not sure I was clear. What I meant is that the REINS Act imposes the approval requirement on all major rules (those costing more than $100m) promulgated by all agencies pursuant to existing statutory authority. Congress would be free to create statutory exemptions for pre-existing or new statutes going forward. As for your other hypo, Congress could supersede an existing regulatory mandate by refusing to approve the reg, just as Congress now can void such a requirement under the CRA.
JHA
January 24, 2011, 11:27 pmHoward says:
There are an awful lot of laws that can’t be implemented without issuing regulations. For all those laws, you’re saying that once passed, they can be kept from taking effect by a single house. This seems like a pretty big constitutional change to make without an amendment.
If you really want transparency, you could do the same thing with a bicameral veto. Even so, that would be a pretty big constitutional change– effectively saying laws can be repealed without an opportunity for a Presidential veto.
Do you really think this is about accountability? Can you imagine any regulations implementing health care reform, no matter how closely it adheres to Congressional intent, that the House would approve?
January 25, 2011, 12:13 amzuch says:
Yes, but … doesn’t this then implicate presentment issues?
And as I said, even if you could, what’s the point?
Cheers,
January 25, 2011, 1:17 amJonathan H. Adler says:
Howard —
The use of legislative rules by agencies to implement statutes is a relatively new phenomenon and agencies have no inherent power to issue such rules. Rather, such authority must be expressly granted and will not be presumed just because it facilitates implementation or enforcement.
A bicameral veto is not constitutional without presentment. The CRA provides for an expedited veto process, but it is relatively easy to block and has only been used once to overturn a rule promulgated at the tail end of a President’s term when his successor would not object.
As for health care, I’d support the REINS Act even if health care were exempted and even were there a Republican President. Note that many deregulatory proposals I would support would also be subject to the REINS Act process. In any event, I’d be (pleasantly) surprised if this were passed before 2013.
There’s an academic debate about whether Congress retains the authority to alter rules embodied in statute. The reason there’s only an academic debate is that Congress has never tried unilaterally to alter rule changes that were embodied in statute. Therefore, my assumption is that Congress would have to revise the REINS Act and its procedures through a statute that would have to satisfy bicameralism and presentment.
JHA
JHA
January 25, 2011, 8:49 amByomtov says:
Jonathan,
Let’s be clear as to what is being advocated here. Either house, acting alone, can effectively eliminate the ability of a regulatory agency to use the powers it was ostensibly granted by an earlier statute.
This, bluntly, strikes me as an extremely foolish idea. If you want to claim that it’s important to reflect the will of the people I think you need to explain why we don’t pass laws based on the vote of either house and without Presidential approval.
As Howard points out above, there is a mechanism in place to eliminate undesirable regulations. Congress can pass, and have the President sign, a bill doing so.
What in the world makes you think this is a good idea?
January 25, 2011, 10:48 amzuch says:
Well then, if Congress can do it but only in that matter (to remain faithful to that sacrosanct Constitooshun that everyone keeps talking about), what’s the point? Is the point pretty much the same point as the Repeal the Job Killing Health Care Act and the abortion restrictions they decided were the next most important business?
If any bill can write itself out of this, and older bills are ambiguously “modified” (or not modified at all), haven’t you just succeeded in adding just another layer of bureaucracy and inefficiency? Has all the hallmarks of form over substance.
Cheers,
January 25, 2011, 10:58 amGoneWithTheWind says:
Elemenope: Your position seems to be that Someone benefits so therefore everyone benefits. You couldn’t be more wrong. A handful of special interests benefit from federal subsidies and some of those special interests are in blue states vs red states and you seem to think THAT is the issue. It is inproper for the government to subsidize anyone/anything. To try to justify that by claiming one state enjoys more government largesse then another misses the mark. I don’t care which special interest group is having their palms crossed with silver I am unhappy that they are taking the silver from my pocket.
January 26, 2011, 12:12 amHoward says:
No, I don’t think that’s the point being made. I think the point is that it’s utter hypocrisy for people in “flyover country” to say they’re against government spending when they are the biggest beneficiaries. It may be that you personally are not seeing those benefits (though I doubt that given spillover effects) but that’s between you and your elected representatives, who have been working like crazy to keep the gravy flowing into your state.
BTW, why is it improper for the government to subsidize anyone/anything? If the government builds a no-toll bridge that reduces traffic on other roads, is that improper?
January 26, 2011, 6:06 pmJon Roland says:
Regulatory Reduction Act of 2011
1. Within 30 days of the adoption of this Act, all rulemaking agencies shall not propose or add any regulations or other rules without eliminating an equal or greater amount of such regulations or rules, measured in bytes or characters.
2. All rulemaking agencies shall, each calendar year, reduce the total of their regulations or rules, measured in bytes or characters, by 5 percent each year, for a period of 10 years, and 2 percent each year, for the next 10 years, from their levels on December 31, 2010.
3. Each regulation or other rule shall be reviewed by a jury of 12 randomly selected citizens, once each year, and if at least 8 of the 12 cannot agree on what that regulation or rule means or requires, or on whom it is applicable, it shall be deleted.
4. No administrative regulation or rule shall be applicable to any but employees, contractors, officials, or agents of the government of the United States, and each shall specify to which of these it is applicable.
5. Any agency which violates this Act shall have its funding reduced by 10 percent for each fiscal year for which it is in violation.
Please urge your members of Congress to sponsor this bill.
January 27, 2011, 2:31 pmOPISO » Upcoming Talks says:
[...] 22 at noon, I’ll speaking on the proposed REINS Act before the Indianapolis Lawyer’s [...]
February 17, 2011, 12:10 pm