On Monday, I testified before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the REINS Act. The other witnesses were former Rep. David McIntosh and Sally Katzen, who headed the White House Office of Information and Regulatory Affairs in the Clinton Administration. Rep. McIntosh and I expressed support for the REINS Act while Katzen did not. Here are my testimony, my prior post on this hearing, and the C-Span video.
It was a rather short hearing, but the questioning was fairly aggressive, particularly from the Democrats on the subcommittee, including Rep. John Conyers, who attended as the ranking minority member of the committee even though he is not on the subcommittee. During the hearing I was struck by how many of the questions from members were premised on a misunderstanding (or misrepresentation) of the bill, both structurally and substantively. I recognize members of the minority may not have had the most time to prepare for a Monday hearing for which there had only been several days official notice. Nonetheless, I was surprised how unprepared (or unwilling) some of the committee seemed to be to address the bill on its own terms. Perhaps I’ve just lived in Ohio too long.
Several members of the subcommittee suggested the REINS Act imposed unconstitutional constraints on executive power, particularly the executive’s responsibility to faithfully execute and enforce federal laws. Therefore, they suggested, the REINS Act could conflict with Article II, Section 1 of the Constitution. Set aside the curiosity of House Democrats, including Rep. Conyers, defending executive power. This objection is based on a fundamental confusion about the nature of executive power. The power to “enforce” the laws – that is, the power to take action to see that legal rules are complied with – is distinct from the power to make the rules pursuant to a delegation of authority from Congress. So, for instance, the EPA’s power to impose fines or other sanctions on companies that violate emission limitations is distinct from the EPA’s power to set the emission limits. A requirement that federal regulatory agencies obtain Congressional approval before major rules may take effect requires Congressional assent for the latter, but has no effect on the former.
Sally Katzen raised a more nuanced separation of powers concern, but one that I also find unconvincing, and for largely the same reasons. She noted that under Morrison v. Olson, “a statute is suspect if it ‘involves an attempt by Congress to increase its own powers at the expense of the executive branch,’” and it is reasonable to see the REINS Act as an effort to constrain the executive. Just look at the bill’s full title and findings. The problem with her argument is that it ignores the distinction between executive and legislative functions.
The powers to investigate and prosecute are core executive functions. Any effort by Congress to limit such powers and aggrandize its own is problematic. This point was made not only in Morrison v. Olson (in which the Court upheld the statute in question, despite its intrusion on executive power), but in other cases as well. The executive power is distinct from the power to adopt legislative-type rules, however. The latter is not a core executive function. Rather it is a quasi-legislative power that must be delegated by Congress. As the Supreme Court has stressed time and again (and as I noted in my testimony), federal agencies have no authority to promulgate regulations beyond that which has been given by Congress. And what Congress has given, it may take back. Restraining the exercise of such authority, whether by adopting rules for the exercise of regulatory authority (as under the Administrative Procedure Act or the Congressional Review Act) or limiting the scope of such authority is perfectly acceptable, so long as other Constitutional requirements (such as bicameralism and presentment) are satisfied. As the REINS Act satisfies such requirements, there is no problem. The REINS Act does not curtail executive power so much as it places limits on the legislative-like power delegated by Congress.
For more recent comments on the REINS Act, see David Zaring’s posts here and here. I’ll have more to say on the Act, and the arguments for and against it, in the days to come.
wfjag says:
IMO, Congressmen (& women) have been trying to shed power for decades. Everytime a court holds that something is or is not constitutional, there appears to be almost glee in both supporters and opponents of the decision in Congress that the issue is no longer in their purview. Even opponents not infrequently read holdings broadly as a basis for saying “Well, it’s those activist judges again. We can’t do anything, now.” So, members of Congress can voice opposition or disappointment, but not take a stand and so have a position on the record. The issue in the next election is thereby based on sophistry and not actual issues and positions taken on them.
The same appears true when Congressmen (women) discuss regulations and program implementation. They man denounce “faceless bureaucrats”, but, they also usually seem to avoid calling the agency officials in to explain how the agency arrived at its intrepretation of the law, and challenge the agency officials to go back and write regulations that more closely track the statutory law. Again, when going before the voters, members of Congress can then retreat behind sophistry and not have to discuss issues raised by the positions their voting records show.
The all time example of this is HIPAA. Since Congress couldn’t agree what to do within a set amount of time, it completely punted and told HHS to write the regulations (without passing statutory standards). Whatever your opinions about the HHS HIPAA regulations, your representative in Congress have taken no position on the issues involved.
Why would you expect senior (or junior) members of Congress to want to change this? Even though the Republicans had historic gains in the 2010 elections, incumbents (D or R) still won an overwhelming number of the elections. If they expressly have power to disapprove of proposed regulations, but fail to use it, they have a record that can be scrutinized by the voters. It would be a hateful thing if political campaigns actually addresse issues instead of sophistry.
January 27, 2011, 11:50 amJason says:
Professor Adler: Forgive a certain amoung of hair-splitting, but the word “enforce” does not appear anywhere in Article II. The word “execute,” however, does.
Admittedly, a word-for-word, literal reading of the Constitution does not always get us very far (despite the best efforts of many — and usually political, or at least jurisprudential, conservatives — to do so). However, the power to execute the laws, rather than merely enforce them, does feel like it rests more squarely on executive discretion and decision-making.
That notwithstanding, I agree (at least partly), with wfjag. My sense is that the opposition to the REINS act is, fundamentally, more prudential (or at least political) than it is constitutional.
Let me put it this way: The EPA is staffed by 18,000 full-time employees, half of whom are engineers, scientists or environmental protection specialists. The idea that Congress, even when acting on the testimony of experts called before committee, could possibly have the same level of institutional competency as the EPA to make a decision about emissions standards, habitat protection or relocation, etc. is, frankly, just silly.
In the meantime, it ignores the fact that Congress’s decisions, whatever its level of institutional competency, are likely to be based more on politics than science. And while it can certainly be argued that the EPA is also a political institution, at least it is a political institution staffed by 10,000 scientists, who, I’m willing to imagine, have a much better idea of what they’re talking about than 535 lawyers.
Especially when those 535 lawyers are so busy studiously saying nothing of consequence, in order to avoid ever being held accountable for it, that the regulations would otherwise never be promulgated at all.
January 27, 2011, 12:25 pmTatil says:
Prof Adler, thanks for the clarification for the distinction. However, if Congress wants a say, isn’t it easier for it not to delegate its authority in the first place?
Congress can also pass each legislation with the stipulation that it will have to approve the rules once the technical details are fleshed out or changed by the regulatory agency. That would allow Congress to determine the size of the change that triggers its approval for each legislation separately. For some areas, $100 million may be too high a limit and in some areas too small. In some areas, the burden may be non-financial. If Congress does not have the will to do so in the first place, I doubt this legislation is anything but political posturing.
January 27, 2011, 12:49 pmJonathan H. Adler says:
A few quick comments.
First, the word “enforce” was used by some of the Representatives at the hearing who raised the concern. The point remains that the executive branch does not have any power whatsoever to issue legislative-type rules (i.e. regulations) governing private conduct unless congress delegates such authority.
Second, I think the prudential concerns are real, and I address them in my testimony. What wfjag describes is the evasion of responsibility that the current approach allows. As for Jason’s concerns, under the REINS Act the expert agency still puts forward the specific regulatory proposal pursuant to a Congressional delegation. All the REINS Act does is require that Congress pass a resolution approving those rules that are particularly significant. Congress may not amend the rule, so there is no second-guessing of the agency’s specific recommendations, just a judgment on the overall desirability of the rule. Science can give us answers to factual questions (e.g. what are the likely effects of exposure to a given pollutant at a given level, etc.), but doesn’t tell us what, if anything to do. The latter is an inherently normative policy judgment. Therefore, it’s precisely the sort of judgment I believe should be made by legislators.
Finally, it’s important to remember that the REINS Act does not allow for obstruction or delay, and forces each house to take an up-or-down vote on a resolution approving the regulation within a short period. So there is relatively little risk of regulations getting deep-sixed by special interests.
JHA
January 27, 2011, 12:50 pmByomtov says:
IMO Jason is absolutely correct about expertise. And, being a bit abstract, it seems sensible for the political process to set broad objectives – reduce toxic emissions – and to have technical personnel decide how exactly this is to be done, and what level of emissions hits the danger threshold.
Further, as I pointed out in another comment, the REINS act seems to me to be open to great abuse. Many regulations affect only a small group – a specific industry, say – while conferring benefits broadly. Whatever the merits of a proposed regulation, we can expect fierce opposition from the affected industry, and much less pushback from the general public. This is especially true, of course, when opponents are well-funded and influential, and all the more so when they need only get a favorable vote in one House. Is there any regulation that could be imposed on the oil industry under REINS?
IMO the bill would come close to gutting the regulatory agencies. If Congress wants to do that let it repeal the legislation establishing them. Too difficult? Too bad. We all have changes we’d like to see made in the government. Lots of them are politically impossible.
January 27, 2011, 12:52 pmMike says:
Is it any surprise that the Dem legislators don’t want a Republican house to have any more control over a Democratic administration? Prudential concerns indeed!
January 27, 2011, 1:04 pmJonathan H. Adler says:
How does technical expertise tell us what level of risk is “reasonable” or morally acceptable? How does technical expertise tell us what a “reasonable” margin of safety is, or (as in the case of the FCC) what is in the “public interest”? I recognize folks at the EPA know more about risk assessment and environmental engineering, but do they know better what is right? Further, under existing laws, agencies are free to turn 180 degrees on such questions without requiring Congressional input. Is that degree of discretion a good thing, particularly where it can have far-reaching effects?
As for your second concern, this is precisely why the REINS Act does not submit the resolutions of approval to the normal legislative process. Standard legislation is far more vulnerable to such special interest manipulation through the committee process, holds, filbusters, etc. The various “vetogates” of the traditional legislative process provide ample opportunity for select industries to stop unfavorable legislation. Under the REINS Act, however, the up-or-down vote is taken in the committee of the whole and there are no procedural shenanigans that can be used to stop a vote. So the only way a narrow interest group could veto a rule is if it is able to command a majority of
eacheither house. Looking back at the history of environmental law, it’s hard to find cases in which industry won such votes in the absence of widespread public concern — and where there is such concern your complaint should not be with industry but with the public.JHA
January 27, 2011, 1:20 pmMike says:
Indeed! Why bother with democracy at all when we can just have the experts decide everything!
The whole point of representative democracy is not that congressmen are competent, but that they are accountable. The EPA should make its recommendations, work out the details, etc, but I see no problem with them having to go back to congress with an “is this plan ok?” before they make decisions worth hundreds of millions of dollars.
January 27, 2011, 1:22 pmSteve says:
I don’t approve of letting Congress amend statutes like the Clean Air Act sub silentio through the arcane process of failing to approve an agency regulation implementing the statute. If Congress wants to amend or “clarify” the Clean Air Act to provide that the EPA is not authorized to take action on climate change, they can pass a bill the old-fashioned way so everyone can see.
As reflected in Prof. Adler’s testimony, REINS reflects a legal fiction that Congress is simply clarifying whether a particular agency action is within the scope of Congress’ intent in passing the authorizing statute (a battle that has already been fought and lost in the courts with respect to climate change and the EPA), when the reality is that Congress is merely determining whether the agency action comports with the will of the current Congressional majority. The Constitution provides a specific and detailed way for Congressional majorities to implement their will, and this ain’t it as far as I’m concerned.
January 27, 2011, 1:23 pmJonathan H. Adler says:
Incidentally, for an example of an argument against the REINS Act which conflates the executive branch’s authority to enforce the law with the authority to promulgate legislative-type rules, see this confused report from OMB Watch.
JHA
January 27, 2011, 1:24 pmJonathan H. Adler says:
Steve –
Something to keep in mind is that many of the statutes Congress enacts are unclear and allow agencies more than 180 degrees of latitude. Moreover, it is often the case that years after an unclear statute is adopted, an agency may implement it (or be forced to implement it by the courts) in a fashion not anticipated by Congress. So, for example, the EPA may apply the federal law on oil spill prevention to dairy farms because it turns out that milk contains sufficient quantities of “non-petroleum oil.” Requiring congress to go the full legislative route to correct such things (or to legitimize such regulations by endorsing them) virtually ensures that nothing will happen — in this case either to reject the rule as contrary to Congressional preferences or to endorse it as a valuable, non-intuitive application of a needed environmental protection.
I agree with you that the REINS Act also makes it more difficult for the political preferences of one Congress to entrench a given regulatory agenda by delegating broad authority that regulatory agencies will implement over many years. I see this as a feature, not a bug, and would note that it will apply the same to “deregulatory” actions as it does to new regulatory initiatives.
JHA
January 27, 2011, 1:37 pmSteve says:
I don’t know why it “virtually ensures” inaction, since we’re talking about a tiny handful of extremely significant and expensive regulations. If something is truly a big deal then Congress can surely act on it.
I understand that we disagree on the normative question of whether it is good or bad to “rein” in the regulatory state, and I respect your position. I think regulatory agencies are insulated from the passions of the moment but I don’t see them as unaccountable considering Congress has the power to pull the rug out at any time by amending the law. My bottom-line view is that our system of government has a great many advantages, but the difficulty of engaging in true long-term planning is not one of them. It’s sufficiently hard to muster the political will to pass something as bold as the Clean Air Act that I don’t think it’s in the national interest to require that will to be constantly sustained for each successive Congress over the ensuing decades. I would not like to see Social Security and Medicare subjected to a reauthorizing vote every 2 years.
January 27, 2011, 2:02 pmByomtov says:
Jonathan,
Maybe I misunderstood, but I thought that the REINS Act rquired that a regulation be approved by both houses. Hence either house has the power to veto it.
Am I mistaken?
January 27, 2011, 2:03 pmJonathan H. Adler says:
You are correct, I should have said “either” house. Still, I think my point stands. I can think of lots of examples of industries killing things in committee or slipping in special amendments, but not many of a single industry prevailing on the floor of either house in a vote on the merits.
JHA
January 27, 2011, 2:07 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, 2:36 pmKazinski says:
Well of course that does make sense when it is a technical regulation that won’t affect the entire economy. From my experience technical experts often focus on their narrow area of technical expertise to the exclusion of other factors.
The REINS act itself is narrowly tailored to regulatory actions that by definition will have a wider impact on the economy, and peoples lives, than the very narrow technical decisions you seem to describe. And since those decisions involve tradeoffs beyond the scope of the techocrats narrow technical expertise, then it seems appropriate for congress to make the call.
The act has a threshold of $100 million in economic effect, maybe if it was quantified in terms of how many more children would slip below the poverty line as a result of the regulation that would be easier to understand.
January 27, 2011, 2:41 pmCopyright Lawyer says:
Well said.
It seems to me that the REINS Act would essentially provide an end-run around political accountability. It would, in essence, allow Congress to kill programs that are opposed by a particular ideological base (or special interest group) without truly going on the record and repealing the statute the authorized the creation of the program.
January 27, 2011, 2:54 pmgranite26 says:
Prof -
Did you get the impression that they appreciated the difference?
January 27, 2011, 3:36 pmDarek M. Stolicki says:
Byomtov: IMO Jason is absolutely correct about expertise. And, being a bit abstract, it seems sensible for the political process to set broad objectives — reduce toxic emissions — and to have technical personnel decide how exactly this is to be done, and what level of emissions hits the danger threshold.
The problem with this approach is that the technical personnel in agencies like EPA decides not only how to implement the political objective, like reducing toxic emissions, but also how to balance this objective with other political objectives, like stimulating economic growth. And that issue is likely beyond the expertise of such technical personnel (it may be also beyond the expertise of Congress, but at least members of Congress are accountable for it).
Nor could changing the specific statute help in such cases – it’s impossible to write a fixed formula specifying how to balance interests. It is a policy judgment, and it’s reasonable to reserve such judgment to a political branch.
I also believe that most separation of powers concerns raised in connection with the REINS act are misplaced for one very simple reason: what the Congress is doing is, effectively, repealing the delegation of authority in certain cases (where the cost of regulation is high enough) and providing for special legislative procedure in such cases. Most objections go to the first of those actions, but I don’t think anyone would seriously contend that it would be unconstitutional for Congress simply to repeal the delgation of authority altogether. And if they can repeal it altogether, they can also restrict it to cases where economic costs are low.
Nevertheless, there may be one issue with the second part of the act (special legislative procedure for considering proposed regulations): the agency, by submitting rules to Congress, is essentially recommending legislation. Such a power may (depending on how one reads Article II of the Constitution) infringe on the President’s power to “recommend to [Congress's] consideration such measures as he shall judge necessary and expedient.” So perhaps it would be unconstitutional to permit agencies to submit regulatory proposals to Congress without President’s approval. But even if this objection is well taken, it seems to me that there is nothing in the statute to preclude the President (and the agencies) from construing it in a manner conforming to Article II under the constitutional avoidance canon.
An interesting question is also raised about judicial review of regulations passed by Congress under the REINS Act. They are, after all, indistinguishable from ordinary legislation (except for different legislative procedure, but the courts are unlikely to consider such factor as a meaningful difference), so shouldn’t they be reviewed only for constitutionality, and not for consistency with original delegating statute? In the latter case, enforcing the restrictions on rulemaking authority set forth in the original delegating statute becomes the job of Congress (which could refuse to consider regulations exceeding original delegated authority), and Congress should address it in some manner.
January 27, 2011, 3:53 pmByomtov says:
Jonathan,
That assumes the vote is on the merits. More seriously, with what seems to be an increasing tendency for votes to follow party lines, I’m doubtful of that argument. I think that there will be considerable pressure to vote the orthodox party line, even for members who have reservations.
It is difficult to get a man to understand something when his job depends on not understanding it. – Upton Sinclair
Again I ask, as an example, how likely a Republican house is to impose any regulation on the oil industry. And I might also point out that the unrepresentative nature of the Senate is an additional problem, to my mind.
Kazinski,
Of course, we might also quantify the failure to regulate in terms of lives lost, life expectancy shortened, added health care costs, and other deleterious side effects, economic or otherwise.
Do you expect that Congress will be able or willing to consider objective analysis of either those questions or of the economic impact? I doubt it. There will, in fact, be hordes of dubious “analysts” ready to provide whatever justifications are needed. I’d rather rely on the EPA than the American Enterprise Institute.
January 27, 2011, 3:53 pmByomtov says:
Darek M. Stolicki,
It’s true that balancing political objectives is not the job of the agencies. But that’s a bit of a red herring, I think, since Congress and the President do have power over the agencies now, so it’s not as if there is no political control.
I suppose that my objection is that the proposal makes it too easy to stop regulations. Even without REINS, regulations can be repealed by the normal legislative procedure, so our elected officials are already ultimately accountable.
I don’t think that the REINS method really is an improvement along that line. Rather, it seems to be a device to make it easier for opponents of any proposed regualtion to get their way.
January 27, 2011, 4:54 pmJonathan H. Adler says:
Not really.
JHA
January 27, 2011, 5:09 pmGlen says:
Just listened to the hearing… I’ve sat through lots of Congressional hearings, but this one seems uniquely qualified to carry the epithet “Kafkaesque.” Maybe now that the debate is turning towards some of the core foundational tenets of modern government, more exchanges like these are to be expected.
One thing’s for sure – no one who listened to this hearing could seriously expect to see lots of “bipartisan compromise” in the next two years.
January 27, 2011, 8:11 pmElbabe says:
So I have a question as a non-lawyer: Isn’t it possible that, depending on the law, the executive has to make various federal regulations in order to properly execute it? For example, I’m not familiar with the Environmental Protection Act beyond a general understanding oh what it is, but if part of the law is a mandate that tasks the executive with protecting the environment, wouldn’t federal rule making be part of the “execution” of that law?
January 27, 2011, 11:59 pmTatil says:
I disagree. When an agency that was traditionally in charge of commodity futures declared its intent to regulate credit default swaps, didn’t Congress quickly pass a specific legislation to prevent that?
January 28, 2011, 12:36 amTatil says:
How do you think this would affect lobbying? I presume, once a legislation passes, affected companies lobby the administration and agency heads to shape regulations. I am not sure if these lobbying efforts are as transparent as those done in the Congress. As more of this lobbying would shift towards the Congress if REINS Act passes, I wonder if this would make industry influence a bit more transparent, making corruption less likely.
January 28, 2011, 12:42 amD.O. says:
But is the REINS Act constitutional as to the rights of Congress? As I (IANAL) understand the matter, “Each House may determine the Rules of its Proceedings, etc.” If REINS act imposes on the houses of Congress a specific rule to deal with the regulation, how is that constitutional? Of course, the congress as a two-year sitting of a legislature may adopt fast-track rules if they wish, but it seems questionable that they may bound future congresses in this manner.
January 28, 2011, 1:43 amlgm says:
I watched the first half. Unless things changed in the second half, the Democrats seemed to be winning 3-1.
Q1: Is the law constitutional? Point to Republicans (maybe)
Q2: Is the proposed law just a de facto ban on regulations? Point Democrats
Q3: Are regulations a net plus for the economy? Point Democrats.
Q4: Do proposed CO2 regulations blatantly violate the intent of the Clean Air Act? Point Democrats.
January 28, 2011, 8:41 amJonathan H. Adler says:
There is no “Environmental Protection Act.” Most federal environmental statutes expressly grant rule-making power. Absent such power, agencies use adjudications to enforce the rules set by Congress. This is primarily how the NLRB operates, and how the FTC operated until the 1970s.
I believe this is correct. Members who want to block regulations will have to vote that way, so this will increase transparency even more.
This is a serious issue, and there is much academic debate about it. The short answer is that Congress had done this many, many times (e.g. fast-track trade authority, base closings, etc.) and has never (to my knowledge) tried to undo the statutory enactment of procedural rules. So even if Congress could, theoretically, undo the rules, there’s no precedent for such action and so no reason to believe it would occur.
I’m a bit puzzled by this. Perhaps you didn’t watch enough. As was noted at the hearing, the REINS Act only affects about 5 percent of federal regulatory proposals (major rules). So no “de facto ban.” The Dems never argued that regulations were a net plus to the economy, just that some cost estimates are overstated. But the only data on this point (as I noted later in the hearing) is a study that excluded 90 percent of federal regulations (because it excluded independent agency rules (e.g. FCC, SEC, FERC, CFTC, etc.) and non-major rules. And on the last point, that was never really argued at the hearing. But I’m also not an impartial commentator.
JHA
January 28, 2011, 10:11 amlgm says:
I should have said “de facto ban on major regulations”.
The NYU professor and the ranking member made this point repeatedly — that cost/benefit analysis showes that regulations are a net plus.
Was stuff inserted into the CSPAN tape that was not in the original hearing (revise and extend the video)? There’s a little of this in the first opening statement and more in the opening statement of the bigger Republican (names??).
January 28, 2011, 1:18 pmmouldfan says:
Prof. Adler,
In your response to commentator D.O. above, you indicated that “Congress has never (to my knowledge) tried to undo the statutory enactment of procedural rules. So even if Congress could, theoretically, undo the rules, there’s no precedent for such action and so no reason to believe it would occur.”
This is factually incorrect. A recent example of exactly this type of action by a House of Congress occurred during consideration of the U.S.-Columbia Free Trade Agreement in the 110th Congress. Pursuant to the Trade Act of 2002,implementing legislation for a U.S.-Colombia Free Trade Agreement (CFTA) was introduced in the 110th Congress on April 8, 2008. As provided for by statute, trade agreements negotiated during a specific period of time were eligible for congressional consideration under “fast track,” a version of expedited procedures for trade agreements first adopted in the Trade Act of 1974 and subsequently renewed by the Trade Act of 2002. It was expected that the CFTA was one of the agreements that qualified for congressional consideration pursuant to these procedures. The leadership of the House of Representatives, however, took the position that the President had submitted the legislation to implement the agreement without adequately fulfilling the requirements of Trade Promotion Authority statute. As a result, on April 10, the House of Representatives voted on a House Resolution that made the expedited procedures inapplicable to the CFTA implementing legislation, thereby effectively preventing adoption of the agreement. Thus, despite the fact that Congress had included the “fast track” procedures in statute twice, the House was nevertheless able to amend its rules to prohibit their use in a specific situation.
The issue of the binding nature of so-called “fast track” legislation is indeed a serious one that could potentially undermine much of what the REINS Act purports to accomplish. Furthermore, it seems likely that changes to the procedures will be done on purely partisan grounds. For instance, it seems that a GOP Congress would be more likely to change the rules when there is a GOP President and same with a DEM President and DEM Congress. In other words, the REINS Act may only work, if it works at all, during times of divided government.
January 28, 2011, 1:20 pmElbabe says:
Prof. Adler
So, if I understand correctly, these laws do not provide mandates that require rule making?
In any case, even if it constitutional, I’m not enthusiastic about any law that would essentially gut (or even severely limit) consumer protection and environmental regulation agencies.
January 28, 2011, 3:14 pmJonathan H. Adler says:
mouldfan –
That’s interesting. Determining that something doesn’t qualify is not the same as undoing the rules. As I recall (and I could be mistaken) there was a serious question about the CFTA’s compliance with the fast-track requirements. In any event, I appreciate your pointing this out and it is something I will look into further.
lgm —
Saying that a regulation’s benefits exceed costs is not the same as saying a regulation is “a net plus for the economy,” as non-economic benefits may (and should) be included. As for the CAA, I would not call the handful of offhand comments about whether the CAA applied to CO2 as much in the way of argument, though it is true that former Rep. McIntosh went into this some later in the hearing.
JHA
JHA
January 28, 2011, 3:16 pmJonathan H. Adler says:
These laws provide mandates and expressly provide for rule-making authority to issue regulations to meet such mandates. Without the latter, there is no such authority. There are also certain provisions (such as the initial emission limits for motor vehicles) that set the relevant standards directly in the legislation.
As for the latter, I don’t equate regulations with protection. Sometimes regulations increase consumer and environmental protection, sometimes they do not — even when issued by the EPA.
JHA
January 28, 2011, 3:18 pmElbabe says:
Well, I appreciate the clarification. And while I agree that some regulations are probably harmful or useless, I don’t think the solution is to arbitrarily stop rule making.
January 29, 2011, 2:20 amBob says:
Seems to me 804(2)(A) is likely to make FDA approval or applications to market new drugs or medical devices a major rule, and hence subject to Congressional OKs. Same with EPA as to pesticides. Probably also DEA control (scheduling) decisions. Maybe export licensing of munitions too. Fortunately I don’t think patent issuance by USPTO is a rulemaking.
January 29, 2011, 10:06 amlgm says:
They went out of their way to make clear that this was not the argument they were making. They talked about “monetized” cost/benefit analysis. Regulations benefit the economy by insuring fairness, predictability, honesty, information, etc. They were discussing cost/benefit analysis for regulations on the economy.
On the contrary, this was a main pillar of the Republican argument. They argued that “unelected bureaucrats” were making regulations that were inconsistent with the laws they supposedly were based on. CO2 regulation was the main example. Take that away and the case for additional legislative control of regulations is much weaker.
January 29, 2011, 11:43 amJonathan H. Adler says:
Me either. Requiring Congress to vote up-or-down does not “arbitrarily stop rule making.”
I believe most of these are orders, not rules, so they are not covered by the REINS Act.
lgm –
On the regulatory costs issue, we’ll have to disagree. The generation of net economic benefits and improving the economy are not the same thing. In any event, as I noted above, the studies they cited exclude over 90 percent of federal regulations by excluding non-major rules and all rules issued by independent agencies.
JHA
January 29, 2011, 12:25 pmBob says:
How about food additive petitions? I know that at least some of these “permission slips” are printed in the Federal Register in the form of and with accoutrements of substantive rules.
January 30, 2011, 6:13 pmJonathan H. Adler says:
I don’t know about food additive petitions. Publication in the Federal Register does not make something a “rule” under the APA. As a general rule, unless a petition seeks a rulemaking, most petitions are resolved through adjudication, not rulemaking, and would therefore not be “rules.”
JHA
UPDATE: I did a little checking, and based on a quick look at some FDA materials it appears that the FDA generally issues a regulation governing how a given food additive is used when it approves a food additive petition. If my read is correct, these use regulations would be covered by the act and, if sufficiently costly, they would be subject to the approval requirement.
January 30, 2011, 7:19 pmSean says:
Jason suggested earlier that Congress just not delegate their power in the first place. Article 1, Section 1 of the Constitution is known as the non-delegation doctrine. The Congress was specifically vested with the powers proposed in the Constitution and delegating their legislative authority was not one of them. Unfortunately, the Constitution was not being adhered to. That being said, the REINS Act would be a way for Congress to delegate the authority to these agencies to make the highly technical regulations but ultimately it would be the Congress responsible for the final passage of a regulation. Therefore, once again the process would be constitutional.
February 25, 2011, 12:09 am