The REINS Act Revisited & A Response to David Uhlmann

Tomorrow the House Judiciary Committee will have a second hearing on the REINS Act, a bill to increase legislative control over and accountability for federal regulatory policy. The central provisions of the REINS Act provide that new “major rules” – those regulations expected to cost over $100 million annually – may not become effective unless a joint resolution of approval passes Congress. The Act would further create an expedited review process designed to ensure that there is a prompt up-or-down vote in each house of Congress on all new “major” rules, which represent less than five percent of the 3,000-plus federal regulations promulgated each year. My prior posts on the REINS Act are here and here, and my congressional testimony is here.

The purpose of the REINS Act is to prevent the imposition of major regulatory initiatives without Congressional approval. Because of Congress’ long history of delegating broad rulemaking authority to administrative agencies, there is relatively little legislative control of, and accountability for, the regulations agencies impose on the American people. The best way to ensure greater legislative accountability is to require members of Congress to vote “yea” or “nay” on new major rules. This will prevent unpopular rules from being adopted, but also ensure that Congress is accountable for those new major rules that are imposed. If the public wants more regulatory protections in particular areas – and it may well – the REINS Act will not stand in the way. Environmentalist groups and progressive academics see the REINS Act a bit differently. See, for instance this post by the NRDC’s David Goldston or this article from The New Republic by Noah Sachs.

This post on the ACS Blog by University of Michigan law professor David Uhlmann is representative of the arguments being made against the REINS Act, but they are not particularly persuasive. Uhlmann labels the REINS Act “a cynical attempt to block further environmental, public health, and safety protections,” and yet makes few substantive arguments against it.  Throughout the post he insinuates that industry groups will be able to block regulations in in Congress the same way they block substantive bills, but Uhlmann never quite makes this claim because he can’t.  The REINS Act creates an expedited legislative procedure that prevents concentrated minority interests from blocking resolutions of approval.  It ensures a straight up-or-down vote on the floor, so industry can only block a regulation if it can command a majority in at least one house of Congress.

Uhlmann begins noting some of the most significant safety and environmental measures adopted in the past several decades. “It is unlikely that any of the health and safety gains we have enjoyed would have been possible” had the REINS Act been the law. This is a striking claim – it is “unlikely” we would have “any of the health and safety gains we have enjoyed” – and one that is readily refutable.

First, the REINS Act only applies to regulations, not the statutory requirements. So every statutorily mandated measure to improve health and safety, such as the federal vehicle emission standards or the CFC phaseout Congress enacted into law, would have been completely unaffected by the REINS Act. Second, Uhlmann’s claim, as applied to regulations, could only be true if a) all of the relevant regulatory measures that produced meaningful health and safety gains were among the less-than five percent of federal regulations issued each year that qualify as “major” rules; and b) none of these measures could have obtained majority support in Congress. To state the underlying premises is to refute them. Major rules are not the only source of “health and safety gains,” and not all major rules are so unpopular that they could not survive straight-up-or-down votes in Congress.   Again, it’s worth remembering that under the REINS Act, resolutions of approval cannot be held, stalled, or filibustered, and an up-or-down vote in the body of the whole is required.)

Uhlmann’s argument is further undermined by some of his own examples. It is true that “the indelible image of the Cuyahoga River on fire, which burned as it passed through Cleveland during the 1960’s, is now a distant memory,” but federal regulation had nothing to do with. As I have documented at length, industrial river fires were once rather common, on the Cuyahoga and elsewhere. By the 1960s, however, this is a problem that had been solved due to a combination of state, local, and private action. The federal government banned lead from gasoline, but as former NRDC attorney David Schoenbrod has argued (see, e.g. here), the practice of legislative delegation made this take longer than necessary. Had Congress been forced to take greater responsibility for measures to control lead pollution, the phaseout would likely have occurred much earlier.

Uhlmann’s central claim is that it would be terrible to let Congress decide whether to impose federal regulations on the private sector.

Do we want the Congress, with all of its partisan influences, to be the arbiter of sound science and best practices in areas as complex as toxicology, engineering, ecology, and pharmacology? Do we believe that we would have more efficient and more effective regulation if we empowered Congress, rather than scientists and engineers, to decide fundamental questions about environmental protection, public health, and motor vehicle safety?

This misses the point. The question is not whether we would have “more efficient and more effective regulation” but whether we would have regulations that more closely follow the value preferences of the American people. Existing regulatory decisions are not made by “scientists and engineers” who have regulatory authority due to their independent expertise, but by executive and independent agencies that are headed by political appointees who are granted regulatory authority by Congress. Their regulatory decisions are informed by scientific and technical information, but the ultimate regulatory choices are based on normative judgments – whether it is worth imposing X amount of costs for Y benefits, whether it is fair to impose particular costs, risks or burdens on particular segments of the population, whether environmental gains in one area are worth safety or environmental losses in another, and so on. These are legislative policy judgments for which legislators should be held accountable.

If environmental regulation is as popular as environmentalist groups claim, then there is really nothing to fear from the REINS Act. Even if the Act allows conservatives in Congress to vote down some new major rules – a plausible scenario now that Republicans control the House of Representatives – anti-regulatory members of Congress will suffer for opposing the regulatory protections Americans want. The REINS Act forces major regulatory decisions onto the floor of Congress, and into the open, which provides greater popular accountability than backroom dealmaking or the administrative rulemaking process.

Uhlmann also suggests that the REINS Act could have constitutional problems, but does not elaborate. Perhaps because the constitutional complaints border on the frivolous. As I explained in my Congressional testimony, the REINS Act is modeled on a proposal made by then-Judge Stephen Breyer as a constitutional alternative to the unicameral veto. Even those who think a Congressional approval requirement would be bad policy, such as Harvard Law’s Laurence Tribe, admit it would be constitutional.

Uhlmann ends his post with soaring rhetoric:

Our greatness as a Nation reflects our willingness to hold ourselves to high standards and to pursue lofty ideals, including the notion that we can be effective stewards of the environment and promote public health and safety in an economy that is flourishing.

I agree, and would add that holding ourselves to high standards means demanding that our elected representatives take a stand on major regulatory initiatives, cast their votes in the open, and be held accountable for the decisions they make which will effect our economic and environmental future. The REINS Act is a way to make this happen.