I have an article in the new issue of Regulation on the REINS Act, which would prevent major regulations from taking effect without the passage of a joint resolution of approval by Congress. The article is largely based on my Congressional testimony about the Act, and summarizes the arguments for and against the measure. My prior posts on REINS can be found here.
PersonFromPorlock says:
Well, it might work, or it might be the occasion of massive rubber-stamping on the afternoon of the day Congress adjourns for Christmas vacation. We’ll see.
Incidentally, I’ll go REINS one better: I think Supreme Court decisions should also need the Congressional imprimatur.
June 25, 2011, 8:14 amgeokstr says:
One problem is in defining what exactly constitutes a “major regulation”. I can easily see how major regulatory changes could be done over several weeks to months by a series of new “minor” regulations. Reining in legislation by regulation would rely on the bureaucracy making a good faith attempt to comply with the law, something that has not been demonstrated lately.
Based on the Obama administrations past and recent practices, one might expect to see Holder’s DOJ approve a new power to do “recess” regulatory approvals. They are already slowly trying to implement cap ‘n trade, the Dream Act, card check, the Fairness Doctrine, and other items from the leftist wish list by slow, incremental regulation.
June 25, 2011, 8:46 amgeokstr says:
After all, they’d just be following one of the fatuous nostrums of one of their fave philosopher kings – “A journey of a thousand miles begins with just a single step.”
June 25, 2011, 8:54 amgeokstr says:
(BTW, is anyone else experiencing problems here, both with commenting and editing, where the comment box will only accept so much text and then makes it very difficult to add more because it won’t scroll past the bottom of the comment box? The edit box is even worse. I just got my computer back from the virus doctor and so am not sure whether this is a universal problem or just my PC.)
June 25, 2011, 8:58 amwolfefan says:
Lao Tzu is a leftist hero? Seriously, this is new to me. Murray Rothbard compared his ideas to Von Hayek’s, and David Boaz included him in “The Libertarian Reader.”
June 25, 2011, 9:19 amBlue says:
There’s enough institutional drag in the process–publication of regulations, required comment periods, etc.–that it would be possible to build in safeguards. For example, the Houses could establish a procedure where, upon publication of proposed regulations, some body of the Congress (probably an oversight committee) would send a notification to the agency that the proposed regulation falls under the REINS act.
June 25, 2011, 9:44 amGaunilo says:
I don’t think we can solve the problem of the overwhelming of our liberty by the ever-encroaching jungle of regulation at the Federal level by hacking away at the edges.
I have a radical solution. Pass an act that would sunset the entire Code of Federal Regulations in 10 years.
Pass a constitutional amendment that would state that no law or regulation that would imprison anyone or result in a fine of over $1,000 could have effect unless it was authorized in an act of congress, signed by the President, and voted on in the exact wording in the final law or regulation. A clause that the law or regulation must contain all of its intent in the regulation, not referring to other sections, and must be in easily comprehended langiage would be a nice addition, but maybe beyond the ability of our congress to conceive.
June 25, 2011, 9:47 amBen P says:
It’s more than the inability of congress to conceive, it’s flatly impossible and mostly absurd.
For example, you’d prohibit
And as far as defining “easily comprehended language.” I don’t know how you’d possibly write say, a law regulating say, toxic or dangerous Substances without some complexities. If nothing else you need technical standards. By your rule those have to be written straight into the statute.
Or should there not be any regulations on someone driving a truckload of say, Ammonium Perchlorate?
June 25, 2011, 10:00 amGiant Frog says:
Would the REINS Act Rein In Federal Regulation?
Of course not.
Because he presciently used “miles” 2500 years ago.
June 25, 2011, 10:07 amGaunilo says:
No, I am merely saying that if congress wants to regulate the hauling of Ammonium Perchlorate, it should write a bill that expressly prohibits or regulates such hauling. And I did not intend that a regulation could not refer to other sections of the same regulation. What I am referring to is regulations that cannot be understood without referring to other laws or regulations. If something is to be prohibited, it should say so in plain language.
June 25, 2011, 10:08 amBen P says:
Ammonium Perochlorate is a tremendously useful substance. It’s also tremendously dangerous.
The point is obviously that there should be regulations on the kinds of safety precautions you should take when hauling it. I suppose there’s an argument that strict liability in the civil system can handle that, but I think there’s an equally valid argument that’s insufficient to address the potential danger.
Then the question is not “regulating it” but how you regulate it. If this has to be written in “plain language” how do you describe what needs to be regulated, what percentages, partial compounds? and what kind of precautions? Do the legislators actually have to get into particular kinds of steel and particular engineering bracings necessary? Is any certification paperwork necessary, do the legislatures have to figure out the forms themselves? does all of this have to be defined in every single statute that’s written? for each separate chemical that might be regulated?
There’s nothing wrong with an ideal of simple legislation, but it’s just not feasible.
June 25, 2011, 12:01 pmRusty says:
Wouldn’t the act run afoul of separation of powers along the lines of Chada?
June 25, 2011, 12:38 pmGaunilo says:
I don’t think we are communicating here. What I am suggesting is that instead of Congress allowing the bureaucracies to write regulations, if regulation is needed, then Congress should do its own research, and write the regulation itself. It may be complex, but it can still be written in language that is understandable to those who need to read it. And then they will have to take ownership of the laws, and not hide behind the bureaucrats.
It is hard to believe that you have actually read much of the CFR. It consists largely of spaghetti code, requiring reference to many sections found nowhere near a specific section, to have any idea of what is being proscribed or regulated. If a law modifies another section, the section should be repealed, and the complete new law written as a coherent unit.
I think if a perceived need for enforcement is important enough to be in Federal law (as opposed to the general police power of the states) it is important enough for Congress to spend the time to write it. I don’t think they would actually find time to write 5,7000 felony provisions into law if they had to do it themselves. And I think the net result would be a very good thing.
June 25, 2011, 12:39 pmJohn Stephens says:
As I see it, the problem is a lack of direct user feedback. How about this: Judges would be required to read the published text of the laws and regulations violated, to the jury, WITHOUT FURTHER EXPLANATION. If the jury members were genuinely unable to understand them, they would be required to acquit. Then Congress and the bureaucracy would HAVE to makes it’s rules clear to the general public, or see those rules go unenforced. This would have the additional benefit of encouraging genuine educational reform, to increase people’s ability to understand the rules they are required to live by.
June 25, 2011, 12:39 pmByomtov says:
John Stephens,
So if the jury didn’t understand the inevitably technical aspects of safety rules by just having them read aloud they wouldn’t apply?
So Congress couldn’t establish classes of dangerous substances, say, and then declare that some chemical fits into Class A, and must therefore be handled in accordance with the reguations for Class A substances? And it would have to think of everything that might be dangerous and pass specific legislation, rather than letting people who actually know something make the detailed rules?
Lots of fantasy in this thread.
June 25, 2011, 12:57 pmGaunilo says:
It depends on who you are comfortable with deciding whether you spend 10 years in prison or go free. I prefer that representatives that we can fire make these decisions. Bureaucrats have loyalty only to preserving their jobs and the continuation of their fiefdoms. Neither citizens or executives (in the real world) can fire them for stupidity or in most cases for cupidity.
June 25, 2011, 1:11 pmSimon P. says:
And it is likewise hard to believe you could possibly have understood what it was you were reading.
The reason the CFR is as complex as it is largely stems from congressional tinkering with agency jurisdiction, glomming new authorities to existing regulatory apparatuses, and enactment of statutes that are themselves highly complex and interconnected. The alternative you suggest – basically incorporating into a single section all of the relevant provisions regarding a rule’s definitions, penalties, and so on – would not only result in a massive expansion of the CFR, but it would create all kinds of bizarre regulatory loopholes as regulated actors slip between slightly-but-meaningfully-different code sections.
Never mind that the CFR is, itself, only a simplified way of referring to a number of published rules scattered across the much greater body of the Federal Register.
Sure, it’s complicated, but it’s nothing you can’t master without a bit of concentration and time – which is all that lawyers do to learn it.
June 25, 2011, 2:09 pmGaunilo says:
I am intimately acquainted with several sections, the ones that I needed to stay out of prison while doing my business. The experience made it clear to me that the presumption that ignorance of the law is no excuse is one of the larger inanities of our current legal system.
It appears that we are hijacking this thread. Out here.
June 25, 2011, 2:32 pmBlue says:
I think you vastly underestimate the time this would require–as well as the potential for Congressional mischief.
June 25, 2011, 2:43 pmSimon P. says:
I am not really so much interested in whether the REINS Act would be constitutional – which seems to be the only question with which your article is concerned – but whether it would result in wiser regulatory policy. Not only do you not address this question, you don’t seem to think it particularly relevant.
I suppose I should have guessed that a piece titled, “Would the REINS Act Rein in Federal Regulations?” wouldn’t really ask whether such “reining in” is really necessary. Sure, you concede that “many regulations may provide greater benefits than costs,” but even such (good?) regulations need an extra level of “political accountability,” according to you. But why is this? Just ’cause! Do we need to rein in wise rule-making? Do we need ignorant lawmakers more interested in the upcoming election cycle than educating themselves on the risks of ammonium perochlorate (for example) stamping their seal of approval on good rule-making?
I mean, never mind that Congress can, and often does, require agencies, when making rules, to assess the costs and benefits of the rules they propose, as well as to assess the administrative burdens their rules would impose upon regulated parties. You say that such processes “cannot account for normative concerns” – well, perhaps not! But hasn’t Congress already accounted for such normative concerns by enacting legislation directing agencies to act? Oh, but some of those statutes are old! I guess they’re not good law any more! Or they’re faded out, like an old pair of blue jeans!
And never mind that, under existing rules, agencies are already required to queue up their “major rules” for the OMB’s own assessment. I guess the President’s being politically accountable for rule-making is just not enough for you, for some reason. Maybe Presidents don’t have to worry as much about their re-election? Your article doesn’t seem to refer to this existing process. Why not? EO 12866 not on your syllabus?
And also never mind that affected industries have a disproportionate amount of influence in the rulemaking process, flagging concerns and educating the agencies. Obviously, if an unpopular rule makes it through that process, it must only be because the agency is primarily concerned with expanding its own power and justifying its own existence. It couldn’t be the case, uh, that industries have had a heyday exploiting an ignorant public (that they’ve spent a lot of money to keep ignorant)! Obviously we need bought-out legislators to step in and protect their
re-election prospectsconstituencies! (It’s more “transparent” that way, as you note in your concern-troll argument that “corporate interests have far more influence on agency rulemakings.” (I’d like to see the study demonstrating that!))And – ha! – I love this bit where you say that Congress can’t be expected to repeal or amend its own legislation under the political pressure of being accountable for the laws they write or leave on the books – that’s a “lengthy and time-consuming process!” Undoubtedly! Much better to invite Congress to make snap decisions, without all of that research and reading that would be necessary to amend the CAA or Dodd-Frank or PPACA to implement good policy.
In other words, we can’t rely on the existing ways in which Congress is already politically accountable for agency rule-making, nor can we rely on the existing ways in which the President is already politically accountable for agency rule-making. Rather, we need to ensure that any economically significant rule, drafted by an agency pursuant to Congressional direction, that has otherwise been duly analyzed from a CBA perspective, from an administrative burden perspective, and from the perspective of a broader regulatory agenda that assesses where it falls into the broader scheme of rulemaking, be offered up for a quick smackdown in Congress (isn’t it fair to presume that’s the desired result?), because that is the only way to “rein in” agency rulemaking.
This is all utter nonsense. Just another conservative legal academic trying to leverage the fact that he’s read a bunch of Supreme Court cases on administrative law into speaking and appearance fees and important-sounding congressional hearings. Hey Adler, I don’t suppose you’ve spent a minute of your life working as a lawyer specializing in a regulated field?
June 25, 2011, 3:05 pmSimon P. says:
Having advised others that have similarly needed to remain “intimately acquainted with several sections” of the CFR to “stay out of prison while doing [their] business,” I feel that I can safely assume that you have no idea what you’re talking about.
June 25, 2011, 3:09 pmMartinned says:
Huh? That’s not the law today? Ever since 1814, the Dutch constitution has said that any court ruling convicting someone of a crime shall state the law (as in: statute) upon which it is based. Between 1819 and 1866, the government used a fudge to get around that, but then finally the Supreme Court put a stop to that. I always assumed that the American system roughly worked the same way: no prison sentences for violating executive branch regulations, or delegated legislation of any kind.
June 25, 2011, 3:35 pmPhiladelphia says:
Ammonium perchlorate, and a lot of other things, are potentially very dangerous. Dangerous things and activities require regulation. The “Jackass” and “Darwin Awards” phenomena illustrate a form of self-regulation, as does the BP Deep Water blowout. The ensuing consequences of foolishness causes the actor to pause and think. On the one hand, government could punish anyone engaging in “dangerous” activity (or any activity preceded by the statement, “Hold mah beer and watch this!”) and, on the other extreme, define and sub-define into infinite minutia what is “dangerous” to the point that no one knows what it is and what responsibilities it entails in all its combinations and permutations except us attorneys. However, there is little, if any, damper on this regulatory impulse, not just with dangerous things and activities but with practically anything else that affects life. The game is one of government gotcha with a prosperous bar and a timorous and alienated populace. One area in which a clear countervailing principle moderates regulation is pornography where the First Amendment requires reference to community standards. Should not an analogous standard be incorporated into regulation generally, not just of “dangerous” things and activities, for the sake not only of the First Amendment but for the rights and liberties of a free society under the Constitution? There is a certain appeal to John Stephens’s naive suggestion that a jury consider whether a regulation was violated by interpreting the regulation in raw form without the intercession of the judge. It brings to mind the classic case where an appellate court held that an attorney’s drafting of a violation of the rule against perpetuities was not malpractice because no one precisely understands the rule. In other words, violation of the rule through misunderstanding was not malpractice under the prevailing standards of the legal community. As it is, we are very close to the point where pissing in the woods is contamination of navigable waters subject to EPA regulation. And do not sigh about it and release hazardous CO2.
June 25, 2011, 4:49 pmJoe says:
Huh? That’s not the law today?
Gaunilo seems to be opposing administrative regulations that lead to fines or imprisonment. There is a law that gives them general power to create the regulations, but apparently s/he wants Congress to pass each and every one.
The US Supreme Court in 1812 rejected the idea of “common law crimes” but I don’t think that is the idea in question.
June 25, 2011, 7:08 pmNoah says:
You guys are pissing into the wind. Federal law requires Congress to pass a budget which they haven’t done. They will fudge their way past the REINS thing all day every day.
June 25, 2011, 7:51 pmAnon says:
How is this constitutional under INS v. Chadha?
June 26, 2011, 12:55 amJonathan H. Adler says:
Because it effectively revokes prior authority to agencies to promulgate major rules and the resolutions of approval are subject to bicameralism and presentment. Both then-Judge Breyer and Larry Tribe identified this at the time as a constitutional alternative to the unicameral legislative veto at issue in Chadha. I discuss this in the article and blog posts linked above.
JHA
June 26, 2011, 1:55 pmClark says:
I am fully in support of a tin foil hat mandate to help the terrified.
June 26, 2011, 9:37 pm