Today the House of Representatives is expected to vote on the REINS Act, a bill to enhance political accountability over regulatory decisions. The bill has two essential features. First, it bars new “major” regulations (those anticipated to cost more than $100 million annually) from taking effect unless approved by both houses of Congress. Second, it creates an expedited review process that forces each house to vote on each major rule. So while requiring Congressional approval, REINS prevents members of Congress from ducking their responsibility to vote yay or nay.
REINS is a controversial bill, in part because it effectively limits the delegation of broad regulatory authority to federal agencies, but to read some critics, REINS would usher in an anti-regulatory armageddon. While I support the legislation, for reasons detailed in these posts (and summarized in this NRO piece), I recognize that there are reasonable arguments to be made on the other side. What’s so interesting watching this debate, however, is how many opponents refuse to make them, relying instead on inaccurate and fanciful characterizations of the bill. It’s telling when opponents of legislation are unable or unwilling to describe it accurately when making their case.
To take one example, US PIRG’s Ed Mierzwinski argues that the REINS Act would lead to unsafe toys on the market and emasculate the CPSC.
One bill, the REINS Act, would not only allow but require congressional meddling in the implementation of all public health and safety rules. A single member of Congress, at the behest of some powerful special interest or campaign contributor, could block the public database, block science-based lead standards for children’s products, block crib safety rules or any number of protections that provide a safer consumer marketplace.
The idea that REINS would allow a single member of Congress to block new regulations is a common claim. The Center for American Progress makes it here. It’s also false. The bill expressly limits debate, waives procedural objections, and requires a vote on the merits. Under REINS, if some members of Congress wish to block needed safety rules at the behest of a special interest, they will have to do it out in the open, and will only succeed if they can win a majority vote. How could this undermine legislative accountability? It’s true REINS requires that legislative approval occur within a set period of time, but it also ensures the vote occurs before the deadline expires.
The NYT worries REINS will “undermine the executive branch.” Really. Why? Because it will be too easy for a majority in either House to prevent a President from rewriting regulatory requirements. The NYT also argues REINS is “deeply undemocratic.” Got that? Requiring legislative votes on major regulations — that two or three of the most consequential regulatory decisions made by federal agencies — is “undemocratic,” whereas allowing agencies to rely upon decades-old statutes to remake industries and reconfigure whole sectors of the economy is not.
The REINS Act would dramatically alter how major rules are made, but it would do so by making sure the people’s representatives have a greater say on — and greater accountability for — the major regulatory actions our federal government takes. If the public wants greater regulation of environmental or other problems, REINS won’t stand in the way. Only if the public is skeptical of such regulations, or unconcerned by legislative vetoes of proposed rules, will REINS slow down the adoption of new rules. And perhaps that’s what the REINS Act’s opponents are truly afraid of: A regulatory process that more accurately reflects what the public wants.
UPDATE: For unhinged commentary on the REINS Act, it’s hard to do better than this piece which, among other things, claims the Act would “essentially return environmental regulation to 1890s standards – when corporations polluted with impunity.” That’s an astounding charge given that REINS a) does not have any effect whatsoever to regulations already on the books and b) would apply equally to deregulatory initiatives, such as any effort by a future President to repeal existing regulations.
Travis says:
What you really mean, of course, is a regulatory process that more accurately reflects what big campaign contributors (mega corporations and the wealthy) want.
December 7, 2011, 9:01 amB-Rob says:
I will see if I can find the text of the REINS Act to see if it addresses it, but are you claiming, Professor Adler, that the Act prohibits filibusters, holds, blue slips, etc. by Senators? And does this apply to ALL regulations exceeding $100 million, including defense related regulations, or just some regulations?
December 7, 2011, 9:13 amB-Rob says:
Another point — with respect to Obamacare and the EPA alike, this would appear to be a GOPer “end run” on undermining the statutes at the rule making/regulatory level because GOPers have no hope of actually repealing Obamacare or amending the Environmental Protection Act/Clean Water Act, etc. In that sense, it is QUITE undemocratic to undermine duly enacted statutes by handcuffing the interpretation and implementation of those statutes. Why this would be considered a “good idea” is very odd.
December 7, 2011, 9:17 amJonathan H. Adler says:
Not at all. Insofar as such interests want things that are truly unpopular, they tend to rely upon procedural tricks, riders, etc., not up-or-down votes on the floor.
The text of the bill is here. But to answer your question, it limits debate and bars any of the various motions that could be used for filibusters and the like.
As for what it covers, it exempts monetary policy, and some rules related to hunting. There’s also a provision that gives agencies the ability to go ahead with rules where there is “good cause,” much as the APA already allows agencies to bypass notice and comment in such limited instances.
And, I should add, the bill does not apply to any regulations already on the books — they are already final — and would also apply to deregulatory measures. So a future Republican president cold not take a meat-axe to existing major rules without going through Congress either.
JHA
December 7, 2011, 9:29 amJonathan H. Adler says:
B-Rob –
How is it “undemocratic” to allow Congress to prevent the adoption of rules that promulgated pursuant to statues that were enacted (in the case of the Clean Water Act) thirty-five years ago? I agree that the law does undermine the entrenchment of past legislative delegations — and I realize some may oppose that — but it’s hardly “undemocratic.”
JHA
December 7, 2011, 9:31 amTravis Ormsby says:
Hasn’t the Supreme Court been pretty clear about the unconstitutionality of legislative vetoes?
December 7, 2011, 9:34 amStephen Lathrop says:
Really? And you measure that how? By assuming the outcomes of Congressional votes are a summation of public wants, right? Which is preposterous. Practically no one thinks anymore that Congress represents the public will.
You read a thing like that from Adler and it’s like he never heard of lobbying, Citizens United, or the whole apparatus of insider trading and legalized bribery that now passes for Congressional procedure. The man could wade into a cesspool and expect to catch trout.
December 7, 2011, 9:38 amjpeg says:
It seems to me that, in a $14 trillion economy, almost every regulation would exceed $100 million. I would also guess that is intentional.
I don’t think REINS opponents fear a regulatory process that more accurately reflects what the public wants, they fear a regulatory process that more accurately reflects what big business wants. Suggesting that the public should be up to date on how much mercury should be allowed into the water or what toxic chemical mixture should be used to drill and be able to make informed decisions about processes that are well above most highly intelligent people is a ridiculous standard. The public WILL eventually want the regulations, but it will be on the backs of the thousands of people who have already contracted cancer and died.
December 7, 2011, 9:39 amHenry says:
Since only Congress is susceptible to lobbying by interested groups. That’s why the term “regulatory capture” hasn’t even been invented.
December 7, 2011, 9:45 amStephen Lathrop says:
There is another problem with REINS, of course: it would amplify the effects of the undemocratic tendencies built into the Constitutional allocation of Senate seats. Because of the requirement that regulations pass both houses, senators representing a smallish minority of citizens could be empowered to veto regulations favored by a majority. For instance, it might become almost impossible to use regulation to protect the majority of citizens from dangerous uses of pesticides in agriculture, because so many Senators represent thinly populated agricultural states. I suspect enabling stuff like that is the real intention behind the legislation. Modifying the review power to exclude the Senate would notably improve the legislation, but if you did that, could you get Republicans to support it?
December 7, 2011, 9:54 amMDT says:
Stephen Lathrop,
Really? And you measure that how? By assuming the outcomes of Congressional votes are a summation of public wants, right? Which is preposterous. Practically no one thinks anymore that Congress represents the public will.
I should say it represents it more accurately than the regulatory parts of the Administrative Branch can, simply because they can’t be voted out, whatever they do.
You read a thing like that from Adler and it’s like he never heard of lobbying, Citizens United, or the whole apparatus of insider trading and legalized bribery that now passes for Congressional procedure. The man could wade into a cesspool and expect to catch trout.
I remain amazed at the hatred for Citizens United. The big nasty corporation here was a tiny non-profit assembled for the purpose of political speech. That is what the first clause of the First Amendment is for.
December 7, 2011, 9:57 amO says:
So its undemocratic for congress to vote on regulations trying to be enacted by an agency that has the authority it does because of actions of congress?
that does not seen to make sense.
Sounds more like a check on that which congress already has control, but more focuse.
December 7, 2011, 10:00 amSteve says:
The goal is to undermine major enactments of the past by, in effect, requiring each of them to be passed again and again and again. It is no longer sufficient to muster the uncommon collection of political will necessary to pass a landmark statute such as the Civil Rights Act – now you have to reassemble that majority each and every time you want to specifically implement it in a significant way.
In our constitutional system, statutes remain on the books unless and until they are repealed. They do not have to be re-enacted every two years with the seating of a new Congress. One could argue that this is “undemocratic,” and that it would be more democratic to ensure periodically that the laws continue to enjoy majority support. I think this is an example of why the Founders were wise to establish something other than a democracy.
A system becomes unworkable if there are too many veto points. The Democratic majority managed to establish the Consumer Financial Protection Bureau in the face of massive corporate lobbying in opposition; the next thing you know, 44 Republicans sign onto a promise to filibuster any nominee to head the Bureau – any nominee at all! – unless the Democrats agree to water down its powers substantially. The proposed REINS law would serve to create countless additional veto points of this sort.
Finally, as we have discussed in previous posts, one Congress cannot tie the hands of future Congresses as to procedural rules and the like, so all these promises that there will be a straight up-or-down vote, no filibusters, no secret holds, etc. are unfortunately not worth the paper they are printed on. Indeed, the REINS bill openly admits that it is subject to “the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.”
December 7, 2011, 10:00 amJohn Burgess says:
Wow! I’d absolutely love it if Congress had to regularly go through all the laws and reenact them! That’s about the only way we can get rid of bad laws now on the books. Waiting for history to make them nul takes too long. Waiting for a court to do the job of Congress is inefficient and also takes too long.
How about every fourth Congress being mandated to pass no new law — except for emergencies — and only go through old laws now on the books?
I’d be happy to see regulatory agencies being required to do the same.
December 7, 2011, 10:14 amMDT says:
Stephen Lathrop,
There is another problem with REINS, of course: it would amplify the effects of the undemocratic tendencies built into the Constitutional allocation of Senate seats. Because of the requirement that regulations pass both houses, senators representing a smallish minority of citizens could be empowered to veto regulations favored by a majority. For instance, it might become almost impossible to use regulation to protect the majority of citizens from dangerous uses of pesticides in agriculture, because so many Senators represent thinly populated agricultural states. I suspect enabling stuff like that is the real intention behind the legislation. Modifying the review power to exclude the Senate would notably improve the legislation, but if you did that, could you get Republicans to support it?
It is depressing to see this idea coming up again and again. What’s “undemocratic” about an arrangement whereby many polities joining one another each get the same number of votes in one chamber? It’s the structure of the EU; it’s the structure of the UN General Assembly. The only reason you can’t see it here is because so many people have lost sight of the fact that the original states were, in fact, polities.
I would add that the people most likely to suffer from “dangerous uses of pesticides in agriculture” are the citizens of the “thinly populated agricultural states.” They are, after all, the ones doing the work directly. You get your pesticides third-hand, along with your Red-state potatoes.
December 7, 2011, 10:14 amChris Rhodes says:
That depends entirely on your point of view, I think.
December 7, 2011, 10:16 amTravis says:
Every time a new species is listed as endangered, new regulations have to be promulgated to specifically fit the goal of protecting that species from extinction – regulations tailored to address the specific ecological threats that are jeopardizing the species’ continued survival.
This bill would theoretically require that every single one of those regulations go up for a vote of Congress, right? You’d give Congress the ability to obstruct and veto every single species placed on the list, regardless of scientific merit or anything except political considerations.
That’s just one example of how ludicrously insane that proposal is.
December 7, 2011, 10:18 amSimon P. says:
The NYT worries REINS will “undermine the executive branch.” Really. Why? Because it will be too easy for a majority in either House to prevent a President from rewriting regulatory requirements.
Actually, the NYTimes argues that it will undermine a “functioning regulatory system” by “upend[ing] the traditional relationship between the legislative and executive branches[, where] Congress enacts laws … and then empowers the executive branch to negotiate with stakeholders and write detailed regulations.”
Why has this been the traditional relationship? The NYTimes goes on to explain that “Congress delegates this responsibility because it has neither the time nor the expertise to develop the rules or the machinery and manpower to enforce them. [The REINS Act] would radically re-position Congress to make final decisions that involve detailed technical matters.”
None of this strikes me as particularly “unhinged” commentary or descriptively false. The REINS Act would, indeed, add yet another layer of bureaucratic hoop-jumping to the promulgation of major regulations issued pursuant to Congressional mandates. I can see no way it can possibly help the regulatory process; it will simply extend the period of uncertainty that exists for market participants after the passage of legislation – while clarifying rules (including rules clarifying the scope of exceptions or exemptions from the legislation’s application) are being developed, vetted, re-vetted, proposed, finalized, and ultimately vetoed by an obstructionist Congress – and introduce inter- and intra-agency and executive uncertainty when it comes to developing a coherent regulatory regime.
The NYT also argues REINS is “deeply undemocratic.” Got that? Requiring legislative votes on major regulations — that two or three of the most consequential regulatory decisions made by federal agencies — is “undemocratic,” whereas allowing agencies to rely upon decades-old statutes to remake industries and reconfigure whole sectors of the economy is not.
Actually, the NYTimes only argues that the REINS Act would undermine the democratic process as practiced “[u]nder our present system of governance, [where] laws require the approval of both houses of Congress and the president.” By permitting one house of Congress to disapprove of a regulation promulgated pursuant to valid grant of authority by both houses of Congress, it effectively permits a group of representatives representing a popular minority – say, a block of Senators – to block the implementation of legislation passed democratically.
I am not sure what democratic deficit the REINS Act is supposed to correct. It seems a fairly well-established tenet of administrative law that rulemaking as currently practiced under the APA is perfectly politically accountable. If you don’t like the rules, you can vote out the President that implemented them, or you can vote for congressional representatives to amend legislation. What’s to be added by making congressional representatives directly accountable for rules that they had no proper role in writing?
The realistic expectation for this legislation is the following: a slower regulatory process, capped by “up or down” votes whose outcomes may well be no better than arbitrary; the loss of the ability of the executive to oversee and control coherent regulatory regimes; an illogical systemic preference for the disapproval of expensive rules without parallel review of significant and major retraction of regulations that might be worth more than they cost; agency subversion and interpretation of the rules so as to avoid the “major” label (likely resulting in worse rules more tenuously related to their authorizing legislation); and more direct (and likely, realistically speaking, ex parte) involvement in the rule-making process by congressional politicians. All for what? A theoretically-“demonstrated” improvement in political accountability?
December 7, 2011, 10:19 amDotar Sojat says:
Power and control is really all the progs care about; the more the better. The consequences, particularly the unintended, or more accurately, the completely unthought about, don’t matter, as long as (i) the power of the regulatory bureaucracy is extended, and (ii) progs are in control of it.
December 7, 2011, 10:27 amJonathan H. Adler says:
The Supreme Court has been clear about the unconstitutionality of unicameral legislative vetoes because they do not satisfy the requirements of bicameralism and presentment. Under REINS, authorization of the regulation goes to the President and satisfies these requirements. I’ve addressed these concerns at greater length in my testimony and other writings on the bill. In short, there is no constitutional problem here. Indeed, after, both then-Judge Stephen Breyer and Larry Tribe identified this approach as a perfectly constitutional replacement for the unicameral legislative veto.
Steve –
I agree with you that the existence of multiple veto points can create substantial opportunities for special interest mischief, which is why the procedural aspects of the bill are so important. As for the other concern, this is a more serious objection. However, Congress has used this sort of technique before (e.g. with fast-track, base closings, etc.), and subsequent Congresses have not sought to undo such deals, so I don’t think a scenario is particularly likely. There are lots of things Congress has the constitutional power to do, but never does, and I think unilateral undoing of a legislative deal of this sort would be among them.
JHA
December 7, 2011, 10:27 amTravis says:
“The power of the regulatory bureaucracy” includes such awful and un-American ideals as requiring seat belts to be installed in new automobiles, prohibiting toxic waste from being dumped into our waterways and mandating independent inspections of meatpacking facilities.
Yeah, we’d all be better off if those meddling bureaucrats stepped aside and let Joe Consumer figure out on his own if his new microwave was poorly designed and leaking enough radiation to give his kids cancer. Caveat emptor, right?
December 7, 2011, 10:32 amTravis says:
Ha ha, like how the GOP has used the filibuster more in the last four years than at any time in the history of the U.S. Senate?
http://www.theatlantic.com/politics/archive/2011/10/chronicles-of-false-equivalence-chapter-2-817/246667/
Yeah, sure, I’d trust them not to rewrite the rules. They always play fair and abhor obstructionism.
December 7, 2011, 10:35 amJoe says:
Doesn’t this violate Chadha holding?
December 7, 2011, 10:38 amDotar Sojat says:
Travis, don’t be an ass. It ain’t an all or nothin’ proposition.
December 7, 2011, 10:43 amloki13 says:
If you remain amazed, you really haven’t thought about it much. I am not amazed at the hatred. How I feel about Citizens United (which is a case I love as an attorney in my practice) depends upon which side of the bed I wake up on.
One thing the framers were very concerned about was the capture of the legislature and political corruption (see Akhil Amar, I believe in Bill of Rights, for an introduction). One thing shared by both “the left” and the tea-partyingest righty is the belief that our Congress, and the entire political process, no longer serves the people, but, instead, serves special interest groups, the monied, and others that can be anathema to our nation’s interests.
Hmmmmm…..
Now, combine that with concern with Citizen’s United. Try to get over your reflexive love for it because “the Left” dislikes it, or because you think it’s to your partisan advantage.
It’s not an easy case. Their are two competing and important principles. Free speech, and political legitimacy/capture. There aren’t any easy solutions. And I think if you step back you can at least understand the difficulties presented.
I have always recommended a book written in the 1980s (don’t know if you can still get it) called Honest Graft about Tony Coelho (IIRC, he was the DNC chairman/chief fundraiser) who gave unfettered access to a reporter- he didn’t think he was doing anything wrong. The problem is much worse now than it was then.
You might believe that CU will work out in the long run- and it might. But you shouldn’t be amazed at the anger.
December 7, 2011, 10:45 amTravis says:
You’re right, it’s not – while this REINS proposal certainly is. The $100 million threshold is ludicrously low in a $14 trillion economy, as jpeg pointed out, and would implicate virtually every administrative regulation ever promulgated by an agency.
December 7, 2011, 10:48 amTravis Ormsby says:
Seriously? Congress can’t make a law without presidential approval (or a supermajority veto override), but they can unilaterally unmake it with a majority vote? I just want to be clear that this is truly the claim you are making.
December 7, 2011, 10:52 amI Callahan says:
This has to be close to one of the most ridiculous things I’ve ever read on this site. Am I to assume you think that the people voted republicans in, en masse in 2010, because they wanted everything to continue down the road we were going at the time? That we wanted the president to keep going in the direction he was going? Really?
Last I looked, we have a representative democracy in this country. The president has done end-runs around Congress whenever it fit his needs. I’d have thought you’d be more careful about this, since you guys were the ones whining for 8 years about how Bush did end-runs around Congress all of the time.
I guess it’s about who’s ox is being gored. If you don’t like the fact that we have a representative democracy, agitate for a dictator. But Congress has EVERY right to push these bills, and I hope they pass.
December 7, 2011, 10:58 amSimon P. says:
It appears that Jonathan’s argument is that Chadha prohibits only a unicameral veto, not a pocket veto. And also Breyer said something approving about it somewhere?
December 7, 2011, 11:00 amB-Rob says:
I notice you ignored the issues with Obamacare, so I will, of course use it as the perfect example, before getting back to the environmental statutes. With respect to Obamacare, you have clear examples why this is undemocratic: using the GOPer majority in the House to prohibit the administration from enacting regulatory solutions that are specifically required and envisioned under Obamacare, because those same GOPers (a) do not have the votes to repeal Obamacare and (b) have not figured out how to “replace” Obamacare if they could repeal it. It is a cynical House effort to cut the legs off of the stature, metaphorically speaking, using an ax, and leaving the body to bleed. Not good.
Now here is the problem with the Clean Air Act — in Mass. v. EPA, 549 U.S. 497 (2007), the Supremes basically ordered the EPA to promulgate regulations on greenhouse gases. Again, the GOPers do not have the votes to change the text of the Clean Air Act and remove greenhouse gases from the list of pollutants, so the REINS Act would permit that same GOPer dominated House to block any effort by EPA to follow the Supreme Court’s order and regulate those gases.
THAT is my point — the regular processes of Congress require both houses to agree on gutting a statute or reigning in a rogue federal agency. The REINS Act gives one recalcitrant body the authority to do that on it’s own.
Lastly, do you know, Prof. Adler, whether there is a Senate counterpart to this statute with sufficient Dem support to pass? If there is not one, then REINS is just another GOPer con political showpiece, and not serious legislation.
December 7, 2011, 11:11 amGrover Gardner says:
For some weird reason, I keep picturing Joe “What Plate Techtonics?” Barton proudly “stumping” the scientific experts.
December 7, 2011, 11:14 amDotar Sojat says:
Travis, some folks don’t look at the regulatory state in terms of just money, but in terms of intrusiveness. Some just don’t think that the feds have any business telling the South Sucotash School District what to serve for lunch. Thousands of pages of new federal regulations every year.
December 7, 2011, 11:17 amjoe says:
So the argument as to why filibuster wouldn’t be an issue in the future is that senators just wouldn’t do it?
December 7, 2011, 11:19 amI Callahan says:
With respect to Obamacare, you have clear examples why this is undemocratic: using the GOPer majority in the House to prohibit the administration from enacting regulatory solutions that are specifically required and envisioned under Obamacare
Bad example. Obamacare was passed by both houses of congress and signed into law by the president. Policies like the president’s coal initiative, or his policy regarding the Keystone oil pipeline, have NOT been voted on. This is the reason for the REINS Act – to keep the president from passing legislation before it’s legislated on.
December 7, 2011, 11:21 amragebot says:
You forgot about the battery in your car catching fire.
http://www.autoguide.com/auto-news/2011/12/chevrolet-volt-battery-issues-growing-safety-findings-may-have-been-suppressed.html
December 7, 2011, 11:24 amSimon P. says:
I think that people voted Republicans in because they were tired of being unemployed, they were tired of a dragging economy, and they were tired of a Congress that seemed to put the interests of big banks and other honeypots ahead of “Main Street.” Two years on, the voted-in Republicans have pursued a reinvigorated moral agenda on the state and federal level, brought the federal government near default, focused myopically on deficit reduction before any other domestic agenda, and have simply not made any serious attempt to address the problems that first prompted a financial crisis, and then permitted big government market interventions to try to prevent complete market meltdown. 2010 Republicans’ signature accomplishment seems to be the vilification of Obama and making the case for a Republican president in 2012 (whoever that turns out to be, it doesn’t matter who really). If that sounds like a kept promise to you, then you must be the ideal GOP voter.
I’d be curious what you think these “end runs” have been. The typical example cited by REINS Act supporters is the promulgation of regulations applicable to emissions of carbon dioxide, as an “end-run” around the failure to pass cap-and-trade in Congress. What’s typically overlooked by such criticisms is that the executive is compelled by the Clean Air Act and Supreme Court precedent to develop precisely those regulations – and Obama knows that they’re not the best way to proceed, which is why he sought cap-and-trade in the first place. But Congress, in its inestimable wisdom, has failed both to pass cap-and-trade and to amend the Clean Air Act to exclude carbon dioxide. “Romney/Gingrich 2012,” I guess. So it seems the criticism is that Obama is just failing to throw a wrench into the very process that he is statutorily obliged to implement. Is that an “end run”?
December 7, 2011, 11:27 amMDT says:
loki13,
Now, combine that with concern with Citizen’s United. Try to get over your reflexive love for it because “the Left” dislikes it, or because you think it’s to your partisan advantage.
I haven’t any “reflexive love” for it, and I’ve no partisan advantage at stake; yeah, I’m right-of-center, but I vote for Democrats (indeed, I was a registered Democrat for 20+ years, until I finally re-registered as Independent.) But the facts are that the corporation in question in CU was a non-profit formed precisely for the purpose of political speech, and it’s simply nuts to say that such a thing can be prohibited, given the First Amendment.
It’s not an easy case. The[re] are two competing and important principles. Free speech, and political legitimacy/capture. There aren’t any easy solutions. And I think if you step back you can at least understand the difficulties presented.
Oh, I can see the difficulties presented by the decision; only they weren’t presented by the case at issue, which was (it seemed to me) cut-and-dried. How could a bunch of citizens banding together to finance a political statement being legally barred possibly survive a First Amendment challenge?
It’s the broadness of the ruling that’s the issue, of course. But I wish more of the critics of the decision would concede that CU had a perfectly good case.
December 7, 2011, 11:35 amB-Rob says:
Why is this a “bad example” when blocking Obamacare’s regulations would be at the top of any GOPer con wish list if REINS passed? It is, in fact, a PERFECT example why it is a bad bill. It does not matter if the supposed “reason” for the bill, as you claim, is to “to keep the president from passing legislation before it’s legislated on” — if the bill has a much more far reaching deleterious impact on the implementation of a duly enacted statute, then, dammit, that has to be addressed!
Moreover, in the absence of a Dem supported counterpart in the Senate, the bill will die a silent death, just like the patently silly House GOPer bill to “repeal” Obamacare. It is a stunt, a talking point, and not a very well thought out one at that.
December 7, 2011, 11:36 amJoe says:
@Simon — I don’t see the difference as meaningful. Under the formalist logic of Chadha, an action like this requires all three actors to approve (House, Senate, Pres) — but it’s still allowing two houses to effectively veto it without involving the President.
Now, you might say that Chadha was wrongly decided, and that it was simply a “triggering condition” of a validly enacted statute (like any other triggering condition). But I don’t see how you square this bill with Chadha.
December 7, 2011, 11:38 amSteve says:
But they are both examples. Supporters of the REINS Act want to point exclusively to examples like regulating CO2 as a pollutant under the Clean Air Act, involving both (1) a statute enacted long ago and (2) an interpretation of the statute where the intent of the drafters is at least debatable.
But the REINS Act doesn’t apply just to classic cases, so there’s a bit of a bait and switch here. It would apply equally to regulations enacted pursuant to a statute that was passed last year or last month or last week. And it would apply even in cases where it’s crystal-clear that Congress intended for the agency to enact a regulation of the type in question. You have to consider the broad range of scenarios that will occur under this law, not just the scenarios that are most favorable to your point of view.
December 7, 2011, 11:39 amOrenWithAnE says:
You’d be back to INS v. Chadha …
JHA, there are a few technical points that I don’t quite understand and would be grateful if you could clarify:
(1) Does the default-fail mean that both the Senate and House Majority Leaders can individually veto a regulatory matter by not scheduling it, or does the procedural-waiver part actually force their hand to bring it to a vote?
(2) What’s there to prevent a future Executive from simply breaking up a large regulatory measure that would cost more than $100M into smaller chunks and passing each sequentially, since each would be under the limit?
(3) You claim that the measure applies equally to deregulatory measures but it’s hard to see how that could be true given the positive cost threshold. A deregulatory measure is likely to save money, not cost money (at the tradeoff of whatever was being regulated, naturally) and so it might be more convincing if the criterion was “anticipated to either cost or save more than $100M”. Or am I missing something?
The positive-only cost makes it feel like an element in a legislative ratchet towards lower cost and less regulation. Deregulatory measures require only Executive approval, regulatory measures require both Executive and Legislative approval. That sure sounds like a ratchet to me, but I could be wrong.
December 7, 2011, 11:40 amloki13 says:
*shrug* Only is proponents of the decision understand that opponents have a reason to be pissed.
There aren’t any easy answers. Should a group of people be allowed to get together to fund a company that publishes a book attacking Obama/Gingrich before the election because they don’t like them? Well, sure!
Should mega-corporations and unions be allowed to buy access and influence and elections, not to mention covertly write laws? Eh, maybe not.
Like I said, at either margin, it’s easy. The problem is that it’s two competing principles.
December 7, 2011, 11:41 amHouston Lawyer says:
Some people here assume that the regulators will always be on their side and that new regulations are always a good thing.
December 7, 2011, 11:47 amOrenWithAnE says:
And this bill presumes that it’s less likely that a regulatory measure that costs $100M will be a good thing than a deregulatory measure that saves $100M will be a good thing, at least insofar as the former must meet a higher procedural bar to be enacted.
December 7, 2011, 11:52 amArthur Kirkland says:
Hunting? An exemption for hunting?
Strange times indeed.
December 7, 2011, 11:54 amTravis says:
If the South Sucotash School District doesn’t accept federal school lunch funds, I’m guessing it doesn’t have to listen to what the feds tell it to serve for lunch.
On the other hand, if the SSSD does want federal funding, you think it should be able to take that money and spend it any way it likes, even if that means buying McDonald’s hamburgers in bulk?
December 7, 2011, 11:55 amTravis says:
If the South Sucotash School District doesn’t accept federal school lunch funding, I’m guessing it doesn’t have to listen to what the feds tell it to serve for lunch.
On the other hand, if the SSSD does want federal funding, you think it should be able to take that money and spend it any way it likes, even if that means buying McDonald’s hamburgers in bulk?
December 7, 2011, 11:55 amArthur Kirkland says:
Such as those pandering to hunters, apparently.
December 7, 2011, 11:55 amJohn says:
As for this act being anti-democratic, how can regulations written and passed entirely by faceless bureaucrats be more democratic that requiring approval from Conress?
As for Obamacare being an example of this, since after the last election the bill wouldn’t pass anyway, how is it thwarting the will of the people to block implementation of it?
And seriously, every 2 years the most folks who passed or blocked regulations would be up for re-election, how isn’t this a better method of ensuring accountability? The current method doesn’t allow for the directly responsible parties to be held accountable, and even if the President is voted out of office, plenty of those involved in making the regulations will stay on.
I too am also curious how this limits deregulation. Since in most cases make the regulations less strict would not cost money, how does the REINS act limit them?
December 7, 2011, 11:57 amShelbyC says:
How can one “meddle” in one’s own area of responsibility?
December 7, 2011, 12:02 pmNAME REDACTED says:
If this is the kind of rhetoric our opponents are using on this bill we could have gone /way/ farther with it and gotten a similar amount of pushback.
December 7, 2011, 12:04 pmTravis says:
“Faceless bureaucrats” are not faceless – they are civil servants, ordinary men and women working for the people of this country.
The “faceless bureaucrats” at the Forest Service’s Forest Products Laboratory helped Major League Baseball reduce the number of broken bats.
http://www.fs.fed.us/news/2011/releases/06/bats.shtml
The “faceless bureaucrats” of “Obamacare” helped a woman with cancer get health insurance coverage.
http://www.latimes.com/news/opinion/commentary/la-oe-ward-in-praise-of-obamacare-20111206,0,6794828.story
“Faceless bureaucrats” have faces, and names. They’re people who want to make this country a better place.
December 7, 2011, 12:07 pmMDT says:
loki13,
There aren’t any easy answers. Should a group of people be allowed to get together to fund a company that publishes a book attacking Obama/Gingrich before the election because they don’t like them? Well, sure!
Should mega-corporations and unions be allowed to buy access and influence [and] elections, not to mention covertly write laws? Eh, maybe not.
Enh. You’re arguing as though you couldn’t imagine such goings-on prior to Citizens United. But it was ever so.
And there a lot of people who do think “Citizens United” — the corporation, not the case — ought to have lost.
December 7, 2011, 12:08 pmOrenWithAnE says:
Because Congress has (wisely, IMO) delegated responsibility to agencies with more technical expertise in the matter so long as such agency decisions conform to the Congressional grant (i.e. Chevron).
Expecting Congress to become experts on, among everything else, water management in the Colorado River Basin, is patently unreasonable — that’s not what they are built for. Effective management always requires delegation — no corporation requires the CEO to come back to the board every time he wants to launch an expensive new product.
December 7, 2011, 12:09 pmstrech says:
This may be a stupid question, but from checking the relevant portions of the act, what prevents Congress from just ignoring the up/down vote entirely? There’s a number of “shall” and so on, and it automatically gets out of committee, but the rule is that if it’s not approved, it fails – so if there was no vote, the regulation would be blocked.
December 7, 2011, 12:10 pmTravis says:
In a given law that delegates authority to the executive branch, Congress is implicitly saying that it does not have the time or expertise to specifically analyze each given problem relating to the law and individually create rules dealing with those problems. That’s what the executive branch agencies are for – what do you think those “faceless bureaucrats” are doing? They’re putting those laws into effect, with legions of lawyers, scientists, economists, etc. figuring out the best way to do it – taking into account public input from stakeholders.
Congress already has the power to repeal any administrative rule – but it requires a joint resolution and a presidential signature. Or it can just repeal the whole lot if they like – if you want to get rid of the EPA and its entire section of the CFR, by golly, go ahead and try to get that law enacted.
By allowing a unicameral “pocket veto” of effectively every significant administrative rule, the regulatory authority of agencies would be gutted. A party holding nothing more than a minority in the Senate would be able to permanently obstruct any and every regulation it wanted.
GOP obstructionism *wants* a broken government, because a broken government is an argument against itself. “We broke the government. See, government is awful because it can’t do anything.”
December 7, 2011, 12:17 pmB-Rob says:
The bill already has passed, so any prediction from a poll of 1,095 people as to whether it it is popular now, or would have passed two years later is, shall we say, academic.
What is more important — under our system, despite the 2010 election outcome, a bill to repeal Obamacare is nowhere near close to becoming law because the votes to repeal it are simply not there, nor is the present President inclined to sign off on such a bill if one passed. But REINS would permit a de facto deletion of the statute by House GOPers, GOPers who cannot convince enough Senators and the president to scrub Obamacare from the books — a law that passed in 2010 with significant support from a majority of that House and Senate, and was duly signed by the landslide elected president.
This solution is, of course, simply nuts . . . but leave it to the House GOPers to propose a nutty partisan solution to a problem they cannot solve using the normal means of legislation. I guess being a GOPer means “If you cannot win under the rules, you simply change the rules to your individual liking.”
December 7, 2011, 12:17 pmNAME REDACTED says:
Because the federal government has ultimate taxing authority this creates a game in which the federal government takes over all state actions, because it can just raise federal taxes high enough that the states cannot extract sufficient rents to fund programs, then the federal government can give back some of the states people’s own money back in exchange for concessions.
December 7, 2011, 12:21 pmjoe says:
Why don’t we stop playing games and be clear that this is about adding veto points to regulation?
Would conservatives see it as equally democratic if any tax reductions or deductions had to be reauthorized every year, with a default fail provision?
December 7, 2011, 12:21 pmB-Rob says:
Sometimes regulations go against you, but still are a good thing. I represented a nuclear power utility in a whistleblower case; they were later fined heavily because some of the safety records the paranoid nutbag arshenholler employee alleged were forged ACTUALLY WERE FORGED. They also had some issues violating NRC guidelines and procedures with respect to a football sized hole in a containment dome, and leaky pipes.
Is it a “good thing” that the company got tagged? Probably. Because a company that violates federally imposed regulations carrying millions of dollars in potentially fines is really not in a position to argue that they can adequately regulate themselves. Indeed, such pro-business/anti-regulation thinking is, of course, why Houston has some of the worst air and water pollution in America . . . but I digress.
December 7, 2011, 12:29 pmTravis says:
You’re forgetting that the people can decide they don’t want the federal government involved in something, and repeal that law. There’s nothing saying we have to have a National School Lunch Program – or a Federal Aid Highway Program.
But I wish you good luck in repealing either one, because, well, they’re popular. People like the idea of making sure school kids have lunch and ensuring that our transportation network is maintained.
The federal taxing authority is a good thing. It spreads costs out over a wider base. You think the people of Wyoming could afford to maintain the hundreds of miles of Interstate highways that serve its state? Their gas taxes would quadruple.
December 7, 2011, 12:31 pmI Callahan says:
It would apply equally to regulations enacted pursuant to a statute that was passed last year or last month or last week.
This doesn’t make sense to me. Aren’t these actions addressed only to actions already undertaken by the president and not voted on by congress? Maybe I’m not understanding, so an example of a piece of Obamacare that would be stopped by REINS would be helpful.
December 7, 2011, 12:41 pmShelbyC says:
But this isn’t unicameral, right? At least according to Adler’s argument, both the bicameral and presentment clauses are satisfied. If that’s true, what this bill effectively does is remove the regulatory authority to pass regulations costing more than $100 million a year, and require that such regulations be passed as laws instead. That wouldn’t present a legislative veto problem, would it?
December 7, 2011, 12:44 pmSimon P. says:
That’s a BINGO! Which is why I could have sworn Jonathan had previously claimed that the REINS Act required bicameralism and presentment to result voting down any regulation, and that the default option was just to allow the rule to go into effect as finalized. I must be missing something, because Jonathan doesn’t seem to be saying that here.
December 7, 2011, 12:55 pmPLR says:
Another day, another Adler-supported power grab for the plutocracy takes it on the chin from the commenters. Well done.
December 7, 2011, 12:55 pmTravis says:
By its plain text, the bill requires that both houses approve the rule. If one house does not, the rule fails. If one house does not even consider the rule within a certain time period, the rule fails. Seems “unicameral” to me.
Supposedly, the bill includes rules requiring the resolution be brought to a vote, but those rules are nonbinding because Congress can rewrite its own rules anytime it wants.
December 7, 2011, 1:00 pmElliot says:
We don’t trust the legions are acting in the interest of the stakeholders, so we are curbing their power. The legions might not like it. So what?
December 7, 2011, 1:23 pmloki13 says:
???? If you read my OP, I noted that my feelings about CU depend on which side of the bed I wake up on in the morning.
As for your other objection, it doesn’t make any sense. Just because there’s been murders since forever, doesn’t mean people still can’t be outraged about murder, and want laws against it. Same with bribery, or political corruption.
Anyway, it will be interesting to see how it plays out in the next few years. But anyone who complains about the influence of money (not spending for advocacy, but spending to buy politicians… ahem… access) shouldn’t be “amazed” at the outrage over CU. You can disagree in good faith because of the First Amendment implications, but you shouldn’t be amazed.
December 7, 2011, 1:32 pmMDT says:
ShelbyC,
Don’t go confusing them.
December 7, 2011, 1:42 pmShelbyC says:
Uh, requiring both houses to approve a rule is “unicameral”. Requiring both houses to approve it is bicameral.
This bill removes the authority of regulatory agencies to pass major regulations, and requires Congress to pass them as laws. Agree or disagree, perfectly constitutional.
December 7, 2011, 1:43 pmagimarc says:
How many of the nearly 80,000 pages of the Federal Register are absolutely necessary? We are past the point where any businessman or citizen has not a clue what is permitted or is not. This legislation is an attempt to grab powers congress has delegated to the Executive Branch back. It is an attempt to stop digging the regulatory hole deeper so we can figure out how much to repeal. And if it works for regulations and if it can roll back the regulatory state that is rightfully viewed as being out of control, the same technique can also be used to roll back idiotic federal court opinions (Kelo, for example). Cheers -
December 7, 2011, 1:44 pmShelbyC says:
Nuts. Should have said, “requiring one house to approve a rule is “unicameral”.
December 7, 2011, 1:51 pmMDT says:
loki13,
Just because there’s been murders since forever, doesn’t mean people still can’t be outraged about murder, and want laws against it. Same with bribery, or political corruption.
Well, of course. And there have been laws against these things. “Since forever.”
Honestly, you write as though Citizens United ushered in a whole new era of political corruption, which is total nonsense. It was already there.
December 7, 2011, 1:55 pmSteve says:
Obamacare directs the making of any number of regulations: for example, the Secretary of HHS is supposed to establish standards and frameworks for the establishment of health insurance exchanges. In complex and technical areas, it’s common for Congress to leave the details to be hammered out by the applicable agency. Under a REINS regime, you not only have to muster the political will to pass the initial statute, but you have to muster the political will to approve each and every significant regulation under the statute, even if the statute you already passed expressly calls for those regulations to be made.
December 7, 2011, 1:56 pmTravis says:
For values of “we” corresponding to “right-wing Republicans,” perhaps. The public overwhelmingly approves of such things as increasing federal fuel economy standards and strengthening drinking water safety regulations.
Besides which, you’re not curbing anyone’s power because this bill hasn’t the slightest chance of being enacted.
December 7, 2011, 2:05 pmAnonimus says:
So, just like the NY Times Corporation.
As one who has been generally supportive of the REINS Act, I just want to say that this is an excellent comment. It’s thoughtful, includes no hyperbole, partisan hackery, or name-calling, etc.
I may still end up supporting it as better than the alternative, but I’ll rethink my support as a result of reading it.
Well done.
December 7, 2011, 2:06 pmAlex S. says:
Haven’t read the entire comment thread so apologies if any of this is duplicative.
Is there anything out there that gives a sense of how many regulations a year would meet the $100 million threshhold? Reading the bill it does look like it has measure to ensure votes, but it also includes an automatic veto if the vote doesn’t happen within 70 legislative days of the agency reporting the rule to Congress. It also allows for 2 hours of debate on each rule. Could the volume be such that it simply isn’t feasible for congress to get through them?
Especially, it seems to me, if a minority uses as a ploy the ability to bring ALL rules, regardless of size to the table. If I’m reading it correctly for rules under the $100 million limit Congress has to explicitly pass disapproval or it becomes law, but it looks like it only takes 30 senators to put debate of any nonmajor rule onto the Senate calendar. And once there it is entitled to up to 10 hours of debate.
Does this eventually become a de facto filibuster by creating ways for minorities in either House to flood the calendar with business that gets priority but nobody else really wants to deal with?
December 7, 2011, 2:07 pmCongressional oversight when money matters says:
[...] $100 million. It’s purpose is to provide oversight and accountability to regulator excess. Johnathan Alder makes an interesting point about the debate on the merits of this bill. What’s so interesting watching this debate, however, [...]
December 7, 2011, 2:11 pmRandolph says:
The plaintiff was sympathetic, ergo the law was good? I guess that’s the type of nonsense one falls back on after they’ve lost all the real arguments.
December 7, 2011, 2:12 pmBob from Ohio says:
I say required by the Constitution.
Granting the executive the power to issue regulations that have the “force of law” violates the separation of powers.
The entire modern regulatory state violates the Constitution. The courts should never have approved the procedure in the first place.
December 7, 2011, 2:15 pmAnonimus says:
Wouldn’t it be better if Congress just wrote better statutes in the first place?
December 7, 2011, 2:16 pmAlex S. says:
Also, if passed, I assume that all laws passed following that will include:
Section XXX: All rules and regulations promulgated because of this bill are exempted from review under the REINS Act.
Or, if passed, when whatever agency will be responsible for enforcing the generation of the reports to Congress on major/nonmajor decides that the regulations they need will be more than $100 million and then the approval joint resolution fails to pass. Very meta.
December 7, 2011, 2:17 pmShelbyC says:
I agree. All corporations have exactly the same first amendment rights as, say, the New York Times, or non-profits enacted for the purposes of political speech.
December 7, 2011, 2:17 pmAnonimus says:
You had a pretty good argument going there until you chose to put this partisan hackery at the end.
December 7, 2011, 2:18 pmBob from Ohio says:
Absoluely democratic. Its just a sunset provision.
The “Bush tax cuts” had a 10 year life. A one year limit would be just as democratic.
Wise? That is a different question.
December 7, 2011, 2:23 pmDavid says:
If both houses have to approve the rule, then if it fails in a single house, it’s vetoed. That’s a unicameral veto.
December 7, 2011, 2:24 pmloki13 says:
No, again, you overstate the argument to make it look ridiculous.
CU didn’t user in a “whole new era” of political corruption.
Here’s the operative questions-
1. Is political “corruption” (loosely defined- I’ll use the term honest graft) getting worse? This is an empirical question, but let’s say it is.
2. Does CU foreclose the means of dealing with it?
We’ll see what the answers are. (BTW, the counter argument is that more speech is always better, money buys speech (or is speech), and if these things are important, we’ll just see increasing spirals of money from all viewpoints. Sort of the whole- a poltician that’s bought by all sides is bought by none. It will be fascinating to see how that works in practice.)
December 7, 2011, 2:25 pmMDT says:
Anonimous,
So, just like the NY Times Corporation.
A point that cannot be made too often. I just don’t understand the distinction some folks make between the likes of the NYT, or the WaPo, or the WSJ, or the SF Chron, or the LAT, and Citizens United — the entity, not the case. Apparently the NYT and the WaPo and the WSJ and the SF Chron and the LAT — corporations all — can editorialize all they like about who’d they’d like to see in the White House, in the Senate, in the House, on the Supreme Court. It is only independent bands of citizens who want to make a particular political point who cannot.
December 7, 2011, 2:26 pmTravis says:
According to the CRS, last year there were 100 major final rules. They involved everything from food stamp eligibility to passport fees, Agent Orange benefits for Vietnam veterans to stricter air pollution standards.
http://www.speaker.gov/UploadedFiles/110830_crs_majorrules.pdf
December 7, 2011, 2:26 pmShelbyC says:
All laws fail if they fail in a single house. The “unicameral veto” in ins v chadha was problematic because it allowed one house to act without the other, and without the approval of the president.
December 7, 2011, 2:28 pmkarrde says:
I must have missed the part where existing regulations in the FMVSS were exempted from the Regulations Already In Place Are Not Affected By REINS clause.
(If you don’t know what the letters FMVSS stand for, ask a search engine.)
I think the same stands for the other items you mentioned.
December 7, 2011, 2:37 pmTravis says:
You must also have missed that the post in question was in reply to a post attacking the very existence of the regulatory bureaucracy as some mindless power-trip. My examples were designed in response to that assertion, not the REINS question.
December 7, 2011, 2:45 pmkarrde says:
For the sake of a thought-experiment: imagine that a new regulation changed the requirement for Arsenic levels in water from 10 parts per billion to 1 part per billion.
While it is a drinking-water safety regulation, there is (to my knowledge) little evidence of a big health improvement in that reduction. It would, however, be an expensive regulation that puts high costs on tens of thousands of municipal water systems.
Should that go through Congress, or should it occur inside the EPA (as an action done by unelected officials)?
Why, or why not?
I don’t argue that REINS is fundamentally good, but this is one kind of situation which REINS might help.
December 7, 2011, 2:47 pmkazinski says:
Yes. We all know it’s the bureaucrats that reflect the true will of the people.
As imperfect as Congress is, it really is the best we have at reflecting the will of the people, better than the president, the courts, or even the press.
If that many regulations that cost 100 million or more are coming down the pike every year that congress can review them, how are businesses going to be able to implement that many, and how is the economy going to be able to absorb that? As a rule of thumb each $100 million regulation is going to cost about 1000 jobs.
December 7, 2011, 2:48 pmTravis says:
Your source for this “rule” would be?
They don’t. Why would you think all 100 major rules enacted last year (or even a large percentage of them) impact every single business?
The major rules enacted last year covered everything from passport fees to food stamp eligibility to wildlife management to farm subsidies, Medicare benefits and Agent Orange benefits for Vietnam veterans… and many more. Unless you run a company that sells passports and hunting licenses to Agent Orange-affected food stamp recipients who own farms and are on Medicare, you’re not going to deal with all of those.
December 7, 2011, 2:49 pmTravis says:
That should occur inside the EPA. If that did happen, Congress already has the authority to repeal such a regulation through a joint resolution.
The fact is, of course, your extreme hypothetical wouldn’t happen – the agency wouldn’t make such a change unless it was backed by scientific evidence that the benefits to human health would outweigh the costs to comply. It takes years and decades for the EPA to investigate, research, develop and implement water quality standards for various pollutants.
Just last year, the EPA finally announced it would develop a standard for perchlorates, a chemical component of rocket fuels that has been linked to birth defects and hormonal imbalances. They received 39,000 public comments on the issue. I’m not sure that provides any evidence that the public has been denied an opportunity to participate in the rulemaking process.
http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/6348845793f4cc5d8525782b004d81ae!OpenDocument
Your hypothetical situation is disconnected from the reality of governance.
December 7, 2011, 3:06 pmloki13 says:
Anyway, my brief and general thoughts on the OP.
So- the original problem (as described by some) is that the agencies are passing these regulations. And Congress has no control over it, and is (of course) horrified at the results.
Of course, there’s a sub-problem here. Congress passes law. Congress hates passing detailed laws, since they can barely pass laws, let alone agree on details, so they pass the buck down to agencies to, well figure out things.
So agencies go through some pretty detailed procedures to figure these things out (really… if you’ve ever done some admin law, you know). And they pass regulations.
But wait- Congress can always overturn these regulations, can’t they? Of course! They can pass laws. They’re Congress, after all.
Or they can write the laws better to begin with.
Naw… that would make sense and put the burden on Congress. Instead, we’ll do the following-
Congress will keep writing vague laws.
Agencies will go through a long process to try and implement them.
But wait, Congress will have a vote on them! For newbies, this means that if any constituents (aka, people, special interest groups, unions, corporations, or others that have given large amounts to certain Congresspeople in the past) have a problem with the regulation… they can kill it… but without Congress having to go through the bother of clarifying anything.
Rinse, repeat. Am I missing something?
December 7, 2011, 3:16 pmSteve says:
Well, if you ask us to assume that it’s a bad regulation, then sure, I think we’re all in favor of a procedure that gives more ways to block the regulation. But it’s sort of putting your thumb on the scale to assume that it would cost a lot and not have any big health benefit.
The tougher question is a regulation that has significant health benefits and also significant costs. The agency experts are surely not infallible, but I think the agency is more likely to come up with a fact-based answer than the political process is, since the latter basically consists of the industry lobby and the environmental lobby throwing a ton on influence at Congress and we all get to find out who wins this time around.
December 7, 2011, 3:18 pmShelbyC says:
No. Congress will enlist the help of the regulatory agencies to write better laws.
December 7, 2011, 3:19 pmTravis says:
Yep. If REINS somehow ever became law, the real winners would be on K Street.
http://www.washingtonpost.com/blogs/ezra-klein/post/would-shifting-regulatory-power-to-congress-usher-in-a-lobbying-bonanza/2011/12/07/gIQA88fVcO_blog.html
December 7, 2011, 3:22 pmloki13 says:
Really? That’s part of the REINS Act? Could you point out the provision?
If not, what’s keeping them from doing that now? Actually, what’s keeping them from doing that now in general, and why aren’t they, and what would REINS change?
December 7, 2011, 3:27 pmTravis says:
Yeah, because the Congress that can’t pass a budget, agree on deficit reduction measures or even give judicial nominees an up-or-down vote will do an outstanding job working with regulatory agencies to write better laws.
December 7, 2011, 3:30 pmloki13 says:
But wait, I have to add this-
I mean— this is great. The problem (I guess) is too much agency discretion because Congress gives them too much because they write bad laws. So the solution is the REINS Act. Which has nothing to do with writing the laws. Which will cause Congress to enlist the help of the regulatory agencies to write better laws. Which was the original problem, which, if solved, wouldn’t need the REINS Act.
Ouroboros.
December 7, 2011, 3:30 pmShelbyC says:
That’s what it does, right? Wrt major regulations, congress basically enacts the regulatory agencies recommendations into law, if it chooses, instead of making vague delegations of power to regulatory agencies.
December 7, 2011, 3:32 pmthirdeblue says:
Adler is lying, simply lying about the effects of this bill.
Delete my post if you want, you’re still a liar.
December 7, 2011, 3:36 pmMDT says:
Travis,
Just last year, the EPA finally announced it would develop a standard for perchlorates, a chemical component of rocket fuels that has been linked to birth defects and hormonal imbalances. They received 39,000 public comments on the issue. I’m not sure that provides any evidence that the public has been denied an opportunity to participate in the rulemaking process.
The public has been allowed to “participate” to the extent of sending emails. Your “finally” suggests that response was a bit sluggish.
December 7, 2011, 3:37 pmTravis says:
And if it rejects the rule, the agency has to start all over again from scratch, rewriting the rule, going through the public comment process and resubmitting to Congress, which could take years. Meanwhile, whatever significant harm has prompted the rulemaking process continues unabated.
December 7, 2011, 3:40 pmloki13 says:
No.
No. It allows them to take effect.
No. The “vague” law is the original law under which the Agency is making the regulation. Congress can be very detailed in that if they choose to be.
Your comment made no sense in that, if anything, REINS will remove any incentive for Congress to do so.
December 7, 2011, 3:40 pmjoe says:
Considering the REINS act only establishes up or down votes on regulation, I fail to see how that would lead to “enlisting the help of regulatory agencies to write better laws.”
December 7, 2011, 3:41 pmShelbyC says:
Well, that’s Congress’s job, right? To make sure these rules are enacted? I haven’t stated a position on the merits of the act, but I’d imagine that people who generally like the regulatory state will be against it, and folks who generally don’t will support it.
December 7, 2011, 3:43 pmSteve says:
Let’s think about this in the context of an actual major piece of legislation, like the Affordable Care Act. We know this was a monster of a statute, of course – and that’s with any number of major issues left to the regulatory agencies to hammer out the details.
If we required Congress to sit down with the regulatory agencies and figure out all those details in advance, we would have a much longer and more intricate statute – but would we really have more public scrutiny of all those details? The ACA was one of the most scrutinized bills in history (even though, as we all know, no one ever actually read it!). The most likely effect of putting another million details into the bill is that there simply isn’t enough time to debate all of those details in advance, so the bill gets passed and wham, the regulatory scheme exists and we get to debate it after the fact.
On the other hand, if we leave the details to agencies like HHS, there is a lengthy rulemaking process with notice and comment. The details get pored over. Not everything will work out perfectly, but at least those details won’t get lost in the volatile debate over whether the bill should be passed at all.
When we talk about the EPA regulating greenhouse gas emissions, the concern is that the regulatory scheme has outgrown the original scope of the statute. But whether you like or dislike the ACA, no one thinks that HHS is exceeding its authority by creating standards for health insurance exchanges, since the bill instructs HHS to do exactly that. If Congress can’t even make an unambiguous and direct delegation of authority any longer, we’re definitely in a whole new world.
December 7, 2011, 3:45 pmShelbyC says:
It requires that congress enact a joint resolution of approval into law before they take effect. If there’s a difference between that and enacting the regulation into law, I don’t see it.
December 7, 2011, 3:46 pmShelbyC says:
Well, Congress would be essentially enacting the regulations into law, instead of delegating authority to regulatory agencies.
December 7, 2011, 3:48 pmjoe says:
And that, again, is ““enlisting the help of regulatory agencies to write better laws” how?
December 7, 2011, 3:52 pmShelbyC says:
It’s saying, hey, you tell us that law you think we should pass, and we’ll decide whether or not to pass it.
December 7, 2011, 3:56 pmAlex S. says:
Huh, I was not aware that every federal regulation impacted every business.
Independent of whether the volume is good, bad, or indifferent, I am just curious if it creates a tool for a minority in one house to generate a regulatory veto by overwhelming the system.
100 doesn’t sound so bad (could be dealt with in about 10 days worth of sessions) but am curious if I read it right that 30 senators could put any nonmajor regulation on the senate calendar even if the House never takes it up.
But incentives being what they are (and I don’t know enough about how rules and regulations get written to know the extent this is possible), if a $500 million regulation is subject to congressional veto then we’ll instead see 10 $50 million rules.
And on the other side, for every rule that is categorized as nonmajor and goes into effect we’ll see lawsuits arguing that the rule actually should have been classified as major and thus gone through a different process.
If we want to put responsibility for expertise back in the hands of Congressmen, that’s fine by me. But in any government we may have short of Ron Paul’s Libertarian dream, the government will never be so small as to allow congressmen to be remotely competent to have their own opinions on the minutiae. So ultimately the minutiae would just transfer back to those who advise the congressmen.
So I’m forseeing:
1. More regulations (to avoid the threshold) and thus more people to write regulations.
2. More lawsuits to keep the lawyers billing time.
3. More opportunity for lobbyists (on both sides of issues) as Congress tries to reclaim authority over the minutiae.
4. No real change in any way that the average citizen will care about except in high profile cases that will be good or bad depending on whether you already agree with the side that wins.
So, win-win-win-win.
December 7, 2011, 4:01 pmShelbyC says:
In any event, if there are a few tweaks to the law that need to be made, Congress can make those through the legislative process, right?
December 7, 2011, 4:03 pmjoe says:
Which, again, has nothing to do with writing better laws, especially since debate time is limited and the vote is up or down.
It is an additional veto point. Nothing that requires or encourages better laws or inputs from regulatory agencies.
December 7, 2011, 4:06 pmloki13 says:
*sigh* Because regulations aren’t enacted into law. See USC, cf. CFR.
But the point which you’re missing is that this simply allows Congress to continue to write bad laws, and then exercise authority later, which *doesn’t take care of the root problem*.
Now, I am for accountability, and against delegation. But this (so far) seems to be a bad solution. Every new regulation comes with years of notes & comments, hearings (in some cases) and litigation. Now there will be $millions in lobbying in Congress. Not to mention there will be patchwork coverage as some regulations get through and others don’t.
You want real change? Have Congress do their job and review the CFR, and then make the changes through legislation. Tighten up their delegation. This is a quick and stupid “fix” that will just cause even more problems without addressing the underlying issues.
December 7, 2011, 4:14 pmShelbyC says:
Well, there’s no guarantee that the regulation enacted by Congress will be better…
But this allows a regulatory agency to provide input in the form of a proposed regulation, and Congress to enact a resolution of approval into law giving effect to the regulation. If the complaint is that Congress delegates power to regulatory agencies instead of passing better laws, this would be a solution, right? Now it may not be a solution that you like, but it’s still a solution.
December 7, 2011, 4:17 pmjoe says:
But there is nothing in the current framework that prevents the “input” from the regulatory agency. And in fact, this law presupposes the delegation. It only adds an additional veto point.
And given the strict limits on timing and debate, and the default-fail provision (instead of a default-try again or a default-pass), there is nothing in there to make a better law a likely outcome.
December 7, 2011, 4:26 pmShelbyC says:
I’m not sure I understand the distinction you’re making, Loki. I’m suggesting there is no material difference between Congress enacting the text of the proposed regulation into law, and congress enacting a joint resolution of approval into law allowing the regulation to go into effect. Am I missing something?
December 7, 2011, 4:29 pmloki13 says:
Yes. Regulations aren’t laws.
December 7, 2011, 4:32 pmI Callahan says:
Wouldn’t it be better if Congress just wrote better statutes in the first place?
Not for the lawyers, it wouldn’t.
December 7, 2011, 4:32 pmShelbyC says:
Perhaps. I suspect the end result will be that, as things get tougher for the regulatory state, Congress will have to pass better, more detailed laws, or the regulatory agencies will have to work more closely with Congress.
December 7, 2011, 4:32 pmShelbyC says:
Again, is this just semantics or are you suggesting that there is a material difference between a law enacted by Congress, and a regulation that takes effect upon a joint resolution of approval enacted into law by Congress?
December 7, 2011, 4:36 pmTravis says:
The “default-fail” essentially mandates gridlock and inaction, because it includes language that prohibits “the same rule” from being considered during that entire term of Congress.
I don’t know how that would be interpreted, but I would assume that the agency couldn’t just change some meaningless wording around and resubmit – that the new rule would have to have significant changes. Which would mean that the agency would have to start from scratch with the public involvement/comment process… you have a recipe for paralysis.
December 7, 2011, 4:37 pmAlex S. says:
Thanks for posting this, it was very informative.
One thing I was unaware of is that congress already has the ability to reject any federal rule through joint resolution (with procedural streamlining) and has since 1996. It has only done so once.
So the argument is not that Congress needs the ability to REIN in federal regulation but that since Congress has chosen not to it must be because it is too difficult and needs to be made easier?
December 7, 2011, 4:40 pmloki13 says:
No. You seem to have a fundamental misunderstanding of how this works.
For example, you wrote-
This doesn’t make any sense at all, because the first part “Congress enacting the text of the proposed regulation into law” doesn’t happen. Congress doesn’t enact the text of proposed regulations into law. That’s not how it works. So when you as if there is a material difference between the two situations, the question is meaningless.
The question, properly asked, is whether regulations are properly passed pursuant to law (delegation, etc.) by an Agency cannot take effect unless they go through this new process as prescribed by REINS. I would argue that this new process will cause problems, and lessens the incentive (which is already damn weak) for Congress to engage in meaningful oversight when they should- which is to say, monitor their delegations more closely, and change the laws when needed.
December 7, 2011, 4:41 pmI Callahan says:
Considering the REINS act only establishes up or down votes on regulation, I fail to see how that would lead to “enlisting the help of regulatory agencies to write better laws.”
Come on, does someone really have to explain this?
If the agency in question believes that Congress won’t pass the regulation as law as written, then they’ll either not send the law to congress, or send a better regulation. Note the word “better.”
December 7, 2011, 4:44 pmTravis says:
No, this is not semantics and yes, there is a material difference. Regulations promulgated by administrative agencies are part of the Code of Federal Regulations (CFR).
U.S. Code (statute law) is often quite vague – Congress has intentionally granted broad authority to federal agencies in recognition of the fact that it can’t micromanage everything.
The CFR is excruciatingly detailed and it has to be – it spells out exactly how federal agencies will carry out the laws enacted by Congress, providing a framework and stability for compliance and enforcement.
http://en.wikipedia.org/wiki/Code_of_Federal_Regulations
December 7, 2011, 4:45 pmloki13 says:
I’m also going to add that I don’t agree with Prof. Adler’s political accountability point.
Currently, agencies are at least theoretically accountable to the Executive (we can get into arguments about mandarins, etc., but I think the overall point is valid). If you want to change the accountability for the way that agencies are passing regulations pursuant to the delegation of Congressional authority, you change the executive branch. You can see this with the difference in Bush II and Obama-era regulations.
OTOH, this just adds yet another layer to confuse voters and pass the buck.
Who is responsible for the death or life of a new regulation? The Agency? The HoR? The Senate? The President (again)? The Congress (again, through delegation)? You’ve just gone from one point of accountability to multiple points of accountability and finger-pointing.
Congress is responsible for drafting the laws. The Executive for carrying them out. Congress can determine the scope (delegation) & funding. They can also change the law (including the statutes giving the Agencies their power, and, hell, the APA) if they don’t like what’s going on. This is a simple, easy-to-understand, wrong solution to a complex problem.
December 7, 2011, 4:47 pmI Callahan says:
And if it rejects the rule, the agency has to start all over again from scratch, rewriting the rule, going through the public comment process and resubmitting to Congress
If the law were a good idea, this would all be moot. I mean, God forbid that the main legislative body in the United States be tasked with actully, you know, legislating, as opposed to sloughing the job off on some politically appointed desk jockey somewhere. ?!Horrors!?!
December 7, 2011, 4:50 pmloki13 says:
If you’ve been keeping up, you will see that the problem is that they weren’t legislating, and this is a gimmick that will allow them to say they’ve got things under control while continuing to avoid legislating.
PS- Since people are still unclear, this *isn’t legislating.*
December 7, 2011, 4:54 pmjoe says:
And do I really need to explain that an agency “sending better regulation” because they think another one won’t pass is not the same as congress “enlisting the help of regulatory agencies to write better laws?”
December 7, 2011, 4:54 pmShelbyC says:
But if it did happen, the regulation would be law, right? So again, what is the material difference between a regulation having the force of law that takes effect upon Congress enacting a joint resolution of approval into law, and a law that says the exact same thing?
December 7, 2011, 4:55 pmI Callahan says:
Regulations aren’t laws.
Are regulations optional? If not, are the penalties less I decide to break a regulation?
A distinction without any difference whatsoever.
December 7, 2011, 4:56 pmjoe says:
If that is your stated goal (preventing the “sloughing the job off on some politically appointed desk jockey somewhere”), then REINS doesn’t do a lick about it.
Congress will still delegate the regulations to the agencies. The only difference is an additional veto point. If the act was that congress couldn’t delegate regulatory rule making to agencies it would be one thing. But REINS still does that, it only adds the veto point.
December 7, 2011, 4:58 pmloki13 says:
um…. this is just gibberish. Please at least try to read some of my (or other people’s) earlier comments. Or look up some stuff on admin law. Please. I’m not being sarcastic- but this is pretty fundamental to the conversation. If you don’t know the difference between a regulation (which can have the effect of law, but isn’t passed like a law) and a law, or the difference between the CFR and the USC, you’re going to struggle with this.
December 7, 2011, 4:59 pmShelbyC says:
Statues can be vague or specific, and regulations have the force of law, right? So the only difference I can see between a law that says something, and an regulation with an enabling statute that says the exact same thing, is the procedure by which it passes. This act requires Congress to pass a law to allow a regulation to take effect, so no one has articulated a difference between Congress passing a law that allows a regulation to take effect, and Congress simply enacting the regulation into law.
December 7, 2011, 5:02 pmGoing Off the Rails Against the REINS Act – The PERColator says:
[...] posted at The Volokh Conspiracy. MoreEmailDiggPrint Filed Under: Institutions, Law, Politics, Regulation « How Not to [...]
December 7, 2011, 5:04 pmShelbyC says:
But isn’t that the whole point? Sure, a regulation has the force of law, but it isn’t passed like a law. But here were talking about regulations that have no effect until they are approved by a joint resolution of approval that isn’t just passed like a law, but it is a law. I’m sorry, but I don’t think anyone has articulated a difference between a law, and a regulation that has no effect until Congress passes a law saying it has effect.
December 7, 2011, 5:07 pmTravis says:
The difference is self-evident: One is a regulation, the other is a law.
Again, not being sarcastic here, but you need to read about the Administrative Procedure Act and the foundation of administrative law.
December 7, 2011, 5:10 pmAnonimus says:
Regulations and statutes are laws.
December 7, 2011, 5:13 pmREINS and rulemaking existentialism « Owens Rhetoric says:
[...] Adler praises REINS’ expedited review and mandatory vote, but it is a strange comfort. Agencies take several years to [...]
December 7, 2011, 5:39 pmStephen Lathrop says:
It’s hard to credit that someone who has actually read the Citizens United decision could so misunderstand what it intends. Have you read it, MDT?
Here is an excerpt, to illustrate what the decision is about:
Of course “speakers” in the text above does not refer to speakers per se, but rather to corporate money used in elections—to reward compliant office holders, or punish recalcitrants. And as you can see by the text, the point of Citizens United was indeed to foster corruption—as it had previously been understood—by calling plain corruption not corrupt. And then, with that redefinition accomplished, to get rid of attempts to hold it in check—whatever it is it may have become.
The more general concern of the Court majority seems to have been to enlarge the role of corporations in the nation’s politics, and to give them acknowledged standing under the Constitution, which they had not previously enjoyed. As in this, from the Scalia concurrence:
Can you tell me, MDT, prior to that, what was the Constitutional status of “the modern free economy,” or of its “principal agents”? Citizens United was a revolutionary intervention by the Court on behalf of corporate interest.
December 7, 2011, 5:40 pmShelbyC says:
But this law kinda shakes the foundation of administration law, right? As your wiki article says, “Agencies are unique governmental bodies, capable of exercising powers characteristic of all three branches of the United States federal government: judicial, legislative and executive.” But this law changes that wrt major regulations. Before, agencies exercised legislative power by creating regulations that had the force of law based on enabling statutes from Congress. But under this law, agencies would have no power to give effect to regulations, their regulations would have no effect unless Congress passes a law saying they have effect. This effectively changes agencies role from actually enacting regulations, to proposing regulations that Congress can accept or reject by passing laws. So instead of actually exercising legislative-like power, agencies (again, wrt major regulations) will only propose regulations that will be accepted or rejected by Congress.
December 7, 2011, 5:42 pmjoe says:
Actually, no. The REINS act doesn’t simply require “to pass a law to allow a regulation to take effect.” The Reins forces an up or down vote with significant restrictions on time for debate and days until passage, a default-fail provision and a restriction on bringing the issue up again after its default-fail provision takes place.
December 7, 2011, 5:48 pmShelbyC says:
Sure, it sets rules under which Congress can pass the law allowing the regulation to take effect. But it still requires Congress to pass a law so a regulation can take effect, instead of allowing the agency to pass regulations, right?
December 7, 2011, 5:59 pmPharmamom says:
December 7, 2011, 6:10 pmAaron G says:
This is absurd. If we can’t trust our representatives to legislate according to our desires, how can we trust the representatives of generations past to do so?
Gotta love the hyperbolic “omg tons of people are gonna get cancer!” How many agencies actually regulate products that cause health problems? Even if most regulations dealt with asbestos and lead paint, we’ve got something to correct such shortcuts. It’s called products liability.
We don’t need some elitist bureaucrat protecting us from ourselves.
December 7, 2011, 6:22 pmAaron G says:
Sounds like a good idea to me. Not sure how they ever passed constitutional scrutiny in the first place.
December 7, 2011, 6:26 pmTatil says:
How is $100 cost calculated? Is it just the cost of implementation or do we subtract the expected benefits from it? The costs and benefits may accrue to different players. If it is the net cost over the whole US economy, I think it is a good idea.
Deregulations supposedly save money for the industry, so deregulations are unlikely to cost $100 million. Unless it is called “cost or save $100 million”, the argument that the act works both ways is disingenuous. The only problem is we need both houses to approve a legislation, but only one to veto it later. That makes it quite asymmetric. In a 50/50 nation, that changes majority in each house and presidency fairly frequently (thank god), this may create too much of a gridlock.
December 7, 2011, 6:56 pmGrover Gardner says:
In other words, we wait till a few thousand people die or are crippled by toxic ingredients, faulty implants or bogus medical treatments, then we sue the manufacturer or sales entity, who promptly declares bankruptcy or conveniently vanishes, leaving people with no recourse whatsoever. In addition, we compile no regulatory records of such incidents so that they can happen all over again to a few thousand other people. Sounds like a plan.
December 7, 2011, 6:57 pmTravis says:
No, I mean the public that’s stopped buying SUVs because of increased gas prices and the public that, in poll after poll, favors higher fuel economy standards.
http://www.businessweek.com/magazine/content/08_31/b4094064675897.htm
http://www.usatoday.com/money/autos/2010-12-28-suvs28_ST_N.htm
http://wheels.blogs.nytimes.com/2011/11/14/consumer-reports-poll-shows-support-for-stronger-fuel-economy-standards/
December 7, 2011, 7:06 pmElliot says:
The public has such love for the legions of lawyers and bureaupaths crafting this much they set them free.
Perhaps the most important poll is the one where consumers express their preferences with their purchases.
December 7, 2011, 7:11 pmTravis says:
Yeah! Down with the Pure Food and Drug Act of 1906!
December 7, 2011, 7:21 pmMDT says:
Tatil,
No, I mean the public that’s stopped buying SUVs because of increased gas prices and the public that, in poll after poll, favors higher fuel economy standards.
OK. If the public has stopped buying SUVs, there is no problem of SUV demand. And if the public really, really wants government to force it to buy more efficient cars than the ones it does buy, left to itself … it could at least start by, well, buying what it purports to want.
December 7, 2011, 7:50 pmShelbyC says:
Just bought one in September.
December 7, 2011, 8:02 pmGrover Gardner says:
You can’t buy what manufacturers choose not to make. In fact, the top 20 cars in sales currently are compact, fuel-efficient models, most of them by foreign companies. Let’s not even pretend that US auto manufacturers have been competitive. They have subsisted for decades on unadventurous designs and import restrictions. They would rather say they can’t than invest in the research and retooling to make what Americans really want.
December 7, 2011, 8:11 pmDuracomm says:
Travis said,
Big business loves big government and big government regulations. It puts their small business competitors out of business.
Those of us in the reality based community realize that.
The folks who argue prudent review of regulations = !!OMG poisons everywhere!! most certainly do not.
The example below is at the state level the exact same thing happens at the federal level. No need to make a better product when you can simply regulate your competition out of business.
Beware of the yogurt
December 7, 2011, 8:17 pmThe authorities save Californians from a phantom menace
Grover Gardner says:
So did a lot of people. Are you unhappy that it gets 20-25 mpg instead of 7-8?
December 7, 2011, 8:36 pmElliot says:
Which of those 20 can’t be purchased? How may are available for purchase? What’s the problem?
December 7, 2011, 8:50 pmDavid M. Nieporent says:
Setting aside whether it would be a good policy, I think it would be conservatives’ wet dream to be able to vote every year – and force Democrats to vote every year – on whether to cut taxes.
(Note that what you propose isn’t actually analogous; REINS doesn’t require that anything be “reauthorized” each year, but that new regulations be voted on.)
December 7, 2011, 9:01 pmShelbyC says:
It gets about 14. I’m not too worried about it though, since I live pretty close to work and ride my bike most days anyway. My Jeep Wrangler gets about 13, I’m really unhappy that I had to spend alot of money to take the plastic crap off and put steel crap on, and that I have to deal with that horrible 3.8l v6. Especially since I probably burn
December 7, 2011, 9:07 pmShelbyC says:
But I guess your real question is, am I unhappy that the car companies are sinking a bunch of money into reducing the mpg instead of into features that I would prefer? Yes.
December 7, 2011, 9:23 pmPharmamom says:
Hmmm. Polls aren’t data. Light trucks and SUVs are over half the market this year. And the source of the profits GM and Chrysler are enjoying. In fact, the head of Fiat is so delighted with the success of the new Jeep, he’s rolling it out in Europe on a Maserati platform. Meanwhile, the Fiat 500 is falling far short of sales goals.
The new Jeep is Chrysler’s biggest success. Tell me again how this supports the “Americans want tiny, fuel efficient death-traps” meme?
December 7, 2011, 9:42 pmGrover Gardner says:
No problem–now. American auto makers are finally offering more fuel efficient options. Judging by the top-selling cars, this is what people want.
How many Jeeps were sold, as opposed to Honda Accords and Toyota Corollas?
December 7, 2011, 10:52 pmDavid M. Nieporent says:
Not in the slightest. That’s an attempt to make a conservative argument by a liberal who can’t step out of his own mindset. Viewing the government not doing things as government being “broken” is liberal. Government is awful when it does do things, not when it “can’t do anything.”
I think the second sentence is a non sequitur.
December 8, 2011, 3:32 pmREINS Act: Restoring Accountability to Lawmaking | The Locker Room says:
[...] I could write a book on this, and might, but here’s a nice summary and analysis of the law here. [...]
December 8, 2011, 3:55 pmDavid M. Nieporent says:
And? What is this, “One man, one vote, one time”? If something really doesn’t have popular support, is there some reason that the fact that it briefly did thirty years ago should be controlling?
So, in short, your answer to “How is it undemocratic?” is “Handwave handwave handwave actually it is democratic and that’s bad.”
As for your cynical shout out to “the Founders,” I don’t think they established the administrative state at all.
December 8, 2011, 4:29 pmTravis says:
The above sentence written and published on a computer network that would not exist were it not for government funding.
December 8, 2011, 5:30 pmTravis says:
The above sentence written and published on a computer network that would not exist were it not for government funding.
December 8, 2011, 5:30 pmB-Rob says:
Professor Adler –
Having read some of the text of the REINS Act, this section proves quite troublesome. A “major rule” is defined as any rule that has:
The proposed statute does NOT DEFINE “a major increase in costs or prices” . . . is 3% a major increase? Is 7%? Or is major anything above 10% or so? The statute does not say.
And what is a “significant adverse effect”? Is that effect a static measure, or based on a cost/benefit analysis of the impact on “innovation”? And since when is OMB qualified to define what does or does not impact “innovation” in, lets say, the silicon chip market? The statute, of course, does not say how OMB is supposed to figure this out.
Here is what I see as the fundamental problem — let’s say that the military wants to create a structure for a new space aged internet that operates on the brain waves of rhesus monkeys, instead of wires, ether, chips and clouds. They have the technology and it looks like it could work. But they need the input of the Department of Energy, Commerce, etc. to make it work. Then OMB determines that, obviously, such a technological advance would have a massive impact on on the economy. Should we REALLY be putting such a thing up for a vote? In fact, could the internet, a US government product, ever have gotten through such a cost, price impact, or “adverse effect” analysis? Especially one that is subject to NO judicial review whatsoever, per Section 805(a)?
In all, this is a great con talking point, but one of the least well-thought out pieces of legislation this side of . . . oh, maybe Ohio Senate Bill 5! It will, thank goodness, have no life past a Boehner/Cantor wet dream, but it just goes to show that no matter what, stupid legislation can rise up from the fever swamp if you are not watching.
December 8, 2011, 6:44 pmLongCat says:
That’s an excellent argument. Clearly, Mr. Nieporent is an avowed anarchist who believes that the government should never do anything for any reason. And the government funding research is exactly analogous to an agency promulgating a rule that will cost hundreds of millions of dollars to comply with.
I’m glad you posted it twice so that we could fully absorb the brilliance.
The example you give wouldn’t fall under the act. The military undertaking research isn’t a “rule” at all.
December 8, 2011, 7:28 pmKirk Parker says:
Grover Gardner,
New Zealand has a population of 4.4 million, with a GDP of US $118 Billion. This makes it smaller than half of the US states, with an economy equivalent to #33 among the states. How on earth does it survive as a self-governing entity?
In other words, your claim that only federal regulation can save us, and the implicit claim that states are incompetent to manage things on behalf of their residents, is nonsense.
December 8, 2011, 9:04 pmKirk Parker says:
Travis, plenty of us think the Feds shouldn’t have money to hand out to local school districts in the first place. The people of South Sucotash can presumably feed themselves. And if not, more of them would be well advised to migrate somewhere that has a better economy (or a better growing season, if being subsistence farmers is their thing.)
December 8, 2011, 9:12 pmElliot says:
Why does it matter if American makers produce the small cars? If people want them, they are available from foreign companies. They always have been, and they are great cars. And if they want them, why do we need regulations? Isn’t this a perfect case of the market supplying what the people want?
Why do we need Travis and his legions when the people are rushing to embrace small cars on their own?
December 8, 2011, 9:18 pmElliot says:
There ain’t no free lunch, unless you belong to the legions. Plenty more people wonder why the feds are taxing them and borrowing money so they can buy lunch for South Sucotash.
December 8, 2011, 9:23 pmPhos says:
VS.
So Congress has to pass all federal laws, but it can just delegate this power to the executive branch by changing the name from “laws” to “regulations.”
Glad you cleared that up Travis.
December 8, 2011, 11:01 pmDon K says:
Interesting idea, but really now, would there be a single Republican vote in the Senate to break a filibuster to allow reauthorization of, e.g., the various Civil Rights Acts, the Voting Rights Act, the Clean Water Act, the Clean Air Act, etc.? I would foresee a return to 1960′s levels of air and water pollution, mass disenfranchisement of blacks (and those merely brown) in the South (and other parts of the country)immediately after enactment of such a proposal.
December 8, 2011, 11:52 pmDon K says:
The people most likely to suffer from dangerous uses of pesticides in agriculture are the workers in the field who are desperate for any crappy job and are told by their bosses that any regulation of pesticides will cost them those jobs. It’s kind of like the coal workers in West Virginia who work in unsafe conditions, and the residents of West Virginia who drink polluted water who shrug and say, “well it’s a job, isn’t it?” while opposing regulation of mine safety and mountaintop removal.
December 9, 2011, 12:02 amFran says:
Let’s take it a step further and just have govt, laws and regulations by referendum. No Senate, House or Scotus.
Only the people know…and corporations are people.
Let’s vote on everything
December 9, 2011, 12:16 amDon K says:
Well, actually, you missed a step in which the company hires a legion of attorneys who will argue (probably successfully) that there’s no proof that the chemicals in the water caused all of these people to come down with cancer, so verdict in favor of plaintiff.
And it’s a bit rich that the same people who argue that there’s no need for regulation because the law of torts is enough are the same ones who continually try to weaken liability law.
December 9, 2011, 12:25 amElliot says:
Bureaucrat Legions vs Corporate Legions?
December 9, 2011, 12:48 amGrover Gardner says:
Sorry, you lost me there, Kirk. I didn’t say government regulations can “save everything.” I said that the public wants fuel-efficient cars and that Detroit has always had to be prodded to provide them.
December 9, 2011, 2:12 amGrover Gardner says:
This is all going to be figured LATER, B-Rob, by the nasty little bureaucrats, who will then send each and every regulatory definition and clarification back to both houses of Congress to be voted on.
As a result, this bill should take about 75 years to implement.
December 9, 2011, 2:18 amKirk Parker says:
Grover,
I have your very words right here, shall I re-quote them to you:
All because some federal regulations might be scaled back. (And interestingly, not a single mention of Detroit or fuel efficiency in sight.)
Clearly the implication here is that the states cannot manage to provide these kind of protections, is it not? That’s the obvious relevance of NZ, it’s a counterexample to your assertion.
December 9, 2011, 3:15 amGrover Gardner says:
Kirk, I misunderstood your point, but I also think you misunderstood mine. I was responding to a suggestion that ALL regulatory oversight be eliminated. I don’t think that’s a good idea. Federal vs. state wasn’t mentioned.
I still don’t understand the reference to NZ. Regardless of how small it is, it still has a national government that controls to some extent the various sub-divisions of the country.
And I don’t think it’s a good idea to leave all regulation to states. Things like air and water pollution, pesticide use, food purity, etc. have effects across state borders.
December 9, 2011, 5:04 amJon Shields says:
Of course, this logic directly extends to a proposal that would require a majority of every state legislature in the country to approve of a regulation. Better yet, a majority of every city council and town board in the nation. After all, more power to the people. Right? A majority of the people in this country can elect people who will vote the way they want. That is, of course, if the majority is distributed equally among every town in the nation. If the majority is not so distributed, then the regualtion fails. That sounds super Democratic to me.
Maybe Democrats should just pass a law that says that all previous line items in bills that reduced spending by any amount (relative to the baseline projection of what it would have been otherwise) must be re-approved every year (and in the abscence of an approval, it is automatically paid for by a suitable progressive tax increase of those making over 500k/year). The amount cut would be (adjusted as a percentage of GDP) added back to the current level of spending (if the cut was not re-approved). How could this not be Democratic? What is this — one person, one vote, one time? If a spending cut relative to the baseline really doesn’t have popular support, is there some reason that the fact that it briefly did thirty years ago be controlling?
If the people really wanted to cut spending at any point, they can elect others to reaffirm that decision every single year.
December 9, 2011, 6:35 amDuracomm says:
Need to point this out again.
Big business loves big government and big government regulations. It puts their small business competitors out of business and increases big businesses profit margins.
Regulations are often anti consumer and pro big business.
Those of us in the reality based community realize that.
The folks who argue prudent review of regulations = !!OMG poisons everywhere!! most certainly do not.
Rent Seeking in the Car Service Industry
December 9, 2011, 7:40 amDavid M. Nieporent says:
There’s an old economists’ joke: An EMH economist is walking down the street with his friend. The friend turns to him, points at the ground and says, “Look, a $20 bill is lying there.” The other replies, “That’s impossible. If it were really there, someone would have already picked it up.”
Or, as Harry Browne used to say, “If government had taken over the auto industry in 1920, today we’d all be driving Model-T cars — and saying, ‘If it weren’t for the government, we’d have no cars at all.’”
December 9, 2011, 10:58 amKirk Parker says:
Grover,
No doubt we’re missing each other to some extent. But when you say, “I was responding to a suggestion that ALL regulatory oversight be eliminated”, I would respond that you’re not reading far enough back into the thread; the person you were responding to was himself answering a bit of “ZOMG we’re all gonna die” nonsense.
Granted, it might sound like he was speaking against all regulation. And maybe he was, but I guess I took it as being in the context of REINS and assumed it was primarily federal over-regulation that he was speaking against.
My point of bringing up the federal-vs-state was again in response to the train of thought started by that original responder; if you’re not a Only The Feds Can Do It Right™ type of guy, then I guess you’re just an innocent bystander in that case. Sorry for getting you the crossfire, in that case.
And the point of bringing up NZ is this: it’s just a convenient self-contained polity that’s smaller than the average state, so the question to the Only The Feds Can Do It guys is–given the fact that someplace as small as NZ can take take care of themselves, why on earth don’t you think Washington State can do so?
December 9, 2011, 3:58 pmB-Rob says:
Reread my hypothetical. It would not be a military only undertaking, but one involving the Department of Energy and Commerce, too. No agency is immune from REINS, and Defense writes regulations like all other agencies. So I don’t know how you can say that such an undertaking would not be considered by OMB under this statute. Indeed, there is overlap between Defense and other agencies (like EPA) with respect to the operations of bases, which, of course, generate toxic spills (fuel, deicing fluid, etc.). So, yeah, they would be subject to this statute, too.
December 9, 2011, 5:00 pmB-Rob says:
The very reason we have federal environmental laws is because states WERE NOT regulating the discharge of pollution into the navigable waters and into the air, impacting other states. Remember the Cuyahoga River burning? It state by state regulations was so swell, that would not have happened. But the river is clean now, so clean that the flies spawning from the water attract fish which attract seagulls by the thousands in the summer time, and the lake the river flows into,Lake Erie, is now clean enough to consume the walleye that spawn there. Why conservatives want to go back to the bad old days is beyond me.
December 9, 2011, 5:07 pmOrenWithAnE says:
Better by providing more guidance to the Executive in what areas and on what basis and through what process to make decisions? Sure.
Better by having Congress try to analyze and decide on individual technical matters? Absolutely not.
The President is the CEO, Congress is the Board. The cost analysis happens within the management structure of the Executive Branch.
December 9, 2011, 9:20 pmGrover Gardner says:
Well, for one thing, NZ is a constitutional monarchy so I’m not sure the comparison is great. :-) But it’s also an *island*. What happens in NZ pretty much stays in NZ, to quote a famous ad campaign. Washington is a contiguous state. What happens in WA *doesn’t* stay in WA, any more than what happens in OH stays in OH.
December 9, 2011, 9:20 pmGrover Gardner says:
Instead, we had fabulous innovations like the Corvair.
December 9, 2011, 9:24 pmDuracomm says:
One massive blind spot the reflexive pro regulation folks have is that they miss the vast amounts of environmental damage regulations can cause.
The hysterical folks who argue prudent review of regulations = !!OMG poisons everywhere!! don’t understand this problem and refuse to acknowledge it.
Biofuel regulations are a prime example of this.
Palm oil: the biofuel of the future driving an ecological disaster now
Bit of irony that environmental regulations designed to help the environment are in fact causing massive environmental damage.
December 10, 2011, 8:39 amGrover Gardner says:
Duracomm, always ready with some tale of disaster and woe. A lot of “could,” “might,” “likely” and “possible” in this article.
The fact is, environmentalists are painfully cognizent that someone will always take advantage of a situation to indulge in greed and excess. It’s like saying the sun will rise and set. It’s not a reason to reject any and all movement toward energy conservation and innovation.
December 10, 2011, 9:40 pmDuracomm says:
Grover Gardner said,
Easy task when it comes to regulations. What with all of the damage far too many of them cause with their unintended consequences.
Companies are not taking advantage of the situation they are doing what government regulations require them to do..
It is a reason to not be reflexively pro regulation. It is definitely a reason to respect the fact that regulatory unintended consequences are an ever present hazard
New Studies Identify Change in Land Use Associated with Biofuel Production as Major Contributor of Greenhouse Gases, Far Offsetting Benefits of Most Current Biofuels
December 10, 2011, 11:27 pmDavid M. Nieporent says:
Which was a lot better than the Model-T and (contrary to what Ralph Nader lied to you about) no less safe than other cars on the road.
December 11, 2011, 1:30 am