REINS Act: An attack on environmental regulation and executive power

Representative Geoff Davis (R-KY) has once again sponsored a bill that would require Congressional approval of any regulatory rule that imposes compliance costs in excess of $100 million annually. The Regulations from the Executive in Need of Scrutiny (REINS) Act (H.R. 10) would require agencies to seek Congressional approval of such regulation. If Congress fails to approve the rule within 70 days of promulgation, the rule is void.  David Goldston, at NRDC, has a thorough analysis that is worth reading.

This bill threatens environmental and public health regulation and poses a potentially unconstitutional attack on executive power.

The REINS Act characterizes agency regulations as either “major rules” or “nonmajor rules.” A major rule is one that the Office of Management and Budget (OMB) finds is likely to result in “an annual effect on the economy of $100 million or more”, OR “a major increase in costs or prices for consumers, individual industries…”, OR “significant adverse effects on competition, employment….”  A nonmajor rule is everything else.

Any agency rule would require the agency to submit to Congress a description of the rule, along with analysis of related regulatory actions and a copy of the cost-benefit analysis, if any. To go into effect, major rules would require Congressional approval (by joint resolution) within 70 days. Minor rules could be disapproved by Congress (again, by joint resolution) within 60 days, but would otherwise go into effect without explicit approval. There is a bunch of additional rules limiting debate and otherwise circumventing normal legislative procedure: check out the bill text for more.

HR 10 has gained 115 co-sponsors to date, all Republicans. OMB Watch notes that the number—H.R. 10—signals that the bill is a top legislative priority for House leadership. The spin by supporters is that the bill would increase accountability of regulators and decrease regulatory burdens.

More likely, this bill would, as David Goldston put it, “impose a slow-motion government shutdown.”  Imagine, first, Congress attempting to evaluate—within 70 days—nuanced scientific reports and economic analysis concerning a piece of regulation that has been in development for years. Second, consider how many pieces of regulation—both “major” and “nonmajor”—are passed by federal agencies in the course of one year. And the scope of this oversight is enormous: regulations protecting miners from hazardous conditions, regulations for Wall Street, and practically every agency action requiring an environmental assessment.

Moreover, I think there is a strong case to be made that HR 10 is an unconstitutional attack on executive power. Note that HR 10 does not say anything about Presidential veto, because Congress would not be passing any laws. Thus, this veto may violate bicameral passage and presentment. Here is what Chief Justice Burger, speaking for the majority in INS v. Chadha, had to say about the one-House veto:

Disagreement with the Attorney General’s decision on Chadha’s deportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President.

INS v. Chadha, 462 U.S. at 954–55.

HR 10 also unconstitutionally makes Congress the executor of laws in a different sense: it makes Congress the final step to regulatory enactment for “major” regulation. This goes further than INS v. Chadha because Congress not only can veto agency regulations already in effect, it can stop agency regulation from ever taking effect. In fact, since Congressional approval would be the last required step before an agency rule is promulgated, it can be fairly argued that Congress, not the agency, is choosing to promulgate the rule. Congress, of course, cannot execute law.

To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. . . . This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.

Bowsher v. Synar, 478 U.S. at 726–27.

Many will argue that executive power has become unnaturally enhanced due to the regulatory power of agencies under its putative control. If this is in fact a problem, the solution is not to create an unconstitutional Congressional veto, however, but rather to craft actual laws that limit the scope of agency power. The 115 co-sponsors of HR 10 recently read the Constitution aloud; perhaps now they should seek to understand it.

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.

James Madison, Federalist No. 47

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Reader Comments

6 Replies to “REINS Act: An attack on environmental regulation and executive power”

  1. There are several problems with this analysis, especially with regard to the constitutional questions.

    First, there is no presentment issue, as all joint resolutions (other than proposals for constitutional amendments) are sent to the President for signature or veto, as required by Article I. This is why, in the wake of Chadha, both then-Judge Stephen Breyer and Larry Tribe identified a Congressional approval requirement as a constitutional alternative to a unicameral veto.

    There’s also no separation of powers issue because there is no inherent executive power to issue regulations. Such power comes from Article I, not Article II. As the Supreme Court has made clear multiple times, all agency authority to issue such rules must be expressly delegated by Congress.

    There’s also no Bowsher issue because no agent of Congress is executing the laws. Nor, for that matter, is Congress. Rather, Congress is voting up or down on whether to accept an agency’s recommendation, and in the process engaging in a legislative act. This is not anything particularly innovative. Congress has done this sort of thing many times before, as with fast-track trade authority, base-closings, etc.

    For more on the REINS Act, see the following post (and the materials cited therein, including my recent testimony before a subcommittee of the House Judiciary Committee).
    http://volokh.com/2011/01/27/reflections-on-the-reins-act-hearing/

    Regards,

    JHA

    There are reasonable arguments to be made against the REINS Act, but these supposed constitutional concerns are not among them. Before accusing others of failing to understand the Constitution, it may be advisable to acquaint oneself with the relevant constitutional doctrine.

    JHA

  2. Jonathan,
    I neither have been following this debate as closely as I wish, and I confess that although I’m acquainted with these foundational separation-of-powers cases, I’m not sure exactly how they would apply here. But your comment that “all joint resolutions (other than proposals for constitutional amendments) are sent to the President for signature or veto” doesn’t seem to me to address the core issue here.

    Joint resolutions that *fail* in one house aren’t sent anywhere for approval. And here, as I understand the legislation, a “major rule” can’t be enacted without a successful joint resolution. Such a rule, duly proposed by an agency, thus could be voted down by one house of Congress without the assent of the other house of Congress or the opportunity of the President to “veto” this decision.

    As former OIRA administrator Sally Katzen testified: “[A]ssume that the Senate passes a joint resolution under H.R. 10 approving a major rule from a federal agency. The bill then goes to the House for a vote and the joint resolution is defeated. Can this easily be distinguished from INS v. Chadha, 462 U.S. 919 (1983), where the Supreme Court held that a determination by the Attorney General to suspend deportation that was disapproved by a one-House veto was unconstitutional, notwithstanding that the act authorizing the Attorney General’s determination had specifically reserved a one-House veto in the event either House of Congress disagreed with the Attorney General’s determination? It may not be enough to say that H.R. 10 incorporates bi-cameral and presentment (the requirements for constitutionality in Chadha) because in the case described above, one House alone would stop final agency action from becoming effective.”
    http://judiciary.house.gov/hearings/pdf/Katzen01242011.pdf

    I’m not sure that this analysis is correct. But I also don’t understand why it’s so clear to you that it’s wrong.
    Sean

  3. Sean —

    The reason the REINS Act complies with Chadha is because the Act withdraws from agencies the authority to unilaterally adopt major rules without congressional approval, and the approval process fulfills bicameralism and presentment. Chadha was a highly formalsitic opinion — the unicameral veto failed because it failed to satisfy the Constitution’s formal requirements — one house voting to veto is formally different from both houses voting to approve, even if it has the same effect. It was Justice White, in dissent, who called for a functional analysis — and he thought the unicameral veto was just fine. Further (as Powell suggested) the subject matter of the veto was not clearly the sort of thing upon which Congress should be involved at all. The REINS Act does not have these defects. As both Breyer and Tribe explain in their articles (cited in my testimony), Congress need not give agencies any rule-making authority at all, and the grant of any such power may be conditioned on subsequent Congressional approval, so long as the approval takes the required form (i.e. bicameralism and presentment). In this case the agency has only “duly proposed” the regulation, it has not promulgated it. So what Congress is doing is not vetoing a regulation (as it can under the CRA) but refusing to approve the regulatory proposal int he first place. It’s a formalist distinction, but Chadha (and Bowsher) are quite formalist opinions.

    I would further note that there is lots of precedent for this sort of thing in areas in which there are greater separation of powers concerns (e.g. foreign policy). As I noted above, these include fast-track trade authority and military base closings. The real constitutional issue here is not the ability of Congress to enact this sort of thing, but the ability of Congress to bind future Congresses by embodying certain types of rule changes in a statute.

    I have lots of respect for Sally Katzen, and I think she made some other reasonable points in her testimony. I also understand why some believe that attenuating agency accountability could result in better regulatory policy. On this point, however, I believe she’s quite wrong.

    JHA

  4. Jonathan –

    Thank you for your illustrative comments. I admit that I overlooked the fact that HR 10 envisions a joint resolution that would be sent to the President for his signature. My confusion was due to focusing too narrowly on the bill text, which fails to mention anything about presentment to the President or Presidential veto. (It only mentions that the President may order a major rule into effect by Executive order for 90 days.) Instead, the bill text places the trigger in Congress—”Congress enacts a joint resolution”—which is a bit vague as to timing because the President generally enacts laws presented to him by Congress (except of course for supermajority override).

    So I accept that, for nonmajor rules, this procedure stands a fair chance of being held constitutional by a court. As you argue, a joint resolution of disapproval passes bicameralism and presentment. I would still argue that it is constitutionally suspect because most agencies are tasked with executing laws, and the disapproval structure envisioned under HR 10 has some interesting parallels with the facts in Bowsher, in that Congress appears to be trying to make the executive agencies answerable only to Congress. In any event, I do not believe the constitutional issues are as clear-cut as you make them out to be.

    But I still do not see how the silent Congressional veto for major rules passes constitutional muster. If Congress fails to pass a joint resolution, the major rule would become null and void. I understand your argument that Congress is merely revoking its delegable rulemaking authority, but the form of that revocation matters. Here, Congress seeks to revoke its delegable authority for major rules by a zero-House veto.

    Perhaps you believe that HR 10 implicitly amends every legislative act to date (and in the future) that delegates rulemaking authority to an executive agency? Then, following the reasoning of the Court in Chadha, Congress no longer “must abide by its delegation of authority” because it has implicitly revoked it for all agencies? This line of reasoning seems tenuous, in that HR 10 purports to change the entire administrative state and balance of executive/legislative power through a mere implicit revocation of delegable authority.

    A lot of this analysis likely turns on what “execute the laws of the United States” means. If HR 10 takes away all rulemaking authority from agencies, won’t they shift to rulemaking through adjudicative decisions? Are agencies “executing the laws” when they engage in rulemaking? adjudication? If agencies exercise executive discretion to execute the laws as they see fit, can Congress really make agencies subservient to them in this manner? Bowsher clearly rejects Congressional control over the execution of laws. Even if Congress obliterates agencies, it does not follow that Congress could make the President subservient to them in the same manner.

    So I still believe that HR 10 is the wrong approach, for both policy and legal reasons. If Congress wants to change its delegation of authority to agencies under, for example, the Clean Air Act, then Congress should pass a bill to amend the Clean Air Act accordingly. HR 10 lacks such transparency. Furthermore, the approach of HR 10 virtually guarantees Congressional overreach into functions of the modern administrative state that, quite frankly, Congress is not well-qualified to handle.

    Rhead

  5. Rhead —

    A few quick points:
    – There’s no doubt about the nonmajor rule provision. This is a simple extension of what the Congressional Review Act already provides for major rules.
    – In Bowsher, had Congress reserved the authority to make the reductions to itself, and had enacted the reductions through legislation that satisfied bicameralism and presentment, there would have been no constitutional problem. The problem in Bowsher was driven by his status as Congress’ agent. It’s how Congress sought to exercise control, not that it exercised control at all.
    – There is ample precedent establishing that executive agencies only have authority to engage in legislative-type rulemakings if Congress gives them such power. Such actions only constitute the execution of the laws if that is what Congress has provided for.
    – Congress clearly has the power to alter the rules for rulemaking across the board, as when it revises the APA or when it enacted the Congressional Review Act. REINS is not an “implicit’ revocation of authority. It’s an explicit across-the-board limitation on agency authority covering that less-than five percent of rules that qualify as major. Again, in this sense it’s no different than SBREFA or the CRA or any other revision to the administrative process Congress has enacted before, and no more constitutionally problematic.
    – Agencies can engage in policymaking through adjudication if Congress delegated such power to them. If not, they can’t. There’s no inherent executive power here either. The law’s pretty clear on this.
    – Because there’s no inherent agency authority to engage in rule-makings, there’s really no separation of powers problem with these sorts of limitations on the authority that Congress delegates in the first place. This might not be the case were Congress, for instance, limiting agency ability to investigate or enforce (but see Morrison v. Olson and those cases upholding Congressional limitations on enforcement discretion). Ditto foreign policy (but see the use of a similar mechanism for fast track trade authority).

    As for the merits of the REINS Act, what it envisions is that for major rules — the under five percent of regulatory decisions of the greatest significance — the agency will put forward its final proposal with the full justification, and Congress will simply decide whether or not it’s a good idea, up-or-down, with no amendments. Because the Act would force a vote, it would be far more transparent than the administrative process, and more politically accountable. I think this would be a good thing, and would actually increase the legitimacy of those major rules that are adopted, but I certainly understand why some disagree.

    JHA

  6. A quick addendum on how to think about Bowsher and the REINS Act.

    The approval provision only applies to “major” rules, defined as those expected to cost over $100 million per year. The cost determination is made by OIRA. If, however, this cost determination — that is, the determination of whether a regulation is subject to the approval requirement — were to be made by an agent of Congress (e.g. CBO, GAO) then there would be a potential Bowsher problem, as Congress would have delegated this authority to an agent of Congress.

    JHA

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