REINS or SPURS?
When it’s not busy passing yet another bill to repeal healthcare reform, the House of Representatives likes to pass an even more sweeping attack on effective government called REINS. REINS is one of those bills that seems suspect from reading the title alone — it’s one of those gimmicky titles (“Regulations from the Executive in Need of Scrutiny Act”) that usually signals a lack of serious thought by legislators. REINS basically requires congressional approval for any government regulation that anyone in the business community might really oppose. Really, it might just as well have been called SPURS, the “Special-interest Power and Undermining Regulation and Safety” Act.
This year’s version has some added wrinkles. Again displaying a lack of seriousness, it bans EPA from imposing a carbon tax. No one in the agency or anywhere else thinks EPA has the power to do that anyway. The new bill also drops the threshold for what regulations require congressional approval — and specifically includes any regulation impacting agribusiness — so as to further broaden the scope for congressional meddling.
Besides being bad policy, REINS is dubious in constitutional terms. Agencies act under the authority of existing law. REINS makes it clear that congressional approval of a regulation does not change those existing laws — even if Congress approves, a court can still toss out the regulation for failing to comply with existing law or for procedural flaws. But if Congress isn’t changing the law, it really isn’t playing the role of a legislature. Instead, it’s just adding itself as another player in the administrative process. Congress’s constitutional role is making laws, not administering them.
Of course, like the ritualistic repeals of healthcare reform, the House’s latest vote on REINS is all about symbolism rather than substance, so maybe constitutional scruples are beside the point. There is little chance that the Senate will approve REINS, and no chance that Obama would sign it.
It’s especially galling right now that the nation’s representatives — who are, after all, on the public payroll — are wasting their time with these meaningless votes. The House can’t seem to get its real work done these days, such as passing appropriations bills for agriculture, transportation, and housing. Kids have to do their chores before they can play video games. By the same token, shouldn’t the House have to do its work before it blows off steam with symbolic votes?
Or to put it another way, isn’t time to cut the REINS?
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more