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?

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Reader Comments

4 Replies to “REINS or SPURS?”

  1. Come on Dan. Look more closely at REINS. There’s nothing constitutionally dubious about it whatsoever. I’ve gone into this at length. (See here: http://www.nyujlpp.org/wp-content/uploads/2013/04/Adler16.1.pdf) Even those who think it’s bad policy (like Jonathan Siegel) concede there’s no constitutional problem. (see here: http://www.nyujlpp.org/wp-content/uploads/2013/04/Siegel16.1.pdf ) Indeed, Larry Tribe and then-Judge Breyer concluded the same thing years ago when the issue was first proposed.

    In terms of the practical effects, for reasons I explain in my article above, REINS would actually lessen the influence of special interests because it would make it more difficult to influence rules in back rooms and agency halls. The public is better served by seeing how their elected representatives vote out in the open than in hoping that the rulemaking process adequately considers their interests. If the public wants more regulation, environmental or otherwise, REINS would not get in the way.

    You are correct, however, about some of the latest tweaks. REINS is the sort of thing that should be imposed as a clean, across-the-board bill. There should not be special carve outs for agribusiness or anyone else.

  2. Dan,

    I see these resolutions as signs of weakness. Was it Draghi or Trichet back in 2010 that said that there will be no Greek bailout. As soon as the ECB felt the need to explicitly state the denial, the markets priced in the opposite result.

    Why is the Tea Party Caucus resorting to these shenanigans in the House – I think because they are powerless to prevent the actions that EPA will (hopefully) take in the coming months. This is a sign that the BATNA is starting to change for legislative action on climate, which can only be a good thing.

    As to the carbon tax amendment, I think it is highly significant that they limited the amendment to a carbon tax implemented via regulation. There has been another move to try to pass a resolution expressly disapproving a legislated carbon tax – in order to signal the Senate (Sanders-Boxer and Feinstein) on this issue. But apparently, the signal that might actually be sent would be one of several moderate Republicans either abstaining or voting no on such a resolution; so no floor vote for that – just a resolution disapproving something that, as you point out, EPA has no power to do with existing law anyway. The unsaid is as important here as the bill language.

    It sound strange feeling so optimistic about this, but when I heard the news, it felt to me like the clouds might begin to break at some point. Like the tide is starting to turn.

    Best,
    Michael

  3. Come on Dan. Look more closely at REINS. There’s nothing constitutionally dubious about it whatsoever. I’ve gone into this at length. (See here: http://www.nyujlpp.org/wp-content/uploads/2013/04/Adler16.1.pdf) Even those who think it’s bad policy (like Jonathan Siegel) concede there’s no constitutional problem. (see here: http://www.nyujlpp.org/wp-content/uploads/2013/04/Siegel16.1.pdf ) Indeed, Larry Tribe and then-Judge Breyer concluded the same thing years ago when the issue was first proposed.

    In terms of the practical effects, for reasons I explain in my article above, REINS would actually lessen the influence of special interests because it would make it more difficult to influence rules in back rooms and agency halls. The public is better served by seeing how their elected representatives vote out in the open than in hoping that the rulemaking process adequately considers their interests. If the public wants more regulation, environmental or otherwise, REINS would not get in the way.

    You are correct, however, about some of the latest tweaks. REINS is the sort of thing that should be imposed as a clean, across-the-board bill. There should not be special carve outs for agribusiness or anyone else.

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Dan Farber

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…

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