My use of the DOL family farm regulations to take a pot-shot at the Porchers below, has led to my learning about the REINS bill, thanks to our astute commenters Brian and CJ Wolfe.
Standing for Regulations from the Executive in Need of Scrutiny, the REINS act:
“…would require Congress to take an up-or-down, stand-alone vote, and for the President to sign-off on all new major rules before they can be enforced on the American people, job-creating small businesses, or State and local governments.
Major rules are those that have an annual economic impact of $100 million or more. Last year, 100 major rules were finalized by the Executive Branch.”
Sounds good to me, but CJ Wolfe indicates there are potential problems. Here’s inviting him to say more, although I suspect one problem has to do with whether such an law could restrain a President who simply refused to sign off each of these regulations as the law requires and then claimed on presentment clause grounds, that Congress’ vote was not binding. In shorthand: separation of powers issues here.
What do you think?
P.S. Porchers, the bill was sponsored by a Republican, one Geoff Davis, a man representing a portion of Kentucky, and it is set to die in a Senate that is Democratic.
March 24th, 2012 | 3:57 pm
I think your separation of powers concerns about the REINS act are warranted Carl, although my own chief concern has to do with the nitty-gritty business of these bills being passed in the halls of congress.
Most spending bills in Congress are subjected to a firing squad at the Committee markup sessions. I take it these REINS bills coming from the Executive Agencies would not go through committee, and the up or down vote in full House would depend on information provided to the Congressmen by the Agencies themselves. This may be problematic. Also, it is crucial -who- determines what the cost of regulation is; the President’s Office of Management and the Budget or the Congressional Budget Office (I think it’s OMB).
Having these 100+ major bills to sign off on each year would require a significant change of responsibilities for the Congressmen, and I’m not convinced that they would be up to it just yet. Should they have been taking responsibility for these costly regulations all along? Yes. But we might should ease into it more gradually (e.g., they could redefine “major rules” as having an impact of $200 mil. or more).
March 25th, 2012 | 12:10 am
You guys are both right about those difficulties.
I ironically had almost the opposite worry as CJ Wolfe, getting even more nitty gritty about it.
I share CJ Wolfe’s worry that congress could not act as a deliberative body on 100+ major bills. Even setting the threshold at 200 million+ would miss the picture.
The 4th branch of government exists for a reason. I think one policy solution is for political science professors to teach the APA instead of neglecting administrative law. Another worthwhile goal would be for the House judiciary commitee to do what Scalia suggests and bring back the ACUS.
My problem isn’t that the bills would be biased by the administrative agencies, but almost the opposite that interested parties who would otherwise fully vet the implications of the policy during notice and comment would make tactical moves about what sorts of information to give to the agencies.
If the house and senate are republican for example certain businesses might float weak arguments and let the agency come down in favor of a “citizens group”, then they would bring out the stronger arguments to congress and put them on the internet to get a sort of blow out political effect and vice versa (if democrats control, let businesses get an unfair rule) then blow them out.
The Reins bill might be a tactical win for lawfare.
Alternate channels that provide two bites at the apple would result in worse administrative law, as all the issues would not be aired in a single forum to experts with time to consider narrow questions and a process that made full use of adversarial interested parties.
The opportunities for gamming the system would increase.
Contra CJ Wolfe it wouldn’t matter who determined what the cost of the legistlation was, since interested parties could always make this information known to congressmen.
The Up or Down vote in the senate and house would depend upon the political orientation and saliency of the interest group, not any sort of expertise or merit.
Rein would weaken or kill administrative law. The answer is to repeal problem legistlation, or to write bills with a more narrow mandate statute.
Because all of this is complex one way to make it easy is simply to craft a brand that is focused on a bright line rule, i.e. Americans for Tax Reform: No New Tax pledge!
If the Reins bill would pass you would quickly get a one stop shop! Americans for administrative Reform: I will never vote for a rule that has an economic impact over 100*(200) million dollars.
Then consider that a clever and “expensive” economist can find a way to make a regulation meet the threshold. The battle at the administrative level would then not be on the issue, but would instead resolve around how expensive it was likely to be (this is already somewhat the case).
All you have to do is get the issue to that threshold amount and voila if you have a commited enough republican house or senate, it fails.
Bright line rules are so awesome! You don’t even have to read the bills…just the polls! Be personable with people and nice to your pets, and keep your base raiting agencies happy (ACU, et al) and that is basically the idiots guide to being a representative!
Like the american people my trust in the institution of congress is lower than my trust in the bureaucracy. 8% favorable raiting seems a bit too harsh, but not by much.
March 26th, 2012 | 11:16 am
I like your honest skepticism, John. I’m not sure I agree with the answer you provide, though:
“The answer is to repeal problem legistlation, or to write bills with a more narrow mandate statute.”
The “repeal” part of your answer sounds like the Legislative veto again, which doesn’t work.
The “narrow mandate” part of your answer I completely agree with, one of the main problems of Obamacare is that it creates 50 some-odd regulatory commissions. I think it remains a problem that none of these agencies are really accountable to the voters and we need some way to REIN them in, although this legislation is probably not the way to do it
March 27th, 2012 | 10:49 am
I confess I don’t get the problem here–why can’t Congress immediately rescind the rule-making authority of HHS, EPA, etc? Surely that authority only exists because Congress granted it in the first place?
Is there some reason why a GOP HHS Secretary can’t immediately rescind the contraception mandate, the abortion-fund mandate, etc? If not, why not?
If Congress can’t stop them, and future appointees can’t stop them, then we’re much further off the rails than I even thought.
Personally, I have zero problem with Congress being forced to debate and consider all of these regulations. That way we’ll at least know that the democratic process is involved, and at least in theory can hold someone accountable. Plus, anything that stops Congress from “getting stuff done” is fine with me. They’ve done quite enough already, thankyouverymuch. As far as I’m concerned, all bills should be forced to be read aloud with a voting quorum present at all times. That’ll stop these 3000 page monstrosities from being jammed through.
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