The Coming Debt Limit Negotiations and the REINS Act

by Reihan Salam

Congressional Republicans are debating what they ought to demand in exchange for raising the debt limit. I am sympathetic to the view that we should not have a statutory debt limit. But if we’re going to have a negotation, what should Republican lawmakers ask for? Lori Montgomery of the Washington Post recently described the debate among House Republicans:

With the budget deficit falling far faster than anyone expected, House leaders have backed off their insistence that any debt-limit increase be paired with budget cuts of equal value. Now, it seems, the sky’s the limit.

At the meeting, 39 lawmakers lined up at microphones to offer suggestions. They ranged from tax and entitlement reform to approval of the Keystone XL pipeline to passage of a bill that would require congressional approval for any federal regulation that would impose more than $100 million in new costs on business.

At least one person wanted to take on late-term abortion in the wake of the conviction of Philadelphia doctor Kermit Gosnell. Others suggested repeal or delay of Obama’s health-care initiative. But for the most part, lawmakers tried to be “realistic,” aides said, suggesting measures that could reasonably be expected to both improve the economy and pass the Democratic Senate.

Approval of the Keystone XL pipeline and requiring congressional approval for large-scale regulatory initiatives both strike me as excellent ideas, as they can plausibly be described as growth-enhancing. Jonathan Adler has written extensively about the potential implications of the House-passed REINS Act:

Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations of the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both Houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory policy. It explains why constitutional objections to the proposal are unfounded and many policy objections overstate the REINS Act’s likely impact on the growth of federal regulation. The REINS Act is not likely to be the deregulatory blunderbuss feared by its opponents and longed for by some of its proponents. The REINS Act should be seen more as a measure to enhance accountability than to combat regulatory activity.

Kristina Costa of the Center for American Progress has outlined the various objections to the REINS Act from the left, among them that the rule-making the legislation proposes to “rein in” essentially represent a technocratic process of implementing laws that have already been passed, and so there should be no concerns about the democratic legitimacy of even the most sweeping rules. The deeper question, however, is whether this delegation of regulatory authority to federal administrative agencies is appropriate in the first place. Adler writes:

Delegation may be expedient, or even necessary, but it also has costs. When Congress delegates broad regulatory authority to executive or independent agencies, it inevitably loses some degree of control over how that authority is exercised. The resulting loss of political accountability for regulatory decisions has allowed regulatory agencies to adopt policies at odds with congressional intent or contemporary priorities. This is particularly so when Congress delegates broad authority to pursue generic—almost platitudinous goals—such as advancing the public welfare or protecting public health. For instance, if Congress instructs a federal agency to adopt measures that will address a given environmental problem as far as is practicable, the federal agency retains substantial discretion to determine what sorts of measures should be adopted and at what cost. And should the agency veer off course and adopt a measure of which Congress disapproves, it is not so easy to put the genie back in the bottle.

As Adler goes on to argue, it is unlikely that limiting the delegation of regulatory authority will lead to a larger rollback of regulation for the simple reason that many regulations are actually pretty popular. All the REINS Act does is force lawmakers to accept responsibility for approving expensive new regulations — and some will presumably be very happy to do so. One implication of Adler’s argument, alas, is that the REINS Act won’t necessarily be enormously growth-enhancing. But it seems like a good measure to press for all the same.