REINS on Regulators
Congress should oversee the most costly and consequential regulations.


Jonathan H. Adler

Progressive advocacy groups complain that the REINS Act would enable special-interest groups to obstruct popular public-health and environmental measures. To the contrary, the act’s provisions would effectively disable the traditional means legislators and special-interest groups use to slow or stop legislative review and would force political fights over regulatory measures out into the open. Whereas legislation traditionally can be bottled up in committee or held up by a determined handful of lawmakers, resolutions of approval under the REINS Act cannot be disposed of without a majority vote. This requires an additional step before new major rules can become effective, and it also requires members of Congress to openly declare their support of or opposition to a specific rule.

Some REINS Act opponents, such as Rep. John Conyers (D., Mich.) and the editorial board of the New York Times, worry that it would unduly constrain executive power. This reflects a misunderstanding both of the act and of the constitutional distinction between executive and legislative power. The power to “enforce” the laws — that is, the power to take action to see that legal rules are complied with — is distinct from the power to make rules pursuant to a delegation of authority from Congress. So, for instance, the EPA’s power to impose fines or other sanctions on companies that violate emission limits is distinct from the EPA’s power to set the emission limits. A requirement that federal agencies obtain prior congressional approval of major rules has no effect on the executive branch’s ability to set enforcement priorities for those rules that are ultimately adopted.

Progressive advocacy groups and academics act as if the REINS Act would completely gut the regulatory state. It “would threaten critical public protections,” according to the Coalition for Sensible Safeguards. In fact, it would not have any effect on the thousands of regulations already on the books, and it would impose no meaningful obstacle to new regulations supported by the public.

The primary effect of the REINS Act would not be to stop regulation across the board, but to ensure that those major regulations adopted are ones that the American public actually supports — and that appears to be what has opponents most concerned. Writing in The New Republic, University of Richmond law professor Noah Sachs warns that the REINS Act would “do serious damage to American health and prosperity — stopping agencies from promulgating important rules that, among other things, would help prevent bank failures, ensure the safety of the food we eat, and control toxic pollution in the air we breathe.” Sachs’s unstated premise is that many of these “important rules” that are so necessary for the public good could not prevail on straight up-or-down votes. The current, unaccountable regulatory process is necessary precisely because it enables the adoption and enforcement of rules that do not enjoy majority support.

In a similar way, the dean of NYU’s law school, Richard Revesz, and his colleague Michael Livermore argue that the REINS Act puts undue emphasis on the “costs” of regulation. On the Huffington Post, they write:

By focusing exclusively on the downsides of regulation, and not the benefits, the implication of this proposed legislation is that protecting the health and safety of Americans is not worth the costs that regulated entities must pay. But in fact, the opposite is often true: These rules can produce billions of dollars in net benefits.

This critique simply misses the point. The REINS Act focuses on “major” rules — those expected to cost more than $100 million — because such regulations involve the most consequential policy choices, not because such rules are presumptively unwise. Of course regulations may produce substantial benefits. The question is whether the benefits justify the costs, and this is a question best answered by our elected representatives. If regulations “produce billions of dollars in net benefits,” as Revesz and Livermore claim, then what is so wrong about subjecting them to the democratic process?