A similar argument is made by the University of Michigan’s David Uhlmann, but to no greater effect. On the blog of the American Constitution Society, Uhlmann warned that it would be terrible to let Congress decide whether to regulate the private sector.
Do we want the Congress, with all of its partisan influences, to be the arbiter of sound science and best practices in areas as complex as toxicology, engineering, ecology, and pharmacology? Do we believe that we would have more efficient and more effective regulation if we empowered Congress, rather than scientists and engineers, to decide fundamental questions about environmental protection, public health, and motor vehicle safety?
Apparently some domestic-policy decisions are too important to be left to our elected representatives. And yet the question is not whether we would have “more efficient and more effective regulation” but whether we would have regulations that more closely follow the preferences of the American people. Whether a given regulatory measure is worth the cost is a normative question, and not simply a matter of administrative or technical expertise. Furthermore, contrary to Uhlmann’s suggestion, it is not “scientists and engineers” who make the ultimate regulatory decisions, but political appointees well insulated from political (read: popular) influence.
If the public truly desires increased federal regulation of the economy, the REINS Act will not stand in the way. Even if the act empowers regulatory opponents to vote down some new major rules, anti-regulatory members of Congress will suffer at the ballot box if increased federal regulation is what the American people really want. Under the REINS Act, major regulatory decisions would be forced out into the open, providing greater political accountability than the current administrative rulemaking process. In the end, the REINS Act is a way to make sure Americans get only those regulations they truly want, and that appears to be what REINS Act opponents fear.
— Jonathan H. Adler is a contributing editor at National Reviewand the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He testified on the REINS Act before the House Judiciary Committee earlier this year.