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


Jonathan H. Adler

The Environmental Protection Agency is in the process of proposing and implementing a series of regulatory measures controlling greenhouse-gas emissions from motor vehicles and stationary sources. As a result of these initiatives, well over a million industrial and commercial facilities could be brought within the scope of the Clean Air Act for the very first time. And yet Congress has never expressly approved EPA regulation of greenhouse gases. Instead, the EPA is relying upon decades-old statutory authority, adopted long before Congress considered climate change a serious environmental concern. The most far-reaching environmental regulations in the nation’s history are being adopted without meaningful legislative input.

Although the EPA is exercising authority ostensibly delegated by Congress, Congress is not politically accountable for the EPA’s actions. Members of both parties decry the EPA’s policies. Some argue the agency is too lenient, others that it is too strict. Without a supermajority, neither side has the ability to force the EPA to change course. And so the regulatory train rolls on.

This is not an isolated example. Across town, the Federal Communications Commission has adopted controversial rules imposing “net neutrality” on telecommunications companies, again without congressional approval. Other agencies are following only the broadest statutory script as they remake whole portions of the nation’s economy. Though the statutes were passed by Congress, agency authority, once granted, is difficult to modify or repeal, even if prevailing political attitudes change. For all practical purposes, many federal agencies operate on autopilot, adopting measures they say are for the public benefit without meaningful public input, let alone much political accountability.

This week the House will consider legislation to restore congressional accountability for regulatory policy. The Regulations from the Executive in Need of Scrutiny (REINS) Act would prevent federal agencies from adopting major regulatory initiatives without congressional assent. Specifically, the REINS Act provides that newly promulgated regulations anticipated to cost over $100 million per year cannot take effect unless both houses of Congress pass a joint resolution approving them, and the resolution is forwarded to the president for his signature (or veto).

The other important feature of the REINS Act is the creation of an expedited procedure to ensure prompt consideration of resolutions of approval in each house of Congress without obstruction or delay. Among other things, it provides that resolutions of approval are automatically introduced and are privileged, not subject to amendment, and not subject to dilatory procedural motions. Debate is limited in each house, and a resolution may not be filibustered in the Senate. The idea is to force an up-or-down vote on the most important regulatory measures before they become law. In this way, REINS would both discipline the regulatory process and introduce far greater accountability.

In effect, the REINS Act amends existing regulatory statutes to remove federal agencies’ authority to unilaterally adopt regulatory measures, instead requiring them to forward “final” rules as proposals for congressional review. Requiring congressional approval will ensure that Congress takes responsibility for major regulatory-policy decisions. Adopting an expedited legislative process, much like the one used for fast-track trade authority or military-base closings, will enhance transparency and prevent congressional review from unduly delaying needed initiatives.