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.
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?
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 Review and 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.