The Republican-dominated 115th Congress has launched an assault on the federal government’s system of regulation. A bill passed by the House of Representatives on Jan. 5 would require Congress to approve all administrative rules, including those that limit pollution. Image courtesy Wikimedia.
Republicans eager to take a wrecking ball to the system of administrative law in place for seven decades have moved the second of three bills central to that effort through the U.S. House of Representatives.
The majority GOP pushed through the proposed “Regulations From the Executive in Need of Scrutiny Act” Thursday on a 237-187 vote.
Before doing so legislators adopted several amendments, including one by Rep. Steve King, R-Iowa, that subjects all existing regulations to the requirements that would be imposed by the bill and another by Rep. Luke Messer, R-Ind., that would require agencies to offset the costs of new regulations by repealing or amending those already in effect.
The House rejected Democratic amendments that would exempt regulations that affect children’s health, protect public health and safety, reduce the concentration of lead in drinking water, and assure the safety of children’s toys.
Affecting most regulations issued by federal agencies that might cost business at least $100 million per year in compliance costs, and establishing a 70-day period in which Congress either approves the rule or renders it void, the bill flips on its head the system by which Presidents and their appointees have administered statutes since the 1940s.
Under current law a regulation is valid unless Congress nullifies it, something that is possible to do but rarely accomplished.The existing system of law that governs the way in which all agencies write regulations also provides safeguards to assure that public opinion and appropriate commercial, scientific, or technical information is considered by agencies. The Administrative Procedure Act of 1946, provides for comment periods and required time intervals between proposed and final regulations. Judicial review of regulations is also available in most cases.
By delegating rulemaking to agencies staffed by professional civil service members, Congress has traditionally recognized that those federal government institutions and employees are better suited to write regulations that can often be technical in nature and involve extensive development of a factual record.
H.R. 26 reverses that longstanding approach and instead mandates that Congress, the most politically attuned entity of the federal government, deliberate and decide on the appropriateness or necessity of a regulation.
The bill would also severely limit the time available to Congress to accomplish the task. Aside from the 70-day approval limit, H.R. 26 would also limit the time of debate for any rule under consideration.
Given that it is not unusual for an administration to propose more regulations than there are legislative days in a Congressional session, it is likely that Congress would not be able to keep up with the flow of requests to approve new regulations.
Some critics say that H.R. 26 also sets up a potential constitutional crisis.
First, the measure might constitute an invasion by Congress of the President’s authority to “faithfully execute the laws,” as demanded by Article 2 of the Constitution.
Second, H.R. 26 would establish a form of a legal device called the legislative veto, which the Supreme Court has twice ruled unconstitutional. As explained by Professor Ronald M. Levin of Washington University in St. Louis, an expert on administrative law:
“The problem with the REINS Act is that, with regard to major rules, it would accomplish virtually the same result as the “traditional” one-house veto—namely, it would enable a single house of Congress to nullify an agency rule, regardless of the wishes of the other house, let alone the President. The question, then, is whether the Supreme Court would accept what amounts to a 180 degree change of direction if the one-house veto were repackaged in a different format, even though the risks of unchecked action by the legislative branch would be as great in the later version as in the earlier one. My suggestion is that it would not.”
Other constitutional law scholars have disagreed
with this perspective, but at minimum the issue of the validity of the REINS Act would set off a long litigation battle that might pit a current or future President against Congress.
Finally, as David Goldston, a historian and former Congressional staff member now affiliated with Natural Resources Defense Council, wrote Jan. 4, it is possible a federal court would order a regulation to be issued by an agency even as Congress refuses to approve that regulation.
“Under the Constitution, a court presumably can’t require Congress to act, so the statute could not be enforced,” Goldston wrote. “But it also would not actually have been repealed.”
The GOP’s first assault on the regulatory system during the 115th Congress came Jan. 4 as H.R. 21, the so-called Midnight Rules Relief Act, cleared the House of Representatives. That bill would give Congress the power to revoke, in one fell swoop, most regulations finalized by the Obama administration since May 2016.
A Senate version of the “Midnight Rules Relief Act” has been referred to that chamber’s Government Affairs and Homeland Security Committee. A militant regulation skeptic, Ron Johnson of Wisconsin, chairs that committee.
Legislators in the U.S. Senate will also consider the proposed REINS Act. S.21 was introduced on Jan. 4 and is sponsored by Republican Rand Paul of Kentucky and 27 other senators.
President-elect Donald J. Trump has said that he will sign the proposed REINS Act if it reaches his desk.
The last bill in the Republicans’ anti-regulatory triumvirate is H.R. 5, which is styled as the “Regulatory Accountability Act of 2017.”
That measure would increase the procedural hurdles to rulemaking and forbid federal judges from deferring, in some circumstances, to agency interpretations of statutes.