House of Representatives clears REINS Act

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.

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REINS Act set for imminent floor vote in U.S. House of Representatives

Republicans in the U.S. House of Representatives continued their early moves in the young 115th Congress to limit executive branch regulatory power and roll back regulations by setting up the so-called REINS Act for consideration on the floor of the chamber.

The proposed new administrative law statute would require that Congress approve, by joint resolution, all “major” rules – defined as causing an annual financial impact of at least $100 million to the U.S. economy – before they can take effect.

Such an approach to regulation would be a dramatic departure from current law. Under the Administrative Procedure Act of 1946, agencies are delegated broad authority to write regulations.

Congress can step in to nullify them through use of the Congressional Review Act, a statute enacted in 1996 that requires each chamber to pass a resolution for each disapproved rule and the President to sign such resolutions if regulations are to be nullified.

On Wednesday the House Rules Committee approved the rules that will guide consideration of H.R. 26 when both the Committee of the Whole (the term for the entire membership of the House of Representatives on the first reading of a bill) and the House will consider the measure.

One hour of total debate time, to be shared by Republicans and Democrats will be permitted. Twelve amendments will be considered.

Several amendments to be offered by Democrats would limit the scope of the far-reaching legislation.

One by Rep. John Conyers, D-Mich., would exempt regulations that limit lead in drinking water from the bill’s requirements. Another by Rep. Frank Pallone, D-NJ, would remove regulations that are designed to improve the safety of pipelines or prevent, mitigate, or reduce oil or natural gas spills.

Rep. Jerrold Nadler, D-NY, will ask the House to adopt language that exempts rules relating to nuclear reactor safety.

An amendment by the ranking member of the Natural Resources Committee, Raul Grijalva of Arizona, would require agencies to provide an “accounting of the greenhouse gas emission impacts associated with a rule as well as an analysis of the impacts on low-income and rural communities.” Grijalva’s amendment, if adopted, would specify that a rule is “major” under the bill if it “increases carbon dioxide by a certain amount or increases the risk of certain health impacts to low-income or rural communities.”

A similar tack is taken by Rhode Island’s David Cicilline, who will propose removal of all rules that relate to “the protection of public health or safety” from the proposed REINS Act. An amendment to be offered by Rep. Kathy Castor of Florida would eliminate from the reach of the proposed law all regulations that “result in reduced incidence of cancer, premature mortality, asthma attacks, or respiratory disease in children.”

Some Republicans, on the other hand, appear intent on toughening the requirements to regulate even further.

An amendment by Rep. Luke Messer, R-Indiana, would require agencies to offset the costs to the economy of new rules by modifying or eliminating old ones, while Rep. Steve King of Iowa will suggest that the bill include language that gives Congress a vehicle for reviewing all regulations finalized during the past ten years.

A schedule posted on the website of House majority leader Kevin McCarthy, R-Calif., indicates that the proposed REINS Act was to be considered on the floor of the chamber starting Thursday at 10 am EST.

 

 

House to vote on Senate-passed KXL bill next week

The U.S. House of Representatives will vote next week on whether to adopt the KXL pipeline bill approved by the Senate.

The chamber’s majority leader, Rep. Kevin McCarthy, R-Calif., announced Tuesday his intention to move the controversial proposal to President Barack Obama’s desk.

“Next week we will take up the Keystone pipeline as passed by the Senate and send it to the President’s desk,” McCarthy said during a press conference.

If the House, as expected, passes S.1 without changes, then Obama will soon be in a position to impose a promised veto of the legislation.