The House is likely to vote this week on H.R. 427, the Regulations from the Executive In Need of Scrutiny Act, also known as the REINS Act. Introduced by Rep. Todd Young, R-Ind., the bill would require Congress and the president to approve major regulations (those with an economic effect of $100 million or more) before they could take effect. Congress would be granted 70 days to vote affirmatively to adopt such regulations. If it did not, the president temporarily could deem the regulation effective if national security or the public health or safety was imperiled.
Perhaps the third time will be the charm. The House overwhelmingly passed the legislation in 2011 and 2013, only to see it die in the then-majority Democratic Senate. Majority Leader Mitch McConnell, R-Ky., who has complained about ill-conceived regulation, has not yet said whether the Senate would take up its version of the REINS Act (S. 226), introduced by the junior senator from his state, Rand Paul.
There are at least five reasons why Congress should pass the REINS Act.
- Democratic accountability. Each year, about 4,000 new regulations take effect. Regulations have the force of law, and agencies that issue regulations usually are empowered to enforce them with fines and other penalties. Individuals who dislike a regulation are without recourse—they cannot vote regulators out of office. The Constitution declares: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The REINS Act would force Congress to take responsibility for the enactment of the largest and most economically significant regulations, thereby restoring some democratic accountability.
- Democratic equality. Who participates in federal rulemaking? Mostly, elites do. Regulations are proposed by unelected employees at federal agencies. Their final form is shaped through input from lobbyists and interest groups. Average citizens and their representatives seldom submit their own comments to an agency proposing a rule. The REINS Act would interject democracy into rulemaking by making the people’s representatives participate in regulatory policy.
- Oversight. The U.S. Constitution establishes a principal-agent relationship between the first and second branches of government. Congress legislates, and the executive effectuates the laws. The REINS Act would force Congress to spend more time overseeing the work of regulators to ensure they faithfully execute the law (and less time naming post offices and passing feel-good commemorative bills.)
- Reducing errors. Regulators do make mistakes. Under the present system, a private party has to file a lawsuit to get the problem fixed. Court challenges, in fact, have invalidated more than a dozen regulations in recent years, issued by agencies ranging from the Department of Health and Human Services to the Securities and Exchange Commission. Subjecting regulations to congressional review before they become law may prevent some errors and the costs thereof.
- Improving implementation. Current regulatory policymaking is dysfunctional. Congress delegates authority to agencies to implement a law, then yells when the regulations are not to its liking. Meanwhile, the American public foots the bill. Good policy implementation requires dialogue between lawmakers and agencies. This is why most states conduct legislative review of regulations before they take effect. Connecticut, for example, has a Legislative Regulation Review Committee. Michigan similarly has a Joint Committee on Rules that can disapprove rules.