Dear Ian,

Thank you for your questions and comments responding to my latest update on the REINS Act. I hope the following reply will help to explain why the Center for Effective Government opposes this legislation.

Throughout our history, Congress has passed, and the president has signed into law, bills establishing executive and independent agencies and tasking those agencies with implementing the broad congressional directives provided by the legislation. Neither the president, nor the head of an agency, may act alone to expand the scope of an agency’s authority.

A major reason Congress has and continues to establish new agencies is because it recognizes that it does not have the technical expertise or time available to implement many important but complex laws, such as the Clean Air Act and Clean Water Act. Instead, Congress outlines the broad objectives the law seeks to achieve and tasks agencies with carrying out those mandates, which can include congressional authority for an agency to issue and enforce regulations. Only occasionally does Congress provide specific, detailed instructions to an agency. Although agencies have authority to implement the law, they cannot take any action that exceeds the authority provided by the law.

Congress can employ numerous “checks” already available to it to review agency actions, including holding oversight hearings and using appropriations bills to provide specific directions on how an agency can or cannot spend the funds Congress has provided.

Additionally, under the Congressional Review Act, Congress can submit joint resolutions to disapprove of major rules before they become law. A resolution of disapproval must, like any legislation, pass both chambers of Congress and be signed by the president. To date, Congress has only invalidated one regulation under its congressional review authority. The REINS Act proposes to turn this authority on its head, requiring congressional approval of new rules and invalidating rules that are not affirmatively approved within 70 legislative days. This in no way “allows Congress a view into the process” that it does not already have. Rather, it impermissibly strips away the constitutional requirement that the president sign an act of Congress for it to become the law of the land.

Moreover, the notion that Congress will arrange for "timely" consideration of agency rules has not been borne out over the past decade and a half (at minimum). Even when both houses of Congress have been controlled by the same party, it has been bogged down by delay and outright gridlock. It's also difficult to see how approving essential standards and safeguards on a regular basis would be a high congressional priority. Thus, the REINS Act would “block progress” on numerous agency actions because both chambers would not be able to approve all new major rules before the end of 70 days.

Agencies often spend several years developing rules to protect our health, safety, natural resources, and economy. Under the REINS Act, even if a rule would greatly benefit the public with little cost to industry, Congress could choose not to act, invalidating the rule and throwing away years of work, wasting agency resources and leaving Americans in harm’s way.

The REINS Act does not increase the transparency of the executive branch or the regulatory process. The public already has access to the regulatory process during the required notice-and-comment period. Agencies often hold meetings across the country to receive public input when developing major rules. The public can also petition agencies to issue new rules, and the public can often hold agencies legally accountable for not developing required rules. The REINS Act is geared toward one goal only: grinding the entire regulatory process to a halt to delay or completely stop important health, safety, environmental, and economic safeguards. 

Sincerely,

Katie Weatherford