Legal Commentary

Regulations from the Executive In Need of Scrutiny

By Jonathan H. Adler

Tomorrow afternoon (back willing) I will be in Washington, D.C. to testify before the House Judiciary Committee?s Subcommittee on Courts, Commercial and Administrative Law on the Regulations from the Executive In Need of Scrutiny (REINS) Act.  This bill would require congressional approval before  new ?major? regulations ? those regulations expected to cost in excess of $100 million per year ? could take effect.  It also creates an expedited process for consideration of new regulations, much like that which has been used in conjunction with ?fast track? trade negotiation authority, to ensure that both Houses of Congress take up-or-down votes within a short time frame.  For more detail on the bill, here is a brief white paper I wrote for the Federalist Society on the REINS Act?s central provisions.

The primary purpose of the Act is to ensure greater political accountability for major regulatory initiatives.  Federal regulatory agencies only have that power delegated them by Congress, but regulatory agencies are not always particularly responsive to Congressional concerns.  Nor are members of Congress always willing to take responsibility for how the power they have delegated gets exercised.  Requiring a straight up-or-down vote on new major regulations is a way to address both problems and the expedited procedures ensure that traditional legislative logjams and special interest obstruction won?t prevent consideration of significant regulatory initiatives.  This is why I believe the REINS Act is more about transparency and political accountability than anything else.

I have no idea whether the REINS Act has much hope of passage.  The bill was part of the Republican leadership?s ?Pledge to America? and was just introduced in the House, where I would think its prospects are good.  The Senate presents a more significant challenge, as does the White House.  At present, most support for the REINS Act appears to come from those who believe federal regulation is out of control and needs to be restrained.  Given that the REINS Act does not offer a mechanism to bottle up regulations with holds, filibusters or other roadblocks, supporters have adopted the implicit assumption that federal agencies are engaged in more aggressive regulation than the public supports.  From what I?ve seen of the other side (and I have not seen much as of yet), some opposed to the REINS Act likewise assume that regulatory initiatives they would support could not command majorities in Congress.  I don?t know whether this assumption is accurate, but it would say something if there were to be widespread agreement that federal agencies are regulating in a manner the American people do not support.

Additional posts on this legislation, my testimony and the hearing will follow.

Full post as published by The Volokh Conspiracy on January 23, 2011 (boomark / email).