On December 7th, the House passed H.R. 10, the 'Regulations From the Executive in Need of Scrutiny' Act (REINS Act) of 2011 by a vote of 241-184. This bill would substantially delay and potentially prevent agency rulemaking, at great risk to public health and safety, by requiring that any major new rule be affirmatively approved by Congress and the President. Congressional approval of the rule must occur within 70 legislative days of the rule being received by Congress. With few exceptions, if Congress fails to act in the allotted time, the rule could not be brought up again until the next Congress and would not be implemented. Major rules are generally defined as those having an annual economic impact of $100 million or more. The average number of major rules issued over the past five full calendar years (2006-2010) is about 80.
Despite the fact that economists estimate that extending the payroll tax cut saves at least 400,000 jobs and extending UI saves at least 200,000 jobs, the GOP has not brought up any reasonable bills to enact these extensions or any other key jobs bills. Instead, the GOP is bringing up another backdoor attempt to gut popular protective laws, such as the Clean Air Act and the Food Safety Modernization Act.
- The GOP claim that slashing regulations is the way to create jobs is a myth, as Bruce Bartlett, an economic advisor under Presidents Reagan and G.H.W. Bush, has pointed out. As AP reports, “As for the idea that cutting regulations will lead to significant job growth, Bartlett said in an interview, ‘It's just nonsense. It's just made up.'” [AP, 10/30] Indeed, as BLS data show, in 2010, only 0.3 percent of people who lost their jobs in layoffs were let go because of ‘government regulations/intervention.'
- The GOP claim that there has been a ‘tsunami' of regulations under President Obama is also a myth. As Bloomberg reports, “Obama's White House has approved fewer regulations than his predecessor George W. Bush at this same point in their tenures.” [Bloomberg, 10/25]
This damaging GOP bill effectively acts as a chokehold on major federal agency rulemaking by requiring Congressional approval of major rules before they can take effect, thereby undermining the ability of agencies to protect consumer health and safety. As the Coalition for Sensible Safeguards points out, “[This bill] would make it virtually impossible for federal agencies to ensure that American families are protected from tainted food, unsafe drugs, predatory financial schemes, dirty air and water, and dangerous workplaces.”
Key Reasons This GOP Bill Is Harmful
Acts As A Chokehold on Rulemaking, Undermining Ability of Agencies to Protect Consumer Health and Safety
- The bill will severely restrict agency rulemaking by adding a significant procedural hurdle to the rulemaking process and, through expedited procedures for congressional consideration of major rules, will afford industry another opportunity to stop major rules from going into effect. Worse yet, Congressional inertia would effectively constitute a veto of even critically needed rules. With its provisions, the bill threatens federal agencies' ability to protect public health and safety.
- The practical result of these new, additional steps in the regulatory process would be the wheels of government grinding to a halt.
- In strongly opposing the bill, the Consumer Federation of America points out, “[The hurdles in the bill] would be virtually impossible for important consumer protection rules to jump. The bill strips away the authority of federal agencies that Congress created to develop expertise on how to protect American consumers from dangerous products, tainted food and deceptive financial services products. Most agencies will simply give up trying to protect consumers. If an agency persists in its efforts, it faces the prospect of squandering enormous resources to research, write and evaluate an important consumer protection rule, because well-funded special interests have been able to bottle it up in a single House of Congress over a short period of time.”
Allows Well-Funded Special Interests to Further Influence the Rulemaking Process
- By requiring that major rules be approved by Congress and the President, this bill simply gives well-funded corporate interests another opportunity to block regulations they oppose.
Harms Businesses and the Economy by Creating Unnecessary Uncertainty and Delay
- The costs of the bill will be the resultant delay, uncertainty, and actual harm to the economy and society from the Congressional approval process dictated by the legislation.
- Highly beneficial rules will be delayed or even abandoned as a result of the failure of congressional action.
- The bill creates enormous uncertainty for business. Under the bill, after the multi-year process of Congress enacting a law and Executive Branch agencies promulgating a rule, during which time businesses put time and money into preparing to comply with the regulation, the entire process may be cancelled at the very last moment, punishing the responsible firms that prepared for the new rules while rewarding those that did not.
Is Completely Unnecessary; Congress ALREADY Has Oversight Over Federal Agency Rulemaking
- Congress already has various mechanisms at its disposal to oversee and influence the federal agency rulemaking process. First of all, it should be emphasized that agencies are simply issuing rules to implement statutes that have already been enacted by Congress. When a federal agency promulgates a major rule, it must adhere to the particular requirements of the statute that it is implementing.
- Congress can also delegate rulemaking authority to agencies with greater specificity or restriction, which would limit an agency's rulemaking authority either from the outset or through later amendment of an agency's organic statute.
- Congress can also impose restrictions on agency rulemaking through the appropriations process. These restrictions can take a variety of forms, including restrictions on implementation or enforcement of certain rules.
- Congress can also prescribe rulemaking procedures, such as it has with the Unfunded Mandates Reform Act, the Regulatory Flexibility Act, and the Paperwork Reduction Act.
- Finally, for the past 15 years, Congress has had the ability, under the Congressional Review Act, to review and disapprove rules - both major and non-major - that federal agencies have issued.
Creates A Process In Which Congress Will Not Have the Time or Resources to Provide Meaningful Review of Rules - Politicizing Rulemaking
- Under the bill, Congress will need to pass judgment on major rules often without the opportunity to make a well-informed decision about the merits. Major rules generally involve highly technical and complex scientific data as well as other types of evidence that require substantive expertise to decipher.
- Under the bill's provisions, Congress would lack the time to provide meaningful review of such rules, and Congress will be susceptible to well-funded lobbying efforts by special interests.
- Adding to concern about Congress's ability to provide meaningful review is the fact that under the bill Congress would have only 70 legislative days within which to act after it receives a rule.
- The bill also overwhelms the congressional workload. The average number of major rules issued over the past five full calendar years (2007-2010) is about 80 per year.
- In addition, the bill restricts the days throughout the year where these major rules can be considered in the House. Based on the bill's provisions and the Majority's schedule for the House, there would be only 10 eligible days to consider these rules in 2012. With an average number of major rules of 80, Congress would have to consider an average of 8 separate major rules on each of those days.
The White House Points Out That It Is Committed to Ensuring that Rules Are Smart and Effective, and Strongly Opposes This Bill
Following are some excerpts from the White House's Statement of Administration Policy on the bill, in which it threatens a veto:
- “This radical departure from the longstanding separation of powers between the Executive and Legislative branches would delay and, in many cases, thwart implementation of statutory mandates and execution of duly enacted laws, increase business uncertainty, thwart implementation of statutory mandates and execution of duly enacted laws, increase business uncertainty, undermine much-needed protections of the American public, and create unnecessary confusion.”
- “When a Federal agency promulgates a major rule, it must already adhere to the particular requirements of the statute that it is implementing and to the constraints imposed by other federal statutes and the Constitution. … When it issues a major rule, the agency must perform analyses of benefits and costs that typically are required by one or more statutes … as well as by Executive Order 12866. …. agency rules are [also] subject to Federal courts.”
- “This Administration has already taken numerous steps to reduce regulatory costs and to ensure that all major regulations are designed to maximize net benefits to society. Most recently, Executive Order 13563 requires careful cost-benefit analysis, increased public participation, harmonization of rulemaking across agencies, flexible regulatory approaches, and a regulatory retrospective review.”
Prominent Republicans Have Criticized the REINS Act
- Supreme Court Chief Justice John Roberts: When the current Supreme Court Chief Justice John Roberts was an Associate White House Counsel in the Reagan Administration and a nearly identical bill was being considered, Roberts criticized the legislation for “hobbling agency rulemaking by requiring affirmative Congressional assent to all major rules.” He said that such a requirement “would seem to impose excessive burdens on the regulatory agencies…”
- Former GOP Member Sherwood Boehlert: “The bill [the REINS Act] would require Congress to approve all major rules. This would mean, among other things, that Congress would be the arbiter of each and every significant regulatory matter, no matter how technical, and that a single chamber of Congress could kill any rule. It is not hard to predict the result - a virtual shutdown of the system that will leave the public exposed.”