The REINS Act presents an opportunity for those interested in administrative law to look into their assumptions and values. A few ideas immediately come to mind: efficiency, accountability, expertise, and good government. The prospect of a process in which the political branch passes a law, then passes it along to agencies to promulgate rules, then brings back in those rules for approval before agencies may start enforcing them presents a shift in the administrative process, the fascination of which I’m not sure either side in the debate really trumpets.
The supporters seem to think the rulemaking process is a part of process of making the statute in the first place; so it makes perfect sense that Congress should sign off on the rules promulgated pursuant to its own initiatives. Supporters also assume the elected representatives’ quick votes on the rules provide a measure of democratic accountability. They are generally skeptical of the competence and accountability of bureaucrats.
Objectors seem to think rulemaking is a function by which Presidents impose policy and assert power as a useful opposing branch to Congress. Objectors assume voters can hold agencies accountable every four years during the Presidential elections. They are generally skeptical of the political motivations and monetary capture of Congresspeople.
I haven’t seen as much discussion on what REINS means for the process of governing, and the values we attach to the various actors within government. So, below are a few questions.
Should a current Congress be able to prevent the promulgation of statutes passed by a prior Congress, without actually repealing the statute?
Say the GOP won both houses in 2010 with a veto proof majority and promptly passed laws requiring the Occupational Safety & Health Administration to revise its regulations to prevent only the workplace hazards causing “severe or frequent injuries.” OSHA works on the new rule for a few years, researching the severity and frequency of each occupation’s injuries, and finally produces the rule to Congress in 2013. Meanwhile, Democrats swept back into control of the House in 2012. The Democrats don’t have the votes to repeal the 2010 “NOSHA Act,” but when presented with OSHA’s rule, reject it by resolution. And they do so on every revised rule.
Is it desirable to allow a representative to vote in favor of a popular bill, but against its implementation?
Obstruction by resolution might not be by a later Congress against its predecessor. As I mentioned in a prior post, a representative might vote for the “Everyone Likes it in Theory” Act, but against the “Actually Putting it into Practice” regulation. REINS, then, might afford our elected officials another tool in the trickery of campaign ads.
Certainly it is possible that a representative will sincerely believe an agency got something wrong in its rule, and want to send it back for revision. That presents its own danger–the sometimes endlessness of noodling in minutia. Until now, we’ve left it for agencies to do the fine tuning, which takes years. REINS invites politicians into that process.
What does it mean to interpret a vague piece of legislation; when agencies add the necessarily tremendously detailed rules to statutes, are they in fact legislating or implementing existing legislation?
On one end of the spectrum, if a court believes that an agency actually changed a statute through rulemaking, the rule will be overturned. On the other end, a rule carrying out a specific statutory directive will stand.
In between are those rules that inspire the most written about doctrine in administrative law, Chevron, in which the statute was a little fuzzy and the agency decided on a particular interpretation.
Or rules that apply expertise where Congress asked for such expertise: like, Congress instructing the EPA Administrator to prescribe emission standards for air pollutants “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7521(a)(1).
Is a rule an executive or legislative function?
Writers commonly describe agencies as performing quasi-legislative (rulemaking) and quasi-judicial (enforcing, adjudicating) tasks. I’ve wondered whether it’s appropriate to allow the “quasi-legislative” description to place agencies within the legislative branch in a separation of powers argument. Indeed, in my mind, rulemaking is neither an executive nor legislative function.
Rulemaking is simply an agency’s placing into executable rules already existing legislation. If an agency changes the legislation in the process of making a rule, the rule is invalid.
Execution, I think, is better left to those activities that enforce rules in effect. Note, of course, that a great deal of interpretation (guidance, decisions on when to enforce, allocation of resources) goes on in the act of enforcing.
Rulemaking, though, involves an effort to take a law and apply a framework with which it will apply to the real world. The idea has long been that Congress is institutionally unable to prescribe every detailed rule, so it delegates to experts that last step, teeing up one more question for now:
What is the best structure for, and by what process can we assure, an appropriate balance of expertise and accountability in the final rules governing our day-today lives?
The Constitution failed to provide a framework for the administrative state, even though (thanks to Professor Mashaw we know that) the framers should have seen it coming. Thus, statutory law (the APA) provides our structure, and that is what REINS aims to alter.
Far more than the canards of jobs, red tape, or the benefit of having regulations generally, the discussion REINS should be inspiring is of the basic processes of lawmaking and rulemaking. Will better (whether your opinion of “better” means fewer, more, or more effective) regulations result from providing Congress an up or down vote on every promulgated rule?
Will that process add significantly to the time it takes to put any given rule into effect, and is that good or bad? Will that process push agency rulemaking staff to work with Congressional staff and lobbyists far more while drafting rules, and is that good? Will they pay more attention to politics and less to economists and scientists? Will the need to pass Congressional approval become a response to public comments?
I tend to think REINS allows for political cover and massive regualtory delay. I doubt it will ever make the President’s desk, and if it does it’ll be vetoed. However, in another time, if such a change indeed comes along, I will dream of a world in which voters pay attention to how their representatives vote (on both the bill and the rule); in which every representative has the philosophical capacity to vote for or against general principles and the technocratic capacity to vote for or against the subsequent rule; and in which every representative can speed read sufficiently to fully understand and give a fair assessment of a rule within 15 to 30 days.
Finally, a correction: when I first posted on REINS I’d only read Section 1. REINS requires both houses of Congress to approve by joint resolution any new major rule. I thought a vote wasn’t required, which would have problematically allowed Congress to kill rules through inaction. That’s not the case, but the actual provisions, which do require an up or down vote, pose some problems.
The process is roughly this, for major rules: an agency submits to Congress its rule; the majority leaders of the House and Senate introduce resolutions accepting the rule, and then pass it on to the relevant committee; that committee then has 15 days to allow the joint resolution to stand, or propose amendments to the underlying statute; the joint resolution then goes tot he calendar for an up or down vote that must happen within 15 session days, with debate limited to 2 hours.
Jonathan Adler praises REINS’ expedited review and mandatory vote, but it is a strange comfort. Agencies take several years to develop major rules, and Congress is to vote on the thing in about 30 days. If one house plays more safe than sorry, and rejects the rule, it is back to the perdurable drawing board.
