Why a Delegation Skeptic Is Suspicious of the REINS Act
Right in its title, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 makes a promise to restore a constitutional balance currently lacking by putting executive branch action back under the scrutiny of Congress. REINS, which passed the House on a near-party-line vote in the opening days of the 115th Congress, would ensure such scrutiny for all major regulations by redesigning federal administrative process so that no affected rule could take force without an affirmative joint resolution of Congress giving it support.
Taken at face value, REINS seems like a game changer for America’s administrative state, one that would finally force Congress to take responsibility for the ongoing work of our federal agencies. It has thus been a favorite of those legal conservatives who see delegation of power from Congress to the executive as the bane of our Constitutional system.
But it is possible to be a fierce critic of our current practice of delegation and still be critical of REINS, at least according to David Schoenbrod, Trustee Professor of Law at New York Law School.
Schoenbrod, whom I recently interviewed for LegBranch.com, has for decades railed against Congress’s tendency to pass statutes that allow legislators to take credit for seemingly specific policy achievements while actually foisting the work of making difficult tradeoffs onto decision-makers in administrative agencies or in the states. He is no friend of the status quo, and offers a scathing indictment of our current political moment in his recent book, “D.C. Confidential: Inside the Five Tricks of Washington.” And yet, Schoenbrod positively loathes the REINS Act as it is currently constructed. He sees it not only as failing to restore congressional responsibility, but as cynically reenacting the same responsibility-avoiding dynamic that it purports to correct.
First off, Schoenbrod bristles at the title, which he finds disingenuous. The law makes it seem as though “regulations from the executive” are the problem. But in the overwhelming majority of cases, the executive is merely carrying out commands given to it by Congress. Of course, there may be some cases of out-and-out abuse in which the executive bends some statutory language beyond recognition to serve its own purposes. However, it is much more common for Congress to legislate in such a way as to make it seem than an agency should be able to perform a heroic feat at modest costs. Then, when an agency attempts such a feat and it proves costlier than Congress’s unrealistic expectations, the executive gets blamed.
Second, and far more importantly, Schoenbrod argues that REINS was drafted to ensure that it could not pass, pointing out that it currently has no support from any Democratic senator. He highlights two sections of the bill, in particular, that act as poison pills.
Section 808 would institute a “regulatory cut-go requirement.” This is in some ways similar to the one the Trump administration instituted through Executive Order 13771, which requires agencies to identify regulations to be eliminated in order to be granted authority to enact new rules. But whereas the executive order carefully hedges to make itself consistent with existing law — with phrases such as “unless otherwise required by law” peppered throughout — REINS § 808 (all of 87 words) shows no such caution. It thus would create an impossible dilemma for agencies charged with faithfully executing contradictory mandates.
Even more problematic is Section 809 of REINS, which would institute a comprehensive “review of rules currently in effect,” which is to say, the entire Code of Federal Regulations. If, 10 years after the passage of REINS, Congress had not reaffirmed an existing regulation, that regulation would become ineffective. In the process of arranging votes, Schoenbrod points out that REINS “provides also that a member may require a separate vote on individual regulations, and also allows members to attach conditions to the approval of any existing regulation.” The implication?
With the potential for individualized votes on all these regulations, there’s no way Congress could do it. So, the actual upshot would be that a vast amount of the Code of Federal Regulations would fall by the wayside. It’s basically repealing a large fraction of the existing Code of Federal Regulations, without any real thought about how the whole thing would work.
At the most fundamental level, Schoenbrod sees REINS as a “mirror image” of responsibility-shirking statutes like the Clean Air Act. Such regulatory acts are written to promise huge social benefits while shifting blame to agencies. In a similar way, what REINS does is allow members of Congress “to promise to put caps on regulatory costs, but shift the blame for the loss of regulatory protection to the agency.”
Despite his criticisms of REINS, Schoenbrod remains strikingly optimistic about the prospects for getting Congress to take back responsibility on important policymaking questions, from regulation to mortgage guarantees to fiscal policy. Why? “My impression is that many members of Congress don’t like the blame-shifting. They don’t feel good about waking up in the morning to go to work in the most despised institution in America.” Schoenbrod thinks there is a chance to reconfigure our politics in order to harness this impulse rather than stifling it — to promote competition between the parties to see which can take more responsibility for legislative action, rather than simply passing out more goodies.