This Republican Congress seems to have forgotten that there are three co-equal branches in our government; and two of them are elected by the people. In a blatant attempt to grab more power to themselves on January 5th, the U.S. House of Representatives passed the Regulations from the Executive in Need of Scrutiny Act of 2017 (REINS Act), which has since moved on to the Committee on Homeland Security and Governmental Affairs in the Senate. The bill, proposed by Republican lawmakers, requires Congress to approve all new “major” regulations, defined as regulations expected to cost at least $100 million for compliance. And if Congress does not act with 70 days the rule would automatically fail.
First and foremost, this law is not needed because Congress already has the authority under the Congressional Review Act to suspend rules it does not like. Second, under the constitution it is Congress’s role to pass laws but it is the role of the Executive branch, represented by the President, to implement and enforce those laws. The departments of the executive branch are set up to develop expertise in their areas to do just that. Congress has no such expertise. Yet with this law Congress seeks to not only step beyond their constitutional role they want to do so in a big way by wading into the minutiae of the federal government.
To really understand the reach of this bill you need to put $100 million dollars into context. The Gross National Product in 2016 was over $16 trillion dollars; that is 160,000 times more than $100 million. There are many useful projects and activities that would cost more than $100 million dollars. In addition, the $100 million-dollar threshold only considers compliance costs, and therefore does not even consider the potential benefits of rules and regulations. For example, an EPA study on the cost-benefit of the Clean Air Act between 1970 and 1990 found the central estimate of net benefits to be $21.7 trillion, with costs estimated at just $500 billion. So it is no wonder that the bill’s opponents point out that it opens the possibility that badly needed regulations will be struck down by Congress.
Sending every agency rule to Congress would simply serve to slow the legislative process, and would undermine the ability of agencies to use their field-specific expertise to set forth effective regulations. Highly technical rules that have been belabored over for years by the relevant agency specialists would all be open for debate and scrutiny from Congressmen who lack the necessary knowledge to review them, and who would be attempting to do so in overlapping 70-day periods. The results would be unbelievably chaotic and the resulting decisions hectic, unscientific and potentially catastrophic to the public. As the Natural Resources Defense Council (NRDC) puts it, it could very well lead to a “slow-motion government shutdown”. The door would be opened for lobbyists and industry interests to hold even greater sway over the rules and regulations meant to keep them in check, and the process would likely increasingly take place in closed-door meetings and backroom political dealings, as opposed to the more transparent and open for public comment agency regulation process.
The REINS Act is clearly an imprudent if not perhaps Machiavellian attempt to chip away at the regulatory process, and could undoubtedly be used by a Republican Congress to block scientifically sound and beneficial environmental and public health regulations. It is unfortunate, then, that the idea of legislature approval being needed for new rules has seemingly caught on, specifically in the revival of the nearly identical Wisconsin version of the REINS Act. The Wisconsin REINS Act failed in the state senate in 2016 largely due to push back from environmental groups, but has been reintroduced in the 2017 session. The rationale behind the REINs Act is not any better at the state level, and could weaken if not entirely eradicate potentially forthcoming environmental regulations such as the rules the Department of Natural Resources is working on to protect the people of Kewaunee County from groundwater contamination caused by manure spreading.
The only discernible difference between the REINS Act before Congress and the Wisconsin version on the docket in Madison is that at the state level the cost threshold is just $10 million. But just like at the federal level the state legislature already has the ability to suspend rules it does not like, and just like the federal bill the state language only considers the costs of a rule and not the benefits. And similarly, while $10 million is a lot of money to an individual, it is a small amount in comparison to the State’s total economic activity.
The only accomplishment to be gained by requiring Congressional or state legislature approval on every technical rule and regulation is grinding the entire process to a halt. Ultimately this will result in the inability of the state or federal government to act in a timely fashion to provide efficient service and environmental, safety, and health standards. Before supporting the REINS Act, it is important to consider the practical impact of such a major and inadvisable change to a regulatory system which has been in place since the adoption of our Constitution, and has served us quite well to date, despite some hiccups. By making every little rule and regulation political, partisan and polarizing, the REINS Act would be doing our country a great disservice.
By Brian Wagenaar, Chapter Legislative Intern, and Bill Davis, Chapter Director