Federal administrative agencies issued 3,271 new regulations in 2010, or roughly nine regulations per day. Small businesses spend an estimated $10,500 per employee to comply with federal regulations, a considerable burden on the private sector’s ability to create jobs at a time of continued economic struggles.
But who should be accountable for the federal regulations resulting from laws? Congress.
Since the New Deal, every Congress has delegated more of its constitutional lawmaking authority to unelected bureaucrats in administrative agencies through vaguely written laws.
In the past few years, we have seen examples of administrative agencies going beyond their original grants of power to implement policies not approved by Congress. In several cases, such as net neutrality rules and the regulation of carbon emissions, agencies are pursuing regulations after Congress has explicitly rejected the concept.
We believe it is time for Congress to resume its constitutional duty to make the law and then be held accountable for the details. That is why we have introduced the Regulations From the Executive in Need of Scrutiny Act.
The REINS Act would require Congress to hold an up-or-down vote on any major regulation, with an annual economic impact of more than $100 million. The president would also have to sign the regulation before it could be enforced on the American people, job creators or state and local governments.
Every major regulation would be voted on within a specified amount of time, forcing Members of Congress to take a stand and be held accountable for major regulations with a significant economic impact.
Congress has a history of taking credit for the benefits of a law but then faulting the bureaucracy for the costs and requirements of the regulations authorized by the law it passed. Congress would no longer be able to avoid responsibility by sending vague laws to the executive branch and blaming it for filling in the unpopular details. A frequently cited argument against REINS is that it constitutes a legislative veto — and by doing so violates the principles of bicameralism and presentment required by the Constitution. This is incorrect.
The REINS Act satisfies both the bicameralism and presentment requirements of the Constitution. Just as the delegation of authority for major rules is removed by the REINS Act through the normal legislative process, joint resolutions of approval for major rules require bicameral passage and presentment to the president to be implemented. As such, the REINS Act is fully consistent with the Supreme Court’s decision in INS v. Chadha.
Indeed, the very concept underlying the REINS Act was first outlined by then-Judge Stephen Breyer as a constitutional replacement for the legislative veto struck down in Chadha. As Breyer explained, Congress could make new rules ineffective “unless Congress enacts a confirmatory law” within a set time frame.
The REINS Act will also foster greater up-front cooperation between agencies and future Congresses, resulting in better written legislation and regulation. With greater accountability and transparency, regulations will have to reflect the need for sensible standards and take into account the effect regulations have on American families and businesses.