Questioning the Constitutionality of the REINS Act: Bill Seeks to Restructure Federal Rulemaking Process

Gregory E. Wannier
Deputy Director

On February 7, 2011, Senator Rand Paul (R-KY) introduced a bill on the floor of the U.S. Senate to impose a Congressional veto over any rule passed by any federal agency costing over $100 million (regardless of projected benefits).  This bill, cosponsored by 24 other Republican Senators,[1] represents the latest in a series of efforts by Republicans to block the Obama administration from implementing policies, particularly environmental regulations, with which they disagree.  If passed, it could fundamentally restructure the relationship between Congress and the entire administrative system as it stands today.

The bill, known as the “Regulations from the Executive in Need of Scrutiny” Act (REINS Act), was first introduced in the 111th Congress as H.R. 3765, but did not gain significant traction.  It was reintroduced in the House on January 20, 2011 as H.R. 10 before being introduced by Sen. Paul in the Senate.

The REINS Act has received much attention from both sides of the aisle.  Tea Party activists are fully behind it, Speaker of the House John Boehner recently endorsed it, and several other conservative interests have expressed their support, lauding it as a needed tool to “rein in” government agencies which they see as aggressively expanding the scope of federal rulemaking in recent years.  However, government officials and others have responded in kind, noting that the REINS Act would be a poison pill for regulatory activity (making agencies beholden to notoriously complex Congressional procedures), undermine existing balances of power between the federal branches, and unduly politicize the rulemaking process.

The House Subcommittee on Courts, Commercial and Administrative Law held a hearing on the REINS act on January 24, 2011, where many of these arguments were laid out by  Sally Katzen, former Administrator of the Office of Information and Regulatory Affairs (OIRA) (opposing the Act), and Jonathan Adler, Professor at Case Western Reserve University School of Law (supporting the Act).  In addition to discussing policy concerns with the bill, these two academics discuss the constitutionality of the REINS Act.  The arguments against this act focus on two arguments: 1) that the bill, in requiring both houses to approve a regulation before it can become law, effectively allows a legislative veto that was explicitly disallowed in INS v. Chadha, 462 U.S. 919 (1983); and 2) that this bill represents an impermissible power grab whereby Congress is seeking to improperly insert itself into the process by which laws are executed.

In Chadha, the Immigration and Naturalization Service (INS) suspended the deportation of an Indian Kenyan, but was overruled by the House of Representatives under §244(c)(2) of the Immigration and Nationality Act.  This House veto (and the accompanying veto provision) was held invalid by the Supreme Court, which said that individual chamber vetoes violated legislative procedural requirements in the Constitution (bicameralism and presentment).  The REINS Act is not identical to the unconstitutional provision in Chadha: rather than providing for an active veto, it holds all regulations to be presumptively invalid pending Congressional approval.  However, the effect of both provisions is identical in that a single house of Congress can invalidate a final agency action through action or inaction.  One way to justify REINS would be to classify it not as a check on legal agency actions but as an elimination of the initial delegation to administrative agencies (which is well within the legislative function; “an agency literally has no power to act . . . unless and until Congress confers power upon it.”).  Louisiana Public Service Commission v. FCC, 476 U.S. 355, 374 (1986).  However, the language of the bill itself does not refer to a withdrawal of delegation to agencies: a more explicit bill would textually amend the Clean Air Act, Administrative Procedure Act, and all other major federal statutes to retract delegations of authority trapped in those bills.

The second constitutional argument against the REINS Act is more structural, arguing that the Act would disturb the balance of powers among the federal branches.  Particularly, the Supreme Court has held that a statute is suspect if it “involves an attempt by Congress to increase its own powers at the expense of the executive branch.”  Morrison v Olson, 487 U.S. 654, 658 (1988).  In making this determination, the Supreme Court has particularly considered traditional roles of the separate branches.  In this case, there is a fairly simple case to be made that Congress is trying to increase its own powers at the expense of federal agencies; evidence for this is ample, including in the acronym of the bill itself.  And given the traditional relationship between Congress and federal agencies, established at least since the Great Depression and upheld over that period, it is fair to say that administering laws through federal bureaucracy is a traditional role of the executive.  Again here, REINS Act supporters might point to the fundamental point that agencies only have the power to enforce laws that Congress provides; and so this act could be viewed as reducing the power that Congress has so provided; but again, that is not explicit in the bill’s text.

REINS Act supporters appear to be hiding the ball somewhat here, disguising the full effect of the bill to avoid the politically daunting task of openly amending virtually every major piece of legislation since the Great Depression.  This makes sense from a political strategic perspective – most laws whose implementation would be hampered by the REINS Act remain widely popular today.  However, in so doing, this bill’s sponsors distance themselves somewhat from the base constitutional justification for their actions.

Congress absolutely has the power to delegate (and cease to delegate) enforcement powers to the executive branch, but once it has done so it cannot influence the decisions that are made; that much is made clear in Chadha.  As Administrator Katzen points out, there is no question that Congress cannot mandate Congressional approval before the U.S. Department of Justice initiates a prosecution under existing criminal law.  Unless the underlying law delegating enforcement authority is amended across the administrative system (as is being attempted specifically with the Clean Air Act), or the Supreme Court interprets the REINS Act as being broader than its text (perhaps based on legislative history), there is no reason to treat agency rulemaking proceedings differently.

[1] Senators Jim DeMint (S.C.), John Ensign (Nev.), Chuck Grassley (Iowa), Tom Coburn (Okla.), Roy Blunt (Mo.), John Thune (S.D.), Mike Enzi (Wyo.), John Cornyn (Texas), Orrin Hatch (Utah), Saxby Chambliss (Ga.), Ron Johnson (Wis.), Johnny Isakson (Ga.), John Barrasso (Wyo.), Roger Wicker (Miss.), Kelly Ayotte (N.H.), Jeff Sessions (Ala.), Rob Portman (Ohio), Mike Johanns (Neb.), John Boozman (Ark.), David Vitter (La.), Mike Lee (Utah), James Inhofe (Okla.), Kay Bailey Hutchison (Texas), and Marco Rubio (Fla.).

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