REINS Act

The Regulations from the Executive in Need of Scrutiny Act, commonly known as the REINS Act, has been one of the more controversial legislative proposals related to the federal administrative state in recent years. The act aims to increase Congressional oversight and control over federal agency rulemaking, requiring Congress to approve all major regulations with $100 million or more in economic impact before they can take effect.

Supporters of the REINS Act argue it is necessary to restore proper separation of powers and accountability in the regulatory process. Critics contend it would overly politicize agency rulemaking and make protecting public health and safety more difficult. While the act has passed the House multiple times in the last decade, it has yet to pass the Senate.

Background of the REINS Act

To understand the intent and impact of the REINS Act, it helps to first examine the context of the federal administrative state and existing Congressional review processes that the legislation seeks to build upon.

The Rise of the Federal Administrative State

Since the New Deal era, Congress has increasingly delegated rulemaking authority to federal agencies in areas such as environmental protection, workplace safety, consumer products, and financial regulation. Swaths of regulatory power have shifted from the legislative branch to the executive branch. This has led to concerns about lack of accountability and oversight for agency regulations that carry the force of law.

Critics of regulatory delegation argue it undermines the separation of powers intended by the Constitution’s framers. They believe major policy decisions with major economic impacts should be decided by the elected representatives in Congress, not appointed bureaucrats.

The Congressional Review Act

In 1996, Congress passed the Congressional Review Act (CRA) to reassert some Congressional authority over federal regulations. The CRA allows Congress to nullify recently finalized regulations by passing joint resolutions of disapproval. Before enacting a major rule, agencies must submit reports on them to Congress.

Congress then has a review period to pass a disapproval resolution under expedited procedures. If the president signs the resolution, the rule is blocked from taking effect.

The CRA also requires federal agencies to identify which rules are considered “major” — generally those with $100 million or more in annual economic impact.

History of the REINS Act Proposal

While the CRA provides Congressional oversight of recently published regulations, the REINS Act would give Congress greater control before major regulations even take effect.

Origins of the REINS Act

The genesis of the REINS Act came in 2009, when Kentucky businessman Lloyd Rogers approached his congressman, Representative Geoff Davis, with an idea. Rogers suggested legislation requiring Congressional approval of agency regulations with major financial impacts before they become law.

Davis included this proposal in the House Republican’s 2010 Pledge to America agenda. He introduced the first version of a REINS Act bill in October 2009.

Introduction and Votes in Congress

The REINS Act was introduced in each Congress from 2011 to 2019. During this period, it passed the Republican-controlled House three times — in 2011, 2015, and 2017. The Senate, controlled by Democrats for most of this period, did not bring the bill up for a vote.

In the current 118th Congress, the REINS Act again passed the House in June 2023. Its prospects in the Senate remain unclear in the divided Congress.

Key Provisions of the REINS Act

The REINS Act would modify the CRA’s procedures for Congressional review of agency regulations. Some key provisions include:

Requiring Approval for Major Rules

The primary purpose of the REINS Act is to require active Congressional approval before any major regulation takes effect. Major rules are defined as those with $100 million or more in economic impacts.

Agencies would be prohibited from implementing these major regulations without completing the REINS Act’s approval process. This flips the script from the CRA, which requires Congress to act to nullify rules.

Identification and Analysis of Major Rules

The REINS Act would mandate that agencies identify major rules in their submitted reports to Congress. Agencies would need to provide the full cost-benefit analysis used to develop the regulation.

The Office of Information and Regulatory Affairs (OIRA) would determine which regulations qualify as major rules under the law’s $100 million threshold.

Timeline of the REINS Act

The REINS Act has followed a winding legislative path over the last 15 years. Here are some key dates:

• October 2009 – Original REINS Act legislation introduced in the House
• 2011 to 2017 – REINS Act passes House three times but fails in Senate
• January 2023 – REINS Act reintroduced and passes House again
• June 2023 – Current version passes House in 118th Congress

The fate of the bill in the divided 118th Congress is still uncertain. But with multiple House passes, the REINS Act remains prominently on the Congressional agenda for administrative reform.

Congressional Sponsors of the REINS Act

The REINS Act has been primarily championed by Republican members of Congress. Here is a look at the key sponsors in both chambers in recent sessions.

118th Congress Sponsors

In the House, the REINS Act of 2023 was introduced by Representative Kat Cammack (R-Florida) with 181 GOP cosponsors.

In the Senate, Senator Rand Paul (R-Kentucky) sponsored the latest version with 27 Republican cosponsors.

117th Congress Sponsors

The 2021 REINS Act in the House was sponsored by Rep. Cammack with 126 Republican cosponsors.

Senator Paul again sponsored the legislation in the Senate, where it attracted 30 GOP cosponsors.

116th Congress Sponsors

The REINS Act of 2019 was sponsored by Rep. Jim Sensenbrenner (R-Wisconsin) in the House and Senator Paul in the Senate. It had 16 House and 42 Senate Republican cosponsors, respectively.

Policy Arguments About the REINS Act

The REINS Act has sparked vigorous debate among policy experts about its implications for the administrative state and regulatory process.

Arguments Supporting the REINS Act

Strengthens separation of powers: Proponents argue the REINS Act would rebalance power between Congress and federal agencies by ensuring elected representatives control major regulatory decisions.

Increases accountability: Congressional approval requirements would make legislators more accountable to voters for the costs and impacts of regulations.

Enhances transparency: Knowing Congress has veto power over major rules could lead to more open rulemaking processes at agencies.

Has bipartisan appeal: Some argue REINS could find support from both parties by limiting improvident regulations while still allowing most public interest regulations through with Congress’ blessing.

Arguments Against the REINS Act

Politicizes the regulatory process: Opponents contend subjecting regulations to Congressional approval would give lobbyists and special interests more ability to influence rules.

Congress lacks technical expertise: They argue Congress does not have the knowledge or capability to adequately assess agency regulations.

Threatens public protections: Critics say the REINS Act would make it harder for agencies to quickly implement regulations needed to protect health, safety, consumers, and the environment.

Raises constitutional issues: Some have argued using Congressional inaction to block duly authorized agency regulations could violate separation of powers.

Similar Provisions in Other Legislation

Congress has incorporated REINS Act-style provisions in other bills, though they ultimately did not become law. For example:

• The Limit, Save, Grow Act of 2023 passed the House with REINS Act provisions, but the debt ceiling bill that passed did not include REINS.
• An amendment to the Foreign Investment Risk Review Modernization Act in 2018 would have required Congressional approval of certain regulations related to foreign investments and national security. This bill failed to pass during that Congress.

Conclusion

The REINS Act reflects a broader debate over finding the right balance of power between the legislative and executive branches in the federal administrative state. It aims to reassert Congress’ constitutional authority over regulation by acting as a check on major agency rules.

While the REINS Act has stagnated in the Senate so far, its prospects could improve if Republicans gain control of both chambers in the next Congress. The multiple House passes demonstrate continued support for REINS Act-style reforms among conservatives.

Passage would represent a major shift in rulemaking dynamics, subjecting the $100+ million regulations that have the largest impacts on the economy to Congressional veto power. But opponents argue this would overly politicize and bog down a technical process better handled by expert agencies.

Balancing these factors will continue to make the REINS Act legislation highly controversial yet intriguing in the ongoing evolution of the administrative state.

FAQ

Q: How would the REINS Act change the federal rulemaking process?

A: The REINS Act would require Congress to approve any agency regulation with over $100 million in economic impact before it takes effect. This gives Congress veto power over major regulations.

Q: Which regulations would be defined as “major” under the REINS Act?

A: Major rules are those with $100 million or more in annual economic impact or significant negative effects on competition, jobs, or other economic factors. The Office of Information and Regulatory Affairs makes this determination.

Q: How many votes would be needed to approve major regulations under the REINS Act?

A: The REINS Act specifies that major regulations would need to be approved by both houses of Congress. This effectively requires 60 votes in the Senate to pass major regulations, assuming all Democrats support approval.

Q: Does the REINS Act have bipartisan support in Congress?

A: So far, support for the REINS Act has come almost exclusively from Republican members of Congress. No Democrats voted for it when it passed the House in recent years.

Q: What are the main arguments in favor and against the REINS Act?

A: Supporters argue it reins in agency overreach and increases accountability. Critics contend it injects politics into technical rulemaking and prevents agencies from protecting the public.