Republican leaders in Congress plan early votes on at least two bills designed to restrict or repeal executive branch regulations issued by departments and agencies. “The votes would give President-elect Donald Trump … measures he could sign or embrace immediately,” wrote Politico’s staff in Playbook, presumably thinking of Trump’s loud calls for deregulation.
But it’s hard to see why he would “sign or embrace” either bill. Each will be offered to Trump as a way to condemn the Obama administration’s regulatory excesses. But, as noted scholar of bureaucracy Bruce Springsteen might put it, that is a “brilliant disguise.” Inside the shiny “stick it to Obama” wrapping paper is an attack on executive branch autonomy. If President Trump does sign onto Congress’s efforts, he will be the rare president willing to weaken his administrative authority from its first moments.
The bills revise the Congressional Review Act (CRA) passed in 1996, which allowed legislators to overturn regulations by joint resolution within 60 legislative days of their publication. This turned out to be hard to do. Because the joint resolution can be vetoed, the CRA can normally be activated only when (1) a Congress hates the rule, and (2) a new president takes office during the mandated review period and is willing to sign the resolution. This has happened only once — in 2001, when a Clinton administration rule concerning workplace ergonomics was overturned by a Republican Congress and incoming President George W. Bush.
As of Jan. 20, of course, we will have a Congress hostile to many of Obama’s new rules (on education, energy, the environment — to list only the “E’s”) greeting new President Trump. Better yet, since legislators showed up for work so infrequently in 2016, the 60 legislative days allowed for review under the CRA go all the way back to the middle of June. So six months of rules could in theory be repealed.
Some will certainly get the ax; ergonomics will be alone no more. But even so, the CRA only lets you go after one rule at a time. Once Congress reconvenes, the clock is ticking again, with plenty of competition for space on the agenda — from the budget to Obamacare to Trump’s nominees.
And so one of the proposals — the “Midnight Rules Relief” Act — sweeps aside the need to consider each regulation singly and allows any number of rules to be repealed in one omnibus resolution.
The other, the REINS act, doesn’t remove rules; rather, it makes it more difficult to add them. (“REINS” stands for Regulations from the Executive in Need of Scrutiny. Although dreadful, the bill’s name does not challenge the Patriot Act’s supremacy in the Tortured Acronym Hall of Fame.) While the CRA requires Congress to pass a resolution setting a regulation aside, the REINS Act switches things around. It would require Congress to approve major regulations — generally, those with an impact of $100 million or more on the economy — for them to take effect.
In theory, this would force Congress to be more clearly accountable for the regulations flowing from the vague legislation it passes. In practice — especially given the sparse time the act allows for consideration of regulations (only on the second and fourth Thursdays of each month!) – it would drastically slow the issuance of new rules.
That’s fine with many lawmakers, of course. And President Trump may applaud that outcome too — when applied to “bad Obama rules.”
But he will surely be less eager to see legislators attacking — or letting fail by inaction — “good Trump rules.” Why would any president want to empower Congress to wipe out his own efforts to put laws into practice? Why would he give legislators veto power over execution of the law — whether now, or whenever “midnight” strikes? It’s hard to predict the future partisan balance of Congress. And presidents of both parties, as David Shafie has shown, are wont to issue late-term rules.
Thus past presidents have strongly resisted these kinds of congressional efforts. President Ronald Reagan, for instance, also had a firm deregulatory agenda; without consulting his Cabinet, he created a centralized process to review new and existing regulations, safeguarded by the Office of Information and Regulatory Affairs (OIRA). Presidents of both parties embraced that process and guarded it from what they saw as legislative interference. George W. Bush even argued that there was a “unitary executive branch” completely under presidential control. That was different only in degree from past precedent — for instance, Reagan’s effort to challenge the “legislative veto,” which allowed one chamber of Congress to overturn executive administrative actions. He succeeded: In 1983’s INS v. Chadha, the Supreme Court struck the practice down.
The REINS Act would install a procedure very different from the old legislative veto. Is it constitutional? Opinions vary. But in practice it has the same effect; it allows one chamber of Congress to stop the executive branch from carrying out duties that legislators have authorized. Professor Ronald Levin testified in 2013 that “the act is intended to enable a single House of Congress to control the implementation of the laws through the rulemaking process. Such a scheme transgresses the very idea of separation of powers.” Executive branch lawyers will almost certainly agree.
Congressional oversight of executive policymaking is perfectly legitimate. In fact, we need more, and more substantive, oversight. (Philip Wallach and Kevin Kosar have proposed several useful ideas along these lines, notably the creation of a nonpartisan Congressional Regulation Office similar to the Congressional Budget Office, which offers sophisticated fiscal analysis intended to undergird legislative decision-making.)
But why would presidents welcome such efforts, even if they are more thoughtful or less invasive than the REINS or Midnight Rules Acts? Back in 2008, Leon Panetta mused that President Obama would act differently toward executive authority than candidate Obama’s rhetoric suggested: “I don’t think any president walks into their job and starts thinking about how they can minimize their authority.”
House Speaker Paul D. Ryan (R-Wis.) and his colleagues apparently think Trump is an exception. I’m not so sure.