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Should Congress have to approve every federal regulation? A debate.

- February 2, 2017
House Speaker Paul D. Ryan and Senate Majority Leader Mitch McConnell (R-Ky.) address the media during the 2017 “Congress of Tomorrow” Joint Republican Issues Conference in Philadelphia on Jan. 26. (Mark Makela/Reuters)

Andrew Rudalevige (AR): Kevin, you recently wrote a piece in Politico called “Six ways to curb a runaway presidency.” This dovetails nicely with a chapter I wrote for an upcoming volume on “The Imperial Presidency and the Constitution.” We share a concern about the shift of authority from the legislative branch to the executive branch — some of it taken by presidents, but much of it handed over by Congress. And we agree on various tools lawmakers could use to strengthen their hand in relation to the executive branch — for instance, making sure lawmakers have the expertise and resources they need to conduct meaningful oversight.

We also agree that regulations should be better: more cost-effective and, in fact, just more effective.

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One place we differ, though, is over the Regulations from the Executive In Need of Scrutiny (REINS) Act. Congress already has the power to reject regulations. But REINS, which passed the House in January, would require an affirmative vote by both chambers of Congress before any major regulation went into effect.

It’s not clear to me why a president would sign it. But in the wake of President Trump’s “2 for 1” executive order on regulations this seems like a good time to continue that conversation.

Kevin R. Kosar (KRK): Certainly, I can understand why folks object to REINS. Our polarized Congress struggles to pass legislation, including spending bills. It seems fanciful to think Congress would take votes on the 80 to 100 major rules (regulations with $100 million or more in effects).

AR: Right. When you combine recent Congress’s work ethic with the constraints on floor debate mandated by the bill itself, REINS looks designed to simply stop regulation, not to improve it.

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KRK: Yet I still think REINS makes sense. Here’s why.

First, there is the basic problem of accountability. The Constitution declares: “All legislative powers herein granted shall be vested in a Congress of the United States.” The REINS Act would force Congress to take responsibility for the enactment of the largest and most economically significant regulations, thereby restoring some democratic accountability.

The REINS Act also would spur Congress to devote more time to overseeing the work of regulators to ensure they faithfully execute the law and less time naming post offices. Can you imagine how much pressure would fall on Congress if it refused to vote on a major rule on clean air or Medicare?

AR: It would be an incentive, sure but, I fear, mostly an incentive to grandstand. In any case, executing the law is not a legislative function, and REINS comes awfully close to jumping that fence.

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Congress certainly has the right to specify, in law, what the executive branch should do, rather than simply delegating vast discretionary power. And it has real responsibility to be accountable for those choices, by conducting substantive oversight that makes sure the executive branch is being “faithful” to statute.

But the REINS Act would prevent any execution of the law if a single chamber of Congress failed to act. Not if it voted a regulation down — as with the Congressional Review Act — but simply failed to act. That sounds a lot like the “legislative veto” to me — a process the Supreme Court said was unconstitutional back in 1983.

KRK: Legislative vetoes were common until the Chadha decision — which said that single chamber vetoes were unconstitutional. But REINS demands a two-chamber vote with presidential signature. That should legally pass muster.

And I should add the Constitution’s Article I, Section 8 gives Congress the power to “make rules for the government and regulation of the land and naval forces.” So, the legislature can and does dictate how agencies operate.

AR: Again, I don’t doubt that Congress can legislate so minutely as to effectively be writing regulation. But limiting agencies’ discretion in that way is an affirmative act of legislative choice, not a backdoor means of getting a second bite at the apple. I think the practical effect of REINS is, in fact, to enact a single chamber veto of administrative action.

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But maybe we’re in angels-on-head-of-a-pin territory here. The bigger question is whether REINS is the right way for Congress to restore its own institutional mojo.

At best, I don’t think it’s the first step. It would only work if it came after a commitment by lawmakers to give themselves the information and expertise they would need to keep up with the executive branch. You and Phil Wallach have proposed a Congressional Regulation Office. That might be a good start.

KRK: Yes, it is undeniable that Congress cannot keep up with the output of regulations (about 3,000 new ones are proposed annually), nor can the legislature comprehend much of the fantastically complex subject matter.

One can’t wish regulation away — it is part of our modern economy and institutions. So we argue for a new regulatory office to increase democratic accountability and to create an institutional check on executive branch regulators.

There is a precedent for establishing such an agency. Almost 50 years ago, Congress realized budgeting was too complex for it to handle alone, and that the president had the upper hand because he had the Office of Management and Budget. So CBO was born.

AR: That was part of a wider resurgence of opposition to presidential unilateralism in the wake of Vietnam and Watergate. Congress was trying to beef up government ethics and transparency while bringing itself back into key decisions about spending, war and peace.

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Since then lawmakers have often opted to cede that ground back to the executive branch. Partisan polarization encourages lawmakers to see their “team” as their political party, not their institution. That has problematic effects for the ambition counteracting ambition sentiment that the framers relied on to keep checks and balances working.

At the very least, Congress should get the budget process back on track. And some serious debate over the American combat mission against the Islamic State is long overdue. Those are critical to Congress regaining some institutional pride — and maybe some public respect.

KRK: Quite right. So many of the incentives pull lawmakers away from taking care of the First Branch.

New America’s Lee Drutman and I are encouraging more lawmakers and staff to be institutionalists. Our nonpartisan Legislative Branch Capacity Working Group connects Congress scholars and congressional staff in hopes of fomenting reform. But Congress needs all the help it can get.

Kevin R. Kosar is a senior fellow at the R Street Institute and edits LegBranch.com.