Republicans in Congress are renewing their push to restrict the U.S. government’s power to create and enforce rules that regulate business and protect public safety and health. Earlier this year, both the House of Representatives and the Senate introduced updated versions of the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would amend the Congressional Review Act of 1996. The legislation would require congressional approval of each “major rule” issued by a federal agency before the rule could take effect. The House and Senate versions differ, but both embrace an obstructionist spirit.
Under the proposal, if Congress fails to affirmatively approve each individual agency rule, it would not only block the rule from taking effect but would also prohibit Congress from issuing another “approval relating to the same rule” for the duration of that congressional session, effectively barring agencies from resubmitting. The Senate’s version is more troubling. It would require Congress to review and retroactively approve all existing major rules; otherwise, these long-standing rules would be automatically repealed after 10 years. The Congressional Review Act defines a “major rule” as one with an annual economic impact of $100 million or more. It also includes rules that will significantly increase costs, prices, or significantly and adversely affect competition, jobs, or U.S. businesses’ global competitiveness. A few examples of major rules from the last year alone include seat belt warning systems for motor vehicles, drinking water protections against lead and copper, consumer protections ensuring food labeled “healthy” aligns with current nutritional science, and tightened hazardous air pollutant standards for coal- and oil-fired power plants.
Federal agencies have enacted a wide range of indispensable and beneficial rules that protect Americans’ health, safety, and welfare, acting under statutory authority purposefully delegated to them by Congress. The REINS Act would hamper agencies’ ability to carry out their statutory duties and protect the public. The Act would also burden Congress with work it’s ill-equipped to handle, while likely worsening outcomes for the public. It is unclear whether the REINS Act is even constitutional. Yet congressional Republicans have strongly indicated their intention to include the REINS Act in their reconciliation bill expected in the coming months, raising the possibility that it could become law soon.
What’s In the Bill
The House and Senate bills contain many of the same provisions. Both chambers of Congress would need to affirmatively approve each new “major rule” before that rule could take effect. If Congress failed to approve a major rule, then Congress cannot issue an “approval relating to the same rule,” for the duration of that congressional session, effectively barring agencies from resubmitting. Congress could continue to block non-major rules with a joint resolution.
The Senate bill has a few unique features. It says Congress must review and retroactively approve all existing major rules (10 percent of all pre-existing major rules every year for 10 years); otherwise, any non-approved rule would automatically sunset 10 years after the bill’s enactment. Even after congressional approval, Congress would have to continually reauthorize all major rules every 10 years or else the rule would automatically sunset and agencies would be barred from reissuing any substantially similar rule. The legislation would also establish an affirmative legal defense for individuals or entities facing enforcement if they could not reasonably anticipate from the underlying statutory language that their conduct would be found to violate a rule issued under that statute. Essentially, it would allow an entity who violated an applicable agency rule to argue that they could not have reasonably expected—based on the wording of the original law, notably not the rule itself—that their actions would be considered a violation.
The Senate bill would also create a private right of action to challenge a determination that a rule was not major, which would allow courts to either invalidate the rule or require the agency to submit the rule for congressional approval. This would effectively enable judges to nullify the executive branch’s conclusion that a rule is not major, offering one more opportunity for regulated entities to undo agency regulation. In one more antiregulatory provision, the Senate bill would also exempt all deregulatory actions from the congressional approval and disapproval process; such rules would take effect without congressional approval or the existing opportunity under the Congressional Review Act for congressional review and disapproval. Finally, under the Senate bill, agencies would need to complete at least one deregulatory action to offset the costs of any significant regulatory action before that new action can take effect.
All of these actions are designed to diminish agencies’ ability to protect public health, safety, and welfare through government regulation.
What’s a “Major Rule”?
The REINS Act would give Congress broad new authorities over “major rules,” issued by U.S. agencies. The Congressional Review Act, which the REINS Act would amend, currently defines a “major rule” as a rule that would result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The Senate version of the REINS Act expands this definition to include not just “major rules,” but “any significant guidance document.” Notably, the bill’s definition of a “significant guidance document” (and “significant regulatory action,” as used in the regulatory budgeting section discussed below) is much broader than the analogous definition for “major rule,” and would capture any action that “raise[s] a novel legal or policy issue.” In reality, this would capture a broad swath of guidance documents—that is, agency statements of general applicability that do not set binding rules—that are significant in some fashion but do not have $100 million in annual impact or otherwise qualify as “major.” For instance, a recent Food and Drug Administration Q&A document on medical-device misinformation would require congressional approval under the Senate bill.
The Senate bill also provides for two broad exemptions. The first specifies that the bill would not apply to rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee. The second exemption specifies that congressional approval and disapproval processes would not apply to “deregulatory actions,” which it expansively defines as “the repeal, replacement, or modification of an existing regulatory action.” Basically, Congress would need to approve major new rules for businesses, but agencies could roll back consumer protections without congressional sign-off.
State of Play
Republican lawmakers have introduced the REINS Act every session of Congress since 2009, but this year it appears to finally be getting some traction. In the Senate, Senator Rand Paul (R-K.Y.) introduced the REINS Act on Feb. 6, and it was referred to the Committee on Homeland Security and Governmental Affairs. In the House, Representative Kat Cammack (R-Fla.) introduced the REINS Act on Jan. 3, and it was referred to the Committee on the Judiciary, the Committee on Rules, and the House Budget Committee.
On Feb. 18, the House adopted a policy statement on government deregulation as an amendment to the House budget resolution, stating, “It is the policy of this concurrent resolution… (4) to enact legislation through reconciliation that strengthens Congress, scales back Federal regulations, limits future bureaucratic red tape, and unleashes economic growth, such as the Regulations from the Executive in Need of Scrutiny (REINS) Act.” Although the REINS Act is not a spending or revenue bill, the House intends to include it in the reconciliation process, which is meant to create a narrow exception to the Senate’s filibuster and allow the Senate to pass certain spending and revenue provisions by simple majority. On Feb. 25, the House budget resolution, including the policy statement, passed. The Senate similarly passed an amendment to its budget resolution to include in the reconciliation process some “legislation focused on government deregulation.”
Congressional Republicans are currently working on a reconciliation bill—one that, according to their budget resolutions, intends to include the REINS Act. But there are limits to what can be passed through reconciliation. The Senate Parliamentarian reviews what provisions belong in those bills, and it is doubtful that the Parliamentarian would allow the text of the REINS Act—which plainly does not relate to congressional budgets, revenue, or spending—to be included in a reconciliation bill. Thus, the fate of the REINS Act in this Congress may depend on the Parliamentarian’s assessment.
Even if the Parliamentarian removes the REINS Act from an upcoming reconciliation bill, risks remain that it could still pass in a future Congress. Its endorsement in the House budget resolution reflects the bill’s growing support. Indeed, the bill has become more expansive over time with the addition of new provisions in the Senate version.
Risks to Public Health and Safety
Congress established and delegated rulemaking authority to federal agencies for a reason. Agencies, with the expertise and time to carefully examine scientific, economic, and legal details, are better positioned than Congress to engage in the intricate and technical process of rulemaking.
Preparing and issuing a major rule can take expert agencies years of hard work. The agencies must conduct a careful review of scientific, economic, and technical information, respond to comments from the regulated industry and other stakeholders, and articulate its basis for the rule in the Federal Register. Congress, with its relative lack of expertise on each given regulatory matter and its smaller staff, is not well equipped to make these highly complicated evaluations. Indeed, agencies may issue over a hundred major rules and thousands of non-major rules each year. Thoroughly reviewing all major rules issued would require extensive time from Congress members and their staffs, and it is hardly clear that Congress has the necessary time and resources to conduct the thoughtful analyses needed.
Given these constraints, it is unlikely that congressional review would improve regulatory decision-making. Rather, the opposite is likely: although agencies typically develop rules through rigorous analysis, evidence-based decision-making, and a transparent process involving public comment, congressional judgments are often shaped by political considerations and the influence of lobbying. It is thus unlikely that the congressional review process for new rules will result in net gains to society.
Under the proposed law, if Congress fails to approve a major rule, then Congress cannot issue an “approval relating to the same rule,” for the duration of that congressional session, effectively barring agencies from resubmitting. “Relating to,” is not defined in either the House or Senate bill, but it could potentially be interpreted very broadly to prevent important rules that touch on the same topic as an unapproved rule. This preclusion could needlessly delay vital rules that could save lives and improve welfare. For example, if Congress does not approve a major workplace safety rule requiring heat protections for outdoor workers, agencies might be blocked from issuing similar protections for the rest of the session—even if deaths from extreme heat among outdoor workers rise.
Without Congressional Capacity, Vital Rules Could Disappear
The Senate bill’s retroactive review provisions—requiring Congress to approve of any existing “major rule” lest it sunset within 10 years—are especially ill-conceived. If Congress fails to approve a rule during this review, the rule would automatically lapse at the end of 10 years, putting at risk vital health and safety protections, including some that are required by other laws. This review process would also cause substantial uncertainty in the regulated business communities.
This process will also be burdensome and disruptive for both congressional and executive staff. For example, under the Senate bill, agencies and the Office of Information and Regulatory Affairs would presumably need to determine whether existing rules issued before the Congressional Review Act passed in 1996 qualify as “major rules” that would need congressional approval under the REINS Act’s sunset provisions. Congress would then need to review thousands of existing regulations and consider which rules to approve, and given the resource constraints discussed above, would be especially unlikely to perform these reviews in a thorough and careful manner. Failure to approve a rule—such as rules related to airline, food, and workplace safety—could produce severe consequences.
Retroactively allowing certain major rules to expire in a haphazard manner could also result in an inconsistent and potentially incoherent regulatory framework. Regulations are often interdependent, building upon or complementing one another. There is a risk that Congress may approve some complementary rules while rejecting others—or only certain complementary rules will be classified as “major.” The retroactive requirement could also create scenarios where foundational regulations are rescinded, while rules that rely on them remain in effect, leading to regulatory gaps and more uncertainty.
Likewise, there is no reason to believe that congressional review of all existing major rules would lead to better outcomes for the public. Every president since President Jimmy Carter has undertaken a retrospective review process to reconsider existing regulations for amendment or repeal. Whereas agency reassessments of their existing rules are based largely on expert scientific and technical assessments, congressional judgments may hinge more on other factors and would not likely result in thoughtful regulatory reductions. Rather, this review would create a substantial risk of Congress eviscerating entire regulatory programs that provide benefits for everyday people.
Onerous Requirements with an Antiregulatory Bent
The Senate bill’s new provisions on regulatory planning and budget would likewise impose arbitrary procedural requirements without improving substantive outcomes. Most notably, the bill would prohibit agencies from issuing new significant regulations if the costs are not offset by a concurrent deregulatory action, unless the director of the White House Office of Management and Budget approves the rule in writing. This requirement ignores that most new significant rules will already go through benefit-cost analysis to show that any new regulatory costs are justified by new regulatory benefits. This requirement would arbitrarily prioritize deregulatory cost-savings over regulatory benefits and could dissuade agencies from issuing regulations that improve public welfare. Outside of this requirement, many of the bill’s requirements (such as the biennial publication of a Unified Regulatory Agenda) are duplicative, as the Office of Information and Regulatory Affairs already performs many of the REINS Act’s requirements through its review of significant agency rules.
As noted above, the Senate bill would also provide an affirmative defense for any alleged rule violation when “an individual of ordinary intelligence could not anticipate from the statutory language of a provision of law purported to form the basis for the rule in question that the conduct of the individual would be unlawful.” Depending on how this provision is interpreted, it could greatly limit the scope of many existing laws in which Congress delegated broadly to the agency. Many laws set broad and capacious standards for agencies to implement through specific rules. Arguably, this affirmative defense could apply in many of these circumstances despite the enacting Congress’s intention for the agency to issue broad rules.
For example, the Occupational Safety and Health Act broadly authorizes the Department of Labor to issue occupational safety and health standards that are “reasonably necessary or appropriate to provide safe or healthful employment.” Suppose that, under this statute, Labor issued a rule requiring all warehouses to install a particular caliber of fire suppression system. If a company does not install a fire suppression system meeting the rule’s standards, the company could use this legal defense to argue that nothing in the original law specifically mentioned fire suppression systems, so the affirmative defense applies even though the agency’s rule is applicable and authorized by the statute. If the affirmative defense were broadly applied in this fashion, it could greatly limit the scope of many regulatory programs that promote public health, safety, and welfare. The Senate bill’s creation of a private right of action to re-litigate a rule’s designation as non-major would create even more legal uncertainty.
Constitutional Concerns
Both the retroactive repeal procedure and the major rule review process could be unconstitutional. The Supreme Court found a one-chamber legislative veto of agency action to be unconstitutional in the 1983 case INS v. Chadha. The retrospective review process proposed in the REINS Act is effectively the same type of one-chamber legislative veto that the Court held unconstitutional in Chadha: if one chamber fails to approve an existing rule after 10 years, it would be automatically invalidated.
The review of new rules would also push constitutional boundaries. Because the REINS Act delays the effective date of any major rule until after both chambers of Congress approve, it makes this review look more like legislative action than the one-chamber veto in Chadha. Thus, some have suggested that an agency would be understood to merely be proposing legislation because both the House and Senate would have to approve major rules, and thus Chadha would not apply. But this argument is on shaky ground because the new major rule in question would still be subject to court challenges on administrative law grounds, making it fundamentally executive rather than legislative in nature. Congress’s ability to block the rule if either chamber refuses to approve it thus raises the same constitutional concerns about the balance of power between government branches as the legislative veto in Chadha.
Additionally, both the review of new and existing major rules could result in situations where Congress would be implicitly repealing earlier statutes by omission alone. In particular, in situations where regulations have been issued pursuant to mandatory requirements in earlier statutes, especially those with specific deadlines, Congress could effectively strike down the requirements in those earlier statutes just by failing to approve the implementing regulations, and so without ever voting directly on an amendment to the underlying law. Courts strongly disfavor implied repeals of statutes.
The REINS Act—and, in particular, the Senate’s broader version—poses a severe threat to existing and future regulations. If Congress passes it later this year, as it intends, it would hamstring the ability of federal agencies to protect the public.