Experts: Bill to give Congress power over regulations is constitutional

Questions about the legality of the bill were a major reason that the last version of the legislation died in the House in 2011.

Rep. Todd Young (R-Ind.) re-introduced the legislation, which would require congressional approval of any regulation that’s deemed “economically significant,” meaning it has an impact on the economy of $100 million or more. The latest REINS Act has 145 co-sponsors, just shy of the total when it last passed the House.

Republicans made the case for the bill at Tuesday’s hearing of the Judiciary Subcommittee on Regulatory Reform, Commercial and Anti-trust Law.

Federal agencies “are taking legislation passed by Congress and twisting it into new ways to mean new things,” said House Judiciary Committee Chairman Bob Goodlatte (R-Va.). “There has been a dramatic shift in Washington between the Legislative branch and the Executive branch … so I’m all for putting the reins back” in the hands of Congress.

In the last session of Congress, some lawmakers argued the bill could violate the Constitution’s bicameralism and presentment clauses, which outline the separate powers of each branch of government.

But Eric Claeys, a professor of law at George Mason University, said the REINS Act would not take away rule-making powers from the agencies, but simply reinforce Congress’s ability to “revise or impose new limits on the means” by which regulators write those rules.

Major regulations should not be enacted without going through Congress, which can make sure “burdens are not placed on Americans without the approval of their elected representatives,” said James Gattuso, a senior fellow in regulatory policy at the conservative Heritage Foundation.

Congress “has always had the constitutional authority to control regulatory growth. All of the thousands of rules and regulations adopted each year are based on powers delegated to agencies by Congress itself” and “these rules can always be revoked or modified by legislation passed by Congress,” he continued.

But law scholar Ronald Levin warned that the courts have overturned similar actions by state and federal legislatures.

“It is easy for members of a legislative body to persuade themselves of a need of broader or easier legislative oversight of the executive branch. But judges … have often realized that these may be influenced by institutional self-interest,” said Levin, a professor of law at Washington University in St. Louis, Minn.

House Democrats argue the REINS Act would inject politics into the rule-making process and prevent federal agencies from using their expertise to carry out the regulatory actions that are authorized by Congress.

Levin pointed to the recent sequestration cuts as evidence of why Congress should be left out of the rulemaking process.

“Indiscriminate budget cuts are going into effect because the two [bodies] of Congress and the president” could not come up with an agreement, he said. Requiring any major rulemaking to be approved by both chambers of Congress and the president “would be virtually impossible,” Levin said.

The ranking Democratic member on the subcommittee, Rep. Steve Cohen (D-Tenn.), noted the influence that lobbyists could wield if rules were sent through Congress.

“Can you imagine the field day lobbyists would have if all they had to do was persuade one committee or one portion of the House … to defeat a rule?” Cohen asked, referring to a provision in the REINS Act legislation that sends the regulation to a corresponding committee for debate.

If the committee does not issue a decision on it within a period of time, it is transferred to the House or the Senate floor for debate and a vote.

Congress – not the agencies – is where lobbyists have influence, Cohen said, thanks to fundraisers and endorsements.

“That’s where they do that voodoo that they do so well,” Cohen said.