The incoming House majority plans to schedule a vote on the Regulations from the Executive in Need of Scrutiny Act (REINS Act) soon after new members are sworn in next Tuesday. A top priority of the U.S. Chamber of Commerce, the leading lobby group for big business, REINS would fundamentally alter the federal government in ways that could hobble federal agencies during periods when the same party controls Congress and the White House — and absolutely cripple those agencies during periods of divided government.
Many federal laws delegate authority to agencies to work out the details of how to achieve relatively broad objectives set by the law itself. The agencies do so by drafting regulations that interpret and elaborate upon these statutes and which have the force of law. REINS, however, effectively strips agencies of much of this authority.
To understand why this matters, consider one such federal law:
The Clean Air Act, for example, requires the Environmental Protection Agency to set “standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines” if the EPA determines that those emissions “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
There are many reasons why Congress may wish to delegate authority in this way. The EPA employs scientists and policy experts who have far more expertise in motor vehicle emissions than members of Congress, so the EPA is more likely to make educated judgments about the details of environmental policy. New studies may reveal that a particular emission that was previously viewed as benign is actually far more dangerous — or they may reveal the opposite, that a chemical once viewed as dangerous is actually much less so. The Clean Air Act permits the EPA to respond relatively nimbly to these developments rather than having to push through new legislation every time a researcher publishes new data that should inform regulators. Similarly, EPA regulators can adapt to new technological developments, encouraging the use of certain technologies while relaxing standards related to others as new ways of reducing emissions are discovered.
REINS strips EPA of this nimbleness. Under its terms, a new regulation that has an “annual economic impact of $100 million or more,” which is less than 0.0006 percent of the U.S. economy, must be approved by Congress within “70 session days” or it does not go into effect.
Many conservative groups viewed REINS as a high priority during the Obama administration because it would have effectively shut down much of President Obama’s ability to respond to global warming, raise wages, or implement much of the Affordable Care Act, among other things. When Republicans gained control of the House in 2011, regulatory authority delegated by existing statutes became the primary way the Obama administration could continue push major policy changes. Had REINS been law, Republicans would have held a veto over these actions.
For this reason, it is a bit surprising that House Republicans still back this legislation now that a Republican president is about to take office. Trump has promised to rescind many of the Obama administration’s regulatory actions — a promise that will require his administration to promulgate a wave of new regulations if Trump plans to fulfill it. And those new regulations would be subject to REINS if it becomes law. REINS’ 70-session day deadline may make it difficult to keep up with the blizzard of new regulations coming their way, especially if the legislative branch intends to get anything else accomplished.
Nevertheless, in the long-term, REINS is likely to give Republicans a significant advantage — even if it proves an annoyance during the Trump administration. That’s because Democrats must overcome both geographic disadvantages and partisan gerrymandering to win the House, while Republicans can capture a House majority even if they lose the popular vote by a fairly decisive margin. In 2012, for example, Democratic House candidates won nearly 1.4 million more votes than Republicans, yet Republicans captured a solid majority of the House’s seats.
While congressional maps will be redrawn in 2020, in many key states they will be redrawn by state legislatures also elected using gerrymandered maps that give Republicans a significant advantage. Democrats will have a tough time breaking this self-perpetuating cycle of gerrymandering.
As a result, Democratic presidents are far more likely to face a Republican Congress than Republican presidents are likely to have to deal with a Democratic majority. Under REINS, Republican congresses will likely wave through Republican regulatory action, while Democratic regulations will be halted by House Republicans.
Author: Ian Millhiser