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112th Congress Rept. 112-278
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011
_______
November 10, 2011.--Ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 10]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 10) to amend chapter 8 of title 5, United States
Code, to provide that major rules of the executive branch shall
have no force or effect unless a joint resolution of approval
is enacted into law, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 7
Background and Need for the Legislation.......................... 7
Hearings......................................................... 16
Committee Consideration.......................................... 16
Committee Votes.................................................. 16
Committee Oversight Findings..................................... 21
New Budget Authority and Tax Expenditures........................ 22
Congressional Budget Office Cost Estimate........................ 22
Performance Goals and Objectives................................. 26
Advisory on Earmarks............................................. 26
Section-by-Section Analysis...................................... 26
Changes in Existing Law Made by the Bill, as Reported............ 27
Dissenting Views................................................. 40
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Regulations From the Executive in Need
of Scrutiny Act of 2011''.
SEC. 2. PURPOSE.
The purpose of this Act is to increase accountability for and
transparency in the federal regulatory process. Section 1 of article I
of the United States Constitution grants all legislative powers to
Congress. Over time, Congress has excessively delegated its
constitutional charge while failing to conduct appropriate oversight
and retain accountability for the content of the laws it passes. By
requiring a vote in Congress, the REINS Act will result in more
carefully drafted and detailed legislation, an improved regulatory
process, and a legislative branch that is truly accountable to the
American people for the laws imposed upon them.
SEC. 3. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING.
Chapter 8 of title 5, United States Code, is amended to read as
follows:
``CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
``Sec.
``801. Congressional review.
``802. Congressional approval procedure for major rules.
``803. Congressional disapproval procedure for nonmajor rules.
``804. Definitions.
``805. Judicial review.
``806. Exemption for monetary policy.
``807. Effective date of certain rules.
``Sec. 801. Congressional review
``(a)(1)(A) Before a rule may take effect, the Federal agency
promulgating such rule shall submit to each House of the Congress and
to the Comptroller General a report containing--
``(i) a copy of the rule;
``(ii) a concise general statement relating to the rule;
``(iii) a classification of the rule as a major or nonmajor
rule, including an explanation of the classification
specifically addressing each criteria for a major rule
contained within sections 804(2)(A), 804(2)(B), and 804(2)(C);
``(iv) a list of any other related regulatory actions
intended to implement the same statutory provision or
regulatory objective as well as the individual and aggregate
economic effects of those actions; and
``(v) the proposed effective date of the rule.
``(B) On the date of the submission of the report under subparagraph
(A), the Federal agency promulgating the rule shall submit to the
Comptroller General and make available to each House of Congress--
``(i) a complete copy of the cost-benefit analysis of the
rule, if any;
``(ii) the agency's actions pursuant to sections 603, 604,
605, 607, and 609 of this title;
``(iii) the agency's actions pursuant to sections 202, 203,
204, and 205 of the Unfunded Mandates Reform Act of 1995; and
``(iv) any other relevant information or requirements under
any other Act and any relevant Executive orders.
``(C) Upon receipt of a report submitted under subparagraph (A), each
House shall provide copies of the report to the chairman and ranking
member of each standing committee with jurisdiction under the rules of
the House of Representatives or the Senate to report a bill to amend
the provision of law under which the rule is issued.
``(2)(A) The Comptroller General shall provide a report on each major
rule to the committees of jurisdiction by the end of 15 calendar days
after the submission or publication date as provided in section
802(b)(2). The report of the Comptroller General shall include an
assessment of the agency's compliance with procedural steps required by
paragraph (1)(B).
``(B) Federal agencies shall cooperate with the Comptroller General
by providing information relevant to the Comptroller General's report
under subparagraph (A).
``(3) A major rule relating to a report submitted under paragraph (1)
shall take effect upon enactment of a joint resolution of approval
described in section 802 or as provided for in the rule following
enactment of a joint resolution of approval described in section 802,
whichever is later.
``(4) A nonmajor rule shall take effect as provided by section 803
after submission to Congress under paragraph (1).
``(5) If a joint resolution of approval relating to a major rule is
not enacted within the period provided in subsection (b)(2), then a
joint resolution of approval relating to the same rule may not be
considered under this chapter in the same Congress by either the House
of Representatives or the Senate.
``(b)(1) A major rule shall not take effect unless the Congress
enacts a joint resolution of approval described under section 802.
``(2) If a joint resolution described in subsection (a) is not
enacted into law by the end of 70 session days or legislative days, as
applicable, beginning on the date on which the report referred to in
section 801(a)(1)(A) is received by Congress (excluding days either
House of Congress is adjourned for more than 3 days during a session of
Congress), then the rule described in that resolution shall be deemed
not to be approved and such rule shall not take effect.
``(c)(1) Notwithstanding any other provision of this section (except
subject to paragraph (3)), a major rule may take effect for one 90-
calendar-day period if the President makes a determination under
paragraph (2) and submits written notice of such determination to the
Congress.
``(2) Paragraph (1) applies to a determination made by the President
by Executive order that the major rule should take effect because such
rule is--
``(A) necessary because of an imminent threat to health or
safety or other emergency;
``(B) necessary for the enforcement of criminal laws;
``(C) necessary for national security; or
``(D) issued pursuant to any statute implementing an
international trade agreement.
``(3) An exercise by the President of the authority under this
subsection shall have no effect on the procedures under section 802.
``(d)(1) In addition to the opportunity for review otherwise provided
under this chapter, in the case of any rule for which a report was
submitted in accordance with subsection (a)(1)(A) during the period
beginning on the date occurring--
``(A) in the case of the Senate, 60 session days, or
``(B) in the case of the House of Representatives, 60
legislative days,
before the date the Congress is scheduled to adjourn a session of
Congress through the date on which the same or succeeding Congress
first convenes its next session, sections 802 and 803 shall apply to
such rule in the succeeding session of Congress.
``(2)(A) In applying sections 802 and 803 for purposes of such
additional review, a rule described under paragraph (1) shall be
treated as though--
``(i) such rule were published in the Federal Register on--
``(I) in the case of the Senate, the 15th session
day, or
``(II) in the case of the House of Representatives,
the 15th legislative day,
after the succeeding session of Congress first convenes; and
``(ii) a report on such rule were submitted to Congress under
subsection (a)(1) on such date.
``(B) Nothing in this paragraph shall be construed to affect the
requirement under subsection (a)(1) that a report shall be submitted to
Congress before a rule can take effect.
``(3) A rule described under paragraph (1) shall take effect as
otherwise provided by law (including other subsections of this
section).
``Sec. 802. Congressional approval procedure for major rules
``(a) For purposes of this section, the term `joint resolution' means
only a joint resolution introduced on or after the date on which the
report referred to in section 801(a)(1)(A) is received by Congress
(excluding days either House of Congress is adjourned for more than 3
days during a session of Congress), the matter after the resolving
clause of which is as follows: `That Congress approves the rule
submitted by the _ _ relating to _ _.' (The blank spaces being
appropriately filled in).
``(1) In the House, the majority leader of the House of
Representatives (or his designee) and the minority leader of
the House of Representatives (or his designee) shall introduce
such joint resolution described in subsection (a) (by request),
within 3 legislative days after Congress receives the report
referred to in section 801(a)(1)(A).
``(2) In the Senate, the majority leader of the Senate (or
his designee) and the minority leader of the Senate (or his
designee) shall introduce such joint resolution described in
subsection (a) (by request), within 3 session days after
Congress receives the report referred to in section
801(a)(1)(A).
``(b)(1) A joint resolution described in subsection (a) shall be
referred to the committees in each House of Congress with jurisdiction
under the rules of the House of Representatives or the Senate to report
a bill to amend the provision of law under which the rule is issued.
``(2) For purposes of this section, the term `submission date' means
the date on which the Congress receives the report submitted under
section 801(a)(1).
``(c) In the Senate, if the committee or committees to which a joint
resolution described in subsection (a) has been referred have not
reported it at the end of 15 session days after its introduction, such
committee or committees shall be automatically discharged from further
consideration of the resolution and it shall be placed on the calendar.
A vote on final passage of the resolution shall be taken on or before
the close of the 15th session day after the resolution is reported by
the committee or committees to which it was referred, or after such
committee or committees have been discharged from further consideration
of the resolution.
``(d)(1) In the Senate, when the committee or committees to which a
joint resolution is referred have reported, or when a committee or
committees are discharged (under subsection (c)) from further
consideration of a joint resolution described in subsection (a), it is
at any time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to the
consideration of the joint resolution, and all points of order against
the joint resolution (and against consideration of the joint
resolution) are waived. The motion is not subject to amendment, or to a
motion to postpone, or to a motion to proceed to the consideration of
other business. A motion to reconsider the vote by which the motion is
agreed to or disagreed to shall not be in order. If a motion to proceed
to the consideration of the joint resolution is agreed to, the joint
resolution shall remain the unfinished business of the Senate until
disposed of.
``(2) In the Senate, debate on the joint resolution, and on all
debatable motions and appeals in connection therewith, shall be limited
to not more than 2 hours, which shall be divided equally between those
favoring and those opposing the joint resolution. A motion to further
limit debate is in order and not debatable. An amendment to, or a
motion to postpone, or a motion to proceed to the consideration of
other business, or a motion to recommit the joint resolution is not in
order.
``(3) In the Senate, immediately following the conclusion of the
debate on a joint resolution described in subsection (a), and a single
quorum call at the conclusion of the debate if requested in accordance
with the rules of the Senate, the vote on final passage of the joint
resolution shall occur.
``(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure relating to a
joint resolution described in subsection (a) shall be decided without
debate.
``(e)(1) In the House of Representatives, if the committee or
committees to which a joint resolution described in subsection (a) has
been referred have not reported it at the end of 15 legislative days
after its introduction, such committee or committees shall be
automatically discharged from further consideration of the resolution
and it shall be placed on the appropriate calendar. A vote on final
passage of the resolution shall be taken on or before the close of the
15th legislative day after the resolution is reported by the committee
or committees to which it was referred, or after such committee or
committees have been discharged from further consideration of the
resolution.
``(2)(A) A motion in the House of Representatives to proceed to the
consideration of a resolution shall be privileged and not debatable. An
amendment to the motion shall not be in order, nor shall it be in order
to move to reconsider the vote by which the motion is agreed to or
disagreed to.
``(B) Debate in the House of Representatives on a resolution shall be
limited to not more than two hours, which shall be divided equally
between those favoring and those opposing the resolution. A motion to
further limit debate shall not be debatable. No amendment to, or motion
to recommit, the resolution shall be in order. It shall not be in order
to reconsider the vote by which a resolution is agreed to or disagreed
to.
``(C) Motions to postpone, made in the House of Representatives with
respect to the consideration of a resolution, and motions to proceed to
the consideration of other business, shall be decided without debate.
``(D) All appeals from the decisions of the Chair relating to the
application of the Rules of the House of Representatives to the
procedure relating to a resolution shall be decided without debate.
``(f) If, before the passage by one House of a joint resolution of
that House described in subsection (a), that House receives from the
other House a joint resolution described in subsection (a), then the
following procedures shall apply with respect to a joint resolution
described in subsection (a) of the House receiving the joint
resolution--
``(1) the procedure in that House shall be the same as if no
joint resolution had been received from the other House; but
``(2) the vote on final passage shall be on the joint
resolution of the other House.
``(g) This section and section 803 are enacted by Congress--
``(1) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and as such it is
deemed a part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed in
that House in the case of a joint resolution described in
subsection (a), and it supersedes other rules only to the
extent that it is inconsistent with such rules; and
``(2) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
``Sec. 803. Congressional disapproval procedure for nonmajor rules
``(a) For purposes of this section, the term `joint resolution' means
only a joint resolution introduced in the period beginning on the date
on which the report referred to in section 801(a)(1)(A) is received by
Congress and ending 60 days thereafter (excluding days either House of
Congress is adjourned for more than 3 days during a session of
Congress), the matter after the resolving clause of which is as
follows: `That Congress disapproves the nonmajor rule submitted by the
_ _ relating to _ _, and such rule shall have no force or effect.' (The
blank spaces being appropriately filled in).
``(b)(1) A joint resolution described in subsection (a) shall be
referred to the committees in each House of Congress with jurisdiction.
``(2) For purposes of this section, the term submission or
publication date means the later of the date on which--
``(A) the Congress receives the report submitted under
section 801(a)(1); or
``(B) the nonmajor rule is published in the Federal Register,
if so published.
``(c) In the Senate, if the committee to which is referred a joint
resolution described in subsection (a) has not reported such joint
resolution (or an identical joint resolution) at the end of 15 session
days after the date of introduction of the joint resolution, such
committee may be discharged from further consideration of such joint
resolution upon a petition supported in writing by 30 Members of the
Senate, and such joint resolution shall be placed on the calendar.
``(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is discharged
(under subsection (c)) from further consideration of a joint resolution
described in subsection (a), it is at any time thereafter in order
(even though a previous motion to the same effect has been disagreed
to) for a motion to proceed to the consideration of the joint
resolution, and all points of order against the joint resolution (and
against consideration of the joint resolution) are waived. The motion
is not subject to amendment, or to a motion to postpone, or to a motion
to proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or disagreed to
shall not be in order. If a motion to proceed to the consideration of
the joint resolution is agreed to, the joint resolution shall remain
the unfinished business of the Senate until disposed of.
``(2) In the Senate, debate on the joint resolution, and on all
debatable motions and appeals in connection therewith, shall be limited
to not more than 10 hours, which shall be divided equally between those
favoring and those opposing the joint resolution. A motion to further
limit debate is in order and not debatable. An amendment to, or a
motion to postpone, or a motion to proceed to the consideration of
other business, or a motion to recommit the joint resolution is not in
order.
``(3) In the Senate, immediately following the conclusion of the
debate on a joint resolution described in subsection (a), and a single
quorum call at the conclusion of the debate if requested in accordance
with the rules of the Senate, the vote on final passage of the joint
resolution shall occur.
``(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure relating to a
joint resolution described in subsection (a) shall be decided without
debate.
``(e) In the Senate the procedure specified in subsection (c) or (d)
shall not apply to the consideration of a joint resolution respecting a
nonmajor rule--
``(1) after the expiration of the 60 session days beginning
with the applicable submission or publication date, or
``(2) if the report under section 801(a)(1)(A) was submitted
during the period referred to in section 801(d)(1), after the
expiration of the 60 session days beginning on the 15th session
day after the succeeding session of Congress first convenes.
``(f) If, before the passage by one House of a joint resolution of
that House described in subsection (a), that House receives from the
other House a joint resolution described in subsection (a), then the
following procedures shall apply:
``(1) The joint resolution of the other House shall not be
referred to a committee.
``(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint resolution--
``(A) the procedure in that House shall be the same
as if no joint resolution had been received from the
other House; but
``(B) the vote on final passage shall be on the joint
resolution of the other House.
``Sec. 804. Definitions
``For purposes of this chapter--
``(1) The term `Federal agency' means any agency as that term
is defined in section 551(1).
``(2) The term `major rule' means any rule, including an
interim final rule, that the Administrator of the Office of
Information and Regulatory Affairs of the Office of Management
and Budget finds has resulted in or is likely to result in--
``(A) an annual effect on the economy of $100,000,000
or more;
``(B) a major increase in costs or prices for
consumers, individual industries, Federal, State, or
local government agencies, or geographic regions; or
``(C) significant adverse effects on competition,
employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and
export markets.
``(3) The term `nonmajor rule' means any rule that is not a
major rule.
``(4) The term `rule' has the meaning given such term in
section 551, except that such term does not include--
``(A) any rule of particular applicability, including
a rule that approves or prescribes for the future
rates, wages, prices, services, or allowances
therefore, corporate or financial structures,
reorganizations, mergers, or acquisitions thereof, or
accounting practices or disclosures bearing on any of
the foregoing;
``(B) any rule relating to agency management or
personnel; or
``(C) any rule of agency organization, procedure, or
practice that does not substantially affect the rights
or obligations of non-agency parties.
``Sec. 805. Judicial review
``(a) No determination, finding, action, or omission under this
chapter shall be subject to judicial review.
``(b) Notwithstanding subsection (a), a court may determine whether a
Federal agency has completed the necessary requirements under this
chapter for a rule to take effect.
``(c) The enactment of a joint resolution of approval under section
802 shall not be interpreted to serve as a grant or modification of
statutory authority by Congress for the promulgation of a rule, shall
not extinguish or affect any claim, whether substantive or procedural,
against any alleged defect in a rule, and shall not form part of the
record before the court in any judicial proceeding concerning a rule
except for purposes of determining whether or not the rule is in
effect.
``Sec. 806. Exemption for monetary policy
``Nothing in this chapter shall 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.
``Sec. 807. Effective date of certain rules
``Notwithstanding section 801--
``(1) any rule that establishes, modifies, opens, closes, or
conducts a regulatory program for a commercial, recreational,
or subsistence activity related to hunting, fishing, or
camping; or
``(2) any rule other than a major rule which an agency for
good cause finds (and incorporates the finding and a brief
statement of reasons therefore in the rule issued) that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest,
shall take effect at such time as the Federal agency promulgating the
rule determines.''.
Purpose and Summary
H.R. 10, the ``Regulations From the Executive in Need of
Scrutiny Act of 2011,'' also known as the REINS Act, reforms
the Congressional Review Act of 1996\1\ (``CRA''). The CRA was
adopted to increase accountability of regulatory agencies by
creating a fast-track legislative process for Congress to
overturn a final rule within 60 days of the rule's publication
in the Federal Register. But in the 15 years since it was
adopted, Federal regulatory agencies have issued nearly 59,000
rules, including some 1,050 major rules, while Congress has
overturned only one rule using the CRA. Further, the number of
major rules has increased markedly in recent years, and this
trend shows no signs of abating. The REINS Act reforms the CRA
only insofar as the CRA applies to major rules. The REINS Act
would require Congress to pass within 60 days, and the
President to sign, a joint resolution approving new major rules
issued by a regulatory agency before that rule could take
effect.
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\1\See Contract with America Advancement Act of 1996, H.R. 3136,
104th Cong., Sec. 251 (1996) (enacted as 104 P.L. 121, codified at 5
U.S.C. Sec. Sec. 801-808).
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Background and Need for the Legislation
I. INTRODUCTION
H.R. 10, the ``Regulations From the Executive in Need of
Scrutiny Act of 2011'' (``REINS Act'' or ``the bill''), was
introduced on January 20, 2011, by Representative Geoff Davis
of Kentucky. The bill currently has 192 cosponsors. Its Senate
companion is S.299.
In the 111th Congress, Rep. Davis introduced the
``Regulations From the Executive in Need of Scrutiny Act of
2009,'' H.R. 3765, which was referred to the Committee on the
Judiciary and to the Subcommittee on Commercial and
Administrative Law. Similar legislation had been introduced in
previous Congresses.\2\ The REINS Act garnered substantial
support in the 111th Congress. CRA reform also was discussed in
the Commercial and Administrative Law Subcommittee's
Administrative Law, Process and Procedure Project for the 21st
Century during the 108th and 109th Congresses. The first
recommendation for CRA reform noted in this report was to
require congressional approval of agency rules before the rules
could become effective.\3\ Various administrative law scholars
also have suggested requiring Congressional approval of new
agency regulations.\4\
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\2\See, e.g., Congressional Responsibility Act of 2003, H.R. 110,
108th Cong.; Congressional Regulatory Reform Act of 2000, S.2670, 106th
Cong.; Congressional Responsibility Act of 1999, S.1348, 106th Cong.
\3\House Judiciary Committee, Subcommittee on Commercial and
Administrative Law, Interim Report on the Administrative Law, Process
and Procedure Project for the 21st Century, Comm. Print No. 10 (Dec.
2006) at 104.
\4\See, e.g., Morton Rosenberg, Whatever Happened to Congressional
Review of Agency Rulemaking?: A Brief Overview, Assessment, and
Proposal for Reform, 51 Admin. L. Rev. 1051, 1083-84 (``The CRA is not
working. . . . Agency lawmaking as a surrogate for the Congress is, and
should be, political in nature and is openly recognized and treated as
such. . . . All covered rules should be subject to approval by the
Congress on an expedited basis, with rules deemed significant receiving
more intensive scrutiny and floor deliberation.'') (Fall 1999); Paul R.
Verkuil, Comment: Rulemaking Ossification--A Modest Proposal, 47 Admin.
L. Rev. 453, 457 (Summer 1995) (Proposing ``to have major rules--those
that are subject to ossification--come back to Congress on a fast-track
basis to be enacted into statutes.''); Stephen Breyer, The Legislative
Veto After Chadha, 72 Geo. L.J. 785, 794 (Feb. 1984) (``In its main
features then, the substitute fast track approach closely resembles the
legislative veto. . . . The method by which this is done, however, is
different from that followed by the traditional legislative veto; the
Constitution's language is followed as a matter of form. Thus, whatever
legal questions might arise, they should not be the same as those at
issue in Chadha.''); see also Hon. Abner J. Mivka, The Changing Role of
Judicial Review, 38 Admin. L. Rev. 115, 120 (Spring 1986) (Citing then-
Judge Breyer: ``[T]he fast track is a reasonable facsimile of the one-
House veto that complies with the principles of bicameralism and
presentment.''); Girardeau A. Spann, Spinning the Legislative Veto, 72
Geo. L.J. 813, 816 (1984) (``Judge Breyer's fast-track alternative is
appealing because it closely approximates the political compromise that
is struck by the legislative veto.'').
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The Subcommittee on Courts, Commercial and Administrative
Law heard testimony from six witnesses during two hearings on
the REINS Act. On January 24, 2011, the Subcommittee heard
testimony from the Honorable David McIntosh, former Member of
Congress (1995-2001) and partner at Mayer Brown LLP; Professor
Jonathan Adler, Case Western Reserve University School of Law
and Director, Center for Business Law and Regulation; and, the
Honorable Sally Katzen, Visiting Professor, New York University
School of Law and former Administrator of the Office of
Information and Regulatory Affairs (1993-1998).\5\ On March 8
the Subcommittee received testimony from Professor David
Schoenbrod, New York Law School and Visiting Scholar, American
Enterprise Institute; Professor Eric R. Claeys, George Mason
University School of Law; and, Mr. David Goldston, Director of
Government Affairs, Natural Resources Defense Council.\6\
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\5\REINS Act--Promoting Jobs and Expanding Freedom by Reducing
Needless Regulations: Hearing Before the House Committee on the
Judiciary, Subcommittee on Courts, Commercial and Administrative Law,
112th Cong. (Jan. 24, 2011).
\6\Regulations From the Executive in Need of Scrutiny Act of 2011:
Hearing Before the House Committee on the Judiciary, Subcommittee on
Courts, Commercial and Administrative Law, 112th Cong. (Mar. 8, 2011).
---------------------------------------------------------------------------
II. BACKGROUND AND NEED FOR THE LEGISLATION
The REINS Act is the latest chapter in Congress' struggle
to hold regulatory agencies accountable to the public. ``As
early as the 1930's, Members of Congress worried that wide
delegations of administrative authority would leave the
unelected bureaucracy politically unaccountable. Yet they also
realized that Congress could not pass enough specific
legislation to regulate the increasingly complex world. The
legislative veto was seen as a partial solution to this
dilemma.''\7\
---------------------------------------------------------------------------
\7\Note: The Mysteries of the Congressional Review Act, 122 Harv.
L. Rev. 2162, 2164 (June 2009) (citations omitted).
---------------------------------------------------------------------------
A. The legislative veto and INS v. Chadha
A legislative veto reserved to Congress the unilateral
power to nullify an exercise of executive authority.
``Apparently, the first time Congress enacted a veto clause was
in 1932 when it gave President Hoover the authority to
reorganize executive departments subject to a one-House
veto.''\8\ Some form of a legislative veto subsequently
appeared in some 200 statutes.\9\ Eventually, however, the
Supreme Court ruled the unicameral legislative veto
unconstitutional in the case of INS v. Chadha, 462 U.S. 919
(1983). In doing so, ``the Supreme Court invalidated more
Federal statutes in a single day than it had in all of its
prior history.''\10\
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\8\Breyer, note 4 supra, at 786.
\9\Id. (citing Chadha, 462 U.S. at 968 (White, J., dissenting));
see also Senator James Abourezk, The Congressional Veto: A Contemporary
Response to Executive Encroachment on Legislative Prerogatives, 52 Ind.
L.J. 323, 324 (Winter 1977) (``Since 1932, when the first veto
provision was enacted into law, 295 congressional veto-type provisions
have been inserted into 196 different statutes. . . .'').
\10\Girardeau A. Spann, Deconstructing the Legislative Veto, 68
Minn. L. Rev. 473, 473 (Feb. 1984).
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Chadha involved an alien whom the INS ordered deported for
overstaying his visa. The statute in question allowed the
Attorney General to suspend Chadha's deportation, which he did,
but also allowed the House of Representatives to veto the
Attorney General's decision, which the House also did. The
Supreme Court acknowledged that Congress has ``plenary
authority'' over aliens,\11\ which Congress exercised in part
by authorizing the INS to deport aliens and by authorizing the
Attorney General to suspend an INS deportation order. The
question was whether the Constitution permits Congress to
reserve to the House alone the power to veto the Attorney
General's decision.
---------------------------------------------------------------------------
\11\462 U.S. at 940-41.
---------------------------------------------------------------------------
The Court began its constitutional analysis by observing,
``When any branch acts, it is presumptively exercising the
power the Constitution has delegated to it. When the Executive
acts, he presumptively acts in an executive or administrative
capacity as defined in Article II. And when, as here, one House
of Congress purports to act, it is presumptively acting within
its assigned sphere.''\12\ The Supreme Court further recognized
that, by passing a resolution overturning the Attorney
General's decision to deport Chadha, the House had engaged in
an act ``that was essentially legislative in purpose and
effect,'' i.e., to reverse an act of the Executive Branch.\13\
The Supreme Court acknowledged that, instead of delegating part
of its power to the Attorney General, Congress could have
reserved the power to suspend deportation orders, through the
private bill procedure.\14\ Or Congress could have passed
legislation overturning the Attorney General's decision, and
presented the same to the President for his signature or
veto.\15\ Either way, Congress was required to follow the
constitutional process for legislative action established by
Article I, Section 7: bicameral passage of legislation and
presentment to the President.\16\
---------------------------------------------------------------------------
\12\Id. at 951-52.
\13\Id. at 952.
\14\Id. at 954-55 (``After long experience with the clumsy, time-
consuming private bill procedure, Congress made a deliberate choice to
delegate to the Executive Branch, and specifically to the Attorney
General, the authority to allow deportable aliens to remain in this
country in certain specified circumstances. It is not disputed that
this choice to delegate authority is precisely the kind of decision
that can be implemented only in accordance with the procedures set out
in Art. I. Disagreement with the Attorney General's decision on
Chadha's deportation--that is, Congress' decision to deport Chadha--no
less than Congress' original choice to delegate to the Attorney General
the authority to make that decision, involves determinations of policy
that Congress can implement in only one way; bicameral passage followed
by presentment to the President. Congress must abide by its delegation
of authority until that delegation is legislatively altered or
revoked.'').
\15\Cf. id. at 952-54 (``Neither the House of Representatives nor
the Senate contends that, absent the veto provision in Sec. 244(c)(2),
either of them, or both of them acting together, could effectively
require the Attorney General to deport an alien once the Attorney
General, in the exercise of legislatively delegated authority, had
determined the alien should remain in the United States. Without the
challenged provision in Sec. 244(c)(2), this could have been achieved,
if at all, only by legislation requiring deportation.'').
\16\Id. at 956-57 (``Since it is clear that the action by the House
under Sec. 244(c)(2) was not within any of the express constitutional
exceptions authorizing one House to act alone, and equally clear that
it was an exercise of legislative power, that action was subject to the
standards prescribed in Art. I. . . . To accomplish what has been
attempted by one House of Congress in this case requires action in
conformity with the express procedures of the Constitution's
prescription for legislative action: passage by a majority of both
Houses and presentment to the President.'').
---------------------------------------------------------------------------
The unicameral legislative veto represented an attempt by
Congress to hold regulatory agencies accountable, although the
Court in Chadha held that it is an unconstitutional method of
achieving this goal. In other words, under Chadha the goal of
enabling Congress to overturn an agency decision is not
unconstitutional, but the process by which Congress tried to
achieve that goal--a single-chamber legislative veto, without
presentment--was unconstitutional.
B. The Congressional Review Act of 1996
One effect of Chadha was to ``to chill future attempts by
Congress to interfere with autonomous creation of new rules by
administrative agencies,'' and the 104th Congress certainly was
``mindful'' of Chadha as it drafted the Congressional Review
Act.\17\ ``The plain, overarching purpose of the CRA is to
assure that all covered final rulemaking actions of agencies
come before Congress for scrutiny and possible nullification
through joint resolutions of disapproval.''\18\ Senators
Nickels (R-OK), Reid (D-NV) and Stevens (R-AK) explained in
their joint statement, summarizing the legislative history of
the CRA,
---------------------------------------------------------------------------
\17\James T. O'Reilly, EPA Rulemaking after the 104th Congress:
Death from Four Near-Fatal Wounds?, 3 Envtl. Law. 1, 11-12 (Sept.
1996); see also 142 Cong. Rec. E575 (daily ed. Apr. 19, 1996) (Joint
Explanatory Statement of House Sponsors) (``In INS v. Chadha, 462 U.S.
919 (1983), the Supreme Court struck down as unconstitutional any
procedure where executive action could be overturned by less than the
full process required under the Constitution to make laws--that is,
approval by both houses of Congress and presentment to the
President.''); 142 Cong. Rec. S3684 (daily ed. Apr. 18, 1996) (Joint
Statement of Sens. Nickels, Reid and Stevens) (same).
\18\Rosenberg, note 4 supra, at 1070 (citing 142 Cong. Rec. E575
(daily ed. Apr. 19, 1996)) (Joint Explanatory Statement of House
Sponsors) (``This legislation establishes a government-wide
congressional review mechanism for most new rules. This allows Congress
the opportunity to review a rule before it takes effect and to
disapprove any rule to which Congress objects.'').
As more and more of Congress' legislative functions
have been delegated to Federal regulatory agencies,
many have complained the Congress has effectively
abdicated its constitutional role as the national
legislature in allowing Federal agencies so much
latitude in implementing and interpreting congressional
enactments. . . . This legislation will help to redress
the balance, reclaiming for Congress some of its
policymaking authority, without at the same time
requiring Congress to become a super regulatory
agency.\19\
---------------------------------------------------------------------------
\19\142 Cong. Rec. S3683 (daily ed. Apr. 18, 1996).
The CRA requires agencies to file all new rules with
Congress and with the GAO.\20\ For a major rule (e.g., one with
an annual impact on the economy of $100 million or more),
within 15 days the GAO is required to report to Congress on the
agency's compliance with the various steps of the rulemaking
process.\21\ Major rules are delayed from becoming effective
for 60 days from the later of either the date they are
published in the Federal Register or the date they are
submitted to Congress and the GAO\22\; non-major rules are not
delayed beyond the general 30-day delay established by the
APA.\23\ For major and non-major rules, at any time during this
60-day period Congress can nullify the rule by adopting a joint
resolution drafted according to a textual formula established
by the statute.\24\ The statute contains expedited procedures
for the statute in the Senate, although not in the House.\25\
If Congress adjourns less than 60 days after a rule is
submitted to it, then a new 60-day period begins on the 15th
legislative day of the next session.\26\ If Congress adopts the
resolution, then the rule is null and ``shall be treated as
though such rule had never taken effect.''\27\ Moreover, the
rule ``may not be reissued in substantially the same form'' by
the agency.\28\ Certain rules are exempt from the CRA
altogether, such as those ``necessary for national security''
and ``rules that concern monetary policy.''\29\
---------------------------------------------------------------------------
\20\5 U.S.C. Sec. 801(a)(1).
\21\Id. Sec. 801(a)(2).
\22\Id. Sec. 801(a)(3).
\23\Id. Sec. 801(a)(4); 5 U.S.C. Sec. 553(d).
\24\Id. Sec. Sec. 801(b), 802(a).
\25\Id. Sec. 802.
\26\Id. Sec. 802(e).
\27\Id. Sec. 801(f).
\28\Id. Sec. 801(b)(2).
\29\Id. Sec. Sec. 801(c), 807.
---------------------------------------------------------------------------
Senator Levin (D-MI) was enthusiastic about the CRA's
potential for Congress to hold regulatory agencies accountable:
``No longer will we be able to tell our constituents who
complain about regulations that do not make sense, `talk to the
agency,' or `your only recourse is the courts.' Now we are in a
position to do something ourselves.''\30\ Fifteen years of
experience with the CRA, however, has not matched Senator
Levin's high hopes for bringing regulatory agencies to heel.
Since the CRA was enacted in March 1996, more than 58,900 new
rules have been reported to GAO by regulatory agencies,
including some 1,050 new major rules.\31\ But in that same time
period, a scant 72 joint resolutions of disapproval have been
introduced in the House and Senate, targeting 49 different
rules.\32\ Of these 72 joint resolutions, only one was
enacted.\33\ This single instance of the CRA being utilized by
Congress may have been an anomaly, relating to a highly
controversial workplace ergonomics rule issued by the
Department of Labor in the final days of the Clinton
Administration and overturned by the next Congress with the
Bush Administration's support.\34\
---------------------------------------------------------------------------
\30\142 Cong. Rec. S3123 (daily ed. Mar. 28, 1996); see also REINS
Act, note 5 supra, at 68 (Jan. 24, 2011) (Testimony of David McIntosh)
(``It often becomes impossible, amidst mutual accusations, to determine
on whom the blame or the punishment of a pernicious measure, or series
of pernicious measures, ought really to fall. It is shifted from one to
another with so much dexterity, and under such plausible appearances,
that the public opinion is left in suspense about the real author.'')
(quoting The Federalist No. 70, at 517 (Alexander Hamilton) (Jacob E.
Cooke ed., 1984)); Richard J. Pierce, Jr., Past and Prologue:
Rulemaking and the Administrative Procedure Act, 32 Tulsa L.J. 185, 198
(Winter 1996) (``With the addition of the [CRA], we now have in place
two-thirds of a new legal environment that would combine our social
values in a new way so as to maximize our ability to further those
values simultaneously. We have had systematic Presidential review of
major rules for over a dozen years. Beginning in 1996, Presidential
review will coexist with systematic Congressional review. As a result,
an agency can issue a major rule only if it survives review by both of
the politically accountable branches of government. That process
certainly should satisfy our desire for accountability of rules. We can
hold the elected officials of both branches accountable for any rule
that we dislike.'').
\31\GAO Federal Rules Database Search, http://www.gao.gov/legal/
congressact/fedrule.html (last accessed Oct. 28, 2011).
\32\Morton Rosenberg, The Congressional Review Act After 15 Years:
Background and Considerations for Reform 10-11 (Draft Report Prepared
for the Admin. Conf. of the United States, Sept. 16, 2011), available
at http://www.acus.gov/wp-content/uploads/downloads/2011/09/COJR-Draft-
CRA-Report-9-16-11.pdf (last accessed Oct. 28, 2011).
\33\See S.J. Res. 6, 107th Cong., 115 Stat. 7 (2001) (overturning
65 Fed. Reg. 68261 (2000)).
\34\See generally Julie A. Parks, Lessons in Politics: Initial Use
of the Congressional Review Act, 55 Admin. L. Rev. 187 (Winter 2003).
---------------------------------------------------------------------------
It stands to reason that a sitting president would veto a
joint resolution of disapproval adopted against a new rule
issued by his administration. Experience and common sense
dictate that the CRA's utility may be limited to ``midnight
regulations'' issued when both the incoming administration and
both chambers of the incoming Congress are not of the same
party as the outgoing administration, as occurred in 2000-
01.\35\ The CRA theoretically could be used when one party
possesses veto-proof majorities in both chambers of Congress
against a president belonging to another party, but apparently
this never has occurred in American history and seems unlikely
to come to pass in the foreseeable future. Speculation about
the CRA's potential utility against rules issued by independent
agencies, on the theory that a President would be less likely
to veto such a joint resolution, is simply belied by 15 years
of experience.\36\ Ultimately, it appears that the CRA largely
has become, as two of its early critics predicted, ``nothing
more than another procedural hurdle for an agency to jump,
further increasing the costs and uncertainties of rulemaking,
with little, if any, added benefit.''\37\ (It also may be a
procedural hurdle that agencies regularly choose to bypass, by
simply ignoring the CRA's requirement to submit new rules to
Congress and to the GAO.\38\)
---------------------------------------------------------------------------
\35\See Jerry Brito & Veronique de Rugy, Midnight Regulations and
Regulatory Review, 61 Admin. L. Rev. 163, 190 (Winter 2009) (``However,
the CRA will only be an effective check on midnight regulations if the
incoming president and the Congress are of the same party. If not,
there is little reason to expect that the Congress will use its
authority under the CRA to repeal midnight regulations. Conversely, if
the president is of the same party as his predecessor and the Congress
is of the opposite party, it is likely that the new president will veto
a congressional attempt to overturn his predecessor's last-minute
rules. It should not be surprising that the CRA has only been used once
to successfully repeal a regulation.'').
\36\See Note, note 7 supra, at 2181.
\37\Daniel Cohen & Peter L. Strauss, Congressional Review of Agency
Rulemaking, 49 Admin. L. Rev. 95, 106 (Winter 1997).
\38\See generally Sean D. Croston, Congress and the Courts Close
Their Eyes: The Continuing Abdication of the Duty to Review Agencies
Noncompliance with the Congressional Review Act, 62 Admin. L. Rev. 907
(Fall 2010).
---------------------------------------------------------------------------
C. LThe overall regulatory burden on American taxpayers and job
creators, including the threat of future regulation, is
increasing
The need for increased Congressional oversight also is
apparent from the dramatic increase in Federal regulatory
activity. Agencies are ever issuing more regulations, including
major regulations that have a larger impact on the economy.
According to former OIRA Administrator Susan E. Dudley,
Over the first 2 years of President Obama's term,
executive branch agencies published 112 economically
significant regulations (defined as having impacts of
$100 million or more per year). That averages out to 56
major regulations per year, which is almost 25 percent
higher than President Clinton and President Bush, who
each published an average of 45 major regulations per
year over their terms. When one includes the
independent agencies (over which presidents exercise
less direct oversight) the contrast is greater, with an
average of 84 major regulations issued over the last 2
years, a 35 percent increase over the average of 62 per
year in the Bush Administration and a 50 percent
increase over the 56 per year average in the Clinton
Administration.\39\
---------------------------------------------------------------------------
\39\Susan E. Dudley, ``Prospects for Regulatory Reform in 2011,''
ENGAGE 11:1, at 9 (June 2011).
Further, President Obama's Spring 2011 Unified Agenda of
Regulatory and Deregulatory Activity lists 144 major
regulations, representing at least a $14 billion burden to the
economy. ``This is an increase of 15.2 percent in the number of
economically significant rules in the agenda between spring
2010 and spring 2011. Moreover, in the past decade, the number
of such rules has increased a whopping 102 percent, rising from
71 to 144 since 2001.''\40\ The threat of a new wave of major
regulations to implement the Patient Protection and Affordable
Care Act\41\ and the Dodd-Frank Wall Street Reform and Consumer
Protection Act\42\ is an added burden on the economy that
threatens to undermine the economic recovery. Now more than
ever, Congress--not unelected bureaucrats in regulatory
agencies--should take responsibility for the difficult policy
choices reflected in every new major rulemaking.
---------------------------------------------------------------------------
\40\James L. Gattuso & Diane Katz, ``Red Tape Rising: A 2011 Mid-
Year Report on Regulation,'' Heritage Foundation (July 25, 2011),
available at http://www.heritage.org/research/reports/2011/07/red-tape-
rising-a-2011-mid-year-report (last accessed Oct. 28, 2011).
\41\111 P.L. 148 (Mar. 23, 2010). ``The health care law provides
for the creation of nearly 160 boards, bureaus, bureaucracies, and
commissions. . . . Overall, the Federal Government is expected to issue
roughly 10,000 pages of new regulations to govern the implementation of
the new law.'' ObamaCare: A Budget-Busting, Job-Killing Health Care
Law, Jan. 6, 2011, at 7-8, available at http://www.speaker.gov/
UploadedFiles/ObamaCareReport.pdf (last accessed Oct. 28, 2011).
\42\111 P.L. 203 (July 21, 2010). ``[T]he Dodd-Frank Act is the
most farreaching financial regulatory undertaking since the 1930's,
authorizing or requiring agencies to enact 447 new rules and complete
63 reports and 59 studies.'' Michael J. Ryan, Jr., U.S. Capital Markets
Competitiveness: The Unfinished Agenda, Summer 2011, at 3, available at
https://www.uschamber.com/sites/default/files/reports/
1107_UnfinishedAgenda_WEB.pdf (last accessed Oct. 28, 2011).
---------------------------------------------------------------------------
D. LThe REINS Act is a constitutional and logical reform to the CRA
The REINS Act would improve the CRA's effectiveness against
excessive agency rulemaking by taking the logical next step
beyond the CRA's current structure. That step is to require
Congress to approve new major rules by joint resolution before
they can become legally effective. In essence, the REINS Act
operates as a new condition on the delegation of legislative
rulemaking authority to the agencies, much as other statutes,
such as the Administrative Procedure Act and the CRA itself,
condition the delegation of that authority. With respect to
major rules, Congress' delegation would, under the REINS Act,
no longer include a delegation to the agencies of authority to
place legislative rules into legal effect. Instead, that final
step would be reserved to Congress to take through a bicameral
resolution with presentment to the President. The REINS Act
does not withdraw from the agencies the delegation of authority
to place into effect new, non-major rules.
The Subcommittee heard extensive testimony regarding the
constitutionality of the REINS Act. Sally Katzen, former
Administrator of the Office of Information and Regulatory
Affairs (1993-1998), questioned the constitutionality of the
REINS Act under Chadha. Specifically, Ms. Katzen suggests that
the REINS Act cannot be distinguished easily from the one-house
legislative veto overturned in Chadha: ``It may not be enough
to say that H.R. 10 incorporates bi-cameral and presentment
(the requirements for constitutionality in Chadha) because
[under the REINS Act] one house alone would stop final agency
action from becoming effective.''\43\ To the response that
Congress is simply revoking previously delegated legislative
power, Ms. Katzen suggests it may still be unconstitutional
because it ``involve[s] an attempt by Congress to increase its
power at the expense of the executive branch,'' quoting dicta
in Morrison v. Olson, 487 U.S. 654, 694 (1988).\44\
---------------------------------------------------------------------------
\43\REINS Act, note 5 supra, at 95 (Testimony of Sally Katzen).
\44\Id. at 96.
---------------------------------------------------------------------------
Professors Adler, Claeys and Schoenbrod, as well as former
Representative McIntosh (a ``key sponsor''\45\ of the
Congressional Review Act in the 104th Congress), each testified
in support of the bill's constitutionality and rebutted this
argument. Professor Adler observed that the REINS Act follows
the constitutional requirements for bicameralism and
presentment, which were fatal to the legislative veto in
Chadha.\46\ In other words, the legislative veto in Chadha was
overturned because of a defective process--Congress had tried
to take a shortcut around Article I of the Constitution--and
not because invalidating a new regulation is an impermissible
outcome. If the REINS Act effectively allows Congress to
accomplish the same goal as in Chadha, but follows the
Constitution, then under Chadha it is not constitutionally
suspect. Professor Adler further notes that the REINS Act is
somewhat more limited than the historical legislative veto in
that it only applies to major rules, of which there have been
typically (although the number is increasing) fewer than 200
every year.\47\
---------------------------------------------------------------------------
\45\Rosenberg, note 4 supra, at 1072.
\46\REINS Act, note 5 supra, at 84 (Testimony of Jonathan Adler).
\47\Ibid.
---------------------------------------------------------------------------
Professor Claeys responded to the suggestion that the REINS
Act is constitutionally questionable per Morrison v. Olson, in
which the Supreme Court upheld the independent counsel statute
against a separation-of-powers constitutional challenge. As
Professor Claeys testified,
[A]gencies have no power to promulgate legislative
rules unless it is given to them by Congress. So the
Morrison argument runs off of the assumption that there
is some core inherent prerogative of the President in
relation to legislative rulemaking that is threatened
by the REINS Act. However, if all of executive branch
agencies' rulemakings powers must come from Congress,
there can't be any such core Article 2 prerogative.
Maybe the most helpful precedent here would be
Youngstown Sheet and Tube v. Sawyer, a 1952 case.
President Truman tried to order a seizure of the steel
mills and he didn't have an act of Congress to support
it. The Court held that in the absence of that
statute--such a statute or other kind of authorization
from Congress--that the President had no authority.\48\
---------------------------------------------------------------------------
\48\Regulations From the Executive in Need of Scrutiny Act of 2011,
note 6 supra, at 132 (Testimony of Eric Claeys).
Professor Schoenbrod expanded on this point: ``The
regulations that agencies promulgate are rules of Conduct. And
in fact, courts talk about these regulations all the time as
`legislative rules.' So we are not talking here about Executive
power fundamentally; we are talking here about legislative
power. So it is a question of Congress reclaiming some of its
legislative powers. So, therefore, Morrison v. Olson is not
implicated.''\49\ In other words, regulatory agencies are
performing a legislative task when they make rules and
regulations. Unlike the prosecutorial power at issue in
Morrison, rulemaking is not a ``core executive function.'' On
the contrary, it is a legislative function that was delegated
to the agency by Congress. And when Congress delegates to the
Executive Branch, it may do so conditionally.\50\
---------------------------------------------------------------------------
\49\Id. at 134 (Testimony of David Schoenbrod).
\50\See id. at 132 (Testimony of Eric Claeys) (``The Chada [sic]
decision doesn't rule out the possibility that Congress may ever attach
strings. It merely states if Congress does attach such a string,
Congress must do so by a genuine bona fide legislative act that is
passed by the House and the Senate and then either signed by the
President or passed by two-thirds supermajority in both Houses.'').
---------------------------------------------------------------------------
Mr. McIntosh defended the REINS Act against the charge that
it is unconstitutional because it requires Congress to follow
certain procedures for legislation approving a new major
rule.\51\ According to Mr. McIntosh,
---------------------------------------------------------------------------
\51\See U.S Const. art. I, Sec. 5, cl. 2 (``Each House may
determine the Rules of its Proceedings. . . .'').
The two Houses of Congress have adopted internal rules
jointly in the form of statutes since the earliest days
of the Republic. In fact, the very first statute
enacted by the First Congress on June 1, 1789,
addressed the procedures for administering oaths in the
House and Senate, a matter that was within the power of
each House to determine independently. As the Supreme
Court has recognized, the decisions of the First
Congress provide ``contemporaneous and weighty evidence
of the Constitution's meaning since many of the Members
of the First Congress had taken part in framing that
instrument.'' And as noted above, Congress has
exercised the power to create fast-track procedure many
times since then, including in the existing text of the
CRA.\52\
---------------------------------------------------------------------------
\52\REINS Act, note 5 supra, at 62 (Testimony of David McIntosh).
In the Committee's judgment, the REINS Act is undoubtedly
constitutional. The procedure prescribed by the REINS Act for
Congress to approve major rules follows the legislative process
spelled out in the Constitution and explained in Chadha, and
does not encroach on any core executive power. Rather, the
REINS Act makes conditional the delegation of legislative
power, which regulatory agencies use to make rules and
regulations but which originates in Congress. Nor is the
statutory fast-track process constitutionally suspect. Like the
CRA, the REINS Act is an ordinary statute that prescribes
binding internal rules for the houses of Congress acting
separately. Congress has made its rules in this fashion many
times since the Founding.\53\ The Committee believes the REINS
Act is constitutional in this respect as well.
---------------------------------------------------------------------------
\53\See, e.g., 5 U.S.C. Sec. 912 (government reorganization; 19
U.S.C. Sec. 2191 (trade agreements); 2 U.S.C. Sec. 359 (congressional
pay).
---------------------------------------------------------------------------
At the Subcommittee's hearing on March 8, David Goldston of
the Natural Resources Defense Council testified that the REINS
Act will hamper regulatory agencies' ability to act in the
public interest by politicizing the regulatory process.\54\
Reflecting this point of view, during the Committee's markup of
H.R. 10 several amendments were introduced to exempt various
types of regulations from the REINS Act.
---------------------------------------------------------------------------
\54\Regulations From the Executive in Need of Scrutiny Act of 2011,
note 6 supra, at 124.
---------------------------------------------------------------------------
The Committee reiterates that the REINS Act only applies to
major rules, not to all new rules. Further, the Act establishes
a fast-track legislative process to ensure that joint
resolutions do not become delayed by parliamentary maneuvering
in either house of Congress. The REINS Act's purpose is to
increase Congressional accountability for the difficult
legislative policy choices that Congress too often delegates to
regulatory agencies; the Committee does not expect that the Act
necessarily will produce more, fewer, better, or worse
regulations. Rather, the Act will return responsibility for
making major rules to Congress, to which the Constitution
assigns ``all legislative Powers''\55\ and whence the
rulemaking power originates.
---------------------------------------------------------------------------
\55\U.S. Const. art. I Sec. 1.
---------------------------------------------------------------------------
In his testimony to the Subcommittee, Professor Schoenbrod
described how Congress too often shirks taking responsibility
for difficult decisions by assigning them to the regulatory
process instead. Agencies then become the focus of the
``political calculations, logrolling, and dealmaking'' that Mr.
Goldston decries in Congress\56\--except that these
conversations occur entirely behind the agencies' closed door
with unelected, unaccountable bureaucrats. Professor Schoenbrod
specifically discussed Congress's decision to charge the EPA
with regulating leaded gasoline in the 1970's, and how the EPA
``went into a stall'' when faced with such a controversial and
difficult decision. ``The upshot is that lead came out of
gasoline much more slowly than if Congress had made the hard
choice itself,'' with significant negative consequences for
public health in the United States.\57\ Under the REINS Act,
Professor Schoenbrod predicts what common sense alone dictates:
Agencies and Congress will work together throughout the
rulemaking process to ensure that the final major rule will
enjoy majority support among the American people's elected
representatives in Congress. ``This is how we should get the
sensible results in a democracy, not by elected lawmakers
hiding behind unelected agency officials.''\58\
---------------------------------------------------------------------------
\56\Regulations From the Executive in Need of Scrutiny Act of 2011,
note 6 supra, at 122.
\57\Id. at 87 (Testimony of David Schoenbrod).
\58\Id. at 81-82 (Testimony of David Schoenbrod) (Quoting ``James
Landis, the New Deal's sage of administrative law, who urged in 1938
that agency regulations be presented to Congress for approval: `It is
an act of political wisdom to put back upon the shoulders of Congress
responsibility for controversial choices.''').
---------------------------------------------------------------------------
In summary, the REINS Act is a constitutional, ``next
logical step''\59\ to reform the Congressional Review Act of
1996.
---------------------------------------------------------------------------
\59\Id. at 98 (Testimony of Jonathan Adler).
---------------------------------------------------------------------------
Hearings
The Subcommittee on Courts, Commercial and Administrative
Law held two legislative hearings on H.R. 10, on January 24 and
March 8, 2011.
Committee Consideration
On October 24, 2011, the Committee met in open session and
ordered the bill H.R. 10 favorably reported with an amendment,
by a rollcall vote of 22 to 14, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 10.
1. Amendment #2, offered by Mr. Conyers. The Amendment
exempts from the REINS Act ``any rule that protects or saves
lives.'' The Amendment failed by a rollcall of 13-20.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 13 20
----------------------------------------------------------------------------------------------------------------
2. Amendment #5, offered by Mr. Cohen. The Amendment
exempts from the REINS Act ``any rule that the Administrator of
the Office of Information and Regulatory Affairs of the Office
of Managements and Budget determines would result in greater
benefits than costs to society.'' The Amendment failed by a
rollcall vote of 13-22.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 13 22
----------------------------------------------------------------------------------------------------------------
3. Amendment #6, offered by Mr. Johnson. The Amendment
exempts from the REINS Act ``any rule that the Administrator of
the Office of Information and Regulatory Affairs of the Office
of Managements and Budget determines would result in net job
growth.'' The Amendment failed by a rollcall vote of 14-21.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 14 21
----------------------------------------------------------------------------------------------------------------
4. Amendment #4, offered by Ms. Jackson Lee. The Amendment
exempts from the REINS Act ``any rule relating to infant
formula, as defined under'' the Federal Food, Drug, and
Cosmetic Act. The Amendment failed by a rollcall vote of 13-22.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 13 22
----------------------------------------------------------------------------------------------------------------
5. Amendment #7, offered by Mr. Quigley. The Amendment
directs the Government Accountability Office to submit to
Congress a report describing the cumulative benefits of major
rules regarding air quality, water quality and food safety. The
Amendment failed by a rollcall vote of 12-21.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott.......................................................
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 12 21
----------------------------------------------------------------------------------------------------------------
6. Reporting H.R. 10 as amended. The bill will increase
accountability and transparency in the Federal regulatory
process. Reported by a rollcall of 22-14.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Amodei...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
(Vacant)........................................................
-----------------------------------------------
Total....................................................... 22 14
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 10, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 9, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 10, the
``Regulations From the Executive in Need of Scrutiny Act of
2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sarah Anders,
who can be reached at 226-9010.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 10--Regulations From the Executive in Need of Scrutiny Act of
2011.
As ordered reported by the House Committee on the Judiciary on
October 25, 2011
SUMMARY
Under current law, the Congress can prevent a rule from
taking effect by enacting a joint resolution of disapproval. In
contrast, H.R. 10 would require enactment of a joint resolution
of approval prior to any major rule taking effect. Therefore,
H.R. 10 would make major regulations dependent on future
legislation.
About 80 major rules have been issued per year, on average,
over the past five years. Major rules vary greatly in their
nature and scope. CBO and the staff of the Joint Committee on
Taxation (JCT) cannot determine the budgetary effects of
preventing all future major rules from going into effect, but
we expect that enacting H.R. 10 would have effects on both
direct spending and revenues. Pay-as-you-go procedures apply
because enacting the legislation would affect direct spending
and revenues.
CBO expects that implementing H.R. 10 would not have any
significant impact on spending subject to appropriation.
CBO expects that H.R. 10 would impose no intergovernmental
or private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
Background
The Congressional Review Act (CRA) of 1996 requires Federal
agencies to submit final rules to Congress and the Comptroller
General before they may take effect. Final rules may only be
annulled by Congress if a joint resolution of disapproval is
enacted into law. H.R. 10 would amend current law by requiring
Congress to enact a joint resolution of approval before any
major rule may take effect. The definition of a major rule,
which was originally set by the CRA and is left unchanged by
H.R. 10, is any rule that the Office of Management and Budget
determines would have:
LAn annual effect on the economy of
$100,000,000 or more;
LA major increase in costs or prices for
consumers; individual industries; Federal, State, or
local government agencies; or geographic regions; or
LSignificant 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.\1\
---------------------------------------------------------------------------
\1\See 5 USC Sec. 804(2).
H.R. 10 specifies special Congressional procedures and
explicit timelines for enacting a joint resolution of approval
for major rules. Under H.R. 10, if the Congress fails to enact
a joint resolution of approval within 70 legislative (or
session) days of receiving the major rule and accompanying
report from a Federal agency, the rule may not take effect.
Further, the Congress may not reconsider a joint resolution of
approval relating to that rule in the same Congress. However, a
major rule may take effect for one 90-calendar-day period
without Congressional approval if the President determines via
an executive order that the major rule is necessary for one of
four reasons. These reasons are: to respond to an imminent
threat to health or safety, to enforce criminal laws, to
protect national security, or to implement an international
trade agreement.
Since 1997, which was the first full calendar year
following the enactment of the CRA, Federal agencies have
published 50 or more major rules each year. One hundred major
rules were issued in 2010, and 79 major rules have been issued,
on average, over the past five full calendar years. Fifty major
rules have been issued so far in 2011 (as of November 8, 2011).
Major rules vary greatly in scope and in their effect on the
Federal budget. For example, major rules issued in 2011 include
required warnings for cigarette packages and advertisements,
Medicare payment rates for inpatient psychiatric facilities,
and national emission standards for hazardous air pollutants
from industrial, commercial and institutional boilers.\2\
---------------------------------------------------------------------------
\2\GAO Federal Rules Database, http://www.gao.gov/legal/
congressact/fedrule.html.
---------------------------------------------------------------------------
In general, most major rules with budgetary effects are
issued to implement current law; therefore, the budgetary
effects of such anticipated rules are reflected in CBO's
baseline projections. For example, routine annual rules
establish new payment rates for a variety of Medicare services.
Such updated payment rates reflect changes in the price indices
specified to be used for those services by current law; the
result is often an increase in payment rates and thus an
increase in spending.
If H.R. 10 is enacted, baseline projections would no longer
reflect the budgetary impact of major rules. Accordingly, if
the Congress later considers a joint resolution of approval for
a major rule, the estimated budgetary effect of that resolution
would include the cost or savings of implementing that rule.
For example, if H.R. 10 is enacted, baseline projections would
no longer assume that payment rates for Medicare providers
would rise over time without Congressional action. As a result,
a Congressional resolution of approval for a major rule raising
such rates would be estimated as having a cost to reflect those
higher rates.
Impact on Federal Spending and Revenues
Direct Spending. H.R. 10 would prevent all major rules from
taking effect unless subsequent legislation is enacted.
Therefore, in assessing the budgetary effects of H.R. 10, CBO
considered the costs and savings that would be realized if
anticipated major rules do not take effect. Preventing some
major rules from taking effect would result in costs, while
preventing others would result in savings. CBO expects that the
rules with the largest effects on Federal spending will be
those related to Federal health programs, particularly
Medicare, and that enacting H.R. 10 would significantly reduce
Medicare spending relative to current law.
On net, CBO estimates that enacting H.R. 10 would result in
savings for direct spending over the 2012-2021 period. Such
budgetary effects would largely be driven by: (1) preventing
annual updates to payment schedules for provision of Medicare
services and other routine revisions to aspects of selected
government programs; and (2) significantly altering the
implementation of legislation with substantial budget effects.
Many routine major rules are health-related and in
particular pertain to Medicare. Some examples include rules
that establish annual increases in payment rates for services
provided by hospitals, physicians, and other Medicare
providers. Enacting H.R. 10 would freeze payment structures for
those providers at current levels, which would, on net, result
in hundreds of billions of dollars in savings over the 2012-
2021 period. Preventing some major rules from taking effect
would result in an increase in direct spending (from an
increase in spending or from a reduction in offsetting
receipts). For example, preventing annual increases in premiums
paid by beneficiaries for Medicare Part B would reduce premium
collections, and preventing scheduled reductions in payments
for hospitals that serve a disproportionate share of low-income
patients under the Medicaid program would increase costs
relative to current law. However, CBO estimates that overall
savings would likely offset those costs by a substantial
amount.
Enacting H.R. 10 would also affect the implementation of
significant legislation for which final rules have not been
issued. For example, H.R. 10 would make some major rules
related to implementing the Patient Protection and Affordable
Care Act (PPACA, Public Law 111-148) subject to a joint
resolution of approval because a number of rules have not yet
taken affect. Many of these rules relate to health insurance
exchanges, which will become operational in 2014 under current
law. Preventing rules governing exchanges from taking effect
would, at a minimum, delay implementation of health insurance
exchanges, which would in turn result in significant savings.
Revenues. Enacting H.R. 10 would also affect revenues, and
JCT expects that preventing regulations from going into effect
could reduce collections of revenues in some cases and increase
collections in other cases. JCT cannot determine the sign or
magnitude of the possible effects on revenues.
Impact on Future Legislation
If H.R. 10 is enacted, the budgetary effect of any joint
resolution of approval for a major rule would include any
direct spending and revenue effects of implementing that rule.
Further, for future legislation whose implementation would be
contingent upon the promulgation of major rules, CBO would
estimate the budgetary effects assuming those major rules did
not take effect. The costs or savings associated with those
major rules would instead be estimated and counted for budget
enforcement purposes at the time that joint resolutions to
approve those major rules were being considered.
PAY-AS-YOU-GO CONSIDERATIONS
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. Pay-as-you-go procedures apply to
H.R. 10 because enacting the legislation would affect direct
spending and revenues. CBO and JCT cannot determine the sign or
magnitude of those effects.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
CBO expects that H.R. 10 would impose no intergovernmental
or private-sector mandates as defined in UMRA. By requiring
major rules to be approved by a joint resolution of Congress
and potentially delaying or halting the implementation of those
rules, the bill could affect public or private entities in a
number of ways, including slowing reimbursements and
eliminating or changing regulatory requirements. While the
costs and savings tied to those individual effects could be
significant, CBO has no basis for estimating either the overall
direction or magnitude of those effects on public or private
entities because of uncertainty about the nature and number of
regulations affected.
ESTIMATE PREPARED BY:
Federal Costs: Sarah Anders
Impact on State, Local, and Tribal Governments: Elizabeth Cove
Delisle
Impact on the Private Sector: Paige Piper-Bach
ESTIMATE APPROVED BY:
Holly Harvey
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R. 10
increase accountability and transparency in the Federal
regulatory process by reforming the Congressional Review Act of
1996 to require Congress to approve all new major regulations.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 10 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short Title.
This Act may be cited as the ``Regulations From the
Executive in Need of Scrutiny Act of 2011.''
Section 2. Purpose.
Section 2 explains that the purpose of the REINS Act is to
increase accountability and transparency in the Federal
regulatory process by requiring Congress to approve all new
major regulations.
Section 3. Congressional Review of Agency Rule-Making.
Chapter 8 of title 5, U.S. Code, is amended to create the
following method for congressional review of new major Federal
rules:
801. Congressional review: This section requires
enhanced reporting of all Federal rules to Congress and
the Comptroller General and provides that a major rule
shall not take effect without a Joint Resolution of
approval under section 802. Section 801 also caps the
time to enact a Joint Resolution of approval at 70
legislative days, and empowers the President to grant
90-day waivers for certain emergency situations.
Finally, Section 801 outlines carry-over provisions
from one session of Congress to the next.
802. Congressional approval procedure for major rules:
Section 802 establishes House and Senate procedures to
require both chambers to approve major rules by Joint
Resolution, requiring the signature of the President,
before such major rules can take effect. Section 802
also provides expedited procedural mechanisms to ensure
that all Joint Resolutions are given efficient
consideration in both chambers.
803. Congressional disapproval procedure for nonmajor
rules: Section 803 preserves the existing disapproval
process under the Congressional Review Act for all non-
major rules. This section permits Congress to
disapprove a rule if both houses of Congress pass a
joint resolution of disapproval that the President
signs (or if Congress overrides the veto). Section 803
also provides expedited procedural mechanisms in the
Senate.
804. Definitions: Consistent with long-standing
Executive Orders, this section defines ``major rule''
as any rule that the Administrator of the Office of
Information and Regulatory Affairs (OIRA) finds may
result in an annual effect on the economy of $100
million or more; a major increase in costs or prices
for consumers; or significant adverse effects on the
economy. Section 804 defines ``non-major rule'' as any
rule other than a major rule. Rules of particular
applicability, rules relating to agency management, or
rules relating to agency organization, are exempt from
the REINS Act.
805. Judicial Review: This section provides that no
determination, finding, action or omission under this
chapter will be subject to judicial review. For
example, the section would preclude from judicial
review a determination by the OIRA Administrator that a
rule is a ``major rule'' or not; a Presidential
determination that a rule should become effective
immediately; an agency determination that ``good
cause'' requires a rule to go into effect at once; or,
a question as to the adequacy of a Comptroller
General's assessment of an agency's report. The
Committee intends that a court may consider, however,
whether a Federal agency has satisfied the requirements
under the REINS Act for a rule to take effect. Section
805 also preserves the ability to challenge a rule
based on a lack of statutory authority to adopt the
rule or a procedural defect during rulemaking.
806. Exemption for monetary policy: Like the
Congressional Review Act, Section 806 exempts any rules
concerning monetary policy promulgated by the Board of
Governors of the Federal Reserve System or the Federal
Open Market Committee.
807. Effective date of certain rules: Section 807
permits certain rules relating to hunting, fishing, or
camping and certain non-major rules to take effect
notwithstanding Section 801.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
[CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
[Sec.
[801. Congressional review.
[802. Congressional disapproval procedure.
[803. Special rule on statutory, regulatory, and judicial deadlines.
[804. Definitions.
[805. Judicial review.
[806. Applicability; severability.
[807. Exemption for monetary policy.
[808. Effective date of certain rules.
[Sec. 801. Congressional review
[(a)(1)(A) Before a rule can take effect, the Federal agency
promulgating such rule shall submit to each House of the
Congress and to the Comptroller General a report containing--
[(i) a copy of the rule;
[(ii) a concise general statement relating to the
rule, including whether it is a major rule; and
[(iii) the proposed effective date of the rule.
[(B) On the date of the submission of the report under
subparagraph (A), the Federal agency promulgating the rule
shall submit to the Comptroller General and make available to
each House of Congress--
[(i) a complete copy of the cost-benefit analysis of
the rule, if any;
[(ii) the agency's actions relevant to sections 603,
604, 605, 607, and 609;
[(iii) the agency's actions relevant to sections 202,
203, 204, and 205 of the Unfunded Mandates Reform Act
of 1995; and
[(iv) any other relevant information or requirements
under any other Act and any relevant Executive orders.
[(C) Upon receipt of a report submitted under subparagraph
(A), each House shall provide copies of the report to the
chairman and ranking member of each standing committee with
jurisdiction under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under
which the rule is issued.
[(2)(A) The Comptroller General shall provide a report on
each major rule to the committees of jurisdiction in each House
of the Congress by the end of 15 calendar days after the
submission or publication date as provided in section
802(b)(2). The report of the Comptroller General shall include
an assessment of the agency's compliance with procedural steps
required by paragraph (1)(B).
[(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
[(3) A major rule relating to a report submitted under
paragraph (1) shall take effect on the latest of--
[(A) the later of the date occurring 60 days after
the date on which--
[(i) the Congress receives the report
submitted under paragraph (1); or
[(ii) the rule is published in the Federal
Register, if so published;
[(B) if the Congress passes a joint resolution of
disapproval described in section 802 relating to the
rule, and the President signs a veto of such
resolution, the earlier date--
[(i) on which either House of Congress votes
and fails to override the veto of the
President; or
[(ii) occurring 30 session days after the
date on which the Congress received the veto
and objections of the President; or
[(C) the date the rule would have otherwise taken
effect, if not for this section (unless a joint
resolution of disapproval under section 802 is
enacted).
[(4) Except for a major rule, a rule shall take effect as
otherwise provided by law after submission to Congress under
paragraph (1).
[(5) Notwithstanding paragraph (3), the effective date of a
rule shall not be delayed by operation of this chapter beyond
the date on which either House of Congress votes to reject a
joint resolution of disapproval under section 802.
[(b)(1) A rule shall not take effect (or continue), if the
Congress enacts a joint resolution of disapproval, described
under section 802, of the rule.
[(2) A rule that does not take effect (or does not continue)
under paragraph (1) may not be reissued in substantially the
same form, and a new rule that is substantially the same as
such a rule may not be issued, unless the reissued or new rule
is specifically authorized by a law enacted after the date of
the joint resolution disapproving the original rule.
[(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a rule that would not take
effect by reason of subsection (a)(3) may take effect, if the
President makes a determination under paragraph (2) and submits
written notice of such determination to the Congress.
[(2) Paragraph (1) applies to a determination made by the
President by Executive order that the rule should take effect
because such rule is--
[(A) necessary because of an imminent threat to
health or safety or other emergency;
[(B) necessary for the enforcement of criminal laws;
[(C) necessary for national security; or
[(D) issued pursuant to any statute implementing an
international trade agreement.
[(3) An exercise by the President of the authority under this
subsection shall have no effect on the procedures under section
802 or the effect of a joint resolution of disapproval under
this section.
[(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
during the period beginning on the date occurring--
[(A) in the case of the Senate, 60 session days, or
[(B) in the case of the House of Representatives, 60
legislative days,
before the date the Congress adjourns a session of Congress
through the date on which the same or succeeding Congress first
convenes its next session, section 802 shall apply to such rule
in the succeeding session of Congress.
[(2)(A) In applying section 802 for purposes of such
additional review, a rule described under paragraph (1) shall
be treated as though--
[(i) such rule were published in the Federal Register
(as a rule that shall take effect) on--
[(I) in the case of the Senate, the 15th
session day, or
[(II) in the case of the House of
Representatives, the 15th legislative day,
after the succeeding session of Congress first
convenes; and
[(ii) a report on such rule were submitted to
Congress under subsection (a)(1) on such date.
[(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to Congress before a rule can take effect.
[(3) A rule described under paragraph (1) shall take effect
as otherwise provided by law (including other subsections of
this section).
[(e)(1) For purposes of this subsection, section 802 shall
also apply to any major rule promulgated between March 1, 1996,
and the date of the enactment of this chapter.
[(2) In applying section 802 for purposes of Congressional
review, a rule described under paragraph (1) shall be treated
as though--
[(A) such rule were published in the Federal Register
on the date of enactment of this chapter; and
[(B) a report on such rule were submitted to Congress
under subsection (a)(1) on such date.
[(3) The effectiveness of a rule described under paragraph
(1) shall be as otherwise provided by law, unless the rule is
made of no force or effect under section 802.
[(f) Any rule that takes effect and later is made of no force
or effect by enactment of a joint resolution under section 802
shall be treated as though such rule had never taken effect.
[(g) If the Congress does not enact a joint resolution of
disapproval under section 802 respecting a rule, no court or
agency may infer any intent of the Congress from any action or
inaction of the Congress with regard to such rule, related
statute, or joint resolution of disapproval.
[Sec. 802. Congressional disapproval procedure
[(a) For purposes of this section, the term ``joint
resolution'' means only a joint resolution introduced in the
period beginning on the date on which the report referred to in
section 801(a)(1)(A) is received by Congress and ending 60 days
thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress),
the matter after the resolving clause of which is as follows:
``That Congress disapproves the rule submitted by the -- --
relating to -- --, and such rule shall have no force or
effect.'' (The blank spaces being appropriately filled in).
[(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction.
[(2) For purposes of this section, the term ``submission or
publication date'' means the later of the date on which--
[(A) the Congress receives the report submitted under
section 801(a)(1); or
[(B) the rule is published in the Federal Register,
if so published.
[(c) In the Senate, if the committee to which is referred a
joint resolution described in subsection (a) has not reported
such joint resolution (or an identical joint resolution) at the
end of 20 calendar days after the submission or publication
date defined under subsection (b)(2), such committee may be
discharged from further consideration of such joint resolution
upon a petition supported in writing by 30 Members of the
Senate, and such joint resolution shall be placed on the
calendar.
[(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) from further consideration of
a joint resolution described in subsection (a), it is at any
time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to
the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration
of the joint resolution) are waived. The motion is not subject
to amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
[(2) In the Senate, debate on the joint resolution, and on
all debatable motions and appeals in connection therewith,
shall be limited to not more than 10 hours, which shall be
divided equally between those favoring and those opposing the
joint resolution. A motion further to limit debate is in order
and not debatable. An amendment to, or a motion to postpone, or
a motion to proceed to the consideration of other business, or
a motion to recommit the joint resolution is not in order.
[(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
[(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
[(e) In the Senate the procedure specified in subsection (c)
or (d) shall not apply to the consideration of a joint
resolution respecting a rule--
[(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date, or
[(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.
[(f) If, before the passage by one House of a joint
resolution of that House described in subsection (a), that
House receives from the other House a joint resolution
described in subsection (a), then the following procedures
shall apply:
[(1) The joint resolution of the other House shall
not be referred to a committee.
[(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint
resolution--
[(A) the procedure in that House shall be the
same as if no joint resolution had been
received from the other House; but
[(B) the vote on final passage shall be on
the joint resolution of the other House.
[(g) This section is enacted by Congress--
[(1) as an exercise of the rulemaking power of the
Senate and House of Representatives, respectively, and
as such it is deemed a part of the rules of each House,
respectively, but applicable only with respect to the
procedure to be followed in that House in the case of a
joint resolution described in subsection (a), and it
supersedes other rules only to the extent that it is
inconsistent with such rules; and
[(2) with full recognition of the constitutional
right of either House to change the rules (so far as
relating to the procedure of that House) at any time,
in the same manner, and to the same extent as in the
case of any other rule of that House.
[Sec. 803. Special rule on statutory, regulatory, and judicial
deadlines
[(a) In the case of any deadline for, relating to, or
involving any rule which does not take effect (or the
effectiveness of which is terminated) because of enactment of a
joint resolution under section 802, that deadline is extended
until the date 1 year after the date of enactment of the joint
resolution. Nothing in this subsection shall be construed to
affect a deadline merely by reason of the postponement of a
rule's effective date under section 801(a).
[(b) The term ``deadline'' means any date certain for
fulfilling any obligation or exercising any authority
established by or under any Federal statute or regulation, or
by or under any court order implementing any Federal statute or
regulation.
[Sec. 804. Definitions
[For purposes of this chapter--
[(1) The term ``Federal agency'' means any agency as
that term is defined in section 551(1).
[(2) The term ``major rule'' means any rule that the
Administrator of the Office of Information and
Regulatory Affairs of the Office of Management and
Budget finds has resulted in or is likely to result
in--
[(A) an annual effect on the economy of
$100,000,000 or more;
[(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, or local government agencies, or
geographic regions; or
[(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the ability of
United States-based enterprises to compete with
foreign-based enterprises in domestic and
export markets.
The term does not include any rule promulgated under
the Telecommunications Act of 1996 and the amendments
made by that Act.
[(3) The term ``rule'' has the meaning given such
term in section 551, except that such term does not
include--
[(A) any rule of particular applicability,
including a rule that approves or prescribes
for the future rates, wages, prices, services,
or allowances therefor, corporate or financial
structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices
or disclosures bearing on any of the foregoing;
[(B) any rule relating to agency management
or personnel; or
[(C) any rule of agency organization,
procedure, or practice that does not
substantially affect the rights or obligations
of non-agency parties.
[Sec. 805. Judicial review
[No determination, finding, action, or omission under this
chapter shall be subject to judicial review.
[Sec. 806. Applicability; severability
[(a) This chapter shall apply notwithstanding any other
provision of law.
[(b) If any provision of this chapter or the application of
any provision of this chapter to any person or circumstance, is
held invalid, the application of such provision to other
persons or circumstances, and the remainder of this chapter,
shall not be affected thereby.
[Sec. 807. Exemption for monetary policy
[Nothing in this chapter shall 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.]
CHAPTER 8--CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
Sec.
801. Congressional review.
802. Congressional approval procedure for major rules.
803. Congressional disapproval procedure for nonmajor rules.
804. Definitions.
805. Judicial review.
806. Exemption for monetary policy.
807. Effective date of certain rules.
Sec. 801. Congressional review
(a)(1)(A) Before a rule may take effect, the Federal agency
promulgating such rule shall submit to each House of the
Congress and to the Comptroller General a report containing--
(i) a copy of the rule;
(ii) a concise general statement relating to the
rule;
(iii) a classification of the rule as a major or
nonmajor rule, including an explanation of the
classification specifically addressing each criteria
for a major rule contained within sections 804(2)(A),
804(2)(B), and 804(2)(C);
(iv) a list of any other related regulatory actions
intended to implement the same statutory provision or
regulatory objective as well as the individual and
aggregate economic effects of those actions; and
(v) the proposed effective date of the rule.
(B) On the date of the submission of the report under
subparagraph (A), the Federal agency promulgating the rule
shall submit to the Comptroller General and make available to
each House of Congress--
(i) a complete copy of the cost-benefit analysis of
the rule, if any;
(ii) the agency's actions pursuant to sections 603,
604, 605, 607, and 609 of this title;
(iii) the agency's actions pursuant to sections 202,
203, 204, and 205 of the Unfunded Mandates Reform Act
of 1995; and
(iv) any other relevant information or requirements
under any other Act and any relevant Executive orders.
(C) Upon receipt of a report submitted under subparagraph
(A), each House shall provide copies of the report to the
chairman and ranking member of each standing committee with
jurisdiction under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under
which the rule is issued.
(2)(A) The Comptroller General shall provide a report on each
major rule to the committees of jurisdiction by the end of 15
calendar days after the submission or publication date as
provided in section 802(b)(2). The report of the Comptroller
General shall include an assessment of the agency's compliance
with procedural steps required by paragraph (1)(B).
(B) Federal agencies shall cooperate with the Comptroller
General by providing information relevant to the Comptroller
General's report under subparagraph (A).
(3) A major rule relating to a report submitted under
paragraph (1) shall take effect upon enactment of a joint
resolution of approval described in section 802 or as provided
for in the rule following enactment of a joint resolution of
approval described in section 802, whichever is later.
(4) A nonmajor rule shall take effect as provided by section
803 after submission to Congress under paragraph (1).
(5) If a joint resolution of approval relating to a major
rule is not enacted within the period provided in subsection
(b)(2), then a joint resolution of approval relating to the
same rule may not be considered under this chapter in the same
Congress by either the House of Representatives or the Senate.
(b)(1) A major rule shall not take effect unless the Congress
enacts a joint resolution of approval described under section
802.
(2) If a joint resolution described in subsection (a) is not
enacted into law by the end of 70 session days or legislative
days, as applicable, beginning on the date on which the report
referred to in section 801(a)(1)(A) is received by Congress
(excluding days either House of Congress is adjourned for more
than 3 days during a session of Congress), then the rule
described in that resolution shall be deemed not to be approved
and such rule shall not take effect.
(c)(1) Notwithstanding any other provision of this section
(except subject to paragraph (3)), a major rule may take effect
for one 90-calendar-day period if the President makes a
determination under paragraph (2) and submits written notice of
such determination to the Congress.
(2) Paragraph (1) applies to a determination made by the
President by Executive order that the major rule should take
effect because such rule is--
(A) necessary because of an imminent threat to health
or safety or other emergency;
(B) necessary for the enforcement of criminal laws;
(C) necessary for national security; or
(D) issued pursuant to any statute implementing an
international trade agreement.
(3) An exercise by the President of the authority under this
subsection shall have no effect on the procedures under section
802.
(d)(1) In addition to the opportunity for review otherwise
provided under this chapter, in the case of any rule for which
a report was submitted in accordance with subsection (a)(1)(A)
during the period beginning on the date occurring--
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60
legislative days,
before the date the Congress is scheduled to adjourn a session
of Congress through the date on which the same or succeeding
Congress first convenes its next session, sections 802 and 803
shall apply to such rule in the succeeding session of Congress.
(2)(A) In applying sections 802 and 803 for purposes of such
additional review, a rule described under paragraph (1) shall
be treated as though--
(i) such rule were published in the Federal Register
on--
(I) in the case of the Senate, the 15th
session day, or
(II) in the case of the House of
Representatives, the 15th legislative day,
after the succeeding session of Congress first
convenes; and
(ii) a report on such rule were submitted to Congress
under subsection (a)(1) on such date.
(B) Nothing in this paragraph shall be construed to affect
the requirement under subsection (a)(1) that a report shall be
submitted to Congress before a rule can take effect.
(3) A rule described under paragraph (1) shall take effect as
otherwise provided by law (including other subsections of this
section).
Sec. 802. Congressional approval procedure for major rules
(a) For purposes of this section, the term ``joint
resolution'' means only a joint resolution introduced on or
after the date on which the report referred to in section
801(a)(1)(A) is received by Congress (excluding days either
House of Congress is adjourned for more than 3 days during a
session of Congress), the matter after the resolving clause of
which is as follows: ``That Congress approves the rule
submitted by the _ _ relating to _ _.'' (The blank spaces being
appropriately filled in).
(1) In the House, the majority leader of the House of
Representatives (or his designee) and the minority
leader of the House of Representatives (or his
designee) shall introduce such joint resolution
described in subsection (a) (by request), within 3
legislative days after Congress receives the report
referred to in section 801(a)(1)(A).
(2) In the Senate, the majority leader of the Senate
(or his designee) and the minority leader of the Senate
(or his designee) shall introduce such joint resolution
described in subsection (a) (by request), within 3
session days after Congress receives the report
referred to in section 801(a)(1)(A).
(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction under the rules of the House of Representatives or
the Senate to report a bill to amend the provision of law under
which the rule is issued.
(2) For purposes of this section, the term ``submission
date'' means the date on which the Congress receives the report
submitted under section 801(a)(1).
(c) In the Senate, if the committee or committees to which a
joint resolution described in subsection (a) has been referred
have not reported it at the end of 15 session days after its
introduction, such committee or committees shall be
automatically discharged from further consideration of the
resolution and it shall be placed on the calendar. A vote on
final passage of the resolution shall be taken on or before the
close of the 15th session day after the resolution is reported
by the committee or committees to which it was referred, or
after such committee or committees have been discharged from
further consideration of the resolution.
(d)(1) In the Senate, when the committee or committees to
which a joint resolution is referred have reported, or when a
committee or committees are discharged (under subsection (c))
from further consideration of a joint resolution described in
subsection (a), it is at any time thereafter in order (even
though a previous motion to the same effect has been disagreed
to) for a motion to proceed to the consideration of the joint
resolution, and all points of order against the joint
resolution (and against consideration of the joint resolution)
are waived. The motion is not subject to amendment, or to a
motion to postpone, or to a motion to proceed to the
consideration of other business. A motion to reconsider the
vote by which the motion is agreed to or disagreed to shall not
be in order. If a motion to proceed to the consideration of the
joint resolution is agreed to, the joint resolution shall
remain the unfinished business of the Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on all
debatable motions and appeals in connection therewith, shall be
limited to not more than 2 hours, which shall be divided
equally between those favoring and those opposing the joint
resolution. A motion to further limit debate is in order and
not debatable. An amendment to, or a motion to postpone, or a
motion to proceed to the consideration of other business, or a
motion to recommit the joint resolution is not in order.
(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
(e)(1) In the House of Representatives, if the committee or
committees to which a joint resolution described in subsection
(a) has been referred have not reported it at the end of 15
legislative days after its introduction, such committee or
committees shall be automatically discharged from further
consideration of the resolution and it shall be placed on the
appropriate calendar. A vote on final passage of the resolution
shall be taken on or before the close of the 15th legislative
day after the resolution is reported by the committee or
committees to which it was referred, or after such committee or
committees have been discharged from further consideration of
the resolution.
(2)(A) A motion in the House of Representatives to proceed to
the consideration of a resolution shall be privileged and not
debatable. An amendment to the motion shall not be in order,
nor shall it be in order to move to reconsider the vote by
which the motion is agreed to or disagreed to.
(B) Debate in the House of Representatives on a resolution
shall be limited to not more than two hours, which shall be
divided equally between those favoring and those opposing the
resolution. A motion to further limit debate shall not be
debatable. No amendment to, or motion to recommit, the
resolution shall be in order. It shall not be in order to
reconsider the vote by which a resolution is agreed to or
disagreed to.
(C) Motions to postpone, made in the House of Representatives
with respect to the consideration of a resolution, and motions
to proceed to the consideration of other business, shall be
decided without debate.
(D) All appeals from the decisions of the Chair relating to
the application of the Rules of the House of Representatives to
the procedure relating to a resolution shall be decided without
debate.
(f) If, before the passage by one House of a joint resolution
of that House described in subsection (a), that House receives
from the other House a joint resolution described in subsection
(a), then the following procedures shall apply with respect to
a joint resolution described in subsection (a) of the House
receiving the joint resolution--
(1) the procedure in that House shall be the same as
if no joint resolution had been received from the other
House; but
(2) the vote on final passage shall be on the joint
resolution of the other House.
(g) This section and section 803 are enacted by Congress--
(1) as an exercise of the rulemaking power of the
Senate and House of Representatives, respectively, and
as such it is deemed a part of the rules of each House,
respectively, but applicable only with respect to the
procedure to be followed in that House in the case of a
joint resolution described in subsection (a), and it
supersedes other rules only to the extent that it is
inconsistent with such rules; and
(2) with full recognition of the constitutional right
of either House to change the rules (so far as relating
to the procedure of that House) at any time, in the
same manner, and to the same extent as in the case of
any other rule of that House.
Sec. 803. Congressional disapproval procedure for nonmajor rules
(a) For purposes of this section, the term ``joint
resolution'' means only a joint resolution introduced in the
period beginning on the date on which the report referred to in
section 801(a)(1)(A) is received by Congress and ending 60 days
thereafter (excluding days either House of Congress is
adjourned for more than 3 days during a session of Congress),
the matter after the resolving clause of which is as follows:
``That Congress disapproves the nonmajor rule submitted by the
_ _ relating to _ _, and such rule shall have no force or
effect.'' (The blank spaces being appropriately filled in).
(b)(1) A joint resolution described in subsection (a) shall
be referred to the committees in each House of Congress with
jurisdiction.
(2) For purposes of this section, the term submission or
publication date means the later of the date on which--
(A) the Congress receives the report submitted under
section 801(a)(1); or
(B) the nonmajor rule is published in the Federal
Register, if so published.
(c) In the Senate, if the committee to which is referred a
joint resolution described in subsection (a) has not reported
such joint resolution (or an identical joint resolution) at the
end of 15 session days after the date of introduction of the
joint resolution, such committee may be discharged from further
consideration of such joint resolution upon a petition
supported in writing by 30 Members of the Senate, and such
joint resolution shall be placed on the calendar.
(d)(1) In the Senate, when the committee to which a joint
resolution is referred has reported, or when a committee is
discharged (under subsection (c)) from further consideration of
a joint resolution described in subsection (a), it is at any
time thereafter in order (even though a previous motion to the
same effect has been disagreed to) for a motion to proceed to
the consideration of the joint resolution, and all points of
order against the joint resolution (and against consideration
of the joint resolution) are waived. The motion is not subject
to amendment, or to a motion to postpone, or to a motion to
proceed to the consideration of other business. A motion to
reconsider the vote by which the motion is agreed to or
disagreed to shall not be in order. If a motion to proceed to
the consideration of the joint resolution is agreed to, the
joint resolution shall remain the unfinished business of the
Senate until disposed of.
(2) In the Senate, debate on the joint resolution, and on all
debatable motions and appeals in connection therewith, shall be
limited to not more than 10 hours, which shall be divided
equally between those favoring and those opposing the joint
resolution. A motion to further limit debate is in order and
not debatable. An amendment to, or a motion to postpone, or a
motion to proceed to the consideration of other business, or a
motion to recommit the joint resolution is not in order.
(3) In the Senate, immediately following the conclusion of
the debate on a joint resolution described in subsection (a),
and a single quorum call at the conclusion of the debate if
requested in accordance with the rules of the Senate, the vote
on final passage of the joint resolution shall occur.
(4) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate to the procedure
relating to a joint resolution described in subsection (a)
shall be decided without debate.
(e) In the Senate the procedure specified in subsection (c)
or (d) shall not apply to the consideration of a joint
resolution respecting a nonmajor rule--
(1) after the expiration of the 60 session days
beginning with the applicable submission or publication
date, or
(2) if the report under section 801(a)(1)(A) was
submitted during the period referred to in section
801(d)(1), after the expiration of the 60 session days
beginning on the 15th session day after the succeeding
session of Congress first convenes.
(f) If, before the passage by one House of a joint resolution
of that House described in subsection (a), that House receives
from the other House a joint resolution described in subsection
(a), then the following procedures shall apply:
(1) The joint resolution of the other House shall not
be referred to a committee.
(2) With respect to a joint resolution described in
subsection (a) of the House receiving the joint
resolution--
(A) the procedure in that House shall be the
same as if no joint resolution had been
received from the other House; but
(B) the vote on final passage shall be on the
joint resolution of the other House.
Sec. 804. Definitions
For purposes of this chapter--
(1) The term ``Federal agency'' means any agency as
that term is defined in section 551(1).
(2) The term ``major rule'' means any rule, including
an interim final rule, that the Administrator of the
Office of Information and Regulatory Affairs of the
Office of Management and Budget finds has resulted in
or is likely to result in--
(A) an annual effect on the economy of
$100,000,000 or more;
(B) a major increase in costs or prices for
consumers, individual industries, Federal,
State, or local government agencies, or
geographic regions; or
(C) significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the ability of
United States-based enterprises to compete with
foreign-based enterprises in domestic and
export markets.
(3) The term ``nonmajor rule'' means any rule that is
not a major rule.
(4) The term ``rule'' has the meaning given such term
in section 551, except that such term does not
include--
(A) any rule of particular applicability,
including a rule that approves or prescribes
for the future rates, wages, prices, services,
or allowances therefore, corporate or financial
structures, reorganizations, mergers, or
acquisitions thereof, or accounting practices
or disclosures bearing on any of the foregoing;
(B) any rule relating to agency management or
personnel; or
(C) any rule of agency organization,
procedure, or practice that does not
substantially affect the rights or obligations
of non-agency parties.
Sec. 805. Judicial review
(a) No determination, finding, action, or omission under this
chapter shall be subject to judicial review.
(b) Notwithstanding subsection (a), a court may determine
whether a Federal agency has completed the necessary
requirements under this chapter for a rule to take effect.
(c) The enactment of a joint resolution of approval under
section 802 shall not be interpreted to serve as a grant or
modification of statutory authority by Congress for the
promulgation of a rule, shall not extinguish or affect any
claim, whether substantive or procedural, against any alleged
defect in a rule, and shall not form part of the record before
the court in any judicial proceeding concerning a rule except
for purposes of determining whether or not the rule is in
effect.
Sec. 806. Exemption for monetary policy
Nothing in this chapter shall 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.
Sec. 807. Effective date of certain rules
Notwithstanding section 801--
(1) any rule that establishes, modifies, opens,
closes, or conducts a regulatory program for a
commercial, recreational, or subsistence activity
related to hunting, fishing, or camping; or
(2) any rule other than a major rule which an agency
for good cause finds (and incorporates the finding and
a brief statement of reasons therefore in the rule
issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public
interest,
shall take effect at such time as the Federal agency
promulgating the rule determines.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 10, the ``Regulations From the Executive in Need of
Scrutiny Act of 2011,'' (REINS Act) is a flawed attempt to make
the rulemaking process more subject to Congressional oversight
and accountability. In effect, however, the bill will
substantially delay and potentially prevent agency rulemaking,
at great risk to public health and safety, by requiring that
any major new rule be affirmatively approved by Congress and
the President. The bill effectuates this process by amending
the Congressional Review Act\1\ (CRA) to require Congressional
approval of major rules (i.e., rules with an annual impact on
the economy of at least $100 million) before they may become
effective.
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\1\5 U.S.C. Sec. Sec. 801-08 (2011).
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This legislation is based on the false premise that
regulation is bad for business, only results in costs, and
stifles job creation. H.R. 10 is unnecessary because Congress
already has sufficient tools to conduct effective oversight,
which include narrowing delegations of authority to agencies,
controlling agency appropriations, and conducting oversight of
agency activity. In addition, H.R. 10 presents serious
Constitutional concerns as it may violate inherent separation
of powers principles.
By requiring Congressional approval of major rules, H.R. 10
would serve as a procedural ``chokehold'' in multiple ways on
Federal agency rulemaking and undermine the ability of agencies
to provide essential protections to Americans. This legislation
is a thinly disguised attempt to prevent the implementation of
critical laws, such as the Patient Protection and Affordable
Care Act\2\ and the Dodd-Frank Wall Street Reform and Consumer
Protection Act.\3\
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\2\Pub. L. No. 111-148, 124 Stat. 119 (2010).
\3\Pub. L. No. 111-203, 124 Stat. 1376 (2010).
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The REINS Act is strongly opposed by a broad coalition of
72 environmental, labor, and consumer organizations, including
the AFL-CIO, the American Federation of State, County and
Municipal Employees, the American Lung Association, Families
USA, the National Association of Consumer Advocates, the League
of Conservation Voters, and the Union of Concerned Scientists,
Science Integrity Division.\4\ Additionally, 66 respected
academics in the fields of administrative and environmental law
also oppose the REINS Act because it is ``unnecessary to
establish agency accountability and unwise as a matter of
public policy because it undercuts the implementation of laws
intended to protect people and the environment.''\5\
---------------------------------------------------------------------------
\4\The other organizations include: 350.org, AhEeCOSH, Alliance for
a Just Society, American Federation of Government Employees, American
Rivers, ARISE CHICAGO, Arkansas Interfaith Committee for Worker
Justice, Association of Flight Attendants-CWA, BlueGreen Alliance,
Breast Cancer Action, California Rural Legal Assistance Foundation,
Center for Biological Diversity, Center for Science in the Public
Interest, Clean Air Watch, Clean Water Action, Community Organizations
in Action, Consumer Federation of America, Consumers Union, Defenders
of Wildlife, Demos, Earth Day Network, Earthjustice, Easter Seals,
Environment America, Environmental Defense Fund, Equal Justice Center,
Friends of the Earth, Gray Panthers, Greenpeace USA, Health Access
California, Health Care for America Now, Interfaith Worker Justice,
Interfaith Worker Justice Committee of Colorado, International Union,
United Automobile, Aerospace, & Agricultural Implement Workers of
America (UAW), 3 of 3, National Audubon Society, National Consumers
League, National Council for Occupational Safety and Health, National
Gay and Lesbian Task Force Action Fund, National Women's Health
Network, Natural Resources Defense Council, OMB Watch, Our Bodies
Ourselves, People for the American Way, Pesticide Action Network North
America, Physicians for Social Responsibility, ProgressNow, Public
Citizen, Reproductive Health Technologies Project, Republicans for
Environmental Protection, RICOSH, Safe Tables Our Priority (S.T.O.P.),
Sierra Club, South Florida Interfaith Worker Justice, Southern
Environmental Law Center, The National Consumer Voice for Quality Long-
Term Care, The TMJ Association, The Wilderness Society, Transport
Workers Union of America AFL-CIO, U.S. PIRG, United Steelworkers,
United Support & Memorial for Workplace Fatalities, USAction, Voces de
la Frontera, Women's Voices for the Earth, Workers Interfaith Network.
See Letter from 72 organizations to Representative John Conyers, Jr.,
Ranking Member, Committee on the Judiciary (Feb. 11, 2011) (on file
with the United States House of Representatives, Comm. on the
Judiciary, Democrats). The American Association for Justice also
submitted a letter opposing H.R. 10 to Representative John Conyers,
Jr., Ranking Member, Committee on the Judiciary (Feb. 1, 2001) (on file
with the United States House of Representatives, Comm. on the
Judiciary, Democrats).
\5\See Letter from 66 law professors to Members of the United
States Senate and United States House of Representatives (Feb. 8, 2011)
(on file with the United States House of Representatives, Comm. on the
Judiciary, Democrats).
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For the foregoing reasons and others discussed more fully
below, we must respectfully dissent and urge opposition to H.R.
10.
DESCRIPTION AND BACKGROUND
The REINS Act would dramatically change agency rulemaking
by requiring all new major regulations to be affirmatively
approved by both Houses of Congress and the President before
they can take effect. It should be noted, however, that
Congress already has the authority under the CRA to disapprove
such rules.\6\ Pursuant to the CRA, any agency rule
automatically takes effect absent a joint resolution of
disapproval enacted by Congress within 60 legislative days from
receipt of the rule.\7\ H.R. 10 amends the CRA to create a new
process for major rules whereby they may only take effect upon
Congressional and Presidential approval. By imposing this
unrealistic and unworkable requirement, the REINS Act will
effectively prevent Federal rulemaking and thereby threaten
public health and safety as well as the economic soundness of
our Nation.
---------------------------------------------------------------------------
\6\5 U.S.C. Sec. 801(b) (2011).
\7\See 5 U.S.C. Sec. 802 (2011) (outlining congressional
disapproval procedure).
---------------------------------------------------------------------------
Section 2 of the REINS Act sets forth the substantive
provisions of the legislation. New Section 801(a)(1)(A)
requires a Federal agency to submit a report to each House of
Congress and to the Comptroller General of the Government
Accountability Office (GAO) a report containing: (1) a copy of
the rule; (2) a concise general statement relating to the rule;
(3) a classification of the rule as a major or non-major rule,
including the rule's classification specifically addressing
each element of the definition of a ``major rule;'' (4) a list
of any other related regulatory actions intended to implement
the same statutory provision or regulatory objective, together
with a description of the rule's individual and aggregate
effects; and (5) the rule's proposed effective date. With
respect to the rule's classification as a major rule, the
report must indicate: (1) whether the rule has an annual effect
on the economy of $100 million or more; (2) whether the rule
imposes a major increase in costs or prices for consumers,
individual industries, Federal, state, or local government
agencies, or geographic regions; or (3) whether the rule
imposes significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of United
States-based enterprises to compete with foreign-based
enterprises.
In addition, new section 801(a)(1)(B) requires an agency to
submit to GAO and both Houses of Congress: (1) a cost-benefit
analysis of the rule, if any; (2) actions taken pursuant to the
Regulatory Flexibility Act;\8\ (3) actions taken to comply with
the Unfunded Mandates Reform Act of 1995;\9\ and (4) any other
relevant information or requirement under any other act or
executive order.
---------------------------------------------------------------------------
\8\5 U.S.C. Sec. Sec. 601 et seq. (2011).
\9\Pub. L. No. 104-4, 109 Stat. 48 (1995).
---------------------------------------------------------------------------
Under new section 801(a)(1)(C), each House of Congress must
provide copies of the report required by 801(a)(1)(A) to the
Chair and Ranking Member of each House and Senate standing
committee with jurisdiction to report a bill to amend the
provision of law under which the rule is issued (hereinafter
``Committees of Jurisdiction'').
Pursuant to new section 801(a)(2)(A), the GAO must provide
a report on each major rule to the Committees of Jurisdiction
within 15 calendar days from the date on which an agency
submitted the report required by section 801(a)(1)(A). The
GAO's report must include an assessment of the agency's
compliance with 801(a)(1)(B). New section 801(a)(2)(B)
specifies that agencies must cooperate with the GAO in
providing information relevant to preparing its report required
under 801(a)(2)(A).
New section 801(a)(3) provides that a major rule takes
effect upon enactment of a joint resolution of approval or
whatever the enactment date is in the rule following enactment
of the joint resolution, whichever is later.
New section 801(a)(4) retains current law; i.e., nonmajor
rules take effect after 60 days if Congress does not enact a
joint resolution of disapproval.
New section 801(a)(5) clarifies that if a joint resolution
of approval is not enacted, a joint resolution relating to the
same rule cannot be considered in the same Congress by either
House.
New section 801(b)(1) prohibits a major rule from taking
effect unless Congress enacts a joint resolution of approval
pursuant to the Act. In turn, new section 801(b)(2) deems a
major rule as not approved and without effect if a joint
resolution of approval concerning that rule is not enacted
within 70 legislative or session days beginning on the date on
which Congress receives the report required by section
801(a)(1)(A), excluding days that either House is adjourned for
more than three days during session.
New section 801(c) sets forth certain temporary exceptions
to the Congressional approval process for major rules. New
section 801(c)(1) provides that a major rule may take effect
for one 90-calendar-day period if the President makes a
determination under section 801(c)(2). New section 801(c)(2),
in turn, authorizes the President to determine by executive
order that a major rule should take effect notwithstanding the
requirements of this statute if such rule is: (1) necessary
because of an imminent threat to health or safety or other
emergency; (2) necessary for the enforcement of criminal laws;
(3) necessary for national security; or (4) issued pursuant to
a statute implementing an international trade agreement. New
section 801(c)(3), however, clarifies that the President's
exercise of authority under this subsection does not affect
Congressional approval procedures outlined in new section 802.
New section 801(d) addresses instances when major rules are
submitted to Congress within 60 legislative or session days
prior to the adjournment of a Congressional session through the
date Congress first convenes its next session. New section
801(d)(1) states that any rule submitted within such period is
subject to the Act's approval and disapproval procedures in the
succeeding session. New section 801(d)(2)(A) specifies that, in
such a circumstance, the rule must be treated as if it were
published in the Federal Register on the 15th session or
legislative day after the succeeding session convenes and
considers the report on such a rule to have been submitted on
such day. New section 801(d)(2)(B) specifies that this
subsection should not be construed to affect the requirement
that a rule be submitted to Congress before it can take effect.
Finally, new section 801(d)(3) provides that a rule in this
circumstance takes effect as otherwise provided for by law,
including pursuant to the other provisions of the Act.
Although new Section 802 is not within the jurisdiction of
our Committee, an explanation of this provision is necessary to
place the remainder of the bill in perspective. Subsections (c)
and (d) detail the expedited Senate procedures for
consideration of joint resolutions of approval. Subsection (c)
requires that a Committee of Jurisdiction be automatically
discharged from further consideration of a joint resolution if
it has not reported the joint resolution within 15 session days
after the joint resolution's introduction. The vote on final
passage of the joint resolution must take place on or before
the 15th session day after the relevant Committees of
Jurisdiction report the joint resolution or are discharged from
further consideration of such joint resolution.
New section 802(d)(2) limits total Senate debate time on a
joint resolution of approval (including all debatable motions
and related appeals) to a mere two hours, to be divided evenly
between those in support and those in opposition to the joint
resolution. A motion to further limit debate is in order, but
not debatable. Amendments and motions to postpone, to proceed
to consideration of other business, or to recommit the joint
resolution are not in order.
New section 802(e) details expedited procedures in the
House of Representatives for consideration of joint resolutions
of approval. New section 802(e)(1) requires that a Committee of
Jurisdiction be automatically discharged from further
consideration of a joint resolution if it has not reported the
joint resolution by the end of 15 legislative days after the
joint resolution's introduction. The vote on final passage of
the joint resolution must take place on or before the 15th
legislative day after the relevant Committee of Jurisdiction
report the joint resolution or are discharged from further
consideration of such joint resolution, further limiting the
Committee's time for consideration.
New section 802(e)(2)(B) limits total debate time in the
House of Representatives on a joint resolution of approval to a
mere two hours, divided evenly between those in support and
those in opposition to the joint resolution. A motion to
further limit debate is not debatable. Amendments to and
motions to recommit the joint resolution as well as motions to
reconsider the vote on the joint resolution are not in order.
New section 802(f) concerns the instance when one House of
Congress, before it passes a joint resolution of approval,
receives a joint resolution of approval from the other chamber.
In such an instance, the House that has not yet passed the
joint resolution will continue following its procedures as if
no joint resolution had been received from the other chamber,
but the vote on final passage must be on the other chamber's
joint resolution.
New section 803 sets forth an expedited procedure for
consideration of non-major rules. Our Committee does not have
jurisdiction over this section.
Although new section 805(a) prohibits judicial review of
any determination, finding, action, or omission under the Act,
subsection (b) clarifies that, notwithstanding subsection (a),
a court may review an agency's compliance with the Act's
requirements.
New section 807 excepts from the Act's requirements any
major or nonmajor rule that establishes, modifies, opens,
closes, or conducts a regulatory program for a commercial,
recreational, or subsistence activity related to hunting,
fishing, or camping. Notably, this exception is not extended to
other important matters such as those implicating critical
public health and safety issues. With respect to a nonmajor
rule, section 807 retains the exception for instances where an
agency finds good cause that notice and procedure are
impracticable, unnecessary, or contrary to the public interest.
CONCERNS WITH H.R. 10
I. THE REINS ACT IS BASED ON FALSE PREMISES ABOUT
REGULATORY COSTS
Proponents of the REINS Act assert that Federal agency
regulations impose excessive costs on businesses, stifle job
creation, and hobble the Nation's economic growth. The facts
are otherwise.
A. The Benefits of Regulations Significantly Outweigh Their Costs
In support of their arguments concerning the costs of
regulation, proponents regularly cite\10\ a widely debunked
study by economists Nicole and Mark Crain, which claims that
Federal rulemaking imposes a cumulative burden of $1.75
trillion a year.\11\
---------------------------------------------------------------------------
\10\See, e.g., Unofficial Tr. of Markup of H.R. 10, the
``Regulations of the Executive in Need of Scrutiny Act of 2011,'' by
the H. Comm. on the Judiciary, 112th Cong., at 16 (Oct. 25, 2011).
\11\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs
on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), available at
http://archive.sba.gov/advo/research/rs371tot.pdf.
---------------------------------------------------------------------------
Critics of this study note its flawed assumptions and
methodologies.\12\ For example, the Center for Progressive
Reform (CPR) observed that the study does not account for any
benefits of regulation.\13\ Additionally, CPR documented that
the study did not rely on actual data on costs imposed by
Federal regulation in the United States.\14\ Indeed, the CPR
found that the Crain study's methodology was defective because,
in calculating economic costs, it relied on World Bank
international public opinion polling on how friendly a
particular country was to business interests.
---------------------------------------------------------------------------
\12\See REINS Act--Promoting Jobs and Expanding Freedom by Reducing
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial
and Admin. Law of the H. Comm. on the Judiciary, 112th Cong. (2011)
(statement of Sally Katzen, former OIRA Administrator); see also Sidney
Shapiro et al., Setting the Record Straight: The Crain and Crain Report
on
Regulatory Costs (2011), available at http://www.progressivereform.org/
articles/SBA_
Regulatory_Costs_Analysis_1103.pdf.
\13\Sidney Shapiro et al., Setting the Record Straight: The Crain
and Crain Report on Regulatory Costs (2011), available at http://
www.progressivereform.org/articles/SBA_
Regulatory_Costs_Analysis_1103.pdf.
\14\Id.
---------------------------------------------------------------------------
Likewise, the independent, nonpartisan Congressional
Research Service (CRS) criticized much of the Crain study's
methodology.\15\ CRS reported that the authors of the study
admitted that it was ``not meant to be a decision-making tool
for lawmakers or Federal regulatory agencies to use in choosing
the `right' level of regulation. In no place in any of the
reports do we imply that our reports should be used for this
purpose. (How could we recommend this use when we make no
attempt to estimate the benefits?)'''\16\ CRS concluded that
``a valid, reasoned policy decision can only be made after
considering information on both costs and benefits'' of
regulation.\17\
---------------------------------------------------------------------------
\15\Congressional Research Service, Analysis of an Estimate of the
Total Costs of Federal Regulations, R41763 (2011).
\16\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to
the author of the CRS report).
\17\Id. The Economic Policy Institute also issued a critique of the
Crain study outlining similar concerns with the study's methodology and
data. See John Irons & Andrew Green, Flaws Call for Rejecting Crain and
Crain Model: Cited $1.75 Trillion Cost of Regulations Is Not Worth
Repeating (2011), available at http://w3.epi-data.org/temp2011/
IssueBrief308.pdf.
---------------------------------------------------------------------------
Further, the Office of Management and Budget (OMB) has
annually estimated the costs of regulations, which have been
substantially lower estimates than those reported in the Crain
study. Significantly, OMB's reports to Congress include data on
the benefits of regulations. The latest such report concluded
that for fiscal year 2010, Federal regulations cost between
$6.5 billion and $12.5 billion and generated between $18.8
billion and $86.1 billion in benefits.\18\ According to OMB,
the costs of regulations during the ten-year period from FY
1999 through FY 2009 were between $43 billion and $55 billion,
while their benefits ranged from $128 billion to $616
billion.\19\ Therefore, even if one uses OMB's highest estimate
of costs and its lowest estimate of benefits, the regulations
issued over the past ten years have produced net benefits of
$73 billion to our society. Such estimates were consistent
across Democratic and Republican administrations.\20\ Given
that the benefits of regulations consistently exceed the costs,
the need for any legislation that would make the issuance of
regulations more difficult or time consuming is certainly in
question.
---------------------------------------------------------------------------
\18\Office of Management and Budget, 2011 Report to Congress on the
Benefits and Costs of Federal Regulations and Unfunded Mandates on
State, Local, and Tribal Entities 21, available at http://
www.whitehouse.gov/sites/default/files/omb/inforeg/2011_cb/
2011_cba_report.pdf.
\19\See REINS Act--Promoting Jobs and Expanding Freedom by Reducing
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial
and Admin. Law of the H. Comm. on the Judiciary, 112th Cong. (2011)
(statement of Sally Katzen, former OIRA Administrator).
\20\Id.
---------------------------------------------------------------------------
The benefits of regulation are also apparent when viewed
through the lens of prevention. For example, a 2011
Environmental Protection Agency report found that the public
health benefits of clean air regulations far outweigh the
compliance cost to industry.\21\ The report concluded that
restrictions on fine particle and ground-level ozone pollution
mandated by the 1990 Clean Air Act amendments would prevent
230,000 deaths and produce benefits of about $2 trillion by
2020.\22\
---------------------------------------------------------------------------
\21\Environmental Protection Agency, Benefits and Costs of the
Clean Air Act, Second Prospective Study--1990 to 2020 (2011) available
at http://www.epa.gov/air/sect812/prospective2.html
\22\Id.
---------------------------------------------------------------------------
Alternatively, the costs of not regulating can be
significant. The New York Times recently published a series of
articles highlighting the danger of natural gas extraction
practices that led to toxic contamination of the drinking water
of potentially millions of people. This contamination was the
result of a lack of regulation, often because regulatory
authorities were fearful of confronting a lucrative and
politically powerful industry.\23\
---------------------------------------------------------------------------
\23\See Ian Urbina, Drilling Down: Regulation Lax as Gas Wells'
Tainted Water Hits Rivers, N.Y. Times, Feb. 26, 2011; Ian Urbina,
Drilling Down: Wastewater Recycling No Cure-All in Gas Process, N.Y.
Times, Mar. 1, 2011; Ian Urbina, Drilling Down: A Tainted Water Well,
and Concern There May Be More, N.Y. Times, Aug. 3, 2011 (investigative
series on the dangers associated with the controversial natural gas
drilling technique known as fracking).
---------------------------------------------------------------------------
While a cost-benefit analysis of the current regulatory
process clearly establishes the fact that the benefits well
exceed the costs, the REINS Act itself will definitely result
in more costs than benefits. The real costs of the REINS Act
will be the resultant delay, uncertainty, and actual harm to
the economy and society from the Congressional approval process
dictated by the legislation. Highly beneficial rules will be
delayed or even abandoned as a result of the failure of
Congressional action. The benefit of imposing yet another
significant procedural step before a major rule may become
effective is ephemeral, evidenced by the fact that the CRA has
only been used once to disapprove a rule in the 15 years it has
been in effect.
In an effort to quantify the cumulative benefits of major
rules regarding air quality, water quality, and food safety,
Representative Mike Quigley (D-IL) offered an amendment to have
the independent, nonpartisan GAO conduct a study of this
matter. Similarly, Representative Steve Cohen (D-TN) offered an
amendment to exempt from H.R. 10's Congressional approval
requirement any proposed rule that OMB determines would result
in a net benefit to society. Both Members observed that when
the benefits of a rule to society outweigh its costs, society
has an interest in ensuring that the rule take effect without
unnecessary delay.\24\ Representative Quigley's amendment
failed by a vote of 12 to 21 and Representative Cohen's
amendment also failed by a vote of 13 to 22.
---------------------------------------------------------------------------
\24\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the
Judiciary, 112th Cong., at 50, 119 (Oct. 25, 2011).
---------------------------------------------------------------------------
B. Regulations Do Not Hinder Job Creation
Proponents of H.R. 10 claim government regulations
interfere with job creation because they create uncertainty for
businesses, thereby preventing them from investing and
hiring.\25\
---------------------------------------------------------------------------
\25\See, e.g., Memorandum from Eric Cantor to House Republicans
(Aug. 29, 2011) (on file with the House Majority Leader) available at
http://majorityleader.gov/blog/2011/08/memo-on-upcoming-jobs-
agenda.html. (``By pursuing a steady repeal of job-destroying
regulations, we can help lift the cloud of uncertainty hanging over
small and large employers alike, empowering them to hire more
workers.'').
---------------------------------------------------------------------------
To the contrary, regulations have no determinable effect on
job creation. For instance, a survey from the Bureau of Labor
Statistics that tracks companies' reasons for large layoffs
found that during the first and second quarters of 2011,
144,746 layoffs were attributable to poor ``business demand,''
while only 1,119 were attributable to ``government
regulations.''\26\
---------------------------------------------------------------------------
\26\Bureau of Labor Statistics, Economic News Release, Extended
Mass Layoffs (Quarterly) News Release (Aug. 10, 2011), available at
http://www.bls.gov/news.release/archives/mslo_08102011.htm.
---------------------------------------------------------------------------
Indeed, one of the Majority's own witnesses, during a
recent hearing on another anti-regulatory bill, testified that
when it comes to linking jobs and regulations, the ``focus on
jobs . . . can lead to confusion in regulatory debates'' and
that the employment effects of regulation ``are
indeterminate.''\27\ Similarly, the National Federation of
Independent Business's latest monthly survey of its members
reveals that poor sales, not regulations, are by far the
biggest deterrent to hiring.\28\ In addition, the Wall Street
Journal's July 2011 survey of business economists found that
``The main reason U.S. companies are reluctant to step up
hiring is scant demand, rather than uncertainty over government
policies, according to a majority of economists.''\29\
---------------------------------------------------------------------------
\27\The Regulatory Accountability Act of 2011: Hearing on H.R. 3010
Before the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of
Christopher DeMuth, American Enterprise Instutute).
\28\See William C. Dunkelberg & Holly Wade, NFIB Small Business
Economic Trends (2011) available at http://www.nfib.com/Portals/0/PDF/
sbet/sbet201109.pdf.
\29\See Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall
St. J., July 18, 2011.
---------------------------------------------------------------------------
According to Bruce Bartlett, an economist who worked in the
Administrations of both Presidents Ronald Reagan and George
H.W. Bush, the idea that cutting regulations will lead to
significant job growth is ``just nonsense. It's just made
up.''\30\ He further opined that ``regulatory uncertainty is a
canard invented by Republicans that allows them to use current
economic problems to pursue an agenda supported by the business
community year in and year out. In other words, it is a simple
case of political opportunism, not a serious effort to deal
with high unemployment.''\31\
---------------------------------------------------------------------------
\30\Bruce Bartlett, Misrepresentations, Regulations and Jobs, N.Y.
Times, Oct. 4, 2011 available at http://economix.blogs.nytimes.com/
2011/10/04/regulation-and-unemployment.
\31\Id.
---------------------------------------------------------------------------
Rather than hindering growth, regulations actually play a
role in promoting job growth. A report by Northeast States for
Coordinated Air Use Management (NESCAUM) demonstrates a direct
correlation between environmental regulations and job growth in
the Northeast. It found that by enacting stricter fuel economy
standards and pursuing cleaner forms of energy, more jobs would
be created.\32\ Specifically, NESCAUM found that stricter fuel
economy standards and regulations governing cleaner forms of
energy would increase employment from 9,490 to 50,700 jobs;
increase gross regional product, a measure of the states'
economic output, by $2.1 billion to $4.9 billion; and increase
household disposable income increases by $1 billion to $3.3
billion.\33\
---------------------------------------------------------------------------
\32\Northeast States for Coordinated Air Use Management (NESCAUM),
Economic Analysis of a Program to Promote Clean Transportation Fuels in
the Northeast/Mid-Atlantic Region (2011) (on file with Natural
Resources Defense Council) available at http://switchboard.nrdc.org/
blogs/ngreene/CFS%20Economic%20Analysis%20Report%20INTERNAL.PDF.
\33\Id.
---------------------------------------------------------------------------
According to a recent report from the Natural Resources
Defense Council (NRDC), the United Auto Workers (UAW), and the
National Wildlife Federation (NWF), vehicle emissions standards
and clean vehicle research, development and production are
already responsible for 155,000 jobs at 504 facilities in 43
states and the District of Columbia.\34\ According to the same
report, 119,000 jobs have been created in this industry since
2009 alone.\35\
---------------------------------------------------------------------------
\34\Natural Resources Defense Council et al., Supplying Ingenuity:
U.S. Suppliers of Clean, Fuel-Efficient Vehicle Technologies (2011),
available at http://www.nrdc.org/transportation/autosuppliers/files/
SupplierMappingReport.pdf.
\35\Id.
---------------------------------------------------------------------------
By preventing the promulgation of rules, the REINS Act
would seriously stifle economic growth and the creation of new
jobs. To highlight this issue, Representative Hank Johnson (D-
GA) offered an amendment during the Committee markup of H.R. 10
to exempt from the bill's Congressional approval requirement
any proposed rule that OMB determines would result in job
growth.\36\ Representative Johnson's amendment, however, failed
by a vote of 14 to 21.
---------------------------------------------------------------------------
\36\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the
Judiciary, 112th Cong., at 62 (Oct. 25, 2011).
---------------------------------------------------------------------------
II. THE REINS ACT IS UNNECESSARY BECAUSE CONGRESS ALREADY HAS OVERSIGHT
AUTHORITY OVER FEDERAL AGENCY RULEMAKING
Congress already has various mechanisms at its disposal to
oversee and influence the Federal agency rulemaking process. In
its simplest and most straightforward form, Congress can
delegate rulemaking authority to agencies with greater
specificity or restriction, which would limit an agency's
rulemaking authority either from the outset or through later
amendment of an agency's organic statute. Indeed, Congress can
simply pass legislation to stay the effect of an existing rule,
as the House recently voted to do with respect to the
Environmental Protection Agency's cement manufacturing
standards.\37\
---------------------------------------------------------------------------
\37\Cement Sector Regulatory Relief Act of 2011, H.R. 2681, 112th
Cong. (2011).
---------------------------------------------------------------------------
Further, Congress can impose restrictions on agency
rulemaking through the appropriations process. These
restrictions can take a variety of forms, including
restrictions on the finalization of particular proposed rules,
restrictions on regulatory activity within certain areas,
restrictions on implementation or enforcement of certain rules,
and conditional restrictions that prevent a rule from taking
effect until an agency takes certain steps.\38\ For instance,
no fewer than 19 out of the 67 amendments to H.R. 1, the
``Full-Year Continuing Appropriations Act, 2011,'' were aimed
at de-funding the promulgation or implementation of existing
and proposed regulations.\39\
---------------------------------------------------------------------------
\38\See Congressional Research Service, Congressional Influence on
Rulemaking and Regulation Through Appropriations Restrictions, RL 34354
(2008).
\39\These amendments primarily targeted environmental regulations
and regulations implementing health care reform legislation. H.R. 1,
112th Cong. (2011).
---------------------------------------------------------------------------
Congress can also prescribe rulemaking procedures. Prior
examples include the Administrative Procedure Act,\40\ which
was enacted in 1946 to establish baseline procedures for
rulemaking. Others include the Unfunded Mandates Reform
Act,\41\ the Regulatory Flexibility Act,\42\ the Paperwork
Reduction Act,\43\ and the Small Business Regulatory
Enforcement Fairness Act,\44\ all of which added procedural and
analytical requirements to the agency rulemaking process. In
addition, the CRA already allows Congress to disapprove of an
agency rule.
---------------------------------------------------------------------------
\40\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2011).
\41\2 U.S.C. Sec. Sec. 1501 et seq. (2011).
\42\5 U.S.C. Sec. Sec. 601 et seq. (2011).
\43\44 U.S.C. Sec. Sec. 3501 et seq. (2011).
\44\Pub. L. No. 104-121, Sec. 242, 110 Stat. 847, 857 (1996).
---------------------------------------------------------------------------
Finally, Congress can exert influence over rulemaking
through its oversight activities, whether through periodic
oversight hearings, GAO reports, or informal contacts with the
agencies. Such oversight activity can ensure that agencies are
subject to democratic accountability for their actions.
III. THE REINS ACT WILL SEVERELY RESTRICT FEDERAL RULEMAKING, THEREBY
UNDERMINING THE ABILITY OF AGENCIES TO PROTECT PUBLIC HEALTH AND SAFETY
The REINS Act will severely restrict agency rulemaking by
adding a significant procedural step to the rulemaking process
and, through expedited procedures for Congressional
consideration of major rules, will afford industry another
opportunity to stop major rules from going into effect. In so
doing, the REINS Act threatens agencies' ability to protect
public health and safety.
A. The Congressional approval requirement adds an unnecessary and
dangerous additional step to the rulemaking process for major
rules that will further ossify the rulemaking process and
create even more opportunities for private special interests to
intervene
The REINS Act effectively acts as a chokehold on major
Federal agency rulemaking by requiring Congressional assent to
major rules before they can take effect. This approval process
would be in addition to an already heavily proceduralized
rulemaking process that often takes years to conclude. Worse
yet, Congressional inertia would effectively constitute a veto
of even critically needed rules.\45\
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\45\Regulations from the Executive in Need of Scrutiny Act of 2011:
Hearing on H.R. 10 Before the Subcomm. on Courts, Commercial and Admin.
L. of the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of
David Goldston, Director of Government Affairs, Natural Resources
Defense Council) (``Agencies often take several years to formulate a
particular safeguard, reviewing hundreds of scientific studies, drawing
on their own experts in science and economics, empaneling outside
expert advisors, gathering thousands of public comments, and going
though many levels of executive branch review'').
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Additionally, the REINS Act would allow well-subsidized
business interests to further influence the rulemaking process.
As a result of H.R. 10's Congressional approval mechanism,
Congress will need to pass judgment on major rules often
without the opportunity to make a well-informed decision about
their merits. Major rules generally involve highly technical
and complex scientific data as well as other types of evidence
that require substantive expertise to decipher. Simply put,
Congress lacks the time and the resources to provide meaningful
review of such rules\46\ and it will be susceptible to well-
funded lobbying efforts by special interests.
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\46\Id.
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Adding to the concern about Congress's ability to provide
meaningful review of major rules is the fact that Congress
would have only 70 legislative days within which to act, and
Committees of Jurisdiction would have only 15 legislative days
to consider a proposed rule's merits. Moreover, floor time in
each chamber is limited to just two hours of debate, evenly
divided. As former OIRA Administrator Sally Katzen explained,
``Experience during the 111th Congress compels the conclusion
that there will not be time to consider and approve even the
most worthy rules [under the REINS Act].''\47\
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\47\REINS Act--Promoting Jobs and Expanding Freedom by Reducing
Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial
and Admin. L. of the H. Comm. on the Judiciary, 112th Cong. (2011)
(statement of Sally Katzen, former OIRA Administrator).
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This is not the first time that a congressional approval
mechanism for agency rulemaking has been considered. In the
early 1980's, Congress held a number of hearings on this
concept\48\ and a bill was introduced that would have required
affirmative Congressional assent to all major rules.\49\
Wisely, Congress chose not to pursue such a mechanism. Chief
Justice John G. Roberts, Jr., when he was an Associate White
House Counsel in 1983, criticized this legislation for
``hobbling agency rulemaking by requiring affirmative
Congressional assent to all major rules.''\50\ He further noted
that such a provision ``would seem to impose excessive burdens
on the regulatory agencies in a manner that could well impede
the achievement of Administration objectives.''\51\
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\48\See Constitutional Amendment to Restore Legislative Veto:
Hearing Before the Subcomm. on the Constitution of the S. Comm. on the
Judiciary, 98th Cong. (1984); An Amendment to Sec. 13 of S. 1080, The
Regulatory Reform Act, to Provide for Congressional Review of Agency
Rules: Hearing Before the Subcomm. on Admin. Practice and Proc. of the
S. Comm. on the Judiciary, 98th Cong. (1984); On the Impact of the
Supreme Court Decision in the Case of Immigration and Naturalization
Service v. Chadha Which Found the Legislative Veto Unconstitutional:
Hearing Before the H. Comm. on Rules 98th Cong. (1983); Legislative
Veto and the ``Chadha'' Decision: Hearing Before the Subcomm. on Admin.
Practice and Proc. of the S. Comm. on the Judiciary 98th Cong. (1983);
The Supreme Court Decision in INS v. Chadha and its Implications for
Congressional Oversight and Agency Rulemaking: Hearing Before the
Subcomm. on Admin. Law and Govt'l Rels. of the H. Comm. on the
Judiciary, 98th Cong. (1983).
\49\H.R. 3939, 98th Cong. Title II (1983). Then-Rep. Trent Lott (R-
MS) was the sponsor of this legislation, which was cosponsored by 79
Members, all but five of them Republicans.
\50\OMB Watch, Roberts Showed Prudence in Reg Reform Initiative
(2005), available at www.ombwatch.org/node/2652; see also Alliance for
Justice, Report on the Nomination of John G. Roberts to the United
States Supreme Court 78, available at http://www.afj.org/
afj_roberts_prehearing_report.pdf (``In general, Judge Roberts
disagreed with proposals to require Congress to approve regulations
before they took effect. . . .'').
\51\OMB Watch, Roberts Showed Prudence in Reg Reform Initiative
(2005), available at www.ombwatch.org/node/2652.
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B. By restricting rulemaking for major rules, the REINS Act threatens
public health and safety
While the REINS Act is clearly unnecessary and unworkable,
its most pernicious effect will be putting the health, welfare
and safety of Americans at risk. In addition to the monetary
benefits of regulations, regulations promote improved air
quality, healthier children, reduced discrimination, protection
of our public health and safety, protection of human dignity,
and other non-quantifiable but fundamental values. The costs of
delaying these highly beneficial rules could be substantial.
The meltdown of the nuclear reactors at the Fukushima
Daiichi power plant in Japan earlier this year in the aftermath
of a devastating earthquake and tsunami illustrate the dangers
of ineffective regulation. In response to the disaster, the
U.S. Nuclear Regulatory Commission under the Atomic Energy
Act\52\ promulgated six rules to increase safety of American
nuclear reactor facilities. At a minimum, the REINS Act would
delay the implementation of these rules. At worst, it could
prevent them from ever going into effect.
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\52\42 U.S.C. Sec. Sec. 2011 et seq. (2011).
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As Representative Quigley observed at the Committee markup
of H.R. 10, stronger, more effective regulations may have
prevented various disasters, including the financial fraud
committed by Enron; coal mine fires; the tragic commuter
airline crash that occurred in Buffalo, New York; the financial
crisis in Wall Street that resulted from deregulation of
financial products; and contaminated food items such as
cantaloupes, turkey, hamburgers and eggs that have caused
numerous deaths. As he explained, regulations play a critical
role in ensuring the safety of the bridges we drive across, or
the water we drink, or the food we consume.\53\
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\53\Unofficial Tr. of Markup of H.R. 10, the ``Regulations of the
Executive in Need of Scrutiny Act of 2011,'' by the H. Comm. on the
Judiciary, 112th Cong., at 74-76 (Oct. 25, 2011).
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For example, three years ago, traces of the toxic chemical
melamine were found in infant formula that was manufactured by
an American company. It is likely that the REINS Act would have
substantially delayed any corrective regulation issued in
response to this contamination event. In response to this
concern, Representative Sheila Jackson Lee (D-TX) offered an
amendment at the Committee markup of H.R. 10 to exempt any
proposed rule relating to infant formula, as defined by the
Federal Food, Drug, and Cosmetic Act.\54\ Although
Representative Jackson Lee emphasized the need to protect the
most vulnerable, namely, infants,\55\ her amendment failed by a
vote of 13 to 22. Similarly, Ranking Member John Conyers, Jr.
(D-MI) offered an amendment to exempt from the bill any rule
that protects or saves lives.\56\ This amendment also failed on
party lines by a vote of 13 to 20.
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\54\Id. at 104.
\55\Id.
\56\Id. at 32.
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Finally, the REINS Act, if enacted, would consume vast
amounts of limited Congressional time and resources, which
would necessarily have to be diverted from other critical
legislative, oversight, and constituent responsibilities. In
calendar year 2010 alone, Federal agencies issued 94 major new
rules that would have been subject to the REINS Act's
requirements.\57\ Meanwhile, there were only approximately 116
legislative days in the House during that same time period.
Under these constraints, there would not have been enough time
for Congress to consider and approve even the most worthy rules
while also fulfilling its other responsibilities. Even under
expedited procedures, Congress would likely be forced to ignore
other important duties, doing a further disservice to the
American people.
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\57\Office of Information and Regulatory Affairs, Office of
Management and Budget, available at http://www.reginfo.gov/public/do/
eoHistReviewSearch;jsessionid=9f8e89cb30d62463a3e4b86440
60b5cee60195668b93.e34ObxiKbN0Sci0Lch8Ma3eKa30Re6fznA5Pp7ftolbGmkTy
(last visited November 1, 2011).
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IV. THE REINS ACT OFFENDS SEPARATION OF POWERS PRINCIPLES
The REINS Act presents serious Constitutional concerns by
offending separation of powers constraints in two respects: (1)
by providing for what may be an unconstitutional one-House
legislative veto; and (2) by effectively turning Congress into
a ``super administrative agency.''
Under H.R. 10's Congressional approval mechanism, one House
of Congress can effectively veto an agency's rule by simply not
acting within the 70-legislative-day time frame provided for in
the bill. Such a mechanism would be, in effect,
indistinguishable from the one-House legislative veto that the
Supreme Court held to be unconstitutional in INS v. Chadha.\58\
The Court held in that decision that a veto of a Federal
agency's legislative act was itself a legislative act that
required passage by both Houses of Congress and presentment to
the President for his signature.\59\ Under H.R. 10, one House
could effectively veto agency rules without meeting the
Constitutional requirements discussed in Chadha.
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\58\462 U.S. 919 (1983) (holding that a one-House legislative veto
violated the Constitution's bicameralism and presentment clauses).
\59\Id.
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Another possible separation of powers issue presented by
the bill is that by making major rules effective only upon
Congressional approval, the REINS Act turns major rules issued
by Federal agencies into mere advisory rules. Through the REINS
Act, Congress seeks to increase its own power over Executive
Branch junctions and, in so doing, usurps a constitutional
directive to the Executive Branch to ``take care that the laws
be faithfully executed.''\60\
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\60\See Morrison v. Olson, 487 U.S. 654 (1988) (outlining tests for
evaluating statutory schemes under separation of powers doctrine).
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CONCLUSION
H.R. 10 does nothing to create jobs or improve the economy.
Instead, it throws sand in the gears of government by making it
nearly impossible to enact important new regulations. By
requiring that each House pass and the President sign each new
major regulation, this misguided legislation will require
Congress to expend time and expertise that it does not have,
while increasing the opportunity for private interests to
influence the process. This bill is not the solution for the
many problems currently facing the American people.
In fact, H.R. 10 is an unworkable solution to an artificial
problem. There is no evidence that regulations stifle job
creation. What we do know, however, is that regulations play a
critical role in protecting the health of all Americans,
ensuring the safety of our workers, promoting the integrity of
our financial system, and preserving the environment. Delaying
or thwarting these critical measures imperils our Nation's
well-being. These are tangible benefits of regulations that far
outweigh any perceived costs. Indeed, the Administration has
expressed nearly identical concerns about similar legislation
pending in the Senate. It stated that such legislation would
``delay and, in many cases, thwart implementation of statutory
mandates and execution of duly enacted laws, increase business
uncertainty, undermine much-needed protections of the American
public, and create unnecessary confusion. There is no
justification for such an unprecedented requirement.''\61\
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\61\Executive Office of the President, Statement of Administration
Policy on S. 1786, Long-Term Surface Transportation Extension Act of
2011 (Nov. 3, 2011).
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The REINS Act is not necessary because Congress already has
myriad tools at its disposal, such as limiting delegations of
authority to agencies, controlling agency appropriations,
staying the effect of specific rules, and holding oversight
hearings. These tools, unlike the REINS Act, do not trample the
separation of powers and will not lead to government gridlock.
For all of the foregoing reasons, we strongly oppose H.R.
10 and we urge our colleagues to join us in opposition.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Mike Quigley.
Ted Deutch.