Why the REINS Act Is Unconstitutional
by Bill Funk | February 14, 2017
The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional.
The current REINS Act has three parts. One part essentially reflects the recent Executive Order on Reducing Regulation and Controlling Regulatory Costs, except that the REINS Act only requires repeal of one regulation for each regulation adopted, rather than the E.O.'s two-for-one requirement. Another part of the REINS Act continues the CRA, but only for non-major rules. The final part, the part that is unconstitutional, provides that no "major rule" – defined as a "significant regulatory action" requiring a cost/benefit analysis under Executive Order 12866 – shall take effect until Congress "approves" it by joint resolution. Like the CRA, the approval mechanism is fast-tracked to avoid filibusters and full-fledged debate.
First, it is important to make clear what the REINS Act does not do, but which, if it did, would be constitutional, even if extremely bad policy. The REINS Act does not divest agencies of the statutory authority to issue any major rule, and it does not direct them to propose what would have been a major rule to Congress for possible enactment as a statute. Such a law would
The Cabinet and the Rule of Law
To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from
Tax Credits and Public Spending on Infrastructure
Donald Trump based his candidacy on the claim that he would serve working-class people who established politicians have neglected. He promised $1 trillion of infrastructure investment over 10 years, which could generate a lot of blue-collar employment while potentially repairing crumbling bridges and roads, replacing antiquated wastewater treatment systems (in Flint and elsewhere), and creating a mass transit system that could move us into the 21st century in that realm. A sound infrastructure program, unlike anything else that Trump has
CPR Statement: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget
by Brian Gumm | January 24, 2017
NEWS RELEASE: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget Today, the Senate Committees on Budget and Homeland Security
Ryan Zinke's Troubling Road to Interior Secretary
Rep. Ryan Zinke, a congressman from Montana and Donald Trump's pick for the next Secretary of the Interior, said some encouraging things in his Senate hearing on January 18. First, he acknowledged that the climate is changing and that "man has had an influence," disavowing Trump's notorious statement that climate change is a hoax. Second, he stated in strong terms his opposition to divestiture of the lands and resources owned by the federal government, declaring that "I am absolutely against
For 2017: Grit, Hope, and Cher's Feathers
My, but the year 2016 has been a humdinger, a whopper, a real sockdolager. Donald Trump is measuring drapes for the White House. His allies in the Republican Party hold both chambers of Congress. At the state and local levels, Democratic influence is at historic lows. Did I mention there are more than a hundred vacancies on the federal court to be filled by a soon-to-be President Trump, including an open seat on the Supreme Court? I will not lie.
Environmental Enforcement in the Crosshairs: Grave Threats to a Vital Protection for All Americans
by Joel Mintz | December 13, 2016
Efficient, professional law enforcement is a cornerstone of effective and responsible environmental protection. It is the cop on the environmental beat. While some regulated firms will likely continue to comply with environmental requirements in the absence of vigorous, evenhanded enforcement, other companies will certainly proceed to pollute America's air, water, and land with reckless arrogance. With these realities in mind, it is imperative to recognize the serious, potential threat posed to environmental enforcement by the forthcoming Donald Trump administration and
Racism, Cost-Benefit Analysis, and Trump Advisor Steve Bannon
What does Steve Bannon – who, despite his well-documented racism, anti-Semitism, and misogyny, was appointed as president-elect Trump's senior counselor and White House strategist – have to do with a rarified and wonky policy exercise such as regulatory cost-benefit analysis? Unfortunately, a lot, as it turns out. From a serious policy perspective, the Trump administration's approach to governance remains terra incognita, and this is especially the case with its approach to implementing laws through regulations. So far, Trump has signaled
Will the Media Rise to the Trump Challenge or Just Fall into His Trap?
Ever since Richard Nixon's vice president, Maryland's own Spiro Agnew, described the nation's ink-stained journalists as "nattering nabobs of negativism," attacks on the media have been reliably base-pleasing material for conservative politicians. But Donald Trump is in a category all his own. For most pols, attacking the press is a way to deflect criticism. For Trump, it was a defining element of his candidacy. At his rallies, he kept the press corps literally penned up so that he could more
The Assault on Our Safeguards
We are about to experience a fifth major assault on the health, safety, environmental, and consumer protections that Congress put in place during the 1960s and 1970s, protections that most of us take for granted. And all indications are that this assault will be more intense and more comprehensive than any of the prior assaults on the governmental protections that shield our families and communities from the ravages of an unfettered free market. In my 2013 book, Freedom to Harm,
What Can We Expect from a President Trump?
by Matt Shudtz | November 21, 2016
Hazy as they may be, we are all looking into our crystal balls, trying to envision what a Donald Trump presidency will mean for the world around us. The first glimpses we have of the future – Steve Bannon at Trump's right hand, Jeff Sessions as Attorney General, Michael Flynn as National Security Advisor – project something much darker and more insular than befits a nation whose arc of history is as progressive as ours. Of course, that arc is
Six Thoughts for an Environmental Law Student Wondering What This All Means
by Dave Owen | November 21, 2016
Editor's note: This post was originally published on Environmental Law Prof Blog on November 10. While it was primarily written for environmental law students, it contains wisdom for everyone who cares about our environment and our natural heritage. * * * "As a future environmental attorney, I'm confused and angry and sad. And as a human being, I'm equally as confused and angry and sad. A lot of us students are trying to process all of this today." That was the beginning
The Struggle Ahead
by Matt Shudtz | November 10, 2016
Where do we stand now that the election is over and the presidential transition is beginning? That's a common question these days. Those of us striving in the public interest had come to expect progress, and now that expectation has been dashed. For eight years, President Obama and his team of dedicated public servants did something remarkable. With their deep appreciation and respect for our system of government, they created conditions ripe for a vigorous and uplifting debate about the
CPR's Heinzerling Calls on Next President to Scrap White House Regulatory Review Process, Start from Scratch
by Brian Gumm | October 31, 2016
Earlier this month, the American Constitution Society for Law and Policy published a collection of essays filled with legal and policy recommendations for the next president. Center for Progressive Reform Member Scholar Lisa Heinzerling closed out the publication with a piece on improving federal environmental policy, which includes recommendations for how the next president can ensure that the White House Office of Information and Regulatory Affairs (OIRA) stays out of the way. Under the auspices of a series of executive
Why SOPRA Is Not the Answer
by Bill Funk | October 03, 2016
Originally posted at Notice & Comment, a blog of the Yale Journal on Regulation and the American Bar Association Section of Administrative Law & Regulatory Practice, as part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. Reprinted with permission. The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts
Supreme Court Remains Skeptical of the 'Cost-Benefit State'
by Amy Sinden | September 26, 2016
Originally published on RegBlog by CPR Member Scholar Amy Sinden. In the wake of the U.S. Supreme Court's opinion in Michigan v. EPA last term, a number of commentators have revived talk of something called the "Cost Benefit State." It is supposed to be a good thing, although it makes some of us shudder. The phrase was originally coined by Cass Sunstein in a 2002 book by that name. It describes a supposedly utopian government in which agencies and courts
Federal Contracting Gets Safer Thanks to New, Common-Sense Regulations
by Katie Tracy | September 21, 2016
Federal contractors that violate labor laws not only cheat workers by disregarding their rights to fair pay and safe workplaces, but they also tend to run into unexpected costs and delays during performance of the contracts they're awarded. With this in mind, in 2014, President Obama issued Executive Order (E.O.) 13673, which seeks to improve cost savings and efficiency in government contracting by requiring prospective contractors to disclose labor law violations and obligating contracting agencies to review those violations before
House Passes Bill to Silence Agency Experts and Frustrate Public Participation in the Regulatory Process
Last night, the House of Representatives, in an almost completely party-line vote, passed the Regulatory Integrity Act (H.R. 5226), a bill that would prohibit the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and other agencies from engaging the public on their pending efforts to address climate change, prevent foodborne illness, and otherwise act in the public interest. Center for Progressive Reform Senior Policy Analyst James Goodwin offered the following reaction to the bill's passage: Poll after poll