The regulatory system is a vital part of our constitutional democracy; with smart reforms, it can empower the public and continue enforcing policies that make us all safer, healthier, and freer. That was the message that Member Scholars of the Center for Progressive Reform successfully conveyed during last Friday’s subcommittee hearing of the U.S. House Judiciary Committee.
The hearing was nominally about the Regulations from the Executive in Need of Scrutiny Act of 2023 (REINS Act), an extreme anti-regulatory bill that conservative lawmakers trot out every chance they get. Specifically, it would bar agencies’ most impactful regulations from taking effect unless both chambers of Congress pass and the president signs a special resolution authorizing them. The failure to adopt such a resolution within a short window would block the regulation.
On March 10, Member Scholar Emily Hammond, a law professor at The George Washington University, flipped the script and used their testimony and hearing answers to highlight the value of protective safeguards and to promote reforms that would make the regulatory system even more robust, responsive, and inclusive.
The REINS Act would have the contrary effect, Hammond explained. If enacted, it would render the regulatory system less accountable and ultimately block protector agencies like the U.S. Environmental Protection Agency and Food and Drug Administration from fulfilling their statutory missions to safeguard public health, safety, and the environment.
Mischaracterizing the system
Tellingly, conservatives and corporate interests often mischaracterize how the regulatory system operates to support their attacks. Helpfully, Hammond’s testimony began by explaining the painstaking process by which agencies implement regulations, why Congress created this process, and how it fits into our constitutional system of government. Importantly, this process relies on agencies to consider both public input and their own expertise to develop policy solutions that fit within their statutory authorities. This process contains several safeguards, which allow for congressional oversight and judicial supervision.
Hammond then presented two contrasting visions of how to modernize and improve the regulatory system. The first, as represented by the Stop Corporate Capture Act, would enable more people to participate in the rulemaking process, make regulators more attentive to “distributional” concerns (i.e., that regulatory decisions benefit, rather than burden, structurally marginalized communities), and reduce corporate manipulation of the process. The second, embodied in the REINS Act, would be a literal and figurative disaster. In a comprehensive critique of the bill, Hammond called it not only bad policy but also likely unconstitutional.
The Center also submitted a letter to the subcommittee, which Ranking Member David Cicilline, a Rhode Island Democrat, entered into the record.
The letter, signed by 27 of the Center’s Member Scholars, argues that the REINS Act would replace careful, expertise-driven decisions that drive agency rulemakings with the kind of politicized decision-making that is characteristic of Congress. This consequence would be perverse, given that Congress already has adequate tools to block regulations with which it disagrees. The letter goes on to explain that the REINS Act is fundamentally “counter-democratic” because it would allow one chamber of Congress to block implementation of a law that had been approved by both the full Congress and the president.
It also notes one of the most controversial aspects of the REINS Act — namely, that it relies on something like legislation to approve agency rules but that would not actually be legislation. This is significant because it allows Congress to evade responsibility for approving rules (i.e., the approval resolution could not be challenged in court as beyond Congress’s authority). More significantly, though, this feature makes the REINS Act unconstitutional.
The letter concludes by challenging the underlying premise of the REINS Act. Contrary to the claims of the bill’s sponsors, the regulatory system works reasonably well (if anything, the REINS Act would undermine its effectiveness) and is subject to plenty of mechanisms that meaningfully promote public accountability.
No doubt, we have not heard the last of the REINS Act or any other bad anti-regulatory bills that conservative members of Congress will push over the next two years. The Center’s Member Scholars and staff are standing ready to respond to them and to educate policymakers, the press, and the public about why we should reject efforts to weaken an essential part of our government that serves us all well. And if conservative policymakers are willing to have a good faith debate over how to improve our regulatory system, we’re ready to have that conversation, too.