Congress rarely considers a bill that would change the way Washington works. But this is exactly what the Regulations from the Executive In Need of Scrutiny (REINS) Act would do. The REINS Act (H.R.10) would require Congress to approve all “major” regulations—those costing $100 million or more annually—before they take effect. On December 7, it passed the House of Representatives by an impressive vote of 241–184. It is now headed for consideration in the Senate.
The Current Process
Currently, Congress passes laws with overly broad or intentionally vague statutory language. That language empowers the Secretary of this department or the administrator of that agency to promulgate regulations to fill in the missing details, clarify the various provisions, or, in some case, fulfill high-minded congressional aspirations. Then these administrators and their staffs write the regulations, post the draft rules for a notice and comment in the Federal Register, and review whatever comments come in to the mailroom over, say, a 60- or 90-day period.
Special interest groups dominate this process, ensuring that the final rule preserves or advances their financial interests. Most ordinary Americans have little or no contact, let alone familiarity, with this byzantine process. They don’t read the Federal Register with their morning coffee. Nonetheless, these rules become the law of the land.
The REINS Act would restore accountability for the biggest federal rules and regulations to where it belongs: both houses of Congress.
Restoring Democratic Governance
The bill would also restore traditional governance. Article I, Section 1 of the Constitution gives the House and Senate legislative power. But Congress has abdicated that role over the years and delegated its legislative authority to the executive branch and independent agencies. Federal courts have routinely approved these delegations.
Members of Congress delegate their power because (a) they do not know how to write the appropriate legislative language to accomplish their stated objectives; or (b) they do not want to make any of the tough decisions that lawmaking entails. Delegation enables Congressmen to escape the responsibility for lawmaking and blame the administrators for any bad outcomes. Implementation through rules may differ from the original intention of the law. Members of Congress can pose as defenders of the “public interest” battling an unresponsive, overreaching, or arrogant bureaucracy: They call a hearing, issue a press release, and interrogate and humiliate career civil servants who are trying, in most cases, to carry out vague or impossible tasks that Congress has imposed on them.
The result: Americans are being increasingly governed as the subjects of a powerful administrative state rather than as citizens of a democratic republic. If you take seriously the fundamental American proposition that government should be based on the consent of the governed, you must take the REINS Act seriously.
Opponents argue that the REINS Act would undermine the efficiency of government. Congressional review and approval of major federal rules would make the entire regulatory process more cumbersome. This lost time, in their view, is not worth the price of congressional consideration (or worse, rejection).
Ideologues intent on using this process to advance an unpopular agenda and those with great faith in central planning oppose the REINS Act vigorously. At the risk of oversimplification, they believe that modern society and its problems are increasingly complex, and the “progressive” resolution of this problem—doing “good” things—requires a deep understanding of that complexity. Elected representatives simply cannot have the knowledge and judgment to make competent decisions over those maddeningly mind-numbing details of public policy. We need experts to make those crucial decisions. Therefore, democratic decision making in a legislative body must give way to administrative decision making that is properly informed by scientific and technical expertise.
In fact, the REINS Act does nothing to impede the provision of technical expertise in public policy. But it enables the elected representatives in Congress to balance the good that is incorporated in a regulatory initiative with other desirable goods, such as job creation and a robust and growing economy. Politics is an exercise in prudence, the balancing of competing goods in the public interest. At the end of the day, regulations have the force of law. In a free society, lawmaking is ultimately the responsibility of the elected representatives of the sovereign people.
The Long Road to Reform
One bill is not going to solve the problem of restoring the accountability of government to the people. American politics is evolutionary, not revolutionary. But we should remember that small steps can result in large-scale transformations. For instance, in 1943, the IRS made a decision—subsequently enshrined in a section of the Internal Revenue Code—that provided an exclusive tax break for employment-based health insurance. This was a compensation decision, not a health policy decision, that resulted in a monopoly for employment-based health insurance. This apparently small change in federal tax law has shaped our health insurance markets and dominated our health reform debates since the 1970s.
Therefore, Americans opposed to the growth of the administrative state should embark on a multi-pronged offensive against it, taking discrete steps to reduce its power and restore accountability to elected officials, whether many of those elected officials want it or not.