House Republicans’ fast-track push for federal regulatory reform could be derailed by a nationwide spate of railroad accidents, including the Feb. 3 Norfolk Southern train wreck in East Palestine, Ohio, that forced hundreds to flee their homes for days in fear that leaking toxic chemicals would explode.
With residents exposed to still-undetermined health risks from that derailment, and more than two dozen train wrecks—another Norfolk Southern train derailed March 6 in Springfield, Illinois—reported to the National Transportation Safety Board already in 2023, Democrats are fiercely opposing Republican bills targeting the “administrative state” by reforming the regulatory and rule-making processes.
Among those GOP bills is the proposed “Regulations from the Executive in Need of Scrutiny Act of 2023,” or REINS Act, introduced by Rep. Kat Cammack (R-Fla.) with 177 co-sponsors.
Under the bill, “major rules” issued by federal agencies ”shall have no force or effect unless a joint resolution of approval is enacted into law” by both the Senate and the House.
The Congressional Review Act identifies a major rule as “one that has resulted in or is likely to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or significant adverse impact” on industry and consumers.
Generally, federal agencies issue between 60 and 80 major rules and regulations each year under the Administrative Procedures Act, which Republicans argue has devolved into a “tyranny” imposed by an unelected and unaccountable “fourth branch of government.”
4,634 Pages of Rules
During the REINS Act’s first hearing before the House Judiciary Committee’s Administrative State, Regulatory Reform, and Antitrust Subcommittee on March 10—labeled “Reining in the Administrative State: Reclaiming Congress’s Legislative Power”—proponents cited a litany of reasons why the bill is necessary.
Among examples: OSHA’s vaccine mandates, the nationwide eviction moratorium, ATF’s pistol brace rule—which threatens to make up to 15 million Americans “felons by the stroke of a pen”—FTC’s “non-compete” rule, 1,860 Department of Health “illegal” rules, and the Waters of the United States (WOTUS) rule.
Since its 1946 adoption, the Administrative Procedures Act—‘the constitution of the administrative state”—has ballooned into five volumes and, at last count, is 4,634 pages long, Republicans said, noting up to 6,000 new rules are published and added each year to the tome.
In addition, there are more than 70,000 “guidance documents” that essentially regulate by threatening to regulate and 1,200 expired regulatory programs that remain on the books because Congress continues to fund them, they said.
According to Republicans, American businesses pay more than $2.1 trillion a year to comply with federal regulations—an expense that could spiral even higher under the Biden administration’s penchant for regulation and rule-making.
Since assuming office, the Biden administration has enrolled 5,176 new rules that will require an estimated 218 million hours of paperwork and cost businesses $318 billion a year, noted Chair Rep. Thomas Massie (R-Ky.), who said the REINS Act would curtail “the administrative state” from imposing 20 times the number of laws that Congress has adopted in the last 50 years.
The REIN Act is a “separation of powers restoration act,” he said, adding that federal agencies are supposed to be implementing laws, “not making them.”
REIN Restores Congressional Primacy
The bill would “restore the proper relationship between the legislative branch and the other branches” and “curtail agencies from making laws through the rule-making process” which they and the executive branch routinely do, said Cicero Institute Chief Legal Officer and Policy Director Jonathan Wolfson, a former Department of Labor Deputy Assistant Secretary.
And that would be a good thing, he said, simply because “Congress is accountable, agencies are not.”
The federal rule “that gets under my skin is the [Waters of the United States] rule,” Rep. Ken Buck (R-Colo.) said, noting the mapping effort to chart every watershed source and intermittent stream affects every property in his northern Colorado district that shares water sources with Wyoming.
“If Democrats get to regulate ditch water and every puddle in my district we are going to have problems,” he said.
All agreed Congress has abdicated its regulatory and rule-making role to agencies, often as political expediency in avoiding difficult decisions, and that legislators need to constantly audit regulations and rules to ensure they do what they are supposed to do in a cost-efficient manner.
Regulators and agencies “are filling a vacuum that Congress has created,” Buck said. “My point is without congressional neglect, its failure to act, we wouldn’t be dealing with the REINS Act now because we would be doing our job every day of overseeing the functions of the executive branch.”
Democrats argued there is nothing new in any of this, noting deregulation is always a Republican emphasis.
“I find it telling” that this is the subcommittee’s first hearing of the new Congress “and we are talking about how we can remove public health and safety safeguards for corporate profits,” Rep. Jerry Nadler (D-N.Y.) said. “It’s been the same GOP theme for years. The same old tired anti-health and anti-safety legislation. We’re three months into the new majority and I think they are already out of fresh ideas.”
“‘Reclaiming congressional regulatory power.’ I’m not aware that this is a power that has been lost,” said Rep. David Cicilline (D-R.I.), calling the REINS Act’s requirement that a joint resolution be adopted before any major rule can rule go into effect unnecessary.
“Congress already has the power” to regulate and make rules, he said. “Agencies only have the power we grant them. Agencies are charged with authority Congress grants them to adopt safety regulations.”
The REINS Act is “not designed to provide good governance but to stop the regulatory process in its tracks,” Nadler said, noting Congress can control the regulatory process by adopting clear laws, delegating specified authority to agencies, through appropriations, and through oversight actions such as “the blunt tool of the Congressional Review Act.”
The Act would put health and safety regulation “to the whims of politics,” Nadler said, claiming the proposal calls for “the dismantling and destruction of the regulatory process regardless of the impact on public health and safety.”
“The REINS Act would prevent agency rule-making from protecting the American public from corporate greed,” Rep. Hank Johnson (D-Texas) said, calling the bill “a move to strangle the federal government. In short, what the REIN Act does is put profit over people.”
It would replace a professional process with a political one and “harm the economy, safety, health and the environment,” said George Washington University Law School Professor Emily Hammond.
“Right now, America needs more protections, not less,” she said. “We see in East Palestine what an anti-regulatory environment will do—more people don’t make it home after work.”
The ‘Chevron Doctrine’
Proponents—including Cicero Institute’s Wolfson, constitutional law attorney Allyson Ho of Dallas-based Gibson, Dunn & Crutcher LLP, and former special forces operator Ryan Cleckner, a Texas-based firearms law attorney and founder of Gun University—said the primary cause of agency overreach is a 1984 Supreme Court ruling that created “the Chevron Doctrine.”
Ho explained that that ruling “determined that when a court is reviewing an agency interpretation of a rule, the court should defer to agency interpretation if the law is vague and the interpretation is reasonable.”
This deferral “flies in the face of a bedrock principle that the law means what it says. [The deferment] turns that principle on its head,” she said, especially since “courts don’t deliberate if the interpretation is correct, but if it is reasonable, then it becomes the law.”
The “deference doctrine” has served as a “tool for agencies to exert their powers” and “allows agencies to effectively write” laws rather than implement them, Ho said.
“Under the separation of powers” clause in the Constitution, “agencies are given broad authority to write regulations that have the force of law,” she said. Since the Chevron Doctrine was adopted, agencies “are stepping into the role Congress has and the civil services has effectively become a fourth branch of government.”
The problem with that is “federal agencies are difficult to hold accountable, even by the executive branch,” Ho said, adding the more people become concerned about the state of America’s democracy, “the more you should be concerned about the rise of the administrative state.”
Wolfson, Ho, and Cleckner all said the REINS Act would be a mere stopgap at addressing the underlying issue with the regulatory process, which would require a new Supreme Court ruling on the Chevron Doctrine and a full-scale revamp of the Administrative Procedures Act.
Wolfson said federal agency “experts” tend to have expertise more in how to draft rules and regulations than they do in the actual subject matter, noting Congress can call as many experts as it needs in making decisions on technical issues.
Not All ‘Experts’ Are The Same
Democrats argued the Chevron Doctrine ensures experts write the safety rules and that the process is as free as possible from politics and industry lobbyists.
When drafting rules and regulations, scientists and engineers do not need to balance the “complicated tradeoff between competing priorities” the way elected officials must do, Cicilline said, noting regulators are not merely “experts in process” but in the specific disciplines.
“They are hired because they bring with them expertise that we don’t have in Congress. It is actually the underlying substance of their expertise that is saving the lives of American people,” he said.
Johnson mocked the contention the GOP-controlled House could effectively adopt in a timely manner nuts-and-bolt rules for complex activities, products, and industries when in its current state of “Congressional dysfunction” it “took 15 rounds to elect a speaker.”
“Look no further than East Palestine and the situation in Flint, Michigan,” for examples of why professionals are needed to regulate, he said. “We need experts working on [rules], not members of Congress who get caught up in gridlock and can’t even elect a speaker.”
“Nonsense,” said Rep. Dan Bishop (R-N.C.), who questioned “the notion we have to rely on agencies to make rules” and that regulators “are less susceptible to politics” than lawmakers are, noting “the administrative process appears to be vulnerable to lobbyists,” just like the legislative process is.
“I don’t see any lobbyists here today, they’re all over at the executive branch,” Massie said. ”I reject this notion that somehow the executive branch is immune to lobbying.” The exponential growth of regulations, he said, is “the consequence of an agency writing law.”
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