Would the REINS Act Rein in Federal Regulation? Congress Makes Another Effort to Regain Control of Regulation
Adler, Jonathan H., Regulation
Over the past several decades, the scope, reach, and cost of federal regulations have increased dramatically. As the federal regulatory state has grown, legislative control over regulatory policy has declined. Long after authorizing legislation is adopted, agencies continue to adopt regulations and implement policies with relatively little legislative input or oversight. At the same time, presidential administrations of both parties have used administrative regulations to implement policies and programs that Congress failed to approve. As legislative control over regulatory policy has waned, so too has congressional accountability for the regulation.
In the past two years, several members of Congress have proposed measures to reassert legislative control and enhance congressional accountability for regulatory policy. The so-called Regulations of the Executive in Need of Scrutiny (REINS) Act would prevent federal agencies from implementing major regulatory initiatives without congressional approval. This legislation has the support of the House Republican leadership and was incorporated into the GOP's 2010 "Pledge to America" as part of a "plan to rein in the red tape factory in Washington, D.C."
REINS Act supporters hail the legislation as a needed check on federal regulatory agencies. Opponents criticize it as a potentially unconstitutional attack on federal regulations that could undermine health, safety, and environmental protections. Market-oriented groups and the U.S. Chamber of Commerce believe the act contains necessary reforms. The Natural Resources Defense Council, on the other hand, calls the REINS Act a "radical" and "perilous" proposal that would hamstring needed regulatory initiatives. According to the NRDC's David Goldston, "it is hard to imagine a more far-reaching, fundamental, and damaging shift in the way the government goes about its business of safeguarding the public."
The REINS Act's most ardent supporters and defenders assume that the act would stem the flow of federal regulation from the nation's capital, but is this so? A more measured look at the act suggests that it could enhance regulatory accountability and popular input on major regulatory proposals. Less clear is whether the legislation would prove to be much of an obstacle to additional regulatory initiatives or reforms. The REINS Act would, however, retard the continuing accretion of executive authority over domestic affairs.
From the 1950s through the 2000s, the amount of federal regulatory activity, as measured by pages in the Federal Register, has increased more than six-fold. In the 1950s, federal agencies published an average of just under 11,000 pages in the Federal Register per year. By contrast, over the past decade federal agencies averaged over 70,000 pages per year. In 2010, the Federal Register contained well over 80,000 pages. Over one-quarter of those pages were devoted to final agency regulations.
The number of new final rules each year has declined from its 1970s peaks, but federal regulations are still adopted at a rapid pace. Federal agencies have finalized over 3,500 regulations per year in each of the last three years. Those rules cover everything from greenhouse gas emission reporting and proxy disclosures to electronic fund transfers and the energy and water use of home appliances. Substantially more regulation is on the way. The 2010 Unified Agenda of Federal Regulatory and Deregulatory Actions lists over 4,000 additional regulations in various stages of the regulatory pipeline. By some estimates, the Wall Street Reform and Consumer Protection Act (better known as "Dodd-Frank") will require over 200 federal rulemakings and the Patient Protection and Affordable Care Act will require dozens upon dozens more.
The growth of federal regulation has imposed significant costs on American business and consumers. …