The Responsibility for Regulation Act would implement the proposal of New Deal administrative law expert and Harvard Law School Dean James Landis that Congress vote on the agencies’ significant regulatory decisions. (James Landis, The Administrative Process (New Haven, CT: Yale University Press, 1938), 76). His proposal is neither pro- nor anti- regulatory, but rather calls for elected lawmakers to strike the balance between regulatory benefits and burdens. That’s as it should be in a democracy. Then-Judge Stephen Breyer showed how Congress could shoulder such responsibility in a way that would be workable and constitutional. (Stephen Breyer, “The Legislative Veto after Chadha,” 72 Georgetown Law Journal 793 (1984)).
The Responsibility for Regulation would differ from the House version of the Regulations from the Executive in Need of Scrutiny Act (REINS) during the 115th Congress in being pro-responsibility rather than anti-regulation. The House Judiciary Committee advertised REINS as requiring roll-call votes within 70 days on rules that add more than $100 million in regulatory burdens, but says nothing about rules that reduce regulatory protection, no matter how much. Yet, Congress should be responsible for significant decisions to deregulate as well as to regulate. The new bill should require votes on rules that both add more than a threshold amount of regulatory costs or cut regulatory costs or regulatory protection by the threshold amount.
REINS also contains a provision that would repeal any existing rule, whether significant or not, that Congress does not approve within ten years. Congress could never take responsibility for deciding on the fate of all such rules in ten years because of their vast number and the bill’s requirement that any member could force a separate vote on any rule and on changes in the rule. This provision would effectively repeal a vast swath of existing rules without legislators openly taking responsibility. Congress should consider ways to take responsibility for existing rules, but the first order of business should be to start by taking responsibility for significant new rules.
REINS contains another provision that would block an agency from putting a new rule into effect unless it first offsets its cost by cutting the cost of existing rules. Such a cap is not necessary for Congress to take responsibility for new rules and would in practice nullify many existing statutory commands to regulate. Yet, REINS takes no explicit responsibility for doing so. If a cap on total regulatory costs makes sense, it should be taken up in a separate bill.
The new bill should also differ from REINS in providing for the exchange of information needed for Congress and agencies to discharge their respective responsibilities sensibly.
Congress needs information on rules that agencies promulgate to decide whether to approve to approve and agencies need information on the thinking in Congress to promulgate rules responsive to it. Congress, in turn, needs information on how current statutes prevent agencies from promulgating rules responsive to the current thinking in Congress so that it can revise obsolete statutes. So, communication between Congress and agencies must begin before the agency promulgates the rule. To that end, the new bill should require agencies to alert Congress of proposals of significant rules and any way that, in the agency’s opinion, current statutes would prevent the agency from promulgating an optimal rule. Then, at the proposal stage, legislators could, in their discretion, hold hearings, introduce legislation, or communicate with the agency individually or through committees. In addition, the bill should include a provision that adds an extra thirty days to the deadline for a final roll call vote if a majority of the agency’s oversight committee in either house signs a petition calling for a hearing after promulgation.
REINS also sets the threshold for significant rules at $100 million per year from the beginning. In deciding how to vote on those rules, members of Congress will be helped by the agencies having to supply relevant information in documents accompanying the promulgation of a new rule. Yet, legislators will still need to find ways to process this information and this will take a while. The new bill should set a higher threshold for the first few years.
REINS furthermore interferes with Congress and agencies learning from each other by barring an agency from promulgating a significantrule during a Congress in which its members refused to approve a rule on the same subject. This prevents an agency from adjusting a rule to deal with objections that caused Congress to reject it previously. This provision is anti-responsibility by preventing Congress from voting on a regulation that might well get majority support.
Finally, the new bill should get have a title that reflects its responsibility-enhancing purpose such as the “Responsibility for Regulation Act.” Another necessary cosmetic change is to get rid of REINS’s stating that a significant rule is disapproved if not voted upon in 70 days. The provision is cosmetic in that REINS is a good faith effort to use existing House and Senate rules to ensure such a vote within 70 days. A bill must, however, anticipate the theoretical possibility that the House or Senate would use their constitutional prerogative to change their rules to avoid a vote within 70 days. The new bill should, however, deal with that remote possibility by providing that the failure to vote means the rule goes into effect. Realistically, the choice is between a status quo in which rules go into effect without a vote and a new bill in which significant rules likely cannot go into effect without a vote.
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Democrats who favor more regulatory protection and Republicans who favor lower regulatory costs will no doubt wonder whether the Landis proposal would serve their ends. The proposal would transfer power from the executive branch to Congress. That sounded bad to Democrats when Barack Obama was in the White House, but now Donald Trump is there and no one knows who will follow him.
Each side might fear that the other party in Congress would reflexively vote against regulatory decisions that they favor. Such fears are understandable because Democratic legislators lament gaps in protection and their Republican counterparts lament regulatory costs. Such laments come at little political cost when the legislators are speaking in the abstract because the unpopular side effects of providing more protection or cutting costs are not then apparent. Yet, the Landis proposal would require legislators to vote on concrete proposals whose side effects could come back to haunt them in the next election. For example, Republican legislators would find that voting reflexively against climate change regulations would come at a political cost when, according to Rasmussen Reports on October 13, 2017, “56% of Likely U.S. Voters favor an EPA regulation that requires a one-third drop in carbon dioxide emissions from power plants over the next 13 years, while 33% oppose such a regulation.” Legislators on both sides of the aisle would be somewhat more balanced than their present posturing sounds.
On October 12, 2013, Rasmussen reported that “just 25% of Likely U.S. Voters think the EPA should be able to implement major regulations without congressional approval. Fifty-six percent (56%) disagree, but 19% are undecided.”
A Scott Rasmussen/Harris X poll (a different organization) taken in January of 2019 found that “[e]ighty-two percent (82%) of voters believe Congress should review and approve regulations rather than allowing agencies to set them up on their own.”
A Scott Rasmussen/Harris X poll (a different organization) taken in January of 2019 found that “[e]ighty-two percent (82%) of voters believe Congress should review and approve regulations rather than allowing agencies to set them up on their own.”The support for Congress to shoulder responsibility was more than four to one among both Democrats and Republicans and more than five to one among independents.
The Landis proposal would tack 70 days or so of legislative activity at the end of the administrative process, but that would usually not delay new regulations that are approved from going into effect. New regulations are currently subject to judicial review and it takes far longer than 70 days. The REINS bill of the 115th Congress calls for preserving judicial review and the Responsibility for Regulation Act should too. Indeed, the new bill and its legislative history should emphasize that Congress wants courts to take judicial review seriously even where Congress has approved the regulation. Judicial review is essential, especially to ensure that the agency has acted within the scope of its enabling legislation and the factual basis of the new regulation is sound. These are matters on which Congress is less well equipped to consider than are courts. In contrast, Congress will have focused on the overall good sense of the rule. Approval by Congress would thus put the regulation in a more favorable light, but the court will still have serious work to do.
To make clear that courts should continue judicial review, the Responsibility for Regulation Act should state that Congress votes to approve an agency’s promulgation of a significant rule rather than to enact the rule. This would also make clear that the agency, acting alone, can amend a rule whose promulgation has voted to approve if the amendment does not rise to the level of significance.
It is hard to say in the abstract whether the Landis proposal tilts in favor of more protection or less cost in the short run, but it will bring more protection for the regulatory buck because it would help to clean up the regulatory mess. That means it should bring more protection and less cost in the long run. It will also make the elected lawmakers more responsible for the laws and Congress less polarized.
The legislators who lead the way to such a better world will be heroes.