Why the REINS Act Is Unconstitutional

by Bill Funk | February 14, 2017

The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional. 

The current REINS Act has three parts. One part essentially reflects the recent Executive Order on Reducing Regulation and Controlling Regulatory Costs, except that the REINS Act only requires repeal of one regulation for each regulation adopted, rather than the E.O.'s two-for-one requirement. Another part of the REINS Act continues the CRA, but only for non-major rules. The final part, the part that is unconstitutional, provides that no "major rule" – defined as a "significant regulatory action" requiring a cost/benefit analysis under Executive Order 12866 – shall take effect until Congress "approves" it by joint resolution. Like the CRA, the approval mechanism is fast-tracked to avoid filibusters and full-fledged debate. 

First, it is important to make clear what the REINS Act does not do, but which, if it did, would be constitutional, even if extremely bad policy. The REINS Act does not divest agencies of the statutory authority to issue any major rule, and it does not direct them to propose what would have been a major rule to Congress for possible enactment as a statute. Such a law would ...

The Cabinet and the Rule of Law

by David Driesen | February 06, 2017
To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee.  Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from ...

Trump's Latest Executive Order: Scrap Two Regs for the Price of One

by Amy Sinden | January 31, 2017
Remember how Donald Trump bragged he was going to run the country like a business? Imagine if before Trump could open a new casino, he was bound by a rule to close two existing casinos, and the costs of the new casino couldn't exceed the cost savings from no longer operating the old ones. Would this make sense as a business strategy? Of course not. Unless, of course, you were secretly trying to sabotage the business and run it into the ...

You Can't Always Get What You Want

by Matt Shudtz | January 31, 2017
As long as Donald Trump is in the White House, progressives should harbor no delusions that the Administrator of the Environmental Protection Agency (EPA) is going to be a wool-socks-in-Birkenstocks tree hugger. Scott Pruitt is certainly no such individual. But nor is he a person with the experience, depth of understanding of the agency’s programs, or temperament to run the agency. The job of EPA Administrator under President Trump will surely prove to be the most thankless cabinet-level job. Trump ...

Andrew Puzder Should Not Be the Next Labor Secretary

by Katie Tracy | January 30, 2017
The Senate Labor Committee will hold a confirmation hearing Feb. 7 on President Donald Trump's nomination of Andrew Puzder as Secretary of Labor. If confirmed by a vote of the full Senate, Puzder will oversee all of the agencies and departments within the Department of Labor, including the Occupational Safety and Health Administration (OSHA), the Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP). This is troubling, to say the least, because a look at Puzder's ...

Distracter-in-Chief

by Matthew Freeman | January 25, 2017
Only a few days into the Trump administration, and a “gang that doesn’t shoot straight” narrative is taking root in the media. From outright lies about crowd numbers at the inauguration, to fictionalized accounts of millions of illegally cast votes, to hashtag-ready assertions about “alternative facts,” it’s been a rough start, and the media is covering it all, exposing the dishonesty. That, at least, is how I imagine the conversation is going in Washington, D.C., news bureaus. But while all ...

CPR Statement: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget

by Brian Gumm | January 24, 2017
NEWS RELEASE: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget                                                                                                              Today, the Senate Committees on Budget and Homeland Security ...

For 2017: Grit, Hope, and Cher's Feathers

by Robert Verchick | December 31, 2016
My, but the year 2016 has been a humdinger, a whopper, a real sockdolager. Donald Trump is measuring drapes for the White House. His allies in the Republican Party hold both chambers of Congress. At the state and local levels, Democratic influence is at historic lows. Did I mention there are more than a hundred vacancies on the federal court to be filled by a soon-to-be President Trump, including an open seat on the Supreme Court?  I will not lie. ...

The Plagiarism Caucus

by Matthew Freeman | December 21, 2016
My wife is a high school history teacher, and pretty much every year, she has at least one story to tell about a student lifting some significant chunk of text from a website and using it in a paper without attribution. The kids get caught by those nifty anti-plagiarism search engines teachers use, which are about as heartless and automatic as those unmanned, and frankly, unsportsmanlike, speed cameras that dot my neighborhood streets. I suppose it’s easier to accidently plagiarize ...

Beware Compounded Drugs -- Especially Under Trump's FDA

by Rena Steinzor | December 14, 2016
A burgeoning and little-regulated private industry that specially mixes drugs at so-called compounding pharmacies poses a public-health hazard that the Trump administration is about to make a whole lot worse. An earlier version of this story appeared in The American Prospect.  President-elect Donald Trump has pledged to eliminate 70 to 80 percent of all federal regulations, and the Food and Drug Administration's (FDA) rulebook is near the top of his list. Close Trump adviser Newt Gingrich has denounced the FDA ...

CPR Statements: Trump Picks for EPA, Interior, Energy Chart the Wrong Course for Our Health, Our Environment, and Our Energy Policies

by Brian Gumm | December 13, 2016
President-Elect Donald Trump has selected Oklahoma Attorney General Scott Pruitt as his Administrator of the U.S. Environmental Protection Agency (EPA), Rep. Ryan Zinke (R-MT) as his Interior Secretary, and former Texas governor Rick Perry as his Energy Secretary. The Center for Progressive Reform (CPR) has released statements on the picks. Robert Glicksman, CPR Board Member, on Department of the Interior Secretary nominee Rep. Ryan Zinke (R-MT):  Donald Trump's selection of Rep. Ryan Zinke (R-MT) as Secretary of the Interior does nothing to ...

Trump Can't Sweep Safeguards Away as Easily as He May Think

by Matthew Freeman | December 09, 2016
In a statement Wednesday responding to President-elect Trump’s choice of climate change denier Scott Pruitt to lead the Environmental Protection Agency, CPR President Robert Verchick said that the choice was “a clear indication that the administration plans a full-throated assault on environmental protections.” In an op-ed in The New York Times this morning, CPR Member Scholar William Buzbee describes some of the challenges Pruitt and Trump will face as they undertake that regressive effort to unravel the fabric of rules ...

Racism, Cost-Benefit Analysis, and Trump Advisor Steve Bannon

by James Goodwin | November 29, 2016
What does Steve Bannon – who, despite his well-documented racism, anti-Semitism, and misogyny, was appointed as president-elect Trump's senior counselor and White House strategist – have to do with a rarified and wonky policy exercise such as regulatory cost-benefit analysis? Unfortunately, a lot, as it turns out.  From a serious policy perspective, the Trump administration's approach to governance remains terra incognita, and this is especially the case with its approach to implementing laws through regulations. So far, Trump has signaled ...

The Assault on Our Safeguards

by Thomas McGarity | November 22, 2016
We are about to experience a fifth major assault on the health, safety, environmental, and consumer protections that Congress put in place during the 1960s and 1970s, protections that most of us take for granted. And all indications are that this assault will be more intense and more comprehensive than any of the prior assaults on the governmental protections that shield our families and communities from the ravages of an unfettered free market.  In my 2013 book, Freedom to Harm, ...

What Can We Expect from a President Trump?

by Matt Shudtz | November 21, 2016
Hazy as they may be, we are all looking into our crystal balls, trying to envision what a Donald Trump presidency will mean for the world around us. The first glimpses we have of the future – Steve Bannon at Trump's right hand, Jeff Sessions as Attorney General, Michael Flynn as National Security Advisor – project something much darker and more insular than befits a nation whose arc of history is as progressive as ours. Of course, that arc is ...

The Struggle Ahead

by Matt Shudtz | November 10, 2016
Where do we stand now that the election is over and the presidential transition is beginning? That's a common question these days. Those of us striving in the public interest had come to expect progress, and now that expectation has been dashed. For eight years, President Obama and his team of dedicated public servants did something remarkable. With their deep appreciation and respect for our system of government, they created conditions ripe for a vigorous and uplifting debate about the ...

Hair-Raising Ordeal Draws Attention to Lack of Oversight of Cosmetics, Personal Care Products

by Mollie Rosenzweig | November 01, 2016
Last year, consumers linked Wen hair products to sudden and dramatic hair loss. The story generated a flurry of national coverage and spurred increased interest in just how closely the Food and Drug Administration (FDA) regulates our cosmetic products. Indeed, Wen hair products are not alone in causing dangerous side effects and containing disconcerting ingredients: Consumers have raised alarms over formaldehyde in hair straightening products, mercury in skin creams, and an array of toxic chemicals in children's face paint, including ...

CPR's Heinzerling Calls on Next President to Scrap White House Regulatory Review Process, Start from Scratch

by Brian Gumm | October 31, 2016
Earlier this month, the American Constitution Society for Law and Policy published a collection of essays filled with legal and policy recommendations for the next president. Center for Progressive Reform Member Scholar Lisa Heinzerling closed out the publication with a piece on improving federal environmental policy, which includes recommendations for how the next president can ensure that the White House Office of Information and Regulatory Affairs (OIRA) stays out of the way.  Under the auspices of a series of executive ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

Why the REINS Act Is Unconstitutional

Funk | Feb 14, 2017 | Regulatory Policy

Distracter-in-Chief

Freeman | Jan 25, 2017 | Regulatory Policy

The Plagiarism Caucus

Freeman | Dec 21, 2016 | Regulatory Policy
Recommended Resources:
Regulatory Policy
Regulatory Tools to Protect People & the Environment

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