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 ...

The Misleading Argument Against Delegation

by Daniel Farber | May 03, 2016
It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative ...

Yes, Senator Cardin's Chesapeake Bay Bill Is Grounded in Constitutional Law

by Yee Huang | November 24, 2009
On Monday, CPR Member Scholars and others sent a memorandum to Senator Ben Cardin that addressed the constitutionality of S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act of 2009. At a Senate Subcommittee on Water and Wildlife hearing earlier this month, one witness contested the key provisions of S. 1816, asserting that they are unconstitutional with respect to the Tenth and Eleventh Amendments of the U.S. Constitution. The memo, signed by CPR Member Scholars Robert Adler, William Andreen, ...

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