REINS Act

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The Regulations from the Executive in Need of Scrutiny Act, also known as the REINS Act, is a legislative proposal designed to restrain the administrative state by amending the Congressional Review Act (CRA) of 1996. Under the CRA, Congress has the authority to issue resolutions of disapproval to nullify agency regulations. The REINS Act would broaden the CRA not only to allow Congress to issue resolutions of disapproval, but also to require congressional approval of certain major agency regulations before agencies could implement them. The REINS Act defines major agency regulations as those that have financial impacts on the U.S. economy of $100 million or more, increase consumer prices, or have significant harmful effects on the economy.[1][2] Former Wisconsin Governor Scott Walker signed the first state-level REINS Act into law on August 9, 2017.[3]


HIGHLIGHTS
  • Congresswoman Kat Cammack (R-Fla.) on January 11, 2023, introduced the REINS Act as H.R. 277 in the 118th Congress (2023-2025).[4]
  • The REINS Act was previously introduced as legislation during the 112th Congress (2011-2013), the 113th Congress (2013-2015), the 114th Congress (2015-2017), the 115th Congress (2017-2019), the 116th Congress (2019-2021), and the 117th Congress (2021-2023).[5][6][7][6]

    • Background

    The REINS Act was initially designed by Tea Party activist Lloyd Rogers in 2009. Rogers contacted former U.S. Representative Geoff Davis (R-Ky.) to propose legislation requiring that "all rules, regulations, or mandates that require citizens, state or local government financial expenditures must first be approved by the U.S. Congress before they can become effective."[8] The proposal was incorporated into the Republican Party's Pledge to America legislative agenda leading up to the 2010 election cycle and was later introduced as legislation in 112th Congress (2011-2013), the 113th Congress (2013-2015), the 114th Congress (2015-2017) and the 115th Congress (2017-2019). The U.S. House of Representatives passed every version of the legislation between the 112th and 115th Congresses. The U.S. Senate, however, had not taken action on the legislation until the U.S. Senate Homeland Security and Governmental Affairs Committee passed a version of the bill out of committee during the 115th Congress.[8][9][10][11][12]

    During the 116th Congress (2019-2021), U.S. Senator Rand Paul (R-Ky.) and Representative Jim Sensenbrenner (R-Wis.) sponsored a version of the REINS Act.[5][13][7] In July 2020, the U.S. Senate Homeland Security and Governmental Affairs Committee passed the REINS Act with a party-line vote of 8-5.[14] Rand Paul introduced the REINS Act on January 27, 2021, during the 117th Congress.[7]

    Congresswoman Kat Cammack (R-Fla.), joined by more than 170 Republican cosponsors, introduced the REINS Act as H.R. 277 in the 118th Congress (2023-2025) on January 11, 2023.[4]

    What would it do?

    The REINS Act is designed to amend the Congressional Review Act (CRA) of 1996. Under the CRA, Congress has the authority to issue resolutions of disapproval to nullify certain agency regulations that it considers to be harmful. The REINS Act aims to expand the CRA to require congressional approval of certain major agency regulations before those regulations are implemented. Rather than issuing resolutions of disapproval after a rule takes effect, the REINS Act seeks to give Congress the preemptive authority to halt the initial enactment of certain regulations.[2]

    The REINS Act defines major agency regulations as those that have financial impacts on the U.S. economy of $100 million or more, increase consumer prices, or have significant harmful effects on the economy.[2]

    In addition, the REINS Act would require Congress to examine all existing regulations that have financial impacts on the U.S. economy of $100 million or more.[5]

    Sponsors

    Sponsors of the REINS Act of 2023 (118th Congress 2023-2025)

    In the U.S. House of Representatives

    Congresswoman Kat Cammack (R-Fla.) introduced the REINS Act as H.R. 277 in the 118th Congress (2023-2025) on January 11, 2023.[4] The bill had more than 170 Republican cosponsors as of January 20, 2023.[4]

    Sponsors of the REINS Act of 2021 (117th Congress 2021-2023)

    In the U.S. Senate

    The REINS Act of 2021 was sponsored by U.S. Senator Rand Paul (R-Ky.) in the U.S. Senate on January 27, 2021. "By making Congress more accountable for the most costly and intrusive federal rules, the REINS Act would give Kentuckians and citizens throughout the country a greater voice in determining whether these major rules are in America’s best interests," said Sen. Paul in a statement about the 2021 version of the bill.[15]

    U.S. Senator Rand Paul (R-Ky.)

    The bill had 28 cosponsors as of February 26, 2021:[6]

    Sponsors of the REINS Act of 2019 (116th Congress 2019-2021)

    In the U.S. Senate

    The REINS Act of 2019 was sponsored by U.S. Senator Rand Paul (R-Ky.) in the U.S. Senate. "Last Congress, we made tremendous progress on relieving the burdens placed on the American people by unelected bureaucrats, but much more remains to be done," said Senator Paul in a statement about the 2019 version of the bill. "Passing the REINS Act would reassert Congress’ legislative authority and help us further reduce unnecessary, overreaching government interference in Americans’ everyday lives."[16]

    The bill had 42 cosponsors as of July 22, 2020:[7]


    In the U.S. House of Representatives

    The REINS Act of 2019 was sponsored by U.S. Representative Jim Sensenbrenner (R-Wis.) in the U.S. House of Representatives. In a statement released the day he sponsored the bill, Sensenbrenner said, "It is time for Congress to reclaim its Article I authority by restoring the constitutional balance of power. The American people deserve a more direct say in regulations that could impact their everyday lives. The REINS Act would place a desperately needed check on unelected bureaucrats, saving taxpayers money."[17]

    The bill had 15 cosponsors as of July 22, 2020:[18]

    Provisions

    The full text of the REINS Act, introduced by U.S. Representative Kat Cammack (R-Fla.) during the 118th Congress, is provided below:[19]


    The REINS Act proposes the following procedures, according to an analysis by the Congressional Research Service:

    “ The bill sets forth the congressional approval procedure for major rules and the congressional disapproval procedure for nonmajor rules. Agencies are prohibited from allowing a major rule to take effect without the congressional review procedures set forth in this bill.[20][21] ”


    The REINS Act proposes the following changes:

    “ The bill revises provisions relating to congressional review of agency rulemaking to require federal agencies promulgating rules to:
    1. identify and repeal or amend existing rules to completely offset any annual costs of new rules to the U.S. economy; and
    2. publish information about the rules in the Federal Register and include in their reports to Congress and to the Government Accountability Office (GAO) a classification of the rules as major or nonmajor rules and a complete copy of the cost-benefit analysis of the rules, including an analysis of any jobs added or lost, differentiating between public and private sector jobs.[20][21]
    		 ”


    The REINS Act defines the following regulations as major rules:

    “ A 'major rule' is any rule that the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in:
    1. an annual cost on the economy of $100 million or more (adjusted annually for inflation);
    2. a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or
    3. significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.[20][21]
    		 ”

    Support and opposition

    A 2016 report from the Competitive Enterprise Institute argued that the REINS Act would improve relations between Congress and the administrative state for two reasons.[22] First, the report argued that the REINS Act would "help restore the separation of powers" by making members more accountable for regulatory decisions.[22] Second, the CEI report contended that the REINS Act would "increase transparency and accountability in the rulemaking process" because agencies would know that Congress had the final say before a new regulation could take effect. The report argued:[22]

    “ REINS can provide common ground for conservatives and progressives to work together. Progressives tend to support an active approach to regulation, but that support depends on the content of each individual regulation. REINS would likely still let most, if not all major agency regulations pass—but with some democratic accountability.[21] ”


    Jonathan H. Adler wrote in an opinion piece in The Regulatory Review that the REINS act would create accountability in the regulatory process:[23]

    “ Delegation of regulatory authority to federal agencies is a fixture of modern administrative law. It is not going away any time soon. But the REINS Act would provide a measured – and wholly constitutional – means to bring under control a practice that undermines political control of and accountability for major regulatory policy decisions.[21] ”


    Opponents of the REINS Act have argued that the proposal would make it harder for agencies to protect the public and follow the law, according to a 2017 report from the Institute for Policy Integrity at the New York University (NYU) School of Law.[24] The report claimed that Congress cannot make the highly technical decisions necessary for good regulation because of "its wider docket of issues and its relative lack of expertise on each given regulatory matter."[24] The report also argued that the REINS Act raises constitutional concerns because delayed regulations could face court challenges that resemble INS v. Chadha (1984). In Chadha, the U.S. Supreme Court held that one-house legislative vetoes are unconstitutional because they violate the separation of powers outlined in the U.S. Constitution.[24]

    “ The REINS Act is legally questionable and potentially unconstitutional. The major rule review process could result in situations where Congress would be implicitly repealing earlier statutes by omission alone. In particular, in situations where regulations have been issued pursuant to mandatory requirements in earlier statutes, especially those with specific deadlines, Congress would, by failing to approve a rule, effectively be striking down the requirements in those earlier statutes without ever voting directly on an amendment. Courts strongly disfavor implied repeals of statutes.[21] ”


    The Public Citizen, a nonprofit advocacy organization, argued against the REINS act, stating that it threatens the separation of powers and "politicizes the regulatory process":[25]

    “ The REINS Act would inappropriately – but deliberately – inject political considerations into a regulatory process that is supposed to be based on objective agency science and expertise. Federal agencies employ personnel with policy, scientific, and technical expertise to produce smart and sensible regulations. Allowing Congress to have the final say on regulations would give lobbyists, special interest groups, and those who provide legislators with campaign contributions even more influence in shaping a rule.[21] ”

    Attempts to achieve goals of the REINS Act in other legislation

    Foreign Investment Risk Review Modernization Act of 2018

    On June 14, 2018, the U.S. Senate voted down the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) by a 32-62 vote. The legislation had been amended in May 2018 with the support of U.S. Senator Pat Toomey (R-Pa.) to mirror elements of the REINS Act.[26][27]

    FIRRMA would have granted the Committee on Foreign Investment in the United States (CFIUS), a panel housed within the Treasury Department, increased authority to review transactions related to direct foreign investments for potential security hazards. Toomey’s amendment, inspired by the REINS Act, would have required a simple majority for congressional approval for CFIUS’ major regulations—those with an annual economic impact upwards of $100 million.[26]

    The Trump administration opposed FIRMMA on the grounds that the legislation “could potentially result in CFIUS being unable to establish regulations, thereby undermining national security,” according to The Washington Post.[28]

    State REINS Acts

    Wisconsin

    See also: REINS Act (Wisconsin)

    The Wisconsin version of the REINS Act, 2017 Wisconsin Act 57, was signed into law by Governor Scott Walker on August 9, 2017. It took effect on September 1, 2017. This was the first REINS Act to be implemented at the state level.[3]

    According to an article by Godfrey & Kahn attorneys Jodi Jensen and Mike Wittenwyler, published by National Law Review on August 10, 2017, the Wisconsin version of the REINS Act includes the following provisions:[3]

    “
    • Provides for more public input during an agency’s administrative rule writing process
    • Requires legislation authorizing any administrative rule with compliance and implementation costs of $10 million or more over a two-year period
    • Allows the Joint Committee for the Review of Administrative Rules (JCRAR) to indefinitely suspend promulgation of a proposed rule for reasons specified in statute[21]
    		 ”
    —Jodi Jensen and Mike Wittenwyler, "Wisconsin REINS Act Signed Into Law" (2017)[3]


    Wisconsin Supreme Court upholds enforcement of state REINS Act (2019)

    On November 20, 2017, the Wisconsin Institute for Law and Liberty (WILL) filed a lawsuit against Tony Evers, the Wisconsin Superintendent of Public Instruction, alleging that Evers and the Wisconsin Department of Public Instruction (DPI) were in violation of the state's REINS Act. WILL’s lawsuit was filed as an original action with the Supreme Court of Wisconsin and asked the court to issue a declaratory judgment ordering Superintendent Evers to comply with the state REINS Act. WILL filed its suit on behalf of two school board members and two public school teachers.[29][30][31]

    On April 13, 2018, the Wisconsin Supreme Court announced its decision to hear WILL's case against Evers and DPI.[32] In preliminary oral arguments on May 15, 2018, the court considered whether or not Superintendent Evers can select his own legal representation in the case or must be represented by the state attorney general and Department of Justice as ordered by Governor Scott Walker (R).[33][34] It ruled that Evers could choose his own lawyers in the case on June 27, 2018.[35]

    The Wisconsin Supreme Court heard oral arguments in the case on April 10, 2019.[36] On June 25, 2019, the court ruled that the state superintendent must follow the REINS Act and submit new rules to the governor before they can go into effect.[37] The court held that the Wisconsin Constitution allows the state REINS Act to apply to the DPI because the power to make rules is legislative and controlled by the legislature.[37] For more information about this case, see this page.

    Florida

    See also: Florida REINS-style state law

    A Florida law with similar provisions to the REINS Act was enacted by the Florida State Legislature on November 16, 2010, over the veto of Governor Charlie Crist. It amended the Florida Administrative Procedure Act to require legislative approval of agency rules with associated economic costs of $1,000,000 or more over five years before they can take effect, among other provisions.[38]

    Laws of Florida, Chapter 2010-279, includes the following provisions, according to an analysis by the Florida State Legislature:[39]

    “
    • Requires agencies to prepare statements of regulatory costs (SERCs) and economic analyses for certain proposed rules, amended rules, and rule repeals;
    • Stays the implementation of rules that trigger economic-development thresholds until the Legislature has had an opportunity to review and ratify them; and
    • Gives 'substantially affected persons' additional time to review rules and submit lower-cost regulatory alternatives to the agencies.[21]
    		 ”

    See also

    External links

    Footnotes

    1. ↑ Congressional Research Service, "Disapproval of Regulations by Congress:Procedure Under the Congressional Review Act," October 10, 2001
    2. ↑ 2.0 2.1 2.2 GovTrack, "H.R. 26: Regulations from the Executive in Need of Scrutiny Act of 2017—Overview," accessed July 14, 2017
    3. ↑ 3.0 3.1 3.2 3.3 National Law Review, "Wisconsin REINS Act Signed Into Law," August 10, 2017
    4. ↑ 4.0 4.1 4.2 4.3 Congress.gov, "H.R.277," accessed January 20, 2023
    5. ↑ 5.0 5.1 5.2 Reason.com’, “Rand Paul's REINS Act Finally Makes It to Senate Floor,” May 17, 2017
    6. ↑ 6.0 6.1 6.2 Congress.gov, "S.68 -A bill to amend chapter 8 of title 5, United States Code, to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law," accessed February 9, 2021
    7. ↑ 7.0 7.1 7.2 7.3 Congress.gov, "S.92 - Regulations from the Executive in Need of Scrutiny Act of 2019," accessed February 8, 2021
    8. ↑ 8.0 8.1 The Jackson Sun, "We were never closer to seeing REINS Act become law," January 4, 2017
    9. ↑ Boston Herald, "Smith: Congress can regain power with REINS," January 6, 2017
    10. ↑ The Heritage Foundation’, “Taking the REINS on Regulation,” October 12, 2011
    11. ↑ The Heritage Foundation, “'REINS Act of 2013': Promoting Jobs, Growth, and Competitiveness,” March 6, 2013
    12. ↑ ‘’Congress.gov’’, “H.R.427 - Regulations from the Executive in Need of Scrutiny Act of 2015,” accessed July 13, 2017
    13. ↑ Reuters, "Republicans act to curb U.S. regulation; Democrats poised for fight," January 5, 2017
    14. ↑ Bloomberg Law, "Senate Panel Moves Regulatory Bills to Aid Economic Recovery (1)," July 22, 2020
    15. ↑ Rand Paul, "Dr. Rand Paul Reintroduces the REINS Act for 2021," January 28, 2021
    16. ↑ Official Website, U.S. Senator Rand Paul, "Senators Reintroduce REINS Act," accessed February 8, 2019
    17. ↑ Jim Sensenbrenner, "Sensenbrenner Leads Effort to Rein in Unelected Bureaucrats," July 25, 2019
    18. ↑ Congress.gov, "H.R.3972 - Regulations from the Executive in Need of Scrutiny Act of 2019," accessed July 22, 2020
    19. ↑ Kat Cammack, "H.R.277 - Regulations from the Executive in Need of Scrutiny Act of 2023," accessed January 31, 2023
    20. ↑ 20.0 20.1 20.2 GovTrack, "H.R. 26: Regulations from the Executive in Need of Scrutiny Act of 2017—Library of Congress Summary," accessed July 14, 2017
    21. ↑ 21.0 21.1 21.2 21.3 21.4 21.5 21.6 21.7 21.8 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    22. ↑ 22.0 22.1 22.2 Competitive Enterprise Institute, "REINing In Regulatory Overreach," November 15, 2016
    23. ↑ The Regulatory Review, "The REINS Act: A Constitutional Means to Control Delegation," July 25, 2011
    24. ↑ 24.0 24.1 24.2 Institute for Policy Integrity, "The REINS Act Is Burdensome, Irrational, and Legally Questionable," June 2017
    25. ↑ The Public Citizen, "What is the REINS Act and why do we oppose it?" January 3, 2017
    26. ↑ 26.0 26.1 The Weekly Standard, "Senate to Vote on Measure Giving Congress a Say in Foreign Investment Review Process," June 14, 2018
    27. ↑ Congress.gov, "S.2098 - Foreign Investment Risk Review Modernization Act of 2018," accessed June 14, 2018
    28. ↑ The Washington Post, "Senate sides with Trump, votes down GOP plan to expand Congress’s national security oversight," June 14, 2018
    29. ↑ Watchdog.org, "Conservative group sues Department of Public Instruction for violating the REINS Act," November 20, 2017
    30. ↑ Wisconsin Public Radio, "WILL Challenges DPI's Rule-Making Authority," November 20, 2017
    31. ↑ CBS 58, "Lawsuit filed against Evers over handling of education policies," November 20, 2017
    32. ↑ Wisconsin State Journal, "Supreme Court takes up Department of Public Instruction case again," April 14, 2018
    33. ↑ Star Tribune, "Wisconsin attorneys urge court to let them represent Evers," May 15, 2018
    34. ↑ Milwaukee Journal Sentinel, "Scott Walker vs. Tony Evers: The governor and a Democratic challenger go before the Supreme Court," May 15, 2018
    35. ↑ State Bar of Wisconsin, "Supreme Court Says State Superintendent of Schools Can Choose Counsel," June 27, 2018
    36. ↑ Wisconsin Supreme Court, "Table of Pending Cases, April 2, 2019," accessed April 5, 2019
    37. ↑ 37.0 37.1 Supreme Court of Wisconsin, "Kristi Koschkee et al. v. Carolyn Stanford Taylor," June 25, 2019
    38. ↑ Florida House of Representatives, "CS/CS/HB 1565 (2010) - Rulemaking," accessed February 1, 2023
    39. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named analysis
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