Congress decides, not agencies: The significance of the REINvented REINS Act

It's been repeated a million times that in our constitutional republic, lawmaking power belongs to Congress. But over the years, this authority has increasingly shifted to federal agencies, often with minimal oversight. The result? An administrative state with the power to impose costly regulations without proper democratic scrutiny. That, too, has been repeated a million times.

To address this, the REINS (Regulations from the Executive in Need of Scrutiny) Act was proposed to curb unchecked rulemaking. As highlighted in my new Forbesarticle, a polished off and improved version of the REINS Act offered by Sen. Rand Paul (R-KY) and Rep. Kat Cammack (R-FL), aims to restore the balance of power (here's Sen. Paul's press release). It requires Congress to affirm "major" regulations before they can be enacted; these are the ones defined in the 1996 Congressional Review Act as having over $100 million in economic effects.

While the CRA allows Congress to revoke a rule with presidential support, such alignment is rare, making the CRA an insufficient tool for large-scale reform. Fewer than two dozen rules out of tens of thousands issued have been zapped with a resolution of disapproval.

The REINS Act would compel Congress to take explicit responsibility for the fruits of notice-and-comment lawmaking, rather than continuing to allow unelected bureaucrats to act at times in disregard of public comments and contrary to public interests.

An important feature in the REINS Act is requiring congressional approval for not only for major rules but also for significant guidance documents-an often overlooked but significant part of the regulatory process despite the fact that such "regulatory dark matter" (guidance documents, letters, circulars, and other informal directives that often escape public scrutiny) is not supposed to be legally binding on the public.

By bringing this body of material under the same oversight as formal rules, the REINS Act ensures that the entire regulatory process is more transparent and accountable.

The new REINS Act also addresses another concern. The CRA requires that rules and regulations be submitted to both houses of Congress, as well as to the Government Accountability Office. It turns out that doesn't happen, casting doubt on such rules' legality. The Act would provide injunctive relief to individuals affected by such rules, holding agencies accountable for their procedural failures.

The revamped Paul/Cammack REINS Act isn't just a technical fix; it's a necessary step to restore accountability not only to the Administrative State, but to Congress itself. As discussed in more detail in my Forbes piece, this legislation is an advancement toward ensuring that lawmaking serves the public interest and not the whims of unchecked bureaucratic power.

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