Little noticed part of GOP bill could ‘make it impossible to regulate’
Government agencies have proposed dozens of important regulations so far this year. One specifies the types of control cords that can be used on custom window treatments, and another would effectively require automakers to convert two-thirds of all new passenger cars to electric technology.
Under a little-noticed facility in a house bill passed this month, all those ordinances must be submitted to Congress for a vote before they can take effect.
“It may seem like it’s in the weeds, but it affects all of us,” said Susan Dudley, the director of the regulatory studies center at George Washington University, who was the top regulatory official in the George W. Bush administration. She was one of many leading experts who were unaware that the bill contained this provision.
The Republican legislation, which is not expected to become law in its current form, has drawn attention primarily for its part in the debate over raising the country’s borrowing limit, and for its proposals to reduce federal deficits over the next decade. to insist. But her effort to reshape the federal regulatory process could arguably have a deeper impact on the future functioning of government.
While Congress passes laws each year, federal agencies tend to roll out many, many more regulations. Those long, often technical rules help businesses understand how government works, setting standards for allowable pollution, setting how much doctors and hospitals are paid for medical care, and explaining countless technical or vague terms. and processes in legislation really mean. The rule-making process often takes years and requires a period of public comment before a regulation becomes final.
Regulations are not apolitical. As Congress has become more polarized and deadlocked, presidents have become more aggressive in pushing important policies through them. Barack Obama tried to use regulations to limit carbon emissions from power plants. Donald J. Trump used rules to deny green cards to immigrants who had used certain social benefit programs. And President Biden hopes to use regulation to forgive hundreds of billions of dollars in student loans.
But many important regulations make less headlines and most rely on technical expertise from federal agencies that Congress would struggle to replicate. This year’s list includes an update of the technical standards for mammography equipment, and one that clarifies when a gun’s features mean it’s designed shot from the shoulder. A recent Medicare Advantage payment rule changed the formula intended to pay private insurers for covering customers with vascular disease, based on a detailed review of medical records.
The legislation would require Congress to approve each of these actions before they go into effect, as part of a fast-track legislative process that would force up or down votes on the rules without any possibility of amendment. Any major rule that failed to pass by both houses of Congress could not be proposed again for at least a year. The current law allows Congress to override a regulation it doesn’t like, but the process requires majority votes by both houses of Congress and a signature by the president, meaning nearly all regulations go into effect.
The legislation to change this standard was first written more than a decade ago by Geoffrey Davis, then a Republican congressman from Kentucky. Mr. Davis, who had a business background, was concerned about the number of expensive regulations he saw passed when he was in government.
One day he was visited in his county office, and “this gentleman asked me one question, and this was my turning point: ‘Why can’t you just vote on this?'” said Mr. Davis. “And it just clicked.”
Supporters of Mr. Davis’ idea, known as the REINS Act — for executive branch ordinances that must be scrutinized — say it would force Congress to take more responsibility for being clear about what his laws mean. Mr. Davis said he felt Congress had too often written vague laws that delegated too many important decisions to executive agencies to decide.
“It would increase incentives for Congress to be more proactive,” said Jonathan Adler, a professor of law at Case Western Reserve University, who wrote an article supporting the idea in 2011. “We need legislators to legislate, and part of legislation is accountability for the big policy decisions that are made.”
Others, of course, like the idea because it would make it more difficult for the government to enact regulations in the first place – the same reason many regulatory experts are less enthusiastic about the REINS Act.
“The practical impact of this in a time of divided governments such as we have today is that I don’t think any major rule will ever be enforced,” said Jonathan Siegel, a professor of law at George Washington, who has written about the bill by length.
If the Republican House wanted to deny the Biden administration’s policy victories, it could simply vote against any proposed ordinance. Those could be rules explaining how large parts of last year’s Inflation Reduction Act should work. In a REINS Act world, the Republican House could simply block those rules, effectively thwarting legislation passed by a previous Congress.
“If you starve the beast by never allowing the implementing rules to be enacted, then you’ve effectively nullified the legislation,” said Sally Katzen, a co-director of the Legislative and Regulatory Process Clinic at NYU, who is the top regulatory body. official in the Clinton administration. She pointed out that Republicans tend to schedule votes on the REINS bill when there is a Democratic president, but not when a Republican is in office.
“What they want to do is make it impossible to regulate,” said Nicholas Bagley, a law professor at the University of Michigan.
The obstruction can work both ways. Imagine how the Democratic House would have voted on Trump-era rules that resulted in cutting all family planning funding for Planned Parenthood, limiting civil rights protections for transgender Americans, or reversing controls on power plant emissions.
Mr. Davis said his intention was not to block regulations on a large scale. His hope was to improve the Congressional process. “I want to make the legislation specific enough to force dialogue between two parties,” he said.
But Congress is already having trouble writing legislation in technical and contentious areas. Many Republicans don’t like environmental regulations interpreting the Clean Water Act, which asks the EPA to limit pollution harmful to human health. But Congress hasn’t substantially revised that law in decades. Simply voting on rules about how those old laws apply to new scientific findings may not be enough to create robust new legislation.
“It’s hard to get anything through Congress, even in the best of times, and now is not the best of times,” Mr. Bagley said. “It’s a recipe for downtime.”