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Sunday, November 20, 2011

Regulatory Changes, Part 2: Congressional Approval of Regulations

I'll be blogging a little bit about some basic changes to our regulatory system that are percolating in Congress.  A lot of these ideas (and others just as fundamental) have been proposed before, but given the current political climate passage of some or all of these ideas may be more likely now than in a long time, at least if the 2012 elections go the GOP's way.  The first installment of this series, about the re-institution of formal rulemaking, can be found here.

The second idea I want to talk about is the proposal to require congressional approval before regulations take effect.  Under current law, major regulations are subject to a disapproval vote by Congress (not a legislative veto, but a full-blown statute wiping out the reg -- the statutory provision allows some fast-tracking of such disapproval votes, which is what it adds to Congress's inherent power to wipe out a regulation by statute).  S. 299 and H.R. 10, the latter of which is known as the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011, would change this.  Under these proposals "major rules" (that term being defined more broadly than under the current Executive Orders setting forth OMB review of rules) would be presented to Congress, which would have 70 days to approve them by joint resolution.  If it didn't approve the rule then the rule could not take effect.  The President could force a rule to go into effect for 90 days under certain limited circumstances.

Leave aside constitutional questions, such as whether a joint resolution would still fall short of the bicameralism needed to enact legislation, despite the fact that the agency, presumably though not necessarily speaking for the President, proposed the regulation.  As a simple matter of policy this seems to be a terrible idea.  Agencies often have to make difficult balancing decisions when they seek to put into effect  broad congressional mandates.  The idea that Congress would have to vote on the actual ox-goring decisions made by agencies makes me wonder if any significant regulation would emerge from this process, or whether instead we'd end up with an endless cycling process by which agencies propose regs and different factions of Congress succeed in thwarting the construction of a coalition in favor.  Or maybe at some point an agency would simply give up.  Or start enforcing statutes on an under-the-table, enforcement action-by-enforcement action approach, with, at most, non-binding guidance documents giving the public any clue about the agency's general thinking.  (I suggested that might also be a possible outcome of another current proposal's plan to force agencies to engage in formal, trial-type procedures when rulemaking.)

Defenders of the provision argue that it would make Congress accountable, by forcing it to vote up or down on the actual impacts of the grandly-worded but vague statutes it sometimes like to enact.  I appreciate the argument in theory, but I do wonder if there is merit to Jerry Mashaw's argument from the 1980's that agencies should be the ones responsible for making hard regulatory decisions, at least when they come down to putting them into concrete mandates.  At the very least, this seems to be true to the extent we want those decisions to be more technocratic and somewhat less infused with unadulterated politics.

There are lots of other things one could say about this provision, but I will leave the matter with one question someone raised during a discussion of this provision at the ABA conference last week.  Say this provision is enacted, and Congress votes up a particular regulation.  Does the regulation get any judicial review at all, beyond classic rational basis review, since now it's the product of Congress and not an agency?  In other words, would this provision do away with "arbitrary and capricious" review of the major rules subject to that provision's congressional vote requirement?  It's hard to see an answer other than "yes" -- i.e., no A&C review.  That might be OK in light of the fact that it would be Congress essentially doing the hard look review (though it's surely doubtful whether Congress's criteria on review would be similar to those of a court's on judicial review).  But if so, then this provision would work a massive change in the role of the courts in our administrative law system -- an "avulsive change," to use Justice Scalia's disparaging language from United States v. Mead Corp..  It's this type of realization that illustrates just how far-reaching (yes, radical) some of these provisions are.

Posted by Bill Araiza on November 20, 2011 at 06:03 AM | Permalink


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Although the provision may well impliedly amend many existing delegations, it isn't quite as clear that it would have a similar effect on delegations subsequent to the enactment.

Look at the history of 1 U.S.C. § 109 (Repeal of statutes as affecting existing liabilities) for example. Over time courts have found that the principle that one Congress may not bind a future one, to mean that the language requiring an "express statement" doesn't actually mean an express statement, but rather a "fair implication will do".

There is a discussion in US v. Holcomb (7th Cir. 2011), by Posner in dissent at 37-8.

Posted by: brad | Dec 7, 2011 12:12:18 PM

I appreciate the corrections. As the focus of my post had been on the policy wisdom of the proposal, not its constitutionality, I had assumed that the constitutional objections I had heard about focused on presentment, since I could not figure out another constitutional issue the proposal might raise. Andy's and Jonathan's comments prompted me to take a closer look.
As it turns out there is a Chadha-based argument against the proposal, though it's not the presentment argument I had originally assumed. One witness testifying before Congress argued that the proposal possibly violates the spirit of Chadha, by allowing either house to stop an agency action. The witness concedes that the proposal itself contemplates agency action not having full legal effect until congressional approval, thus mitigating this argument. But the witness responds that such an argument implies that the proposal impliedly amends "hundreds, in [sic] not thousands, of duly enacted laws" delegating rulemaking power to agencies. See http://judiciary.house.gov/hearings/pdf/Katzen01242011.pdf (statement of Sally Katzen) at 8-9.
I think understand this argument. But it always seemed pretty clear to me that the proposal's amending effect was precisely its point -- i.e., the whole idea of the proposal is to give Congress the final say-so on the regulatory actions that come within its scope. I agree that such omnibus, non-explicit, amendment of a wide variety of delegations of power is problematic. But in terms of constitutional law, it represents, at most, a norm that's unenforceable in the courts. Indeed, to the extent this type of provision reflects bad legislative practice, I would categorize that as a policy objection.
The witness does offer a second constitutional argument, that the proposal threatens the separation of powers by eroding executive authority. See id. at 9-10. That strikes me as a considerably more complicated argument, and one that I'd need to think about before commenting. Anyone interested in that argument can look at the testimony and draw their own conclusions.

Posted by: Bill Araiza | Nov 22, 2011 9:13:33 AM

Andy is correct. There are no bicameralism and presentment problems because joint resolutions go to the President. Reasonable minds may differ on the policy merits of this proposal, but I don't think there are serious doubts about its constitutionality.


Posted by: Jonathan H. Adler | Nov 21, 2011 9:49:59 PM

joint resolutions go to the president too . . .

perhaps the proposed legislation refers to a concurrent resolution?

Posted by: andy | Nov 21, 2011 4:15:28 PM

Whoops, you're right -- sorry. I meant "presentment." Stupid mistake. Thanks for catching that.

Posted by: Bill Araiza | Nov 21, 2011 7:52:05 AM

" a joint resolution would still fall short of the bicameralism needed to enact legislation,"

Isn't a joint resolution essentially a bill? I.e., bicameralism and presentment would be needed to pass a joint resolution?

Posted by: andy | Nov 20, 2011 7:59:51 PM

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