Smith: Congress can regain power with REINS

When I was counsel to former U.S. Rep. Geoff Davis (R-Ky.) in the 112th Congress, a constituent asked why Congress wasn’t accountable for the cost of federal regulation. The simple answer was that Congress should be, but isn’t in any meaningful way.

The Constitution is clear that “all legislative powers” are granted to Congress. The president ensures that duly enacted laws are faithfully executed, and the judiciary settles disputes over the application of laws. But that basic structure has deteriorated over the last several decades.

Davis resolved to address that shortcoming with the Regulations from the Executive in Need of Scrutiny, or REINS, Act. The act would require Congress to take an up-or-down vote on any executive branch rule or regulation with an annual economic impact of $100 million or more.

The House has passed the REINS Act four times, but it hasn’t moved through the Senate and onto the president’s desk. In short, Congress remains insufficiently accountable for the executive branch’s use of delegated legislative power.

Over the last eight years, Republicans repeatedly assailed President Obama’s “executive overreach.” From immigration to carbon-dioxide regulation to water regulations and a federal minimum wage, the outgoing president pushed executive-branch power to its limit. Now that Republicans control both the White House and Congress, will they vote to restore the balance of power among the three branches of federal government?

Over time, Congress has become increasingly lazy. Writing laws was never easy. With somewhere between 60 and 316 federal agencies serving a population of nearly 325 million, the task has become exceptionally complicated. When the going gets tough, Congress gets to delegating.

But congressional laziness is only part of the problem. The delegation model also is politically expedient. Congress is able to take credit for laws that turn out to be popular and shift blame to the president when things don’t work out as planned.

Statutory “blanks” and loose language effectively give the president and agency bureaucrats the ability to legislate without Congress. There’s no better example than the Obama administration’s Clean Power Plan, which aims to regulate carbon dioxide. When Congress initially passed the Clean Air Act, carbon dioxide wasn’t contemplated as a pollutant. Republicans in Congress railed against the president’s legislation-by-regulation to no avail. Thankfully the rule was put on hold by the Supreme Court and likely will be withdrawn under the new administration. Nevertheless, many Democrats cheered Obama’s efforts. They may find a renewed interest in the legislative process under President Donald Trump.

Congress and President Trump have the opportunity to restore power to the branch that’s closest and most accountable to the people. Congress may be willing to reclaim its responsibility, but it takes an exceptional politician to reduce the power of his office voluntarily. Trump might turn out to be the type of president. If he’s not, Republicans may find a healthy number of Democrats willing to join Republicans in overriding his veto of the REINS Act.

Cameron Smith is state programs director and general counsel for the R Street Institute, a think tank in Washington. He wrote this for InsideSources.com.

Originally Published: January 6, 2017 at 12:00 AM EST