The REINS act: Unbridled impediment to regulation

The Regulations from the Executive In Need of Scrutiny Act (“REINS Act”) is a legislative proposal that would greatly increase congressional control over administrative agency rulemaking. Under the bill, no “major rule” (a rule with a large economic impact) could go into effect unless Congress affirmatively approved it by adopting a joint resolution. The resolution would have to be passed by both houses of Congress and signed by the President (or repassed by a two-thirds vote in each chamber in the event of a presidential veto). The House of Representatives has repeatedly passed REINS Act bills during the past four years on near-party line votes, and the 114th Congress, under unified Republican control, may give even more impetus to the proposal. This Article criticizes the REINS Act bill on the basis that it would create an unmanageable workload for Congress, as well as unacceptable risks of stalemating the development of important regulations. The Article also questions the constitutionality of the bill. Some authors contend that the REINS Act would be valid, arguing that Congress may treat new major rules as mere proposals that have no legal force unless Congress affirmatively adopts them. In contrast, this Article argues that the proposal theory is a fiction that does not accurately describe the status of rules under the Act; and when the fiction is stripped away, the bill's provisions bear a fatal resemblance to a one-house legislative veto, which the Supreme Court held unconstitutional in INS v. Chadha. Finally, the Article discusses experiences with comparable legislation at the state level.