Monday, September 23, 2013

House Passes Legislation Requiring Congressional Approval of Major Federal Regulations

During this first session of the 113th Congress, the House has passed legislation, by a vote of 223-183, increasing the accountability for and transparency in the federal regulatory process. The Regulations from the Executive in Need of Scrutiny Act (REINS), H.R. 367, would require Congress to take an up-or-down, stand-alone vote on all new major regulations adopted by the SEC, CFTC and other federal regulatory agencies before they can be enforced. Major regulations are defined as those that have resulted in or are likely to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or U.S. competitiveness.

However, HR 367 allows a major rule to take effect for 90 calendar days without such approval if the President determines that the rule is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement.

H.R. 367 essentially replicates the text of the REINS Act as passed by the House during the 112th Congress. As a result, it includes revisions to the legislation, made during the Rules Committee's markup of the bill, which post-date the Committee's last review and markup of the legislation. These revisions principally refine the parliamentary procedures for introduction of, and consideration and floor action on, REINS Act approval resolutions. They serve to maximize the efficiency of the Act's parliamentary procedures and prevent undue incursions on floor time needed for other legislative business.

The Act provides that no determination, finding, action, or omission under the legislation will be subject to judicial review. The measure does allow a court to determine whether a federal agency has completed REINS Act requirements necessary for a rule to take effect, a determination which would enable a court to determine if a suit concerning the rule is ripe.

In addition, the enactment of a joint resolution of approval cannot be interpreted to serve as a grant or modification of statutory authority by Congress for the promulgation of a rule, and cannot extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and cannot form part of the record before the court in any judicial proceeding concerning a rule except for purposes of determining whether or not the rule is in effect.

Presidential Veto Message. The Obama Administration is strongly opposed to the passage of S. 367. In a Statement of Administration Policy, the President said that the legislation represents a radical departure from the longstanding separation of powers between the Executive and Legislative branches that would delay and, in many cases, thwart implementation of statutory mandates and execution of duly-enacted laws, create business uncertainty, undermine much-needed protections of the American public, and cause unnecessary confusion.