Professor Ronald M. Levin ·
83 Geo. Wash. L. Rev. 1446 ·
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.
