It’s not often that I agree with The New York Times, but when they’re right, they’re right.
The congressional Republicans’ proposed debt ceiling plan—the Limit, Save, and Grow Act (LSGA) of 2023, “has mostly attracted attention for its part in the debate about raising the country’s borrowing limit and for its proposals to reduce federal deficits over the next decade,” the NYT writes. “But its effort to reshape the federal regulatory process could arguably have a deeper impact on the future functioning of government.”
The Republican bill incorporates the REINS (Regulations from the Executive in Need of Scrutiny) Act, which has been introduced in Congress seven times since 2011 and has regularly been passed by the House and stalled in the Senate.
REINS would flip the script on federal regulation. The way things have stood for decades, Congress passes extensive regulations on the American people and our businesses and other activities, and it leaves it to the executive branch to work out the details. The courts generally accept the agencies’ decisions, under a principle called Chevron deference, after a 1984 Supreme Court decision.
That has afforded federal agencies vast authority to decide everything from how much water your washing machine can use to whether you are allowed to fill in a narrow rut in the ground on your property.
The idea is this: if the wording of a statute is ambiguous or does not specifically forbid something some executive branch agency would like to do in an area covered by the legislation, the agencies, president, and courts can assume the proposed rule must have been okay with Congress, or the legislature would have said so in the text of the statute. Accurately predicting the precise manifestations of dishonesty among future presidential administrations is apparently one of the major duties of Congress under the Constitution.
Currently, under the Congressional Review Act of 1996, Congress can cancel agency rules—provided both the House and Senate can work up two-thirds majorities to override the inevitable presidential veto, which is always unlikely.
The REINS Act would strengthen Congress’ hand by requiring congressional approval before presidents could implement major agency rules, which are defined as costing the U.S. economy $100 million or more, creating major price increases, or significantly impeding American economic activity.
George Washington University law professor Jonathan Seigel characterizes the proposed LSGA provision as an insurmountable impediment to agencies’ ability to create rules.
“The practical impact of this in a time of divided government like we have now is that I think no major rule would ever get done,” Siegel told The New York Times.
I am by no means convinced that no rules would be written “in a time of divided government,” but I certainly share Siegel’s dream.
Another expert quoted in the article interestingly characterizes the Biden administration as a “beast” and brings up the dirty word “nullified”: “’If you starve the beast by never allowing the implementing regulations to issue, then you have in effect nullified the legislation,’ said Sally Katzen, a co-director of the legislative and regulatory process clinic at New York University who was the top regulatory official in the Clinton administration,” the story reports.
Starving a beast sounds like rather rough treatment, but since this is clearly a very bad beast, I’ll allow Katzen her metaphor and join in her sentiment in practical terms.
Katzen’s use of the word “nullified” is rather unfortunate. The notion that states have the authority to nullify federal laws has long been subjected to harsh criticism. Katzen suggests that members of Congress would be doing the same thing if they voted to cancel executive branch interpretations of … laws Congress passed. That seems rather different to me, but I can forgive it since we’re evidently on the same side about starving the beast.
Expanding on that thought, the NYT quotes a law professor who knows just what’s going on here, by golly: “What they want to do is to make it impossible to regulate,” said Nicholas Bagley, a law professor at the University of Michigan.
I wish I could share Bagley’s optimism about that, but I suspect that the great army of people in the federal government who love to jam spiky regulations into every nook and cranny of American life will find a way to deploy their talents on occasion. However, I do appreciate Bagley’s willingness to think big.
Now, some may quibble that the NYT article seems rather wistful about the potential loss of this regulatory power, but I think that’s just the paper being tactful. We all know how punctiliously fair The New York Times is.
In a nation deeply divided by politics, it is heartening to find so much on which to agree with The New York Times on such an important subject as regulation. Perhaps there is hope for this nation after all.
Eh, probably not.
T. Karnick is a senior fellow and director of publications for The Heartland Institute, where he edits Heartland Daily News and writes the Life, Liberty, Property e-newsletter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.