01 May 2011 Reining In Regulation by Delegation: A Guide to the REINS Act, by Ron Arnold

How Congress Can Live Up to Its Constitutional Mandate

The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.

— John Locke, Second Treatise of Government
Chapter 11, Section 141

All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.

— Constitution of the United States
Article 1, Section 1

Introduction to the REINS Act

H.R. 10, The “Regulations From the Executive in Need of Scrutiny” Act

BASICS

PURPOSE: In simplest terms, the REINS Act is a way to control runaway government regulations that have resulted from Congress irresponsibly delegating its legislative power to the executive branch.

H.R. 10, Section 2, states:

The purpose of this Act is to increase accountability for and transparency in the federal regulatory process. Section 1 of article I of the United States Constitution grants all legislative powers to Congress. Over time, Congress has excessively delegated its constitutional charge while failing to conduct appropriate oversight and retain accountability for the content of the laws it passes. By requiring a vote in Congress, the REINS Act will result in more carefully drafted and detailed legislation, an improved regulatory process, and a legislative branch that is truly accountable to the American people for the laws imposed upon them.¹

METHOD: The REINS Act achieves its goal by:

A “major rule” in the REINS Act means any rule that the Office of Management and Budget finds has resulted in or is likely to result in:

(A) an annual negative effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Thus, under the REINS Act, agency regulations with a negative economic impact of $100 million or more could not be imposed unless affirmatively approved by Congress with a joint resolution of approval and signed into law by the president, as the Constitution requires for all laws.

The REINS Act also retains existing law permitting Congress to disapprove non-major rules.⁴

SPEEDY ACTION: The REINS Act gives Congress ninety legislative days to pass a joint resolution of approval. If Congress does not act within that time period, the rule is deemed to be not approved.

The REINS Act forbids either chamber of Congress to amend the federal rule as it votes on a joint resolution of approval. This limitation is designed to ensure dialogue between Congress and the respective agencies before the rule reaches a vote in Congress.

The REINS Act also suspends the Senate’s ability to filibuster resolutions of approval in order to defeat them, with the intent to force votes on major federal rules for the sake of accountability.

If a joint resolution of approval is passed by Congress but is not signed by the President, then the rule under consideration will not take effect.

URGENT NEED: The REINS Act specifically provides flexibility for national emergencies or national security concerns by allowing a 90-day window for the President to order a major rule to take effect in response to national emergencies or national security concerns without initial Congressional approval.

JUDICIAL DEFERENCE: A joint resolution of approval enacted under the REINS Act would not serve as a grant of statutory authority for the rule itself or cure procedural defects in the making of a rule, and thus does not interfere with the normal functioning of the courts or judicial review.

CONSTITUTIONALITY: For several decades, Congress employed the legislative veto to control agency action. Under the legislative veto, Congress reserved the power to reject agency regulations with a vote by one house of Congress, or even by a single congressional committee. Legislative vetoes were not presented to the President for signature or veto, and were ruled unconstitutional by the U.S. Supreme Court in 1983. The REINS Act is not a legislative veto, but meets the constitutional requirements of bicameralism and presentment to the President.⁵

INTENT AND EFFECTS

The REINS Act is designed to improve the regulatory process by requiring congressional accountability for “major federal rules,” which have the force of law.

Regulations are especially important because they are treated by the courts as being as legally binding as congressional law. Currently, the only proviso is that the regulations must be a “reasonable interpretation” of the underlying statutes, a loose and potentially subjective standard. In disputes over regulations, the U.S. Supreme Court defers to the expertise of the agency in all cases except where arbitrary and capricious agency action can be proven, placing the regulated in an exceptionally weak position to defend themselves. The ruling case is Chevron USA v. Natural Resources Defense Council (1984). The term “Chevron deference” has since been used as a term of art, reflecting the near-hopelessness of the regulated fighting the regulator and powerfully demonstrates the need for the REINS Act.⁶

Thus, it could be concluded that the courts have essentially ruled that the Executive Branch has lawmaking power.

Perhaps most pernicious, as former Justice Department attorney Roger Marzulla said in congressional testimony, “Congress has given away to administrative agencies the power to define regulatory crimes, as well as to enforce them. As four justices of the Supreme Court have said, this constitutes a threat to liberty and democracy – and is probably unconstitutional.”⁷

The Chevron deference, which allows agencies to promulgate ambiguous regulations, then “interpret” them for the court, dangerously concentrates both the judicial and prosecutorial power in the hands of the agency.⁸

This type of governmental danger was explicitly recognized before the United States existed. The French Enlightenment political thinker, Baron de Montesquieu, wrote in The Spirit of the Laws (1748), “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”

However, the REINS Act is not based on the assumption that regulation in itself is bad. It assumes that regulation is a legitimate type of rulemaking by government agencies in the Executive Branch, designed to carry out the policy of Congress by devising the detailed rules necessary to make the policy of Congress enforceable. This arrangement has its own problems, and is known as “the administrative state.”⁹

The problem that the REINS Act is intended to solve is abuse, the excessive, irresponsible delegation of legislative authority by elected members of Congress who pass that authority to unelected officers of Executive Branch regulatory agencies, who are not accountable for the consequences.¹⁰

Under the REINS Act, scrutiny by elected representatives and their constituents becomes part of the regulatory rule-making process from the start.

Regulators in executive agencies are unelected and tend to be distant from and out of touch with those they regulate, a situation the REINS Act mitigates by bringing elected members of Congress into the process, helping to ensure that federal regulations consider the needs of American families and businesses.

The REINS Act rebalances the checks and balances between the Legislative and the Executive Branches of the United States government.¹¹

Legislative Background

THE SOURCES OF THE ACT: The REINS Act (H.R. 3765) was first introduced in the House of Representatives by Representative Geoff Davis (R-KY) with 85 co-sponsors on October 8, 2009 and its Senate companion bill (S. 3826) was introduced by Senator Jim DeMint (R-SC) with 12 co-sponsors on September 22, 2010. The current bill is H.R. 10, introduced in the House of Representatives January 20, 2011 by Representative Geoff Davis (R-KY) with 86 co-sponsors.

The website of Rep. Davis says:

The measure is the brainchild of Alexandria City Councilman Lloyd Rogers. Rogers, 77, has long been a critic of EPA regulations. He fought against vehicle emissions testing as judge-executive during the early 1980s.

He also opposes the storm water surcharge (which critics call a “rain tax”) the sanitation district began levying in 2003 to help pay for storm water upgrades required by the EPA’s crackdown under the Clean Water Act.

“I just could not understand how a federal agency could do that,” Rogers said. He thought Congress should have a say in such regulations, an idea he took to Davis in 2009. “I thought it was a stunningly clear idea, just elegant in its simplicity,” Davis said.

His office drafted the REINS Act, and he filed the bill in October, 2009.¹²

The full title is the “Regulations From the Executive in Need of Scrutiny Act,” also called the REINS Act. It has not been passed by Congress.

The REINS Act as introduced in 2009, 2010, and 2011 was a proposed amendment to the Congressional Review Act of 1996, or CRA (5 USC 801-808).

The CRA itself was a section of a larger bill titled the Small Business Regulatory Enforcement Fairness Act of 1996, also called the Contract with America Advancement Act of 1996. (Public Law No. 104-121)

The CRA was passed by Congress and cleared for the White House on March 28, 1996, and signed into law by President Bill Clinton on March 29, 1996, as Public Law No: 104-121, codified in Title 5, Sections 801-808 of the United States Code.

The Congressional Review Act allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation. It has been used only once to successfully disapprove one major rule since its enactment. It is generally regarded as toothless and in need of strengthening, which is the aim of the REINS Act.

The REINS Act leaves intact CRA provisions for non-major rules while introducing special consideration for major rules to make the law fully enforceable.

JUSTIFICATION FOR THE REINS ACT: As expressed in the Congressional Findings in the 2009 bill:

Congress finds that—

(1) section 1 of article I of the Constitution grants all legislative powers to Congress;
(2) section 8 of article I of the Constitution provides that Congress has the power ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers’;
(3) Congress regularly delegates its constitutional powers to the executive branch and its agencies for the purpose of drafting rules;
(4) many of the rules created by the executive branch and its agencies are not drafted or do not come into effect until years after the Act of Congress authorizing their creation;
(5) such rules can have substantial compliance or other financial costs on American families, businesses, and local governments;
(6) the drafters of Federal rules are not accountable directly to the people of the United States through regular elections;
(7) during calendar year 2008, the Government Accountability Office received a total of 3,006 final rules, including 94 major rules;
(8) the current executive rule review process provided for in the provision of law commonly known as the Congressional Review Act has only been exercised by Congress once since its enactment in 1996 to reject a rule;
(9) delegation of congressional powers to the executive branch and its agencies augments the power of the executive branch and fails to require that sitting members of Congress are accountable for finalized rules; and
(10) Congress must exercise greater accountability for its delegation of constitutional authority and the impact that such delegation has on the people, businesses, and State and local governments of the United States.¹³

Constitutional and Legal Issues:
The Nondelegation Doctrine

The explosive growth of executive branch rule-making power during the Barack Obama Administration prompted the drafting and introduction in Congress of the REINS Act, as a bulwark against the erosion of basic American principle of the separation of powers.¹⁴

The Obama Administration, with its administratively imposed rules, regulations, and orders, has taken the operations of government farther from the control of the electorate than any other presidency, including that of Franklin D. Roosevelt and his New Deal centralized power.¹⁵

A Wall Street Journal editorial dated January 14, 2011, said:

The last two years have offered an especially instructive lesson in regulatory excess. “Major” regulations are defined as those with annual effect on the economy exceeding $100 million, and over the past quarter-century both Democratic and Republican Administrations have averaged between 30 and 40 such rules a year. The Obama Administration promulgated 59 major regulations in 2009 and 62 in 2010. Another 191 are in the works, many of them based on little more than a vague Congressional order.¹⁶

So much power had been delegated by Congress to executive branch administrative agencies that it is no longer clear who makes the law and who carries it out, blurring the line separating the constitutional powers of the legislative and executive branches of government.¹⁷

Since the REINS Act deals with regulations initiated by administrative agencies in the Executive Branch under authority delegated by Congress, it involves issues of both constitutional law and administrative law.

THE NONDELEGATION DOCTRINE: At the heart of the REINS Act is a principle called the nondelegation doctrine, which prohibits excessive delegation of discretionary powers by the Congress to federal agencies.¹⁸

This doctrine stems from the constitutional separation of powers. The first three Articles of the Constitution provide separate powers for the legislative, executive and judicial branches of the United States government.

SEPARATION OF POWERS: In simplest terms, the separation of powers means that each branch of government is confined to exercising those powers within its own sphere as described in the Constitution, and any attempt by one branch to exercise a power properly belonging to another branch violates the separation of powers.¹⁹

When considering the separation of powers, we seldom think of the source of the powers that are separated, but it is of fundamental importance to the REINS Act. The ultimate source of American sovereignty is the people, whose consent to be governed is the basic assumption behind the legitimacy of the United States government. That consent is expressed most immediately through the electoral process, and in ongoing fashion through civil obedience to the laws of the government thus elected.²⁰

The REINS Act does nothing to change the structure of separated powers, but is a significant effort to reinforce the purpose of separation of powers: to assure that no one branch of government has more power than the other branches, a measure designed to prevent abuse or tyranny.

HISTORICAL LEGITIMACY: The separation of powers concept was first developed in ancient Greece (democracy in Athens and aristocracy in Sparta) and greatly elaborated during the Roman Republic (legislative assemblies, term-limited executive magistrates, and a Senate with judicial and managerial powers). The source of sovereignty in both ancient Greece and the Roman Republic was the people (citizens). The separation of powers was formally mimicked but actually abolished in the Roman Empire, replaced by an imperial bureaucratic monarchy. The Greek and Roman examples of success and failure provided historical object lessons to the American Founders.²¹

The ideas behind the American three-part separation of powers, legislative, executive, and judicial, are usually credited to Montesquieu, whose The Spirit of the Laws (1748) was well known to the Founders.

CHECKS AND BALANCES: Montesquieu also gave us the “checks and balances” doctrine that allows one branch to limit another, theoretically preventing one branch from gaining overwhelming power to threaten liberty. As Montesquieu wrote in The Spirit of the Laws, “In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.”

The REINS Act is an effort to reinforce the checks and balances doctrine so that “one man need not be afraid of another,” particularly citizens fearing regulatory agencies.

Thus, the REINS Act rests on constitutional and historic principles of separation of powers and checks and balances as expressed in the nondelegation doctrine.

DEVELOPMENT OF THE NONDELEGATION DOCTRINE: The nondelegation doctrine began as an absolute prohibition against the delegation of legislative authority from Congress to the executive branch. However, it had a few exceptions, such as: Congress could assign discretionary authority to the executive branch, but only delegated authority that was executive in nature and not legislative.

Like many early principles, the nondelegation doctrine changed as the nation grew. The current position is that agency regulations are as legally binding as congressional law, so long as the regulations meet certain standards of clarity showing that they execute the underlying statutes.²²

Those “standards of clarity” have gone through at least seven major interpretations by the U.S. Supreme Court: absolute prohibition, then more lenient permissible delegation, then broadly permissible delegation within specific limits, but turned more strict with the excesses of the Roosevelt New Deal, then gradually returned to the more lenient interpretation, for a time became practically dormant, and finally went through a series of attempted revivals, the latest of which is the REINS Act.²³

FILLING IN DETAILS: In early cases, the U.S. Supreme Court began to uphold some delegations on the ground that Congress had made the legislative decisions and the executive branch was merely “filling in details” or acting under Congress’s instructions.²⁴

The rationale of these “filling in details” decisions was that the discretion exercised by executive officials was not legislative but a part of the execution of the laws. The high court upheld this interpretation from 1813 to 1928.

THE INTELLIGIBLE PRINCIPLE TEST: In 1928, the Supreme Court stated in a case over tariff rates that a delegation is permissible when Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform.”²⁵

The intelligible principle standard loosened the nondelegation doctrine by recognizing and approving the substantial discretion and judgment agencies actually exercise when they “fill in the details.”

STRICT APPLICATION RETURNS: The New Deal era saw an explosion in regulatory programs giving President Franklin D. Roosevelt new powers in the name of economic recovery from the Great Depression. The Supreme Court was hostile to much New Deal legislation. In 1935 and 1936, it struck down three provisions in federal laws on delegation grounds.²⁶

“PRACTICAL NECESSITY”: World War II brought the Supreme Court to a conceptual blind alley and a more pragmatic interpretation of nondelegation. In 1944, the Court upheld a delegation to an agency to fix “generally fair and equitable” rent and price ceilings. The Court flatly stated that it was a practical necessity, and that broad delegations of discretion were permissible so long as there were “discernible boundaries of discretion.” This ruling nearly relegated the nondelegation doctrine to insignificance.²⁷

THE ENVIRONMENTAL ERA: Beginning in the 1960s, Congress delegated increasing authority to a number of agencies to protect wild and scenic areas, clean air and water, and to prevent toxic hazards. These regulations have been the worst offenders in removing government action from citizen control and imposing economic harm on American industry.²⁸

In 1980, the Supreme Court used the nondelegation doctrine to narrowly construe the Occupational Safety and Health Administration’s (OSHA) authority to define occupational health and safety standards. Industry plaintiffs challenged an OSHA regulation that drastically reduced permissible worker exposure to benzene, a carcinogen. The challengers argued that the evidence in the rulemaking record didn’t prove that the reduction was necessary. The agency claimed it had a statutory duty to regulate carcinogens to the lowest possible technologically and economically feasible level of exposure. The court disagreed, using nondelegation grounds, and ruled that the agency must make a threshold finding of a significant risk in the workplace before it was authorized to promulgate a workplace safety standard.²⁹

Justice Rehnquist’s Benzene concurrence argues that the statute violates the nondelegation doctrine because the agency’s choice of when to pursue the goal of a virtually risk-free workplace is statutorily unconstrained. Justice Rehnquist’s opinion extols the virtues of the nondelegation doctrine. He argues that the Court should reinvigorate the nondelegation doctrine because it (1) forces Congress, the representative branch of government, to make important policy choices; (2) increases the guidance under which agencies act; and (3) facilitates judicial review by requiring more definite statutory standards against which courts can measure administrative decisions. Justice Rehnquist’s effort to revive the delegation doctrine failed, and he gained only the support of Chief Justice Burger in a later opinion attacking the same provision of the OSHA Act.³⁰

In 1993, a book titled Power Without Responsibility: How Congress Abuses the People Through Delegation attacked the U.S. Environmental Protection Administration policy on nondelegation grounds. The book is remarkable in that it was written by David Schoenbrod, law professor at New York Law School and a former litigator for the Natural Resources Defense Council known as “a pioneer in the field of environmental law and justice.” A reviewer said, “His critique of the delegation of legislative power comes entirely from the liberal-left, yet hits many chords that resonate with centrists and conservatives.” The value of Schoenbrod’s book for the REINS Act lies mainly in showing that the problem is at least bipartisan if not non-partisan, even though the current problems with the Obama EPA emerged entirely from the triumphs of left-liberalism.³¹

Constitutional and Legal Issues:
Administrative Crimes

Each year government agencies publish thousands of pages of new regulations, many of them complicated, unclear and conflicting. Numerous statutes, including the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Forest Management Act, and Endangered Species Act, among others, provide criminal penalties for violations.³²

Former Justice Department assistant attorney general Roger Marzula notes that “Courts generally defer to an agency’s interpretation of its own regulations, with the result that thousands of Americans find themselves behind bars for crimes defined not by Congress, but by the agencies that prosecute them.”

Congress has passed statutes which allow criminal prosecution for virtually any violation of regulations adopted by a federal agency. As a result, agency rulemaking has become the functional equivalent of congressional lawmaking and, as agencies pump out thousands of new regulations each year, they simultaneously are creating thousands of new federal felonies which can be (and often are) prosecuted with the full force of the criminal law.

Lack of Congressional Oversight

Since Congress rarely conducts oversight of these regulatory criminal programs, the initial statutory authorization (generally enacted decades ago) amounts to a blank check for the agency to create as many new federal felonies as it wishes without any accountability. The unchecked power to legislate crimes and then prosecute their violation constitutes the precise excessive concentration of power in one branch of government, which the Founding Fathers sought to avoid by separating our government into three branches, and assigning limited powers to each.³³

Not surprisingly, federal agencies have eagerly grasped the intoxicating power to imprison those who do not adequately observe their various regulatory regimes—as the agencies interpret them. Agencies like EPA, Fish and Wildlife, NOAA, the Corps of Engineers, and the Forest Service can hardly be blamed for utilizing this potent weapon in the difficult job of implementing their congressionally mandated programs.

Indeed, having been given this enormous power by Congress, regulatory agencies may reasonably assume that they are intended to use criminal prosecution as a routine part of their regulatory programs. Add to this prosecutorial blank check a dash of excessive zeal, and Congress has created a recipe for agency oppression of the kind glimpsed in the 1990s hearings on Internal Revenue Service’s enforcement abuses by another Committee of the House.

Congress’s abandonment of its criminal lawmaking power to the regulatory agencies is wrongheaded—and probably unconstitutional.

The REINS Act will mitigate if not eliminate future abuses of administrative prosecutorial powers.

By Ron Arnold, executive vice president of the Center for the Defense of Free Enterprise, for the National Center for Public Policy Research.

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Footnotes:

¹ 112th Congress, 1st Session, H. R. 10: To amend chapter 8 of title 5, United States Code, to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law. Available on Thomas, http://thomas.loc.gov, accessed January 27, 2011.

² CBS Evening News, “Small Business Owners Hail Regulation Review,” Jan. 19, 2011. http://www.cbsnews.com/stories/2011/01/19/eveningnews/main7263172.shtml, accessed January 27, 2011.

³ Jerry Brito, Veronique de Rugy, “Midnight Regulations and Regulatory Review,” Administrative Law Review, Winter 2008, Mercatus Center, George Mason University, Arlington, Va. http://mercatus.org/publication/midnight-regulations-and-regulatory-review, accessed May 20, 2011.

⁴ See full text of H.R. 10 in Appendix 2.

⁵ In Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the Supreme Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Article I, in Section 1 and Section 7, and the presentment provisions of Clauses 2 and 3 of Section 7. The Court also made clear that two-House veto provisions, despite their compliance with bicameralism, and committee veto provisions, suffer the same constitutional infirmity of the lack of presentment. The REINS Act does not suffer that constitutional infirmity, containing both bicameralism and presentment provisions. See also Stephen Breyer. “The Legislative Veto after Chadha.” Thomas F. Ryan lecture. Georgetown Law Journal 72 (1984): 785-99.

⁶ Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is the case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s regulatory interpretation of a statute which it administers. Chevron is the Court’s strongest affirmation of the doctrine of “administrative deference” and its harshest blow against the citizen fighting oppressive and unjust regulations. The Court itself has used the phrase “Chevron deference” in more recent cases such as United States v. Mead Corp., 533 U.S. 218, 226 (2001).

⁷ Key example: United States, Petitioner v. James Herman O’Hagan, 521 U.S. 642 (1997). Justice Clarence Thomas, concurring in the judgment in part and dissenting in part, Footnote 10, stated: “A law that simply stated “it shall be unlawful to do ‘X’, however ‘X’ shall be defined by an independent agency,” would seem to offer no “intelligible principle” to guide the agency’s discretion and would thus raise very serious delegation concerns, even under our current jurisprudence.”

⁸ C. Chadd & J. Bowman, “Agencies’ Enforcement of Ambiguous Regulations Don’t Deserve Judicial Deference,” 13 (Washington Legal Found. 1998).

⁹ Gary Lawson. “The Rise and Rise of the Administrative State.” Harvard Law Review 107 (1994): 1231-54.

¹⁰ David Schoenbrod. Power without Responsibility: How Congress Abuses the People through Delegation. New Haven, Conn.: Yale University Press, 1993.

¹¹ Nick Smith. “Restoration of Congressional Authority and Responsibility over the Regulatory Process.” Harvard Journal on Legislation 33 (1996): 323-37.

¹² http://www.geoffdavis.house.gov/News/DocumentSingle.aspx?DocumentID=203221, accessed January 27, 2011.

¹³ 111th Congress, H.R. 3765, Section 2, Findings. http://thomas.loc.gov, accessed January 27, 2011.

¹⁴ Susan B. Zaunbrecher and Nathan E. Hagler, “Dodd-Frank Wall Street Reform and Consumer Protection Act Reshapes Businesses,” National Law Review, http://www.natlawreview.com/article/dodd-frank-bill-reshapes-businesses. Accessed January 14, 2011. Russ Steele, “Obama’s EPA wants to play hardball with Congress on climate change.” http://ncwatch.typepad.com/media/2010/12/obamas-epa-wants-to-play-hardball-with-congress-on-climate-change.html. Accessed January 14, 2011.

¹⁵ “FDR’s New Deal vs Obama’s stimulus,” Drew Hasselback, Financial Post, February 29, 2009, http://network.nationalpost.com/np/blogs/fpposted/archive/2009/02/25/fdr-s-new-deal-v-obama-s-stimulus.aspx); see also “Obama’s Quest for the New Deal in the Land of the Best Deal,” Dan Farber, CBS News, March 8, 2010, http://www.cbsnews.com/8301-503544_162-20000166-503544.html. See also, “Bill McCollum, Obama’s Imperial Presidency: On immigration, the White House is trampling constitutional principles.” National Review Online, August 11, 2010. www.nationalreview.com/articles/243650/obamas-imperial-presidency-bill-mccollum Accessed December 27, 2010.

¹⁶ Unsigned editorial, “The Congressional Accountability Act – A proposal to ban regulation without representation.” Wall Street Journal, January 14, 2011. http://online.wsj.com/article/SB10001424052970203525404576049703586223080.html#articleTabs%3Darticle, accessed January 14, 2011.

¹⁷ Sotirios A. Barber, The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press, 1975.

¹⁸ Sotirios Barber, in Delegation of Power, wrote, “A few commentators call the rule against delegations a judge-made doctrine lacking genuine constitutional status. This suggests the untenable proposition that genuine rules of constitutional law must be explicit in the constitutional document. Building on a common law maxim against redelegation of delegated authority and on John Locke’s observation that only the sovereign people can determine the legitimate location of legislative authority, most commentators have found nondelegation implicit in the Separation of Powers and in concepts of representative government and Due Process of Law. The status of the rule thus secured, debate has concentrated on exactly what it prohibits. As if the rule prohibited all delegations, nineteenth-century judges tried to reconcile it with the practical needs of government by denying that delegations in fact were delegations in law. In Cargo of the Brig Aurora v. United States 11 U.S. (7 Cranch) 382 (1813), the Supreme Court held that Congress had not breached the rule by empowering the President to make factual finding on which the application of a previously declared congressional policy—an embargo—was contingent.” http://www.novelguide.com/a/discover/eamc_02/eamc_02_00713.html, accessed January 29, 2011.

¹⁹ See the discussion at http://en.wikipedia.org/wiki/Separation_of_powers, accessed January 27, 2011.

²⁰ John Locke, Second Treatise of Government, Chapter 11, Section 141. (1689). See also, John Adams, Thoughts on Government, Apr. 1776 Papers 4:86–93 http://press-pubs.uchicago.edu/founders/documents/v1ch4s5.html

²¹ 21. See the discussion in Constitution of the Roman Republic, http://en.wikipedia.org/wiki/Constitution_of_the_Roman_Republic, accessed January 27, 2011.

²² Sotirios Barber, in Delegation of Power, wrote, “In Wayman v. Southard 23 U.S. (10 Wheat.) 1 (1825), the Court permitted a delegation to federal judges for “filling up the details” of part of the Federal Process Act of 1792. Though the rules announced in these cases were modest when stated in the abstract, the delegations themselves were the objects of acrimonious political conflict. By the early 1900s, power to declare facts and fill up details had become the foundation for the delegation of such discretionary authority to the President and administrative agencies as power to decide which grades of tea to exclude from import, to make rules regulating grazing on lands in national forests, and even to vary tariffs on imported goods.” http://www.novelguide.com/a/discover/eamc_02/eamc_02_00713.html, accessed January 29, 2011.

²³ Sotirios Barber, in Delegation of Power, wrote, “In J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), the Court formulated a more realistic delegation doctrine when it acknowledged that transfers of discretionary authority were essential to the effectiveness of Congress’s will in modern conditions. The new rule was that congressional delegation is permissible if governed by adequate “legislative standards,” a term that now includes statutory specifications of facts to be declared, preambulatory statements of legislative purpose, and even judicial imputations of legislative purpose inferred from legislative and administrative history.” http://www.novelguide.com/a/discover/eamc_02/eamc_02_00713.html, accessed January 29, 2011.

²⁴ Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).

²⁵ J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

²⁶ Jack M. Beermann, in Administrative Law, Aspen Publishers, New York, 2006, wrote, “Panama Refining and Schechter Poultry: The National Industrial Recovery Act (NIRA) granted the President broad powers to regulate the economy during the Great Depression. One provision granted the President power to exclude petroleum products from interstate commerce if they were produced or marketed in violation of state restrictions. In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), this provision was declared unconstitutional on the ground that it contained no standards guiding the President’s decision of whether to invoke his powers in a particular case. Another NIRA provision granted the President the power to approve and thus make legally binding codes of “fair competition” that would be drafted and submitted by private trade organizations. In Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Court invalidated this provision of the NIRA on essentially the same ground as it relied upon in Panama Refining, i.e., that it contained insufficient standards guiding the President’s discretion over whether to approve a particular code of fair competition. The problem with both provisions, according to the Court, was that the President could legally decline to take action under any set of circumstances. (Schechter Poultry also relied on the fact that the codes were drafted by private groups.) A broadly stated set of statutory purposes was not sufficient to save the statute from invalidation under the nondelegation doctrine. In Carter v. Carter Coal Co., 298 U.S. 238 (1936), the Court struck down a statute that authorized coal producers to elect local boards with power to set minimum prices for coal in their districts. The Court rejected this delegation out of hand, characterizing it as “legislative delegation in its most obnoxious form for it is not even delegation to an official or an official body … but to private persons whose interests may be and often are adverse to the interests of others in the same business.” Carter Coal, 298 U.S. at 31l.

²⁷ In the 1940s, the Court signaled a shift back to a more liberal attitude toward delegation. In Yakus v. United States, 321 U.S. 414 (1944), the Court upheld a delegation to an agency to fix “generally fair and equitable” rent and price ceilings. The Court stated that delegation of discretion to agencies was a practical necessity and that broad delegations of discretion were permissible so long as discernible boundaries of discretion existed. In several cases following Yakus, the Court relied upon congressional purposes and effective legal and political controls to uphold statutes against delegation-based challenges. Beermann, op. cit.

²⁸ The Environmental Source, Second Edition, Angela Logomasini, PhD, editor. Competitive Enterprise Institute, Washington, D.C., 2008.

²⁹ Jack M. Beermann, Administrative Law, Aspen Publishers, New York, (2006).

³⁰ Ibid.

³¹ David Schoenbrod. Power without Responsibility: How Congress Abuses the People through Delegation. New Haven, Conn.: Yale University Press, 1993.

³² This section relies on the testimony of Roger Marzulla before the Judiciary Committee of the House of Representatives Subcommittee on Commercial and Administrative Law, May 7, 1998.

³³ For more than 30 years, the Congressional Research Service has periodically published Congressional Oversight Manual to provide Members of Congress the full legal requirements and background of their duty to oversee the execution of congressional laws. The most recent is Frederick M. Kaiser, Specialist in American National Government; Walter J. Oleszek, Senior Specialist in American National Government; Todd B. Tatelman, Legislative Attorney: Congressional Oversight Manual, CRS Report for Congress Prepared for Members and Committees of Congress, RL30240, January 6, 2011.

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Appendix 1

H.R. 10, The REINS Act
FAQ

What does the REINS Act do? H.R. 10, the REINS Act, would require that Congress must affirmatively approve every new MAJOR rule proposed by the Executive Branch before it can be enforced on the American people. It also retains existing law permitting Congress to disapprove non-major rules (5 USC 801-808).

How does the REINS Act improve the regulatory process? By requiring congressional accountability for major federal rules, the REINS Act reintroduces the importance of input from elected representatives and their constituents into the rule-making process from the start. Increased congressional responsibility will compliment the specific focus of the executive agencies to ensure that federal regulations effectively consider the needs of American families and businesses.

What is a “major rule”? The term ‘major rule’ means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in:

(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Is the REINS Act constitutional? Enactment of the REINS Act effectively constrains the delegation of congressional authority by limiting the size and scope of agency rule-making permission to non-major rules. This restraint satisfies both the bicameralism and presentment requirements of the Constitution. Just as the delegation of authority for major rules is removed by the REINS Act through the normal legislative process, joint resolutions of approval for major rules require bicameral passage and presentment to the President to be implemented. As such, the REINS Act is fully consistent with the Supreme Court’s decision in INS v. Chadha.

Wouldn’t the REINS Act hold up rules? How long would Congress have to approve major rules under the REINS Act? Congress has ninety (90) legislative days to pass a joint resolution of approval. If Congress does not act within that time period, the rule is deemed to be not approved.

Would the REINS Act hinder the President’s ability to respond to national emergencies? No, the REINS Act specifically provides a 90-day window where the President may order a major rule to take effect in response to national emergencies or national security concerns without initial Congressional approval.

How does the REINS Act relate to the Congressional Review Act? The REINS Act is an amendment to the Congressional Review Act, also known as the CRA (5 USC 801-808). CRA provided a mechanism for the disapproval of major rules, but has only been used to successfully disapprove one major rule since its enactment. The REINS Act leaves intact CRA provisions for non-major rules while introducing special consideration for major rules.

May either House of Congress amend the federal rule as it votes on the joint resolution of approval? No. One goal of the REINS Act is to ensure dialogue between Congress and the respective agencies BEFORE the rule reaches a vote in Congress.

Would the Senate be able to filibuster resolutions of approval in order to defeat them? No. The REINS Act is designed to force votes on major federal rules.

What happens if the Joint Resolution of Approval fails? If a joint resolution of approval is not signed by the President, then the rule under consideration will not take effect. If the rule comes from a mandatory delegation of authority, then the executive agency charged with promulgating the rule will be required to submit a new version of the rule to Congress for consideration.

Would the REINS Act undermine legal challenges in the courts to the validity to federal rules? No, a joint resolution of approval enacted under the REINS Act does not serve as a grant of statutory authority for the rule itself or cure procedural defects in the making of a rule.

Will the REINS Act mean more votes for Congress? Is this the best use of Congress’s time? The REINS Act will likely generate fifty to seventy additional votes for Congress each year. In the 110th Congress, the House of Representatives had time to pass more than 600 resolutions which contained no actual directive or affirmative requirements. Congress has specific constitutional responsibility for the laws facing Americans, so votes on major rules should be considered a high priority.

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Appendix 2

Full Text of H.R. 10, the REINS Act

112th CONGRESS, 1st Session

H. R. 10
To amend chapter 8 of title 5, United States Code, to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law.

IN THE HOUSE OF REPRESENTATIVES
January 20, 2011

Mr. DAVIS of Kentucky (for himself, Mr. SMITH of Texas, Mr. AKIN, Mr. BACHUS, Mr. BARTLETT, Mr. BARTON of Texas, Mr. BERG, Mr. BISHOP of Utah, Mrs. BLACKBURN, Mr. BONNER, Mr. BOUSTANY, Mr. BRADY of Texas, Mr. BUCSHON, Mr. BURTON of Indiana, Mr. CALVERT, Mr. CAMP, Mr. CHAFFETZ, Mr. COBLE, Mr. CRAWFORD, Mr. FARENTHOLD, Mr. FLORES, Mr. FORTENBERRY, Ms. FOXX, Mr. FRANKS of Arizona, Mr. GALLEGLY, Mr. GARDNER, Mr. GARRETT, Mr. GERLACH, Mr. GIBBS, Mr. GIBSON, Mr. GOHMERT, Mr. GOWDY, Mr. GUTHRIE, Ms. HAYWORTH, Mr. HELLER, Mr. HERGER, Mr. HUNTER, Mr. ISSA, Ms. JENKINS, Mr. JONES, Mr. KING of Iowa, Mr. KINGSTON, Mr. KINZINGER of Illinois, Mr. KLINE, Mr. LAMBORN, Mr. LATTA, Mr. LEE of New York, Mrs. LUMMIS, Mr. MANZULLO, Mr. MCCARTHY of California, Mr. MCCLINTOCK, Mr. MCHENRY, Mr. MCKEON, Mr. MCKINLEY, Mrs. MCMORRIS RODGERS, Mr. MILLER of Florida, Mr. MULVANEY, Mr. MURPHY of Pennsylvania, Mr. NEUGEBAUER, Mr. NUNES, Mr. NUNNELEE, Mr. PAUL, Mr. PEARCE, Mr. POMPEO, Mr. POSEY, Mr. PRICE of Georgia, Mr. QUAYLE, Mr. REICHERT, Mr. ROE of Tennessee, Mr. ROGERS of Kentucky, Mr. ROKITA, Mr. ROSKAM, Mrs. SCHMIDT, Mr. SCHOCK, Mr. AUSTIN SCOTT of Georgia, Mr. SCOTT of South Carolina, Mr. SESSIONS, Mr. SIMPSON, Mr. SMITH of Nebraska, Mr. STUTZMAN, Mr. TERRY, Mr. TIPTON, Mr. UPTON, Mr. WALDEN, Mr. WEST, Mr. WILSON of South Carolina, and Mr. WITTMAN) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend chapter 8 of title 5, United States Code, to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Regulations From the Executive in Need of Scrutiny Act of 2011’.

SEC. 2. PURPOSE.

The purpose of this Act is to increase accountability for and transparency in the federal regulatory process. Section 1 of article I of the United States Constitution grants all legislative powers to Congress. Over time, Congress has excessively delegated its constitutional charge while failing to conduct appropriate oversight and retain accountability for the content of the laws it passes. By requiring a vote in Congress, the REINS Act will result in more carefully drafted and detailed legislation, an improved regulatory process, and a legislative branch that is truly accountable to the American people for the laws imposed upon them.

SEC. 3. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING.

Chapter 8 of title 5, United States Code, is amended to read as follows:

‘CHAPTER 8–CONGRESSIONAL REVIEW OF AGENCY RULEMAKING

‘Sec.
‘801. Congressional review.
‘802. Congressional approval procedure for major rules.
‘803. Congressional disapproval procedure for nonmajor rules.
‘804. Definitions.
‘805. Judicial review.
‘806. Exemption for monetary policy.
‘807. Effective date of certain rules.

‘Sec. 801. Congressional review

‘(a)(1)(A) Before a rule may take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report containing–

‘(i) a copy of the rule;
‘(ii) a concise general statement relating to the rule;
‘(iii) a classification of the rule as a major or nonmajor rule, including an explanation of the classification specifically addressing each criteria for a major rule contained within sections 804(2)(A), 804(2)(B), and 804(2)(C);
‘(iv) a list of any other related regulatory actions intended to implement the same statutory provision or regulatory objective as well as the individual and aggregate economic effects of those actions; and
‘(v) the proposed effective date of the rule.

‘(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit to the Comptroller General and make available to each House of Congress–

‘(i) a complete copy of the cost-benefit analysis of the rule, if any;
‘(ii) the agency’s actions pursuant to title 5 of the United States Code, sections 603, 604, 605, 607, and 609;
‘(iii) the agency’s actions pursuant to title 2 of the United States Code, sections 1532, 1533, 1534, and 1535; and
‘(iv) any other relevant information or requirements under any other Act and any relevant Executive orders.

‘(C) Upon receipt of a report submitted under subparagraph (A), each House shall provide copies of the report to the chairman and ranking member of each standing committee with jurisdiction under the rules of the House of Representatives or the Senate to report a bill to amend the provision of law under which the rule is issued.

‘(2)(A) The Comptroller General shall provide a report on each major rule to the committees of jurisdiction by the end of 15 calendar days after the submission or publication date as provided in section 802(b)(2). The report of the Comptroller General shall include an assessment of the agency’s compliance with procedural steps required by paragraph (1)(B).

‘(B) Federal agencies shall cooperate with the Comptroller General by providing information relevant to the Comptroller General’s report under subparagraph (A).

‘(3) A major rule relating to a report submitted under paragraph (1) shall take effect upon enactment of a joint resolution of approval described in section 802 or as provided for in the rule following enactment of a joint resolution of approval described in section 802, whichever is later.

‘(4) A nonmajor rule shall take effect as provided by section 803 after submission to Congress under paragraph (1).

‘(5) If a joint resolution of approval relating to a major rule is not enacted within the period provided in subsection (b)(2), then a joint resolution of approval relating to the same rule may not be considered under this chapter in the same Congress by either the House of Representatives or the Senate.

‘(b)(1) A major rule shall not take effect unless the Congress enacts a joint resolution of approval described under section 802.

‘(2) If a joint resolution described in subsection (a) is not enacted into law by the end of 70 session days or legislative days, as applicable, beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), then the rule described in that resolution shall be deemed not to be approved and such rule shall not take effect.

‘(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a major rule may take effect for one 90-calendar-day period if the President makes a determination under paragraph (2) and submits written notice of such determination to the Congress.

‘(2) Paragraph (1) applies to a determination made by the President by Executive order that the major rule should take effect because such rule is–

‘(A) necessary because of an imminent threat to health or safety or other emergency;
‘(B) necessary for the enforcement of criminal laws;
‘(C) necessary for national security; or
‘(D) issued pursuant to any statute implementing an international trade agreement.

‘(3) An exercise by the President of the authority under this subsection shall have no effect on the procedures under section 802.

‘(d)(1) In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report was submitted in accordance with subsection (a)(1)(A) during the period beginning on the date occurring–

‘(A) in the case of the Senate, 60 session days, or
‘(B) in the case of the House of Representatives, 60 legislative days, before the date the Congress is scheduled to adjourn a session of Congress through the date on which the same or succeeding Congress first convenes its next session, sections 802 and 803 shall apply to such rule in the succeeding session of Congress.

‘(2)(A) In applying sections 802 and 803 for purposes of such additional review, a rule described under paragraph (1) shall be treated as though–

‘(i) such rule were published in the Federal Register on–

‘(I) in the case of the Senate, the 15th session day, or
‘(II) in the case of the House of Representatives, the 15th legislative day,

after the succeeding session of Congress first convenes; and

‘(ii) a report on such rule were submitted to Congress under subsection (a)(1) on such date.

‘(B) Nothing in this paragraph shall be construed to affect the requirement under subsection (a)(1) that a report shall be submitted to Congress before a rule can take effect.

‘(3) A rule described under paragraph (1) shall take effect as otherwise provided by law (including other subsections of this section).

‘Sec. 802. Congressional approval procedure for major rules

‘(a) For purposes of this section, the term ‘joint resolution’ means only a joint resolution introduced on or after the date on which the report referred to in section 801(a)(1)(A) is received by Congress (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: ‘That Congress approves the rule submitted by the X X relating to X X.’ (The blank spaces being appropriately filled in).

‘(1) In the House, the majority leader of the House of Representatives (or his designee) and the minority leader of the House of Representatives (or his designee) shall introduce such joint resolution described in subsection (a) (by request), within 3 legislative days after Congress receives the report referred to in section 801(a)(1)(A).
‘(2) In the Senate, the majority leader of the Senate (or his designee) and the minority leader of the Senate (or his designee) shall introduce such joint resolution described in subsection (a) (by request), within 3 session days after Congress receives the report referred to in section 801(a)(1)(A).

‘(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction under the rules of the House of Representatives or the Senate to report a bill to amend the provision of law under which the rule is issued.

‘(2) For purposes of this section, the term ‘submission date’ means the date on which the Congress receives the report submitted under section 801(a)(1).

‘(c) In the Senate, if the committee or committees to which a joint resolution described in subsection (a) has been referred have not reported it at the end of 15 session days after its introduction, such committee or committees shall be automatically discharged from further consideration of the resolution and it shall be placed on the calendar. A vote on final passage of the resolution shall be taken on or before the close of the 15th session day after the resolution is reported by the committee or committees to which it was referred, or after such committee or committees have been discharged from further consideration of the resolution.

‘(d)(1) In the Senate, when the committee or committees to which a joint resolution is referred have reported, or when a committee or committees are discharged (under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of.

‘(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 2 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion to further limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.

‘(3) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (a), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of the joint resolution shall occur.

‘(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint resolution described in subsection (a) shall be decided without debate.

‘(e)(1) In the House of Representatives, if the committee or committees to which a joint resolution described in subsection (a) has been referred have not reported it at the end of 15 legislative days after its introduction, such committee or committees shall be automatically discharged from further consideration of the resolution and it shall be placed on the appropriate calendar. A vote on final passage of the resolution shall be taken on or before the close of the 15th legislative day after the resolution is reported by the committee or committees to which it was referred, or after such committee or committees have been discharged from further consideration of the resolution.

‘(2)(A) A motion in the House of Representatives to proceed to the consideration of a resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

‘(B) Debate in the House of Representatives on a resolution shall be limited to not more than two hours, which shall be divided equally between those favoring and those opposing the resolution. A motion to further limit debate shall not be debatable. No amendment to, or motion to recommit, the resolution shall be in order. It shall not be in order to reconsider the vote by which a resolution is agreed to or disagreed to.

‘(C) Motions to postpone, made in the House of Representatives with respect to the consideration of a resolution, and motions to proceed to the consideration of other business, shall be decided without debate.

‘(D) All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to a resolution shall be decided without debate.

‘(f) If, before the passage by one House of a joint resolution of that House described in subsection (a), that House receives from the other House a joint resolution described in subsection (a), then the following procedures shall apply with respect to a joint resolution described in subsection (a) of the House receiving the joint resolution–

‘(1) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but
‘(2) the vote on final passage shall be on the joint resolution of the other House.

‘(g) The enactment of a resolution of approval does not serve as a grant or modification of statutory authority by Congress for the promulgation of a rule, does not extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and shall not form part of the record before the court in any judicial proceeding concerning a rule.

‘(h) This section and section 803 are enacted by Congress–

‘(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent that it is inconsistent with such rules; and
‘(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

‘Sec. 803. Congressional disapproval procedure for nonmajor rules

‘(a) For purposes of this section, the term ‘joint resolution’ means only a joint resolution introduced in the period beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: ‘That Congress disapproves the nonmajor rule submitted by the X X relating to X X, and such rule shall have no force or effect.’ (The blank spaces being appropriately filled in).

‘(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction.

‘(2) For purposes of this section, the term submission or publication date means the later of the date on which–

‘(A) the Congress receives the report submitted under section 801(a)(1); or
‘(B) the nonmajor rule is published in the Federal Register, if so published.

‘(c) In the Senate, if the committee to which is referred a joint resolution described in subsection (a) has not reported such joint resolution (or an identical joint resolution) at the end of 15 session days after the date of introduction of the joint resolution, such committee may be discharged from further consideration of such joint resolution upon a petition supported in writing by 30 Members of the Senate, and such joint resolution shall be placed on the calendar.

‘(d)(1) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged (under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of.

‘(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion to further limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.

‘(3) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (a), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of the joint resolution shall occur.

‘(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint resolution described in subsection (a) shall be decided without debate.

‘(e) In the Senate the procedure specified in subsection (c) or (d) shall not apply to the consideration of a joint resolution respecting a nonmajor rule–

‘(1) after the expiration of the 60 session days beginning with the applicable submission or publication date, or
‘(2) if the report under section 801(a)(1)(A) was submitted during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session day after the succeeding session of Congress first convenes.

‘(f) If, before the passage by one House of a joint resolution of that House described in subsection (a), that House receives from the other House a joint resolution described in subsection (a), then the following procedures shall apply:

‘(1) The joint resolution of the other House shall not be referred to a committee.
‘(2) With respect to a joint resolution described in subsection (a) of the House receiving the joint resolution–

‘(A) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but
‘(B) the vote on final passage shall be on the joint resolution of the other House.

‘Sec. 804. Definitions

‘For purposes of this chapter–

‘(1) The term ‘Federal agency’ means any agency as that term is defined in section 551(1).
‘(2) The term ‘major rule’ means any rule, including an interim final rule, that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in–

‘(A) an annual effect on the economy of $100,000,000 or more;
‘(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
‘(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

‘(3) The term ‘nonmajor rule’ means any rule that is not a major rule.
‘(4) The term ‘rule’ has the meaning given such term in section 551, except that such term does not include–

‘(A) any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefore, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;
‘(B) any rule relating to agency management or personnel; or
‘(C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

‘Sec. 805. Judicial review

‘(a) No determination, finding, action, or omission under this chapter shall be subject to judicial review.

‘(b) Notwithstanding subsection (a), a court may determine whether a Federal agency has completed the necessary requirements under this chapter for a rule to take effect.

‘Sec. 806. Exemption for monetary policy

‘Nothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or the Federal Open Market Committee.

‘Sec. 807. Effective date of certain rules

‘Notwithstanding section 801–

‘(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping; or
‘(2) any rule other than a major rule which an agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,

shall take effect at such time as the Federal agency promulgating the rule determines.’.