By Scott Haeck*
The 115thCongress was one of intensely deregulatory sentiment, backed by a White House that largely encouraged those impulses.[i]In this hostility toward administrative rules, the House of Representatives crafted legislation- the REINS and Financial CHOICE Acts- that raises constitutional issues surrounding the largely-undisturbed system of delegation on which our regulatory system is built. Further, it reveals a dangerous new conception of this system in the minds of politicians, one that would negate the purpose of the administrative state if ever made law.
The actual effect of the new Congressional review provision is, in essence, a direct reversal of the current rule. Under existing law, Congress exercises supervision of federal agencies with a presumption of approval; the rarely-invoked Congressional Review Act permits them to vote, within a limited time and with presidential veto possible, to nullify a rule promulgated by an agency.[ii]The language passed as the House’s REINS Act, and later incorporated into the sweeping Dodd-Frank repeal that was the Financial CHOICE Act, shifts the default to disapproval; it requires a joint resolution and presidential signature to give force to a rule.[iii]This is the case only for “major rules”, but the definition is partly impact-based and so broad as to be capable of embracing any rule of note, and leaves the old system in place for “minor” rules previously exempt.[iv]Additionally, the President may choose to have certain urgent types of rule take effect in the interim.[v]Alongside this switch, the Acts declare any “determination, finding, action or omission under [the aforementioned provision] immune from judicial review”.[vi]
Such a fundamental change to the way the administrative agencies operate threatens their very purpose. Although it has become common in politics to argue otherwise, they are intended to make rules. Congress itself authorized this fill-in-the-blanks lawmaking, partly for expediency and flexibility, and partly to leverage focused expertise at the more nuanced levels of granularity.[vii]To require full, bicameral legislative action to approve every significant measure is essentially to require legislation to enact them, relegating the agencies to congressional advisory bodies. At best, this would create a regime slow to respond to emerging changes and complexities. At worst, it may flat-out disable federal rulemaking, as no action being taken without the full weight of the bodies politic often translates to no action being taken.[viii]Even where urgent action is permitted, it shifts power into the hands of the elected President, occupied with other matters of governance, and away from full-time, career civil servants with specialized expertise.
Whether or not it is prudent, relying on congressional action to give force to executive rules may not be constitutional. Congressional review is a subject that, while not as well-tested as congressional action, has been a source of constitutional controversy.[ix]Notably, congressional attempt to reserve a specialized veto power in one house alone has failed.[x]So far, the current system has avoided that issue by mirroring a statute changing the underlying law, complete with approval from both houses and the President.[xi]While ex ante alternatives to this ex post change in law are untested, they present an entirely different set of questions. These regulations are made as an exercise of executive power to enforce the law, which includes interpretation where statutory language allows.[xii]If this well-accepted notion is true in its plain sense, then congressional input in the process by its own will may be unconstitutional as an interference with the presidential duty to “take [c]are that the [l]aws be faithfully executed”.[xiii]A legitimate executive power is just that; Congress may change the law being enforced, but cannot demand an “advice and consent” power where none exists.[xiv]Similarly, the attempt to statutorily exclude decisions under this act and records thereof from the reach of the judiciary is likely to pose problems.[xv]While the courts have long conceded that some actions of the other branches are above their scrutiny, they have historically reserved the determination of which actions those are for themselves.[xvi]
Despite the imminent death of the current bills, we likely haven’t seen the last of them or the threat they represent. Neither bill was ever voted on in the Senate; barring an 11th-hour scramble, they will formally expire at the end of the year, when a newly Democratic House of Representatives is unlikely to repass them. However, the mere fact of its existence and persistence speaks to a fundamental hostility to the administrative status quo in the halls of power. That hostility was not fully wiped out in Washington in this election, and will likely remain present on the political right for years to come. Thus, these provisions will probably be resurrected again, and if better campaigned for, will force us to confront questions that redefine the nature and scope of the Administrative State.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i]David Shepardson, Trump Touts Push to Rescind Government Regulations, Reuters(Oct. 17, 2018), https://www.reuters.com/article/us-usa-trump-regulation/trump-touts-push-to-rescind-government-regulations-idUSKCN1MR379.
[ii]26 USC §§ 801, 802 (2012) (allowing Congress to overturn a major administrative rule within 60 legislative days of its passage, by joint resolution; such resolutions require either presidential signature or a three-fifths majority revote in both houses).
[iii]REINS Act, H.R. 26, 115th Cong. (As passed by House of Representatives, January 5, 2017); Financial CHOICE Act, H.R. 10, 115th Cong. (As passed by House of Representatives, June 8, 2017) (requiring Congress to approve an administrative rule, deemed not approved if not done within 70 legislative days of Congress being notified of its passage, by joint resolution before it may take effect; such resolutions require either presidential signature or a three-fifths majority revote in both houses).
[iv]Hr. 26. A major rule is any which results in an annual economic cost of $100,000,000 or more, a major increase in costs or prices for consumers, industries, regions, or governments, or has “significant adverse effects on compmpitition, employment, investment, productivity”, or the competitiveness of US business in global markets. Id.
[vii]SeeMark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 Admin. L. Rev.429, 438n (1999).
[viii]See Sheryl Gay Stolberg and Nicholas Fandos, As Gridlock Deepens in Congress, Only Gloom Is Bipartisan, N.Y. Times (Jan. 28, 2018), https://www.nytimes.com/2018/01/27/us/politics/congress-dysfunction-conspiracies-trump.html.
[ix]See, e.g., INS v. Chadha, 462 U.S. 919 (1983);Ctr. for Biological Diversity v. Zinke, 313 F. Supp. 3d 976 (D. Alaska 2018).
[x]INS, 462 U.S. at 919.
[xi]Ctr. for Biological Diversity, 313 F. Supp. 3d at 976.
[xii]See16A Am. Jur. 2d Constitutional Law§ 329 (2009).
[xiii]U.S. Const. art.II, § 3.
[xiv]SeeZivotofsky v. Kerry, 135 S. Ct. 2076 (2015) (holding that Congress could not “aggrandize its power” by invading executive domain)
[xvi]See Marbury v. Madison, 5 U.S. 137 (1803); Baker v. Carr, 369 U.S. 186 (1962).