Jen Reads: the REINS Act… so you don’t have to!

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I made an announcement last year to the effect of “Don’t get me started on the REINS Act, man,”  but Rand Paul did not heed my warning. So this is what you get: me, started on this bill. You need to know about it because it already passed the House last year and has a decent shot of passing the Senate. That’s probably because the author of the Senate version is Rand Paul, who recently announced his candidacy for president. I’ll summarize it and give you my take (hint: no).

What is it? The REINS (Regulations from the Executive In Need of Scrutiny) Act proposes that major federal rules must be approved by both chambers of Congress. Congress would have 70 legislative days to approve a major rule via joint resolution, or it’s considered disapproved. Each rule submission would have to include a cost-benefit analysis, including a jobs report. Now, it’s already a law under the Congressional Review Act (1996) that federal agencies have to send notice of a new major rule to the GAO (Government Accountability Office***) and to both chambers 60 days before the rule goes into effect. The REINS makes it so that Congress actually has to read the rules and approve them by joint resolution before they can go into effect. FYI: annually, since 2010, there have been between 68 and 100 “major” federal rules each year (www.gao.gov). I’m not sure where they’ll get that kind of time what with reading all the sexts from interns but whatever.

What’s a “major” rule? A major rule is any rule from a federal agency that the Office of Management and Budget finds would likely result in any of the following:

  • “an annual effect on the economy of $100,000,000 or more;”
  • “a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;” or
  •  “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.”

Any exemptions? You know it. Monetary policy from the Federal Reserve or the Federal Open Market Committee would be exempt from this law. Any special allowances? Yes; three: the President can have a rule put into effect for 90 days without a joint resolution if it’s necessary for national security, imminent threats, international trade agreements, etc. Presumably, that lets a rule take effect right away, but it could be disapproved later by Congress. Second, rules applying to hunting, fishing, and camping can be effective immediately, for whatever reason.  Finally, rules that are shown, with “good cause,” to need no public review because it’s impracticable, unnecessary (?), or contrary to the public interest to go through public review–those can be effective immediately. That’s a head-scratcher.

Anything weird? You know it. It specifically states that no action under this law shall be subject to judicial review. Anything really weird? Oh yes. The House version that already passed contains three provisions not present in the Senate version. The two would have to be reconciled before the law goes into effect, but these are the three contenders:

  1. Any rule made by the EPA that would have a “significant” impact on a “substantial” number of agricultural entities, as determined by the Secretary of Agriculture would be considered major and therefore subject to review.
  2. Any rule made under the Patient Protection and Affordable Care Act would be considered major, and therefore subject to review.
  3. Any rule that could possibly be construed as a carbon tax. That includes any rule that would put a cost, levy, or a fee on the combustion of fossil fuels.

And now you know why this is happening. Here’s my take: On a scale from not-really to total bullshit, I give this one (esp. the House version) a rating of concentrated extra-strength bullshit. I’m not sure there are enough actual hours in a legislative session to do this! Remember, there are between 68 and 100 new major rules every year. How much time will this take? More importantly, I see this as a bald attempt to circumvent the un-reapealable ACA, and to circumvent the Clean Air Act. The GOP has been hamstrung by the Clean Air Act, which says that the EPA must make air quality rules based solely on what we know about the effects of pollution on public health–and not based on cost-benefit analyses. The Supreme Court ruled that carbon emissions count as pollution that affects public health, and so the EPA has jurisdiction to regulate carbon emissions without reference to economic cost. The REINS Act would allow Congress to circumvent the ruling by: 1) attaching a cost-benefit analysis requirement to what are supposed to be public health regulations, and 2) making the term “carbon tax” apply to an overly broad number of regulatory activities. I’m not sure whether the carbon tax and ACA bits from the House version will make it into the final version, but the REINS Act is worth watching, either way. At the very least, you’ll know what the hell Paul is talking about some of the time. Which is better than usual.

***A previous version of this post misidentified this acronym by its former name, the General Accounting Office.

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