Here’s my full statement on today’s House Judiciary Committee hearing on the REINS Act:
We commend the House Judiciary Committee for gathering distinguished experts such as New York Law School Professor David Schoenbrod for what should be an illuminating hearing on Congress’s role and responsibilities in reining in the regulatory state. The REINS Act, introduced in the Senate by Rand Paul (R-Ky.) and in the House by Rep. Geoff Davis, another Kentuckian, is at heart about accountability in government.
The issue is not just one of good politics or even good policy, but of constitutional government as well. Article 1, Section 1 of the Constitution vests “all legislative powers” in the U.S. Congress. Yet what most often happens in today’s administrative state is that regulators in the executive branch, technically charged with enforcing provisions of laws, actually write much of the law as applied.
Sometimes this takes place due to creative interpretations, such as defining a farmer’s wetland the size of a mud puddle as a “navigable waterway” under the Clean Water Act. But more often than not, Congress under the control of both parties has been deliberately vague so as to pass the buck to regulators and escape accountability. The recently passed 2,400-page Dodd-Frank Act, for instance, contains more than 500 rules for agencies to implement. Recently, regulations interpreting provisions regarding debit card interchange price controls have angered members of both parties because of their adverse effects on consumers, community banks and credit unions, but Congress lacks both the power to send these rules back for revision and the responsibility for doing so.
Professor Schoenbrod has called this practice of extensive delegation — and his critique of it published by Yale University Press — “Power Without Responsibility,” and will likely today repeat his call for Congress to create a mechanism for affirmatively approving agency regulations, which is what the REINS Act takes a big first step in doing with regard to “major rules” that cost the economy more than $100 million. Lawmakers are rightly concerned with reining in the budget and preventing tax hikes, but they must never forget that regulations are stealth taxes that hit the budget of every American family.