Regulations From the Executive in Need of Scrutiny Act of 2023
Floor Speech
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Mr. MASSIE. 277.
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Mr. MASSIE. Mr. Chair, I yield myself such time as I may consume.
Even before America declared its independence, John Adams emphasized that a republic is a government of laws and not of men. That is what we are here to debate tonight.
Are we a government of laws or a government of the executive branch? Are we going to allow the executive branch to write the laws? Are we going to turn our Constitution on its head? Have we gone too far already? I would argue we have, and that is why we need the REINS Act, Regulations from the Executive in Need of Scrutiny. It provides that every major regulation that the administration seeks to promulgate has to come to Congress first, has to be passed by concurrent majorities in the House and the Senate and signed by the President. This is exactly what our Founders prescribed. This is a bill about who makes the laws in our country, and it is about reclaiming our legislative power from the administrative state.
I think it is appropriate to read from our Constitution at this point. Article I, Section 1 of the Constitution says: ``All legislative powers . . . `' not some legislative powers.
``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.''
Does it say it shall consist of a bureaucracy? It does not. All legislative powers are vested here and in the Senate. That is why we need to stop letting the executive branch make law.
Are they merely tweaking regulations? Are they determining the amount of sulfur dioxide that is acceptable to release from a power plant with civil infractions imposed if a company doesn't comply? No, they are making laws that put people in prison over in the administrative branch, and we are doing nothing about it.
We have atrophied. The power of Congress has atrophied. We are almost like ombudsmen to the executive branch now. This needs to change.
In the words of James Madison: ``The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.''
I am afraid that is what we have come to. Too many of our laws, civil and criminal, are now being written by the executive branch.
Here is what the REINS Act does, and here is why it is important. If a regulation that is passed by the executive branch or suggested by the executive branch has more than $100 million of impact--that is a pretty high threshold. I would argue if it has any impact, we should be legislating it, but this is a compromise. If it has more than $100 million of impact, it has to come here if it is going to become a law.
They do not get to write the laws, and so that is why we need the REINS Act.
House of Representatives, Committee on the Judiciary, Washington, DC, May 31, 2023. Hon. Jodey Arrington, Chairman, Committee on the Budget, House of Representatives, Washington, DC.
Dear Chairman Arrington: Thank you for consulting with the Committee on the Judiciary and agreeing to be discharged from further consideration of H.R. 277, the Regulations from the Executive In Need of Scrutiny Act of 2023, so that the measure may proceed expeditiously to the House floor.
I agree that your forgoing further action on this measure does not in any way diminish or alter the jurisdiction of your committee, or prejudice its jurisdictional prerogatives on this measure or similar legislation in the future. I would support your effort to seek appointment of an appropriate number of conferees from your committee to any House-Senate conference on this legislation.
I will include the exchange of these letters in the Judiciary Committee's report to accompany this legislation and in the Congressional Record during consideration of this legislation on the House floor. I appreciate your cooperation regarding this legislation and look forward to continuing to work together on matters of shared jurisdiction during this Congress. Thank you for your attention to this matter. Sincerely, Jim Jordan, Chairman. ____ House of Representatives, Committee on the Budget, Washington, DC, May 30, 2023. Hon. Jim Jordan, Chairman, Committee on the Judiciary, Washington, DC.
Dear Chairman Jordan: I am writing regarding H.R. 277, the Regulations from the Executive in Need of Scrutiny (REINS) Act, which was ordered reported by the Committee on the Judiciary on May 24, 2023.
The bill contains provisions that fall within the jurisdiction of the Committee on the Budget. In order to expedite House consideration of H.R. 277, the Committee on the Budget will forgo action on this bill. This is being done with the understanding that it does not waive any jurisdiction over the subject matter contained in H.R. 277 or similar legislation and that the Committee will be appropriately consulted and involved as this bill or similar legislation moves forward so that the Committee may address any remaining issues that fall within its jurisdiction. The Committee on the Budget also reserves the right to seek appointment of an appropriate number of conferees to any House-Senate conference involving this or similar legislation and requests your support of any such request.
I would appreciate a response to this letter confirming this understanding with respect to H.R. 277 and would ask that a copy of our exchange of letters on this matter be included in your committee report and in the Congressional Record during floor consideration of H.R. 277. Sincerely, Jodey C. Arrington, Chairman, Committee on the Budget. ____ House of Representatives, Committee on Rules, Washington, DC, May 25, 2023. Hon. Jim Jordan, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC.
Dear Chairman Jordan: On May 25, 2023, the Committee on the Judiciary ordered H.R. 277, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2023, reported to the House. As you know, the Committee on Rules was granted an additional referral upon the bill's introduction pursuant to the Committee's jurisdiction under rule X of the Rules of the House of Representatives over the rules of the House and special orders of business. The Committee has exclusive jurisdiction over several provisions related to expedited procedures for consideration of legislation in the House.
Because of your willingness to consult with my committee regarding this matter, I will waive consideration of the bill by the Committee on Rules. By agreeing to waive its consideration of the bill, the Committee on Rules does not waive its jurisdiction over H.R. 277. In addition, the Committee reserves its authority to seek conferees on any provisions of the bill that are within its jurisdiction during any House-Senate conference that may be convened on this legislation. I ask your commitment to support any request by the Committee on Rules for conferees on H.R. 277 or related legislation.
I also request that you include our exchange of letters on this matter in the committee report to accompany H.R. 277 and in the Congressional Record during consideration of this legislation on the House floor. Thank you for your attention to these matters. Sincerely, Tom Cole, Chairman. ____ House of Representatives, Committee on the Judiciary, Washington, DC, May 25, 2023. Hon. Tom Cole, Chairman, Committee on Rules, House of Representatives, Washington, DC.
Dear Chairman Cole: Thank you for consulting with the Committee on the Judiciary and agreeing to be discharged from further consideration of H.R. 277, the Regulations from the Executive In Need of Scrutiny Act of 2023, so that the measure may proceed expeditiously to the House floor.
I agree that your forgoing further action on this measure does not in any way diminish or alter the jurisdiction of your committee, or prejudice its jurisdictional prerogatives on this measure or similar legislation in the future. I would support your effort to seek appointment of an appropriate number of conferees from your committee to any House-Senate conference on this legislation.
I will include the exchange of these letters in the Judiciary Committee's report to accompany this legislation and in the Congressional Record during consideration of this legislation on the House floor. I appreciate your cooperation regarding this legislation and look forward to continuing to work together on matters of shared jurisdiction during this Congress. Thank you for your attention to this matter. Sincerely, Jim Jordan, Chairman.
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Mr. MASSIE. Mr. Chair, I yield myself such time as I may consume.
We now have had a sneak preview of what the next hour of debate is going to look like. The other side is going to argue that we need to give up more power to the executive branch.
I think our constituents would be appalled. They sent us here and they say we are not effective enough, yet the other side of the aisle is going to say, oh, we need to give the power to the executive branch.
We have also heard here already tonight that this bill, which would restore our Constitution, they say may be unconstitutional. They are referring to a Supreme Court case that has nothing to do with this bill, INS v. Chadha, which said you can't have a legislative veto. That bill that they were ruling on ran afoul of the Constitution because it didn't require passage in both Chambers and a signature by the President.
The REINS Act requires passage in both Chambers and a signature by the President, so their claim that it is unconstitutional is absurd because this is what is required to restore the Constitution.
Their claim that the REINS Act is redundant because we already have the Congressional Review Act is equally as absurd. There have been over 90,000 rules passed by the executive branch since the Congressional Review Act was passed. Only 20 of those have been able to be repealed by this Chamber and the Senate.
This is not a substitute for the Congressional Review Act. It is not redundant. This is what is required. It is what is missing right now in our constitutional structure from what our Founders intended.
Mr. Chair, I yield 3\1/2\ minutes to the gentlewoman from Wyoming (Ms. Hageman), who is also a member of the Subcommittee on Regulatory Reform.
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Mr. MASSIE. Mr. Chair, I include in the Record a cost estimate for H.R. 277 prepared by the Congressional Budget Office.
AT A GLANCE, H.R. 277, REINS ACT OF 2023, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON THE JUDICIARY ON MAY 24, 2023 ------------------------------------------------------------------------ By fiscal year, millions of dollars-- ----------------------------------- 2023 2023-2028 2023-2033 ------------------------------------------------------------------------ Direct Spending (Outlays)........... a a a Revenues............................ a a a Increase or Decrease (-) in the a a a Deficit............................ Spending Subject to Appropriation a a a (Outlays).......................... ------------------------------------------------------------------------ a. CBO has no basis to estimate the budgetary effects of enacting H.R.
277.
Increases net direct spending in any of the four consecutive 10-year periods beginning in 2034? a.
Increases on-budget deficits in any of the four consecutive 10-year periods beginning in 2034? a.
Statutory pay-as-you-go procedures apply? Yes.
Mandate Effects:
Contains intergovernmental mandate? No.
Contains private-sector mandate? No.
The bill would:
Estimated budgetary effects would mainly stem from:
Areas of significant uncertainty include:
Under current law, a final federal rule can take effect unless the Congress enacts a joint resolution of disapproval. In contrast, H.R. 277 would require the Congress to enact a joint resolution of approval before any major rule could take effect. Thus, under H.R. 277, new major regulations issued by federal agencies would depend on future legislation. Estimated Federal Cost
CBO and the staff of the Joint Committee on Taxation (JCT) cannot determine the budgetary effect of making all future major rules subject to Congressional approval, but we expect that, in the absence of subsequent legislative action affecting those rules, enacting H.R. 277 would have significant effects on direct spending, revenues, and spending subject to appropriation. Basis of Estimate
For this estimate, CBO assumes that the bill will be enacted in August 2023. Background
The Congressional Review Act (CRA) of 1996 requires federal agencies to submit final rules to the Congress and the Comptroller General before they may take effect. Final rules may be annulled by the Congress if a joint resolution of disapproval is enacted into law. H.R. 277 would amend current law to require instead that the Congress enact a joint resolution of approval before any major rule may take effect, thereby making implementation of major rules contingent on future Congressional action.
The CRA defines a major rule as one that the Office of Management and Budget finds has resulted in or is likely to result in:
H.R. 277 would establish special Congressional procedures and explicit timelines for enacting a joint resolution of approval for major rules. Under the bill, if a joint resolution of approval is not enacted within 70 legislative (or session) days of the Congress receiving the major rule and an accompanying report from a federal agency, the rule would not take effect. Further, the Congress could not reconsider a joint resolution of approval relating to that rule in the same Congress. However, a major rule could take effect for one 90-calendar-day period without Congressional approval if the President determines, via an executive order, that it was necessary for one of four reasons: (1) to respond to an imminent threat to health or safety, (2) to enforce criminal laws, (3) to protect national security, or (4) to implement an international trade agreement.
Historical data show that federal agencies published 78 major rules in 2022, and 93 major rules, on average, over the past five fiscal years. Major rules published in recent years include ones that established emissions standards for motor vehicles, set Medicare payment rates, and increased the minimum wage for federal contractors. However, looking to recent major rules as a way to estimate the number or scope of future major rules that would be affected by H.R. 277 may not be a good guide to what would happen under the bill because agencies might change the number of major rules they issue or implement policies differently if the bill was enacted.
Because major rules are issued to implement current law, the budgetary effects of anticipated rules are reflected in CBO's baseline projections. For example, annual rules establish new payment rates for a variety of Medicare services that reflect changes in the price indices used for those services under current law. Those rules often result in an increase in payment rates and thus an increase in spending, which are incorporated in the baseline.
Under the Balanced Budget and Emergency Deficit Control Act of 1985 (Deficit Control Act), which governs the contents of the baseline, actions that are contingent on future Congressional action are generally not included in CBO's projections. H.R. 277 would amend that Act to require that CBO continue to assume that any planned major rule will go into effect, unless the rule has already been issued and the Congress has not enacted a resolution of approval within the specified 70-day period. (Without that provision amending the Deficit Control Act, H.R. 277 would result in baseline projections that did not reflect the budgetary effects of major rules.)
Under H.R. 277, CBO's baseline projections would continue to include the budgetary effects of major rules even though future Congressional action would be necessary to approve them. For example, if H.R. 277 is enacted, baseline projections would continue to reflect the assumption that payment rates and related federal spending for Medicare providers would rise over time, even though raising those rates would require future Congressional action. Accordingly, a Congressional resolution of approval for a major rule raising such rates would be estimated as having no cost relative to CBO's baseline projections. (CBO's subsequent baseline projections would be updated to exclude the budgetary effects of a proposed rule if is the Congress does not approve it.) Direct Spending
To assess the budgetary effects of H.R. 277, CBO considered the costs and savings that would be realized if anticipated major rules do not take effect. The consequences would vary tremendously because the budgetary effects of different rules vary considerably.
Preventing some major rules from taking effect would result in costs to the federal government, while preventing others would result in savings. On net, CBO estimates that enacting H.R. 277 would probably have a significant effect on direct spending (more than $500,000), but we cannot determine the magnitude or direction of those changes for any year or over time.
Many major rules that occur routinely under current law are related to the government's health care programs, in particular Medicare. For example, some rules establish annual updates to payment rates for services provided by hospitals, skilled nursing facilities, and other Medicare providers. Enacting H.R. 277 would freeze payment structures for those providers at current levels pending future Congressional actions. Similarly, payment rates (such as the annual benefit amount for each person) under some other federal programs might also be frozen under the bill in the absence of future Congressional actions. CBO cannot estimate the net effect of all such changes. Revenues
Enacting H.R. 277 also would affect tax revenues, and JCT expects that preventing regulations from going into effect could reduce collections of revenues in some cases and increase collections in other cases. JCT cannot determine the sign or magnitude of the possible effects on revenues. Spending Subject to Appropriation
H.R. 277 also would affect programs funded through the annual appropriation process. However, CBO cannot determine the magnitude of such effects. For example, if major rules issued by the Environmental Protection Agency could not take effect, spending by the agency would decline, assuming future appropriations were reduced accordingly.
The legislation also would require the Government Accountability Office (GAO) to quantify the number of major and nonmajor rules in effect as of the date of enactment, and to estimate their total economic cost. Using information from GAO about the cost of similar studies, CBO estimates that completing that requirement would cost less than $500,000. Uncertainty
On net, CBO estimates that enacting H.R. 277 would likely have a significant effect on direct spending and revenues, but we cannot determine the magnitude or direction of those changes for any year or over time.
The budgetary effects of enacting the legislation are highly uncertain principally because CBO cannot predict:
The number and content of major rules that federal agencies would issue in the future,
Decisions made by the Congress about whether to approve those rules, or
The economic costs and benefits of those rules, including their effects on the federal budget. Pay-As-You-Go Considerations
The Statutory Pay-As-You-Go Act of 2010 establishes budget- reporting and enforcement procedures for legislation affecting direct spending or revenues. Pay-as-you-go procedures apply to H.R. 277 because enacting the legislation would affect direct spending and revenues. However, CBO and JCT cannot determine the magnitude or direction of those effects. Increase in Long-Term Net Direct Spending and Deficits
CBO cannot determine the magnitude or direction of the budgetary effects of H.R. 277. As a result, CBO cannot determine whether the legislation would increase net direct spending by more than $2.5 billion or on-budget deficits by more than $5 billion in any of the four consecutive 10-year periods beginning in 2034. Mandates
H.R. 277 would impose no intergovernmental or private- sector mandates as defined in the Unfunded Mandates Reform Act. However, by requiring major rules to be approved by a joint resolution of the Congress the bill could affect public and private entities. Those joint resolutions could delay or halt the implementation of major rules that could slow reimbursements to public and private entities or change regulatory requirements followed by those entities. CBO has no basis for estimating the magnitude of those effects because of the uncertainty about the number and content of regulations affected, but the costs and savings to public and private entities could be significant. Estimate Approved By Phillip L. Swagel, Director, Congressional Budget Office.
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Mr. MASSIE. Mr. Chair, I yield 2 minutes to the gentleman from Florida (Mr. Rutherford).
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Mr. MASSIE. Mr. Chairman, I yield 3 minutes to the gentleman from California (Mr. McClintock), my good friend who serves on the Judiciary Committee.
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Mr. MASSIE. Mr. Chair, I yield such time as she may consume to the gentlewoman from Florida (Mrs. Cammack), the sponsor of the REINS Act.
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Mr. MASSIE. Mr. Chairman, I yield 5 minutes to the gentleman from Florida (Mr. Posey), my good friend.
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Mr. MASSIE. Mr. Chairman, I yield 2 minutes to the gentleman from Wisconsin (Mr. Tiffany).
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Mr. MASSIE. Mr. Speaker, reasonable minds may differ about certain policies, but under the Constitution, we should all be on the same page about who should make law. Congress should make law.
Think about some of the laws that have been promulgated by the administrative branch, things that should have come to Congress. I got on an airplane a few years ago, and they said that Federal law requires that you wear a mask.
Do you know what I thought to myself? We never voted on that law. We should have voted on whether that should be a law or not. I would have voted ``no.''
It probably would not have passed, and if it had and our constituents decided it was too onerous, they could appeal to us, not some bureaucrat.
What are some other examples? The vaccine mandates that cost people their jobs. These were not laws passed by Congress. These were from the executive branch.
Then, tonight, we have just had two bipartisan votes to repeal executive branch rules, one on the pistol brace and one on stoves-- bipartisan.
What does that mean? That means if they had tried to bring those as laws through Congress as the Founders had intended, they would have failed because there would have been bipartisan opposition to that.
We should be making the laws here. It is very simple. When unelected, unaccountable, unrecallable bureaucrats write the laws, then the laws become more numerous and more onerous. We should pass the REINS Act and bring the constitutional authority back to Congress to pass legislation.
Mr. Chairman, I urge adoption of the bill, and I yield back the balance of my time.
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Mr. MASSIE. Mr. Chair, I move that the committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr. Van Orden) having assumed the chair, Mr. Rose, Acting Chair of the Committee of the Whole House on the state of the Union, reported that that Committee, having had under consideration the bill (H.R. 277) 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, had come to no resolution thereon.
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