Without REINS It Pours: A Christmas Wish For Sane Government

This year, Congress has passed and the president has signed into law 39 pieces of legislation by my quick count.

They’re representatives, elected precisely to do such things.  If we’re unhappy, the relevance of even-numbered years is fairly well established.

Meanwhile, the people you didn’t elect to make laws but who do so regardless–the 291,676 federal regulatory agency employees–have issued 3,801 final regulations in the past 365 days; 919 of them just the past 90 days.

The rules appear in the Federal Register, which just hit 76,431 pages for 2011 alone.

Recent examples further clarify that the 800 pound gorilla of lawmaking is the Administrative State rather than Congress: the 66 page-long Sarbanes-Oxley legislation has spawned hundreds of pages of regulations. The 2,300 page Dodd-Frank financial legislation has already generated thousands of pages of rules and millions of words.

The Affordable Care Act that “we ha[d] to pass…so that you can find out what is in it” was 996 pages, with one noteworthy six-page excerpt that’s alone led to 429 pages of regulation.

No legislation was ever passed to allow Federal Communications Commission to implement “net neutrality” rules, but we have FCC‘s Open Internet Order anyway, so Congress can pucker up FCC’s derriere as far as that agency is concerned.

No one is accountable to voters for the laws issued by such regulators. Congress doesn’t vote on them, the president doesn’t sign them.

That’s OK with the New York Times, which called REINS “a terrible piece of legislation that would undermine a functioning regulatory system that protects people from harm.

The Times says, “In a nutshell, the bill would stop any major regulation issued by a federal agency and costing more than $100 million from taking effect unless it received approval from both houses of Congress and the president.”

That’s supposed to be radical? It’s also–”in a nutshell”–what the Constitution stipulates; you might vaguely recall that retro, out-of-style document had been known to advance a somewhat similar theory of representative government.

Let’s see, where was it buried…ah!  Right there at the top, Article 1, Section 1:  ”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.”

This alien Constitution also stipulates that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it.”

Congress certainly has over-delegated power to agencies (In that sense, REINS is really a form of Congressional reform rather than executive reform). But alongside over-delegation, there’s outright usurpation such that Congress has to actually try to pass a law to stop an agency from doing what it wasn’t empowered to do in the first place, as Congress was reduced to attempting (it failed) with the FCC’s neutrality rules.

Further, the President doesn’t sign regulatory laws per the “presentment” clause of the Constitution. All this is useful to remember since groups like Center for American Progress and NRDC blast the REINS Act’s constitutionality relative to the abomination-to-accountability in place now.

REINS basically runs a highlighter over Article 1, Section 1, and the presentment clause to boot in a way, and gives the Constitution’s hard-won restraints on unauthorized force a symbolic Facebook “Like” and a Google +1.

Critics also echo the claim that it’s unconstitutional for REINS to allow one House of Congress can block a costly rule. That’s not an accurate characterization of what the act does (see Jonathan Adler at Voloch Conspiracy today for great insight) nor of basic how-a-bill-becomes-law reality. Regardless, it’s not OK for groups like Center for American Progress to appeal to the Constitution regarding the action of one chamber while remaining tolerant of thousands of pages of law being left to interpretation and drafting entirely by to non-lawmakers.

The affront to our Constitution happens when lawmaking gets inappropriately detached from Congress at an incomplete stage; not when Congress later questions an agency’s Version 2.0.

It’s Orwellian indeed to claim that the REINS Act’s conscious reaffirmation of the Constitution itself represents the violation of the separation of powers at play in our country.  Rather, institutionalized disdain for separation of powers defines modern lawmaking.

Regardless, the technical constitutionality debate’s been settled; legislation prior to REINS with similar intent from former Rep. Nick Smith was designed specifically to address un-constitionality concerns over a decade ago.

The bottom line is this.  REINS does not unconstitutionally “allow” a unicameral “blockage” of law;  it validates bi-cameral affirmation and presidential presentment.  Modern over-delegation may also violate the ”faithful execution” requirement owing to the President’s utter uninvolvement. But I’ll leave to lawyers.

The New York Times, like CAP, regards agency edits of a piece of vague legislation as OK, but holds that it’s not OK for the legislation’s prime movers, the ones we elected, to then certify what derivative agencies subsequently do, whatever misinterpretations or even abuses may have taken place.

As Fred Smith our president at the Competitive Enterprise Institute marveled aloud, “The bill requires that Congress reacquire a part of its constitutional power – starting with the most serious ‘outsourcing’ violations.  This is wrong?”

There you have a nice Christmas give to the nation: REIN in outsourcing when it comes to manufacturing law.