Little-Noticed Part of GOP Bill Could ‘Make It Impossible to Regulate’

A new regulation would effectively force carmakers to switch most new passenger cars to electric by 2032. House Republicans want to make it easier to block such changes.

Government agencies have proposed dozens of major regulations so far this year. One specifies the kinds of operating cords that can be used on custom window coverings, and another would effectively require carmakers to transition two-thirds of all new passenger cars to electric technology.

Under a little-noticed provision in a House bill that passed this month, all of those regulations would need to come before Congress for a vote before they could go into effect.

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“It may seem like it’s in the weeds, but it really affects all of us,” said Susan Dudley, the director of the regulatory studies center at George Washington University, who was the top regulatory official in the George W. Bush administration.

She was one of several leading experts unaware that the bill contained this provision.

The Republican legislation, which is not expected to become law in its current form, has mostly attracted attention for its part in the debate about raising the country’s borrowing limit and for its proposals to reduce federal deficits over the next decade. But its effort to reshape the federal regulatory process could arguably have a deeper impact on the future functioning of government.

While Congress passes laws every year, federal agencies tend to roll out many, many more regulations. Those long, often technical rules help business understand how the government works, by setting standards for allowable pollution, establishing how much doctors and hospitals will be paid for medical care, and explaining what numerous technical or vague terms and processes in legislation really mean. The process of rule-making often takes years and requires a period of public comment before a regulation becomes final.

Regulations are not apolitical. As Congress has become more polarized and gridlocked, presidents have become more aggressive about enacting major policies through them. Barack Obama tried to use rule-making to limit carbon emissions from power plants. Donald Trump used rule-making to deny green cards to immigrants who had used certain social benefit programs. And President Joe Biden is hoping to use regulation to forgive hundreds of billions of dollars in student loans.

But many major regulations make fewer headlines, and most rely on technical expertise by federal agencies that Congress would be hard-pressed to replicate. This year’s list includes one updating technical standards for mammography equipment and one clarifying when a gun’s features mean it is designed to be fired from the shoulder. A recent payment rule for Medicare Advantage changed the formula meant to pay private insurers for covering customers with vascular disease, based on a detailed review of medical data.

The legislation would require Congress to approve each of those actions before they go into effect, under a fast-tracked legislative process that would force up-or-down votes on the rules without any possibility of amendment. Any major rule that failed to pass both houses of Congress could not be proposed again for at least a year. Current law allows Congress to upend a regulation it does not like, but the process requires majority votes by both houses of Congress, and a signature by the president, meaning nearly all regulations go into effect.

The legislation to change this default was first written more than a decade ago by Geoffrey Davis, then a Republican congressperson from Kentucky. Davis, who came from a business background, was concerned about the number of high-cost regulations he saw approved while he was in government.

One day, he received a visit in his district office, and “this gentleman asked me one question, and this was my turning point: ‘Why can’t you just vote on this?’” Davis said. “And it just clicked.”

Supporters of Davis’ idea, known as the REINS Act — for Regulations from the Executive in Need of Scrutiny — say it would force Congress to take more responsibility for being clear about what its laws mean. Davis said he felt that Congress had too often written vague laws that delegated too many important decisions to executive agencies to decide.

“It would increase the incentives for Congress to be more proactive,” said Jonathan Adler, a professor of law at Case Western Reserve University, who wrote an article supporting the idea in 2011. “We need legislators to legislate, and part of legislating is taking accountability for the big policy decisions that are being made.”

Others, of course, like the idea because it would make it harder for the government to enact any regulations at all — the same reason that many regulatory experts are less enthusiastic about the REINS Act.

“The practical impact of this in a time of divided government like we have now is that I think no major rule would ever get done,” said Jonathan Siegel, a law professor at George Washington, who has written about the bill at length.

If the Republican House wanted to deny the Biden administration policy wins, it could simply vote no on every regulation it proposed. Those might include rules that explain how major portions of last year’s Inflation Reduction Act are meant to work. In a REINS Act world, the Republican House could just block those rules, effectively thwarting legislation passed by a previous Congress.

“If you starve the beast by never allowing the implementing regulations to issue, then you have in effect nullified the legislation,” said Sally Katzen, a co-director of the legislative and regulatory process clinic at New York University who was the top regulatory official in the Clinton administration.

She pointed out that Republicans tend to schedule votes on the REINS Act when there is a Democratic president but not when a Republican holds the office.

“What they want to do is to make it impossible to regulate,” said Nicholas Bagley, a law professor at the University of Michigan.

The obstruction can work both ways. Imagine how the Democratic House might have voted on Trump-era rules that had the effect of cutting all family planning funding for Planned Parenthood, limiting civil rights protections for transgender Americans or rolling back controls on power plant emissions.

Davis said blocking rules wholesale was not his intention. His hope was to improve Congress’ process.

“I want to make the legislation specific enough to force a bipartisan dialogue,” he said.

But Congress already has problems writing legislation in technical and contested areas. Many Republicans dislike environmental regulations interpreting the Clean Water Act, which asks the Environmental Protection Agency to limit pollution that is harmful to human health. But Congress has not made major revisions to that law in decades. Simply voting on rules about how those old laws apply to new scientific findings may not be enough to prompt robust new legislating.

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