How to fix regulation without representation

Recently, we saw yet another federal agency overstep its bounds with the National Labor Relations Board’s joint employer ruling that threatens thousands of contracting, staffing, and franchise businesses and jobs. Considering nobody can say with complete authority exactly how many federal agencies even exist, it’s time for lawmakers to start keeping tabs on these bureaucrats and conduct better oversight of their actions.

The House of Representatives recently passed the Regulations from the Executive In Need of Scrutiny (REINS) Act, sponsored by Rep. Todd Young (R-Ind.). With Congress returning to session in September, now is the perfect opportunity for the Senate to do the same, and make a serious effort to rein in federal agency overreach. This bill would help put agencies back in their places and require Congress to sign off on the most costly federal regulations, giving Americans some relief from this new era of regulation without representation. 

{mosads}Taxation without representation led America’s founders to revolt hundreds of years ago, but today, our regulatory burden is arguably a worse problem. Federal regulations and other interventions cost American consumers and the economy nearly $1.9 trillion per year—more than the size of Canada’s entire economy.

For the last few decades, Congress has been all too happy to delegate away its responsibilities to regulatory agencies. These days, the unelected agency bureaucrats do the bulk of the lawmaking in this country rather than elected officials. If a regulation works as intended, everybody’s happy and the politicians are quick to take credit. But if a rule backfires, is unpopular, or otherwise controversial, a politician can deflect criticism to an agency whose employees have near-absolute job security. 

Take last year for example, Congress passed and President Obama signed 224 bills into law. Meanwhile, federal agencies, like the Environmental Protection Agency (EPA) and the Department of Labor, passed 3,554 rules and regulations—that have the force of law—a 16-fold difference we like to call the “Unconstitutionality Index.” How did it come to this?

Too often, unelected agencies go rogue and act completely on their own. For example, in 2009, after Congress rejected cap-and-trade legislation for carbon emissions, the EPA went ahead and issued carbon emission regulations anyway, potentially costing consumers billions of dollars per year. Other major unilateral regulations range from the Federal Communications Commission’s “net neutrality” regulation of the Internet to the IRS offering Obamacare subsidies in states that did not set up their own health insurance exchanges, contrary to the language in Obamacare. 

This is where REINS can help. If an agency issues a rule with more than $100 million in annual costs, Congress would have to vote on it before it takes effect. Unelected agency personnel could no longer simply impose theirs or the administration’s will undemocratically.

The REINS Act would hold Congress accountable, as well as agencies. Members would have to go on public record supporting or opposing burdensome regulations, giving voters the facts on how they are really being represented in Congress. While this wouldn’t entirely end regulation without representation, at least it would force Congress to “own” the costs of the rules it directs agencies to implement.

While opponents call REINS a burden on members of Congress’ time or resources, in most years only around 40 to 50 regulations would trigger a REINS vote—equivalent to four or so extra votes per month. If agencies know that Congress has the ability to check rogue rulemaking, they may be less likely to issue unilateral rules in the first place, further reducing the potential burden on both Congress and the public. 

There is an urgent need to free consumers, entrepreneurs and small businesses from the costs and hurdles associated with federal red tape. The REINS Act would be an excellent anchor for reform, allowing Congress to clean out obsolete rules and strengthen rulemaking disclosure and oversight. REINS deserves both a vote in the Senate and to reach President Obama’s desk. If the president vetoes it, it’ll be up to him to explain why Americans should be controlled by agency bureaucrats rather than the people they elected to represent them in Congress. 

Crews is vice president for policy at the Competitive Enterprise Institute, where Young is a fellow.​