Jonathan R. Siegel

Professor of Law

George Washington University

16 NYU J. Legis. & Pub. Pol'y 131 (2013)

The REINS Act (“Regulations From the Executive in Need of Scrutiny”), which passed the House of Representatives in December 2011, would revolutionize our system of government by requiring that all major rules promulgated by federal agencies receive congressional approval before becoming effective. The tremendous significance of the REINS Act has led to fierce debate about both its constitutionality and its wisdom. This article explains that the REINS Act would be perfectly constitutional. Those who challenge its constitutionality correctly point out that the Act would diminish the power of the President and add to the power of Congress. The critical question, however, is not how the Act would alter those powers relative to where they stand now, but whether the Act would impermissibly grant Congress powers beyond those provided by the Constitution. The Act would not do so because it would merely reclaim for Congress powers that Congress was not required to delegate in the first place. This article also addresses the REINS Act from a policy perspective. While the Act would have the virtue of implementing the constitutional ideal that the legislature makes the laws, it would be hopelessly impractical. Congress lacks the time and expertise to vote responsibly on every major regulation. Thus, while the Act would be constitutional, it would be bad policy.