August 07, 2012

Governor Romney's Illegal Proposal for REINS-Lite -- Presidents Don't Get to Use Executive Orders to Rewrite Statutes

Governor Romney claims that burdensome regulations are an immense but hidden tax holding back the American economy. As proof for this proposition, he cites the study on regulatory costs sponsored by the Small Business Administration – a study that’s been debunked by a CPR white paper, the Congressional Research Service, and others. Romney lays out some solutions to this supposed problem in Believe in America: Mitt Romney’s Plan for Jobs and Economic Growth, issued in September of last year.  One of these ideas is to require affirmative congressional approval of all major rules. 

People who drop by CPR’s website likely know that Republicans have already tried to pass legislation to this effect in the form of the Regulations from the Executive in Need of Scrutiny (REINS) Act. The bill passed the House in late 2011, but has gone nowhere in the Senate.  Proponents of the REINS Act like to cast it as a matter of legislative accountability, but the real impetus behind this proposed legislation is to block agencies from regulating by entrusting the fate of rules to a Congress where anti-regulatory forces will likely control at least one choke point. The REINS Act itself, however, can only devastate regulation if it becomes law, and this will probably happen only if the Republicans retain the House, grab the Senate and defang the filibuster, and seize the Presidency.  Governor Romney has therefore made alternative arrangements. In his plan, he promises, if elected, to issue an executive order requiring agencies to “invite Congress to vote up or down” on major rules and forbidding agencies from promulgating them without affirmative congressional approval (page 63).  Let’s call this proposal REINS-lite.

This proposal has a wonderfully ironic quality. Functionally, it would amount to a major rule governing agency rulemaking.  Its basic underlying premise is that major rules should require congressional approval.  The way that Congress could express approval of this major ‘rule’ would be by passing the REINS Act.  If Congress fails to pass the REINS Act but Romney institutes a regulatory equivalent via executive order, that executive order would contradict its own reason for being.

This proposal also assumes an imperial understanding of presidential power under which the President’s control of an agency head is tantamount to that which a CEO might exercise over a corporate underling.  (“Jump!” “How high?”) On this view, the President can give binding instructions to agency heads regarding how they may use discretionary rulemaking authority that Congress delegated to the agencies, not the President.  There is, of course, a longstanding debate over this issue of presidential control, motivated to a considerable degree by executive orders that Presidents from both parties have issued requiring application of cost-benefit analysis to rulemaking where permissible by law.

The precise scope of this presidential power to control agencies will never be fully resolved—it’s that type of question.  Still, this power certainly does not extend to ordering agencies to violate their enabling acts. REINS-lite would amount to a presidential fiat that blocks agencies from implementing policies enacted into law by Congress.  Such power grabs are beyond legal presidential authority.

Administrative Law 101 teaches us that delegations of rulemaking power must impart significant discretion to agencies.  For instance, suppose Congress passes a law that tells the EPA to clean up the air to protect public health and welfare, and it authorizes the EPA Administrator to promulgate rules reasonably necessary to do so.  Due to limits of time, staffing, money, and other resources, the Administrator obviously cannot instantaneously push through every rule that might be helpful for cleaning the air. She must have discretion regarding which priorities to pursue and which rules to adopt. Recognizing these facts of administrative life, courts purport to review an agency’s refusal to adopt a rule under a particularly lax form of the arbitrary-and-capricious test.  Persuading a court to overturn an agency’s denial of a petition for rulemaking is not and should not be easy. 

An agency’s discretion does not, however, extend to refusing to regulate based on considerations that undermine the basic policy choices embedded in the statute that gave the agency its rulemaking authority in the first place. This point is well illustrated by the Supreme Court’s decision in Massachusetts v. EPA.  Section 202(a)(1) of the Clean Air Act provides that the EPA “shall by regulation prescribe … standards applicable to the emission of any air pollutant from … new motor vehicles … which in [the Administrator’s] judgment cause, or contribute to, air pollution … reasonably … anticipated to endanger public health or welfare.” Petitioners requested that EPA initiate a rulemaking to regulate carbon dioxide emissions under this authority.  One of EPA’s grounds for denying the petition was that,,  even if carbon dioxide was an air pollutant, the agency would exercise its discretion to decline to regulate because “a number of voluntary executive branch programs already provide an effective response to the threat of global warming, … regulating greenhouse gases might impair the President’s ability to negotiate with ‘key developing nations’ to reduce emissions, and … curtailing motor-vehicle emissions would reflect ‘an inefficient, piecemeal approach to address the climate change issue.’”  (127 S. Ct. at 1462).  The Court rejected these rationales as arbitrary because they did not “conform to the authorizing statute.” The statutory scheme required the agency to determine whether carbon dioxide emissions endanger public health and safety, or, in the alternative, to provide a reasoned explanation based on relevant factors for declining to make this determination. To the Court, it was evident that the agency’s reasons for refusing to regulate had no legal relevance to these inquiries—e.g., the existence of voluntary programs had no proper bearing on the endangerment finding.

Similarly, REINS-lite would block agencies from promulgating rules based on a consideration—failure to obtain approval from the current Congress—that has no logical bearing at all on whether those rules would reasonably implement the policies that Congress had previously embedded into law.  Indeed, let’s face it—the chief point of REINS-lite would be to undermine the ability of agencies to implement those congressional policy commitments. Requiring agencies to obtain affirmative congressional approval for new rules would profoundly distort the intent of those earlier Congresses that took the trouble to pass statutes such as the Clean Air Act, the Clean Water Act, and the Occupational Safety and Health Act—among many others.  Congress may, if it wishes, trump these old congressional policy choices by adopting the REINS Act.  But the President does not have authority to craft a substitute by executive order that effectively rewrites agencies’ authorizing statutes where Congress has declined to do so. 

If an agency, following REINS-lite, ever fails to promulgate a rule because Congress failed to affirmatively approve it, some proponent of that rule should petition for the agency to adopt it.  Once the agency admits that it failed to adopt the rule because Congress failed to affirmatively approve it, this proponent should seek judicial review on the ground that the refusal was arbitrary because it was based on an irrelevant factor that had no logical bearing on the agency’s proper policymaking task.  And the reviewing court should agree.

Richard Murphy, Professor of Law, Texas Tech University. Bio.