19–006 

112TH CONGRESS REPT. 112–278 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

REGULATIONS FROM THE EXECUTIVE IN NEED OF 

SCRUTINY ACT OF 2011 

NOVEMBER 10, 2011.—Ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 10] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 10) to amend chapter 8 of title 5, United States Code, to provide that major rules of the executive branch shall have no force 

or effect unless a joint resolution of approval is enacted into law, 

having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 7 

Background and Need for the Legislation ............................................................. 7 

Hearings ................................................................................................................... 16 

Committee Consideration ........................................................................................ 16 

Committee Votes ...................................................................................................... 16 

Committee Oversight Findings ............................................................................... 21 

New Budget Authority and Tax Expenditures ...................................................... 22 

Congressional Budget Office Cost Estimate .......................................................... 22 

Performance Goals and Objectives ......................................................................... 26 

Advisory on Earmarks ............................................................................................. 26 

Section-by-Section Analysis .................................................................................... 26 

Changes in Existing Law Made by the Bill, as Reported ..................................... 27 

Dissenting Views ..................................................................................................... 40 


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The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Regulations From the Executive in Need of Scrutiny 

Act of 2011’’. 

SEC. 2. PURPOSE. 

The purpose of this Act is to increase accountability for and transparency in the 

federal regulatory process. Section 1 of article I of the United States Constitution 

grants all legislative powers to Congress. Over time, Congress has excessively delegated its constitutional charge while failing to conduct appropriate oversight and retain accountability for the content of the laws it passes. By requiring a vote in Congress, the REINS Act will result in more carefully drafted and detailed legislation, 

an improved regulatory process, and a legislative branch that is truly accountable 

to the American people for the laws imposed upon them. 

SEC. 3. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING. 

Chapter 8 of title 5, United States Code, is amended to read as follows: 

‘‘CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY RULEMAKING 

‘‘Sec. 

‘‘801. Congressional review. 

‘‘802. Congressional approval procedure for major rules. 

‘‘803. Congressional disapproval procedure for nonmajor rules. 

‘‘804. Definitions. 

‘‘805. Judicial review. 

‘‘806. Exemption for monetary policy. 

‘‘807. Effective date of certain rules. 

‘‘§ 801. Congressional review 

‘‘(a)(1)(A) Before a rule may take effect, the Federal agency promulgating such 

rule shall submit to each House of the Congress and to the Comptroller General a 

report containing— 

‘‘(i) a copy of the rule; 

‘‘(ii) a concise general statement relating to the rule; 

‘‘(iii) a classification of the rule as a major or nonmajor rule, including an explanation of the classification specifically addressing each criteria for a major 

rule contained within sections 804(2)(A), 804(2)(B), and 804(2)(C); 

‘‘(iv) a list of any other related regulatory actions intended to implement the 

same statutory provision or regulatory objective as well as the individual and 

aggregate economic effects of those actions; and 

‘‘(v) the proposed effective date of the rule. 

‘‘(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit to the Comptroller General and 

make available to each House of Congress— 

‘‘(i) a complete copy of the cost-benefit analysis of the rule, if any; 

‘‘(ii) the agency’s actions pursuant to sections 603, 604, 605, 607, and 609 of 

this title; 

‘‘(iii) the agency’s actions pursuant to sections 202, 203, 204, and 205 of the 

Unfunded Mandates Reform Act of 1995; and 

‘‘(iv) any other relevant information or requirements under any other Act and 

any relevant Executive orders. 

‘‘(C) Upon receipt of a report submitted under subparagraph (A), each House shall 

provide copies of the report to the chairman and ranking member of each standing 

committee with jurisdiction under the rules of the House of Representatives or the 

Senate to report a bill to amend the provision of law under which the rule is issued. 

‘‘(2)(A) The Comptroller General shall provide a report on each major rule to the 

committees of jurisdiction by the end of 15 calendar days after the submission or 

publication date as provided in section 802(b)(2). The report of the Comptroller General shall include an assessment of the agency’s compliance with procedural steps 

required by paragraph (1)(B). 

‘‘(B) Federal agencies shall cooperate with the Comptroller General by providing 

information relevant to the Comptroller General’s report under subparagraph (A). 

‘‘(3) A major rule relating to a report submitted under paragraph (1) shall take 

effect upon enactment of a joint resolution of approval described in section 802 or 

as provided for in the rule following enactment of a joint resolution of approval described in section 802, whichever is later. 


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‘‘(4) A nonmajor rule shall take effect as provided by section 803 after submission 

to Congress under paragraph (1). 

‘‘(5) If a joint resolution of approval relating to a major rule is not enacted within 

the period provided in subsection (b)(2), then a joint resolution of approval relating 

to the same rule may not be considered under this chapter in the same Congress 

by either the House of Representatives or the Senate. 

‘‘(b)(1) A major rule shall not take effect unless the Congress enacts a joint resolution of approval described under section 802. 

‘‘(2) If a joint resolution described in subsection (a) is not enacted into law by the 

end of 70 session days or legislative days, as applicable, beginning on the date on 

which the report referred to in section 801(a)(1)(A) is received by Congress (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), then the rule described in that resolution shall be deemed not to 

be approved and such rule shall not take effect. 

‘‘(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a major rule may take effect for one 90-calendar-day period if the President makes a determination under paragraph (2) and submits written notice of such 

determination to the Congress. 

‘‘(2) Paragraph (1) applies to a determination made by the President by Executive 

order that the major rule should take effect because such rule is— 

‘‘(A) necessary because of an imminent threat to health or safety or other 

emergency; 

‘‘(B) necessary for the enforcement of criminal laws; 

‘‘(C) necessary for national security; or 

‘‘(D) issued pursuant to any statute implementing an international trade 

agreement. 

‘‘(3) An exercise by the President of the authority under this subsection shall have 

no effect on the procedures under section 802. 

‘‘(d)(1) In addition to the opportunity for review otherwise provided under this 

chapter, in the case of any rule for which a report was submitted in accordance with 

subsection (a)(1)(A) during the period beginning on the date occurring— 

‘‘(A) in the case of the Senate, 60 session days, or 

‘‘(B) in the case of the House of Representatives, 60 legislative days, 

before the date the Congress is scheduled to adjourn a session of Congress through 

the date on which the same or succeeding Congress first convenes its next session, 

sections 802 and 803 shall apply to such rule in the succeeding session of Congress. 

‘‘(2)(A) In applying sections 802 and 803 for purposes of such additional review, 

a rule described under paragraph (1) shall be treated as though— 

‘‘(i) such rule were published in the Federal Register on— 

‘‘(I) in the case of the Senate, the 15th session day, or 

‘‘(II) in the case of the House of Representatives, the 15th legislative day, 

after the succeeding session of Congress first convenes; and 

‘‘(ii) a report on such rule were submitted to Congress under subsection (a)(1) 

on such date. 

‘‘(B) Nothing in this paragraph shall be construed to affect the requirement under 

subsection (a)(1) that a report shall be submitted to Congress before a rule can take 

effect. 

‘‘(3) A rule described under paragraph (1) shall take effect as otherwise provided 

by law (including other subsections of this section). 

‘‘§ 802. Congressional approval procedure for major rules 

‘‘(a) For purposes of this section, the term ‘joint resolution’ means only a joint resolution introduced on or after the date on which the report referred to in section 

801(a)(1)(A) is received by Congress (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the 

resolving clause of which is as follows: ‘That Congress approves the rule submitted 

by the l l relating to l l.’ (The blank spaces being appropriately filled in). 

‘‘(1) In the House, the majority leader of the House of Representatives (or his 

designee) and the minority leader of the House of Representatives (or his designee) shall introduce such joint resolution described in subsection (a) (by request), within 3 legislative days after Congress receives the report referred to 

in section 801(a)(1)(A). 

‘‘(2) In the Senate, the majority leader of the Senate (or his designee) and the 

minority leader of the Senate (or his designee) shall introduce such joint resolution described in subsection (a) (by request), within 3 session days after Congress receives the report referred to in section 801(a)(1)(A). 

‘‘(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction under the rules of the House 


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of Representatives or the Senate to report a bill to amend the provision of law under 

which the rule is issued. 

‘‘(2) For purposes of this section, the term ‘submission date’ means the date on 

which the Congress receives the report submitted under section 801(a)(1). 

‘‘(c) In the Senate, if the committee or committees to which a joint resolution described in subsection (a) has been referred have not reported it at the end of 15 session days after its introduction, such committee or committees shall be automatically discharged from further consideration of the resolution and it shall be placed 

on the calendar. A vote on final passage of the resolution shall be taken on or before 

the close of the 15th session day after the resolution is reported by the committee 

or committees to which it was referred, or after such committee or committees have 

been discharged from further consideration of the resolution. 

‘‘(d)(1) In the Senate, when the committee or committees to which a joint resolution is referred have reported, or when a committee or committees are discharged 

(under subsection (c)) from further consideration of a joint resolution described in 

subsection (a), it is at any time thereafter in order (even though a previous motion 

to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and 

against consideration of the joint resolution) are waived. The motion is not subject 

to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is 

agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of. 

‘‘(2) In the Senate, debate on the joint resolution, and on all debatable motions 

and appeals in connection therewith, shall be limited to not more than 2 hours, 

which shall be divided equally between those favoring and those opposing the joint 

resolution. A motion to further limit debate is in order and not debatable. An 

amendment to, or a motion to postpone, or a motion to proceed to the consideration 

of other business, or a motion to recommit the joint resolution is not in order. 

‘‘(3) In the Senate, immediately following the conclusion of the debate on a joint 

resolution described in subsection (a), and a single quorum call at the conclusion 

of the debate if requested in accordance with the rules of the Senate, the vote on 

final passage of the joint resolution shall occur. 

‘‘(4) Appeals from the decisions of the Chair relating to the application of the rules 

of the Senate to the procedure relating to a joint resolution described in subsection 

(a) shall be decided without debate. 

‘‘(e)(1) In the House of Representatives, if the committee or committees to which 

a joint resolution described in subsection (a) has been referred have not reported 

it at the end of 15 legislative days after its introduction, such committee or committees shall be automatically discharged from further consideration of the resolution 

and it shall be placed on the appropriate calendar. A vote on final passage of the 

resolution shall be taken on or before the close of the 15th legislative day after the 

resolution is reported by the committee or committees to which it was referred, or 

after such committee or committees have been discharged from further consideration of the resolution. 

‘‘(2)(A) A motion in the House of Representatives to proceed to the consideration 

of a resolution shall be privileged and not debatable. An amendment to the motion 

shall not be in order, nor shall it be in order to move to reconsider the vote by which 

the motion is agreed to or disagreed to. 

‘‘(B) Debate in the House of Representatives on a resolution shall be limited to 

not more than two hours, which shall be divided equally between those favoring and 

those opposing the resolution. A motion to further limit debate shall not be debatable. No amendment to, or motion to recommit, the resolution shall be in order. It 

shall not be in order to reconsider the vote by which a resolution is agreed to or 

disagreed to. 

‘‘(C) Motions to postpone, made in the House of Representatives with respect to 

the consideration of a resolution, and motions to proceed to the consideration of 

other business, shall be decided without debate. 

‘‘(D) All appeals from the decisions of the Chair relating to the application of the 

Rules of the House of Representatives to the procedure relating to a resolution shall 

be decided without debate. 

‘‘(f) If, before the passage by one House of a joint resolution of that House described in subsection (a), that House receives from the other House a joint resolution 

described in subsection (a), then the following procedures shall apply with respect 

to a joint resolution described in subsection (a) of the House receiving the joint resolution— 

‘‘(1) the procedure in that House shall be the same as if no joint resolution 

had been received from the other House; but 


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‘‘(2) the vote on final passage shall be on the joint resolution of the other 

House. 

‘‘(g) This section and section 803 are enacted by Congress— 

‘‘(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each 

House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution described in subsection (a), 

and it supersedes other rules only to the extent that it is inconsistent with such 

rules; and 

‘‘(2) with full recognition of the constitutional right of either House to change 

the rules (so far as relating to the procedure of that House) at any time, in the 

same manner, and to the same extent as in the case of any other rule of that 

House. 

‘‘§ 803. Congressional disapproval procedure for nonmajor rules 

‘‘(a) For purposes of this section, the term ‘joint resolution’ means only a joint resolution introduced in the period beginning on the date on which the report referred 

to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a 

session of Congress), the matter after the resolving clause of which is as follows: 

‘That Congress disapproves the nonmajor rule submitted by the l l relating to l 

l, and such rule shall have no force or effect.’ (The blank spaces being appropriately filled in). 

‘‘(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction. 

‘‘(2) For purposes of this section, the term submission or publication date means 

the later of the date on which— 

‘‘(A) the Congress receives the report submitted under section 801(a)(1); or 

‘‘(B) the nonmajor rule is published in the Federal Register, if so published. 

‘‘(c) In the Senate, if the committee to which is referred a joint resolution described in subsection (a) has not reported such joint resolution (or an identical joint 

resolution) at the end of 15 session days after the date of introduction of the joint 

resolution, such committee may be discharged from further consideration of such 

joint resolution upon a petition supported in writing by 30 Members of the Senate, 

and such joint resolution shall be placed on the calendar. 

‘‘(d)(1) In the Senate, when the committee to which a joint resolution is referred 

has reported, or when a committee is discharged (under subsection (c)) from further 

consideration of a joint resolution described in subsection (a), it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed 

to) for a motion to proceed to the consideration of the joint resolution, and all points 

of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to 

reconsider the vote by which the motion is agreed to or disagreed to shall not be 

in order. If a motion to proceed to the consideration of the joint resolution is agreed 

to, the joint resolution shall remain the unfinished business of the Senate until disposed of. 

‘‘(2) In the Senate, debate on the joint resolution, and on all debatable motions 

and appeals in connection therewith, shall be limited to not more than 10 hours, 

which shall be divided equally between those favoring and those opposing the joint 

resolution. A motion to further limit debate is in order and not debatable. An 

amendment to, or a motion to postpone, or a motion to proceed to the consideration 

of other business, or a motion to recommit the joint resolution is not in order. 

‘‘(3) In the Senate, immediately following the conclusion of the debate on a joint 

resolution described in subsection (a), and a single quorum call at the conclusion 

of the debate if requested in accordance with the rules of the Senate, the vote on 

final passage of the joint resolution shall occur. 

‘‘(4) Appeals from the decisions of the Chair relating to the application of the rules 

of the Senate to the procedure relating to a joint resolution described in subsection 

(a) shall be decided without debate. 

‘‘(e) In the Senate the procedure specified in subsection (c) or (d) shall not apply 

to the consideration of a joint resolution respecting a nonmajor rule— 

‘‘(1) after the expiration of the 60 session days beginning with the applicable 

submission or publication date, or 

‘‘(2) if the report under section 801(a)(1)(A) was submitted during the period 

referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session day after the succeeding session of Congress first convenes. 


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‘‘(f) If, before the passage by one House of a joint resolution of that House described in subsection (a), that House receives from the other House a joint resolution 

described in subsection (a), then the following procedures shall apply: 

‘‘(1) The joint resolution of the other House shall not be referred to a committee. 

‘‘(2) With respect to a joint resolution described in subsection (a) of the House 

receiving the joint resolution— 

‘‘(A) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but 

‘‘(B) the vote on final passage shall be on the joint resolution of the other 

House. 

‘‘§ 804. Definitions 

‘‘For purposes of this chapter— 

‘‘(1) The term ‘Federal agency’ means any agency as that term is defined in 

section 551(1). 

‘‘(2) The term ‘major rule’ means any rule, including an interim final rule, 

that the Administrator of the Office of Information and Regulatory Affairs of 

the Office of Management and Budget finds has resulted in or is likely to result 

in— 

‘‘(A) an annual effect on the economy of $100,000,000 or more; 

‘‘(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; 

or 

‘‘(C) significant adverse effects on competition, employment, investment, 

productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export 

markets. 

‘‘(3) The term ‘nonmajor rule’ means any rule that is not a major rule. 

‘‘(4) The term ‘rule’ has the meaning given such term in section 551, except 

that such term does not include— 

‘‘(A) any rule of particular applicability, including a rule that approves or 

prescribes for the future rates, wages, prices, services, or allowances therefore, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the 

foregoing; 

‘‘(B) any rule relating to agency management or personnel; or 

‘‘(C) any rule of agency organization, procedure, or practice that does not 

substantially affect the rights or obligations of non-agency parties. 

‘‘§ 805. Judicial review 

‘‘(a) No determination, finding, action, or omission under this chapter shall be subject to judicial review. 

‘‘(b) Notwithstanding subsection (a), a court may determine whether a Federal 

agency has completed the necessary requirements under this chapter for a rule to 

take effect. 

‘‘(c) The enactment of a joint resolution of approval under section 802 shall not 

be interpreted to serve as a grant or modification of statutory authority by Congress 

for the promulgation of a rule, shall not extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and shall not form part 

of the record before the court in any judicial proceeding concerning a rule except 

for purposes of determining whether or not the rule is in effect. 

‘‘§ 806. Exemption for monetary policy 

‘‘Nothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of the Federal Reserve System or 

the Federal Open Market Committee. 

‘‘§ 807. Effective date of certain rules 

‘‘Notwithstanding section 801— 

‘‘(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory 

program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping; or 

‘‘(2) any rule other than a major rule which an agency for good cause finds 

(and incorporates the finding and a brief statement of reasons therefore in the 

rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, 

shall take effect at such time as the Federal agency promulgating the rule determines.’’. 


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1See Contract with America Advancement Act of 1996, H.R. 3136, 104th Cong., § 251 (1996) 

(enacted as 104 P.L. 121, codified at 5 U.S.C. §§ 801–808). 2See, e.g., Congressional Responsibility Act of 2003, H.R. 110, 108th Cong.; Congressional 

Regulatory Reform Act of 2000, S.2670, 106th Cong.; Congressional Responsibility Act of 1999, 

S.1348, 106th Cong. 3 House Judiciary Committee, Subcommittee on Commercial and Administrative Law, Interim 

Report on the Administrative Law, Process and Procedure Project for the 21st Century, Comm. 

Print No. 10 (Dec. 2006) at 104. 4See, e.g., Morton Rosenberg, Whatever Happened to Congressional Review of Agency Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform, 51 ADMIN. L. REV. 1051, 1083– 

84 (‘‘The CRA is not working. . . . Agency lawmaking as a surrogate for the Congress is, and 

should be, political in nature and is openly recognized and treated as such. . . . All covered 

rules should be subject to approval by the Congress on an expedited basis, with rules deemed 

significant receiving more intensive scrutiny and floor deliberation.’’) (Fall 1999); Paul R. 

Verkuil, Comment: Rulemaking Ossification—A Modest Proposal, 47 ADMIN. L. REV. 453, 457 

(Summer 1995) (Proposing ‘‘to have major rules—those that are subject to ossification—come 

back to Congress on a fast-track basis to be enacted into statutes.’’); Stephen Breyer, The Legislative Veto After Chadha, 72 GEO. L.J. 785, 794 (Feb. 1984) (‘‘In its main features then, the substitute fast track approach closely resembles the legislative veto. . . . The method by which this 

is done, however, is different from that followed by the traditional legislative veto; the Constitution’s language is followed as a matter of form. Thus, whatever legal questions might arise, they 

Continued 

Purpose and Summary 

H.R. 10, the ‘‘Regulations From the Executive in Need of Scrutiny Act of 2011,’’ also known as the REINS Act, reforms the Congressional Review Act of 1996 1 (‘‘CRA’’). The CRA was adopted to 

increase accountability of regulatory agencies by creating a fasttrack legislative process for Congress to overturn a final rule within 60 days of the rule’s publication in the Federal Register. But in 

the 15 years since it was adopted, Federal regulatory agencies have 

issued nearly 59,000 rules, including some 1,050 major rules, while 

Congress has overturned only one rule using the CRA. Further, the 

number of major rules has increased markedly in recent years, and 

this trend shows no signs of abating. The REINS Act reforms the 

CRA only insofar as the CRA applies to major rules. The REINS 

Act would require Congress to pass within 60 days, and the President to sign, a joint resolution approving new major rules issued 

by a regulatory agency before that rule could take effect. 

Background and Need for the Legislation 

I. INTRODUCTION

H.R. 10, the ‘‘Regulations From the Executive in Need of Scrutiny Act of 2011’’ (‘‘REINS Act’’ or ‘‘the bill’’), was introduced on 

January 20, 2011, by Representative Geoff Davis of Kentucky. The 

bill currently has 192 cosponsors. Its Senate companion is S.299. 

In the 111th Congress, Rep. Davis introduced the ‘‘Regulations 

From the Executive in Need of Scrutiny Act of 2009,’’ H.R. 3765, 

which was referred to the Committee on the Judiciary and to the 

Subcommittee on Commercial and Administrative Law. Similar legislation had been introduced in previous Congresses.2 The REINS 

Act garnered substantial support in the 111th Congress. CRA reform also was discussed in the Commercial and Administrative 

Law Subcommittee’s Administrative Law, Process and Procedure 

Project for the 21st Century during the 108th and 109th Congresses. The first recommendation for CRA reform noted in this report was to require congressional approval of agency rules before 

the rules could become effective.3 Various administrative law scholars also have suggested requiring Congressional approval of new 

agency regulations.4


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should not be the same as those at issue in Chadha.’’); see also Hon. Abner J. Mivka, The 

Changing Role of Judicial Review, 38 ADMIN. L. REV. 115, 120 (Spring 1986) (Citing then-Judge 

Breyer: ‘‘[T]he fast track is a reasonable facsimile of the one-House veto that complies with the 

principles of bicameralism and presentment.’’); Girardeau A. Spann, Spinning the Legislative 

Veto, 72 GEO. L.J. 813, 816 (1984) (‘‘Judge Breyer’s fast-track alternative is appealing because 

it closely approximates the political compromise that is struck by the legislative veto.’’). 5 REINS Act—Promoting Jobs and Expanding Freedom by Reducing Needless Regulations: 

Hearing Before the House Committee on the Judiciary, Subcommittee on Courts, Commercial and 

Administrative Law, 112th Cong. (Jan. 24, 2011). 6 Regulations From the Executive in Need of Scrutiny Act of 2011: Hearing Before the House 

Committee on the Judiciary, Subcommittee on Courts, Commercial and Administrative Law, 

112th Cong. (Mar. 8, 2011). 7 Note: The Mysteries of the Congressional Review Act, 122 HARV. L. REV. 2162, 2164 (June 

2009) (citations omitted). 8 Breyer, note 4 supra, at 786. 9 Id. (citing Chadha, 462 U.S. at 968 (White, J., dissenting)); see also Senator James Abourezk, 

The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 IND. L.J. 323, 324 (Winter 1977) (‘‘Since 1932, when the first veto provision was 

enacted into law, 295 congressional veto-type provisions have been inserted into 196 different 

statutes. . . .’’). 10Girardeau A. Spann, Deconstructing the Legislative Veto, 68 MINN. L. REV. 473, 473 (Feb. 

1984). 

The Subcommittee on Courts, Commercial and Administrative 

Law heard testimony from six witnesses during two hearings on 

the REINS Act. On January 24, 2011, the Subcommittee heard testimony from the Honorable David McIntosh, former Member of 

Congress (1995–2001) and partner at Mayer Brown LLP; Professor 

Jonathan Adler, Case Western Reserve University School of Law 

and Director, Center for Business Law and Regulation; and, the 

Honorable Sally Katzen, Visiting Professor, New York University 

School of Law and former Administrator of the Office of Information and Regulatory Affairs (1993–1998).5 On March 8 the Subcommittee received testimony from Professor David Schoenbrod, 

New York Law School and Visiting Scholar, American Enterprise 

Institute; Professor Eric R. Claeys, George Mason University 

School of Law; and, Mr. David Goldston, Director of Government 

Affairs, Natural Resources Defense Council.6

II. BACKGROUND AND NEED FOR THE LEGISLATION

The REINS Act is the latest chapter in Congress’ struggle to hold 

regulatory agencies accountable to the public. ‘‘As early as the 

1930’s, Members of Congress worried that wide delegations of administrative authority would leave the unelected bureaucracy politically unaccountable. Yet they also realized that Congress could 

not pass enough specific legislation to regulate the increasingly 

complex world. The legislative veto was seen as a partial solution 

to this dilemma.’’ 7

A. The legislative veto and INS v. Chadha 

A legislative veto reserved to Congress the unilateral power to 

nullify an exercise of executive authority. ‘‘Apparently, the first 

time Congress enacted a veto clause was in 1932 when it gave 

President Hoover the authority to reorganize executive departments subject to a one-House veto.’’ 8 Some form of a legislative 

veto subsequently appeared in some 200 statutes.9 Eventually, 

however, the Supreme Court ruled the unicameral legislative veto 

unconstitutional in the case of INS v. Chadha, 462 U.S. 919 (1983). 

In doing so, ‘‘the Supreme Court invalidated more Federal statutes 

in a single day than it had in all of its prior history.’’ 10


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11 462 U.S. at 940–41. 12 Id. at 951–52. 13 Id. at 952. 14 Id. at 954–55 (‘‘After long experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically 

to the Attorney General, the authority to allow deportable aliens to remain in this country in 

certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set 

out in Art. I. Disagreement with the Attorney General’s decision on Chadha’s deportation—that 

is, Congress’ decision to deport Chadha—no less than Congress’ original choice to delegate to 

the Attorney General the authority to make that decision, involves determinations of policy that 

Congress can implement in only one way; bicameral passage followed by presentment to the 

President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.’’). 15 Cf. id. at 952–54 (‘‘Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise 

of legislatively delegated authority, had determined the alien should remain in the United 

States. Without the challenged provision in § 244(c)(2), this could have been achieved, if at all, 

only by legislation requiring deportation.’’). 16 Id. at 956–57 (‘‘Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally 

clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I. . . . To accomplish what has been attempted by one House of Congress in this 

case requires action in conformity with the express procedures of the Constitution’s prescription 

for legislative action: passage by a majority of both Houses and presentment to the President.’’). 

Chadha involved an alien whom the INS ordered deported for 

overstaying his visa. The statute in question allowed the Attorney 

General to suspend Chadha’s deportation, which he did, but also 

allowed the House of Representatives to veto the Attorney General’s decision, which the House also did. The Supreme Court acknowledged that Congress has ‘‘plenary authority’’ over aliens,11

which Congress exercised in part by authorizing the INS to deport 

aliens and by authorizing the Attorney General to suspend an INS 

deportation order. The question was whether the Constitution permits Congress to reserve to the House alone the power to veto the 

Attorney General’s decision. 

The Court began its constitutional analysis by observing, ‘‘When 

any branch acts, it is presumptively exercising the power the Constitution has delegated to it. When the Executive acts, he presumptively acts in an executive or administrative capacity as defined in 

Article II. And when, as here, one House of Congress purports to 

act, it is presumptively acting within its assigned sphere.’’ 12 The 

Supreme Court further recognized that, by passing a resolution 

overturning the Attorney General’s decision to deport Chadha, the 

House had engaged in an act ‘‘that was essentially legislative in 

purpose and effect,’’ i.e., to reverse an act of the Executive 

Branch.13 The Supreme Court acknowledged that, instead of delegating part of its power to the Attorney General, Congress could 

have reserved the power to suspend deportation orders, through 

the private bill procedure.14 Or Congress could have passed legislation overturning the Attorney General’s decision, and presented the 

same to the President for his signature or veto.15 Either way, Congress was required to follow the constitutional process for legislative action established by Article I, Section 7: bicameral passage of 

legislation and presentment to the President.16

The unicameral legislative veto represented an attempt by Congress to hold regulatory agencies accountable, although the Court 

in Chadha held that it is an unconstitutional method of achieving 

this goal. In other words, under Chadha the goal of enabling Congress to overturn an agency decision is not unconstitutional, but 

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17 James T. O’Reilly, EPA Rulemaking after the 104th Congress: Death from Four Near-Fatal 

Wounds?, 3 ENVTL. LAW. 1, 11–12 (Sept. 1996); see also 142 CONG. REC. E575 (daily ed. Apr. 

19, 1996) (Joint Explanatory Statement of House Sponsors) (‘‘In INS v. Chadha, 462 U.S. 919 

(1983), the Supreme Court struck down as unconstitutional any procedure where executive action could be overturned by less than the full process required under the Constitution to make 

laws—that is, approval by both houses of Congress and presentment to the President.’’); 142 

CONG. REC. S3684 (daily ed. Apr. 18, 1996) (Joint Statement of Sens. Nickels, Reid and Stevens) 

(same). 18 Rosenberg, note 4 supra, at 1070 (citing 142 CONG. REC. E575 (daily ed. Apr. 19, 1996)) 

(Joint Explanatory Statement of House Sponsors) (‘‘This legislation establishes a governmentwide congressional review mechanism for most new rules. This allows Congress the opportunity 

to review a rule before it takes effect and to disapprove any rule to which Congress objects.’’). 19 142 CONG. REC. S3683 (daily ed. Apr. 18, 1996). 20 5 U.S.C. § 801(a)(1). 21 Id. § 801(a)(2). 22 Id. § 801(a)(3). 23 Id. § 801(a)(4); 5 U.S.C. § 553(d). 24 Id. §§ 801(b), 802(a). 25 Id. § 802. 

chamber legislative veto, without presentment—was unconstitutional. 

B. The Congressional Review Act of 1996 

One effect of Chadha was to ‘‘to chill future attempts by Congress to interfere with autonomous creation of new rules by administrative agencies,’’ and the 104th Congress certainly was ‘‘mindful’’ 

of Chadha as it drafted the Congressional Review Act.17 ‘‘The 

plain, overarching purpose of the CRA is to assure that all covered 

final rulemaking actions of agencies come before Congress for scrutiny and possible nullification through joint resolutions of disapproval.’’ 18 Senators Nickels (R–OK), Reid (D–NV) and Stevens 

(R–AK) explained in their joint statement, summarizing the legislative history of the CRA, 

As more and more of Congress’ legislative functions have 

been delegated to Federal regulatory agencies, many have 

complained the Congress has effectively abdicated its constitutional role as the national legislature in allowing Federal agencies so much latitude in implementing and interpreting congressional enactments. . . . This legislation 

will help to redress the balance, reclaiming for Congress 

some of its policymaking authority, without at the same 

time requiring Congress to become a super regulatory 

agency.19

The CRA requires agencies to file all new rules with Congress 

and with the GAO.20 For a major rule (e.g., one with an annual impact on the economy of $100 million or more), within 15 days the 

GAO is required to report to Congress on the agency’s compliance 

with the various steps of the rulemaking process.21 Major rules are 

delayed from becoming effective for 60 days from the later of either 

the date they are published in the Federal Register or the date 

they are submitted to Congress and the GAO 22; non-major rules 

are not delayed beyond the general 30-day delay established by the 

APA.23 For major and non-major rules, at any time during this 60- 

day period Congress can nullify the rule by adopting a joint resolution drafted according to a textual formula established by the statute.24 The statute contains expedited procedures for the statute in 

the Senate, although not in the House.25 If Congress adjourns less 

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26 Id. § 802(e). 27 Id. § 801(f). 28 Id. § 801(b)(2). 29 Id. §§ 801(c), 807. 30 142 CONG. REC. S3123 (daily ed. Mar. 28, 1996); see also REINS Act, note 5 supra, at 68 

(Jan. 24, 2011) (Testimony of David McIntosh) (‘‘It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series 

of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about 

the real author.’’) (quoting THE FEDERALIST NO. 70, at 517 (Alexander Hamilton) (Jacob E. 

Cooke ed., 1984)); Richard J. Pierce, Jr., Past and Prologue: Rulemaking and the Administrative 

Procedure Act, 32 TULSA L.J. 185, 198 (Winter 1996) (‘‘With the addition of the [CRA], we now 

have in place two-thirds of a new legal environment that would combine our social values in 

a new way so as to maximize our ability to further those values simultaneously. We have had 

systematic Presidential review of major rules for over a dozen years. Beginning in 1996, Presidential review will coexist with systematic Congressional review. As a result, an agency can 

issue a major rule only if it survives review by both of the politically accountable branches of 

government. That process certainly should satisfy our desire for accountability of rules. We can 

hold the elected officials of both branches accountable for any rule that we dislike.’’). 31GAO Federal Rules Database Search, http://www.gao.gov/legal/congressact/fedrule.html (last 

accessed Oct. 28, 2011). 32Morton Rosenberg, The Congressional Review Act After 15 Years: Background and Considerations for Reform 10–11 (Draft Report Prepared for the Admin. Conf. of the United States, Sept. 

16, 2011), available at http://www.acus.gov/wp-content/uploads/downloads/2011/09/COJR–DraftCRA–Report-9–16–11.pdf (last accessed Oct. 28, 2011). 33See S.J. Res. 6, 107th Cong., 115 Stat. 7 (2001) (overturning 65 Fed. Reg. 68261 (2000)). 34See generally Julie A. Parks, Lessons in Politics: Initial Use of the Congressional Review Act, 

55 ADMIN. L. REV. 187 (Winter 2003). 35See Jerry Brito & Veronique de Rugy, Midnight Regulations and Regulatory Review, 61 

ADMIN. L. REV. 163, 190 (Winter 2009) (‘‘However, the CRA will only be an effective check on 

Continued 

riod begins on the 15th legislative day of the next session.26 If Congress adopts the resolution, then the rule is null and ‘‘shall be 

treated as though such rule had never taken effect.’’ 27 Moreover, 

the rule ‘‘may not be reissued in substantially the same form’’ by 

the agency.28 Certain rules are exempt from the CRA altogether, 

such as those ‘‘necessary for national security’’ and ‘‘rules that concern monetary policy.’’ 29

Senator Levin (D–MI) was enthusiastic about the CRA’s potential for Congress to hold regulatory agencies accountable: ‘‘No 

longer will we be able to tell our constituents who complain about 

regulations that do not make sense, ‘talk to the agency,’ or ‘your 

only recourse is the courts.’ Now we are in a position to do something ourselves.’’ 30 Fifteen years of experience with the CRA, however, has not matched Senator Levin’s high hopes for bringing regulatory agencies to heel. Since the CRA was enacted in March 

1996, more than 58,900 new rules have been reported to GAO by 

regulatory agencies, including some 1,050 new major rules.31 But 

in that same time period, a scant 72 joint resolutions of disapproval 

have been introduced in the House and Senate, targeting 49 different rules.32 Of these 72 joint resolutions, only one was enacted.33 This single instance of the CRA being utilized by Congress 

may have been an anomaly, relating to a highly controversial workplace ergonomics rule issued by the Department of Labor in the 

final days of the Clinton Administration and overturned by the 

next Congress with the Bush Administration’s support.34

It stands to reason that a sitting president would veto a joint resolution of disapproval adopted against a new rule issued by his administration. Experience and common sense dictate that the CRA’s 

utility may be limited to ‘‘midnight regulations’’ issued when both 

the incoming administration and both chambers of the incoming 

Congress are not of the same party as the outgoing administration, 

as occurred in 2000–01.35 The CRA theoretically could be used 


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midnight regulations if the incoming president and the Congress are of the same party. If not, 

there is little reason to expect that the Congress will use its authority under the CRA to repeal 

midnight regulations. Conversely, if the president is of the same party as his predecessor and 

the Congress is of the opposite party, it is likely that the new president will veto a congressional 

attempt to overturn his predecessor’s last-minute rules. It should not be surprising that the 

CRA has only been used once to successfully repeal a regulation.’’). 36See Note, note 7 supra, at 2181. 37Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Rulemaking, 49 ADMIN. L. REV. 95, 106 (Winter 1997). 38See generally Sean D. Croston, Congress and the Courts Close Their Eyes: The Continuing 

Abdication of the Duty to Review Agencies Noncompliance with the Congressional Review Act, 

62 ADMIN. L. REV. 907 (Fall 2010). 39Susan E. Dudley, ‘‘Prospects for Regulatory Reform in 2011,’’ ENGAGE 11:1, at 9 (June 

2011). 

when one party possesses veto-proof majorities in both chambers of 

Congress against a president belonging to another party, but apparently this never has occurred in American history and seems 

unlikely to come to pass in the foreseeable future. Speculation 

about the CRA’s potential utility against rules issued by independent agencies, on the theory that a President would be less likely to veto such a joint resolution, is simply belied by 15 years of 

experience.36 Ultimately, it appears that the CRA largely has become, as two of its early critics predicted, ‘‘nothing more than another procedural hurdle for an agency to jump, further increasing 

the costs and uncertainties of rulemaking, with little, if any, added 

benefit.’’ 37 (It also may be a procedural hurdle that agencies regularly choose to bypass, by simply ignoring the CRA’s requirement 

to submit new rules to Congress and to the GAO.38) 

C. The overall regulatory burden on American taxpayers and job 

creators, including the threat of future regulation, is increasing 

The need for increased Congressional oversight also is apparent 

from the dramatic increase in Federal regulatory activity. Agencies 

are ever issuing more regulations, including major regulations that 

have a larger impact on the economy. According to former OIRA 

Administrator Susan E. Dudley, 

Over the first 2 years of President Obama’s term, executive branch agencies published 112 economically significant regulations (defined as having impacts of $100 million 

or more per year). That averages out to 56 major regulations per year, which is almost 25 percent higher than 

President Clinton and President Bush, who each published 

an average of 45 major regulations per year over their 

terms. When one includes the independent agencies (over 

which presidents exercise less direct oversight) the contrast is greater, with an average of 84 major regulations 

issued over the last 2 years, a 35 percent increase over the 

average of 62 per year in the Bush Administration and a 

50 percent increase over the 56 per year average in the 

Clinton Administration.39

Further, President Obama’s Spring 2011 Unified Agenda of Regulatory and Deregulatory Activity lists 144 major regulations, representing at least a $14 billion burden to the economy. ‘‘This is an 

increase of 15.2 percent in the number of economically significant 

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40 James L. Gattuso & Diane Katz, ‘‘Red Tape Rising: A 2011 Mid-Year Report on Regulation,’’ 

HERITAGE FOUNDATION (July 25, 2011), available at http://www.heritage.org/research/reports/ 

2011/07/red-tape-rising-a-2011-mid-year-report (last accessed Oct. 28, 2011). 41 111 P.L. 148 (Mar. 23, 2010). ‘‘The health care law provides for the creation of nearly 160 

boards, bureaus, bureaucracies, and commissions. . . . Overall, the Federal Government is expected to issue roughly 10,000 pages of new regulations to govern the implementation of the 

new law.’’ ObamaCare: A Budget-Busting, Job-Killing Health Care Law, Jan. 6, 2011, at 7–8, 

available at http://www.speaker.gov/UploadedFiles/ObamaCareReport.pdf (last accessed Oct. 28, 

2011). 42 111 P.L. 203 (July 21, 2010). ‘‘[T]he Dodd-Frank Act is the most farreaching financial regulatory undertaking since the 1930’s, authorizing or requiring agencies to enact 447 new rules 

and complete 63 reports and 59 studies.’’ Michael J. Ryan, Jr., U.S. Capital Markets Competitiveness: The Unfinished Agenda, Summer 2011, at 3, available at https://www.uschamber.com/ 

sites/default/files/reports/1107lUnfinishedAgendalWEB.pdf (last accessed Oct. 28, 2011). 43REINS Act, note 5 supra, at 95 (Testimony of Sally Katzen). 44 Id. at 96. 

a whopping 102 percent, rising from 71 to 144 since 2001.’’ 40 The 

threat of a new wave of major regulations to implement the Patient 

Protection and Affordable Care Act 41 and the Dodd-Frank Wall 

Street Reform and Consumer Protection Act 42 is an added burden 

on the economy that threatens to undermine the economic recovery. 

Now more than ever, Congress—not unelected bureaucrats in regulatory agencies—should take responsibility for the difficult policy 

choices reflected in every new major rulemaking. 

D. The REINS Act is a constitutional and logical reform to the 

CRA 

The REINS Act would improve the CRA’s effectiveness against 

excessive agency rulemaking by taking the logical next step beyond 

the CRA’s current structure. That step is to require Congress to approve new major rules by joint resolution before they can become 

legally effective. In essence, the REINS Act operates as a new condition on the delegation of legislative rulemaking authority to the 

agencies, much as other statutes, such as the Administrative Procedure Act and the CRA itself, condition the delegation of that authority. With respect to major rules, Congress’ delegation would, 

under the REINS Act, no longer include a delegation to the agencies of authority to place legislative rules into legal effect. Instead, 

that final step would be reserved to Congress to take through a bicameral resolution with presentment to the President. The REINS 

Act does not withdraw from the agencies the delegation of authority to place into effect new, non-major rules. 

The Subcommittee heard extensive testimony regarding the constitutionality of the REINS Act. Sally Katzen, former Administrator of the Office of Information and Regulatory Affairs (1993– 

1998), questioned the constitutionality of the REINS Act under 

Chadha. Specifically, Ms. Katzen suggests that the REINS Act cannot be distinguished easily from the one-house legislative veto overturned in Chadha: ‘‘It may not be enough to say that H.R. 10 incorporates bi-cameral and presentment (the requirements for constitutionality in Chadha) because [under the REINS Act] one house 

alone would stop final agency action from becoming effective.’’ 43 To 

the response that Congress is simply revoking previously delegated 

legislative power, Ms. Katzen suggests it may still be unconstitutional because it ‘‘involve[s] an attempt by Congress to increase its 

power at the expense of the executive branch,’’ quoting dicta in 

Morrison v. Olson, 487 U.S. 654, 694 (1988).44


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45 Rosenberg, note 4 supra, at 1072. 46REINS Act, note 5 supra, at 84 (Testimony of Jonathan Adler). 47 Ibid. 48Regulations From the Executive in Need of Scrutiny Act of 2011, note 6 supra, at 132 (Testimony of Eric Claeys). 49 Id. at 134 (Testimony of David Schoenbrod). 

Professors Adler, Claeys and Schoenbrod, as well as former Representative McIntosh (a ‘‘key sponsor’’ 45 of the Congressional Review Act in the 104th Congress), each testified in support of the 

bill’s constitutionality and rebutted this argument. Professor Adler 

observed that the REINS Act follows the constitutional requirements for bicameralism and presentment, which were fatal to the 

legislative veto in Chadha.46 In other words, the legislative veto in 

Chadha was overturned because of a defective process—Congress 

had tried to take a shortcut around Article I of the Constitution— 

and not because invalidating a new regulation is an impermissible 

outcome. If the REINS Act effectively allows Congress to accomplish the same goal as in Chadha, but follows the Constitution, 

then under Chadha it is not constitutionally suspect. Professor 

Adler further notes that the REINS Act is somewhat more limited 

than the historical legislative veto in that it only applies to major 

rules, of which there have been typically (although the number is 

increasing) fewer than 200 every year.47

Professor Claeys responded to the suggestion that the REINS Act 

is constitutionally questionable per Morrison v. Olson, in which the 

Supreme Court upheld the independent counsel statute against a 

separation-of-powers constitutional challenge. As Professor Claeys 

testified, 

[A]gencies have no power to promulgate legislative rules 

unless it is given to them by Congress. So the Morrison argument runs off of the assumption that there is some core 

inherent prerogative of the President in relation to legislative rulemaking that is threatened by the REINS Act. 

However, if all of executive branch agencies’ rulemakings 

powers must come from Congress, there can’t be any such 

core Article 2 prerogative. Maybe the most helpful precedent here would be Youngstown Sheet and Tube v. Sawyer, 

a 1952 case. President Truman tried to order a seizure of 

the steel mills and he didn’t have an act of Congress to 

support it. The Court held that in the absence of that statute—such a statute or other kind of authorization from 

Congress—that the President had no authority.48

Professor Schoenbrod expanded on this point: ‘‘The regulations 

that agencies promulgate are rules of Conduct. And in fact, courts 

talk about these regulations all the time as ‘legislative rules.’ So we 

are not talking here about Executive power fundamentally; we are 

talking here about legislative power. So it is a question of Congress 

reclaiming some of its legislative powers. So, therefore, Morrison v. 

Olson is not implicated.’’ 49 In other words, regulatory agencies are 

performing a legislative task when they make rules and regulations. Unlike the prosecutorial power at issue in Morrison, rulemaking is not a ‘‘core executive function.’’ On the contrary, it is a 

legislative function that was delegated to the agency by Congress. 


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50See id. at 132 (Testimony of Eric Claeys) (‘‘The Chada [sic] decision doesn’t rule out the 

possibility that Congress may ever attach strings. It merely states if Congress does attach such 

a string, Congress must do so by a genuine bona fide legislative act that is passed by the House 

and the Senate and then either signed by the President or passed by two-thirds supermajority 

in both Houses.’’). 51See U.S CONST. art. I, § 5, cl. 2 (‘‘Each House may determine the Rules of its Proceedings. . . .’’). 52REINS Act, note 5 supra, at 62 (Testimony of David McIntosh). 53See, e.g., 5 U.S.C. § 912 (government reorganization; 19 U.S.C. § 2191 (trade agreements); 

2 U.S.C. § 359 (congressional pay). 54Regulations From the Executive in Need of Scrutiny Act of 2011, note 6 supra, at 124. 

And when Congress delegates to the Executive Branch, it may do 

so conditionally.50

Mr. McIntosh defended the REINS Act against the charge that 

it is unconstitutional because it requires Congress to follow certain 

procedures for legislation approving a new major rule.51 According 

to Mr. McIntosh, 

The two Houses of Congress have adopted internal rules 

jointly in the form of statutes since the earliest days of the 

Republic. In fact, the very first statute enacted by the 

First Congress on June 1, 1789, addressed the procedures 

for administering oaths in the House and Senate, a matter 

that was within the power of each House to determine 

independently. As the Supreme Court has recognized, the 

decisions of the First Congress provide ‘‘contemporaneous 

and weighty evidence of the Constitution’s meaning since 

many of the Members of the First Congress had taken part 

in framing that instrument.’’ And as noted above, Congress 

has exercised the power to create fast-track procedure 

many times since then, including in the existing text of the 

CRA.52

In the Committee’s judgment, the REINS Act is undoubtedly constitutional. The procedure prescribed by the REINS Act for Congress to approve major rules follows the legislative process spelled 

out in the Constitution and explained in Chadha, and does not encroach on any core executive power. Rather, the REINS Act makes 

conditional the delegation of legislative power, which regulatory 

agencies use to make rules and regulations but which originates in 

Congress. Nor is the statutory fast-track process constitutionally 

suspect. Like the CRA, the REINS Act is an ordinary statute that 

prescribes binding internal rules for the houses of Congress acting 

separately. Congress has made its rules in this fashion many times 

since the Founding.53 The Committee believes the REINS Act is 

constitutional in this respect as well. 

At the Subcommittee’s hearing on March 8, David Goldston of 

the Natural Resources Defense Council testified that the REINS 

Act will hamper regulatory agencies’ ability to act in the public interest by politicizing the regulatory process.54 Reflecting this point 

of view, during the Committee’s markup of H.R. 10 several amendments were introduced to exempt various types of regulations from 

the REINS Act. 

The Committee reiterates that the REINS Act only applies to 

major rules, not to all new rules. Further, the Act establishes a 

fast-track legislative process to ensure that joint resolutions do not 

become delayed by parliamentary maneuvering in either house of 

Congress. The REINS Act’s purpose is to increase Congressional 


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55 U.S. CONST. art. I § 1. 56Regulations From the Executive in Need of Scrutiny Act of 2011, note 6 supra, at 122. 57 Id. at 87 (Testimony of David Schoenbrod). 58 Id. at 81–82 (Testimony of David Schoenbrod) (Quoting ‘‘James Landis, the New Deal’s sage 

of administrative law, who urged in 1938 that agency regulations be presented to Congress for 

approval: ‘It is an act of political wisdom to put back upon the shoulders of Congress responsibility for controversial choices.’ ’’). 59 Id. at 98 (Testimony of Jonathan Adler). 

accountability for the difficult legislative policy choices that Congress too often delegates to regulatory agencies; the Committee 

does not expect that the Act necessarily will produce more, fewer, 

better, or worse regulations. Rather, the Act will return responsibility for making major rules to Congress, to which the Constitution assigns ‘‘all legislative Powers’’ 55 and whence the rulemaking 

power originates. 

In his testimony to the Subcommittee, Professor Schoenbrod described how Congress too often shirks taking responsibility for difficult decisions by assigning them to the regulatory process instead. 

Agencies then become the focus of the ‘‘political calculations, logrolling, and dealmaking’’ that Mr. Goldston decries in Congress 56— 

except that these conversations occur entirely behind the agencies’ 

closed door with unelected, unaccountable bureaucrats. Professor 

Schoenbrod specifically discussed Congress’s decision to charge the 

EPA with regulating leaded gasoline in the 1970’s, and how the 

EPA ‘‘went into a stall’’ when faced with such a controversial and 

difficult decision. ‘‘The upshot is that lead came out of gasoline 

much more slowly than if Congress had made the hard choice 

itself,’’ with significant negative consequences for public health in 

the United States.57 Under the REINS Act, Professor Schoenbrod 

predicts what common sense alone dictates: Agencies and Congress 

will work together throughout the rulemaking process to ensure 

that the final major rule will enjoy majority support among the 

American people’s elected representatives in Congress. ‘‘This is how 

we should get the sensible results in a democracy, not by elected 

lawmakers hiding behind unelected agency officials.’’ 58

In summary, the REINS Act is a constitutional, ‘‘next logical 

step’’ 59 to reform the Congressional Review Act of 1996. 

Hearings 

The Subcommittee on Courts, Commercial and Administrative 

Law held two legislative hearings on H.R. 10, on January 24 and 

March 8, 2011. 

Committee Consideration 

On October 24, 2011, the Committee met in open session and ordered the bill H.R. 10 favorably reported with an amendment, by 

a rollcall vote of 22 to 14, a quorum being present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

10. 


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1. Amendment #2, offered by Mr. Conyers. The Amendment exempts from the REINS Act ‘‘any rule that protects or saves lives.’’ 

The Amendment failed by a rollcall of 13–20. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................

Total ................................................................................................ 13 20 

2. Amendment #5, offered by Mr. Cohen. The Amendment exempts from the REINS Act ‘‘any rule that the Administrator of the 

Office of Information and Regulatory Affairs of the Office of Managements and Budget determines would result in greater benefits 

than costs to society.’’ The Amendment failed by a rollcall vote of 

13–22. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................

Total ................................................................................................ 13 22 

3. Amendment #6, offered by Mr. Johnson. The Amendment exempts from the REINS Act ‘‘any rule that the Administrator of the 

Office of Information and Regulatory Affairs of the Office of Managements and Budget determines would result in net job growth.’’ 

The Amendment failed by a rollcall vote of 14–21. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................

Total ................................................................................................ 14 21 

4. Amendment #4, offered by Ms. Jackson Lee. The Amendment 

exempts from the REINS Act ‘‘any rule relating to infant formula, 

as defined under’’ the Federal Food, Drug, and Cosmetic Act. The 

Amendment failed by a rollcall vote of 13–22. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................

Total ................................................................................................ 13 22 

5. Amendment #7, offered by Mr. Quigley. The Amendment directs the Government Accountability Office to submit to Congress 

a report describing the cumulative benefits of major rules regarding air quality, water quality and food safety. The Amendment 

failed by a rollcall vote of 12–21. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Total ................................................................................................ 12 21 

6. Reporting H.R. 10 as amended. The bill will increase accountability and transparency in the Federal regulatory process. Reported by a rollcall of 22–14. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ...................................................................................... X 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Amodei ........................................................................................................ X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

(Vacant) ............................................................................................................

Total ................................................................................................ 22 14 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of 

Representatives, are incorporated in the descriptive portions of this 

report. 


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New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 10, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, November 9, 2011. 

Hon. LAMAR SMITH, CHAIRMAN, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 10, the ‘‘Regulations 

From the Executive in Need of Scrutiny Act of 2011.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Sarah Anders, who can 

be reached at 226–9010. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 10—Regulations From the Executive in Need of Scrutiny Act 

of 2011. 

As ordered reported by the House Committee on the Judiciary on 

October 25, 2011 

SUMMARY

Under current law, the Congress can prevent a rule from taking 

effect by enacting a joint resolution of disapproval. In contrast, 

H.R. 10 would require enactment of a joint resolution of approval 

prior to any major rule taking effect. Therefore, H.R. 10 would 

make major regulations dependent on future legislation. 

About 80 major rules have been issued per year, on average, over 

the past five years. Major rules vary greatly in their nature and 

scope. CBO and the staff of the Joint Committee on Taxation (JCT) 

cannot determine the budgetary effects of preventing all future 

major rules from going into effect, but we expect that enacting H.R. 

10 would have effects on both direct spending and revenues. Payas-you-go procedures apply because enacting the legislation would 

affect direct spending and revenues. 


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1See 5 USC § 804(2). 

CBO expects that implementing H.R. 10 would not have any significant impact on spending subject to appropriation. 

CBO expects that H.R. 10 would impose no intergovernmental or 

private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

Background 

The Congressional Review Act (CRA) of 1996 requires Federal 

agencies to submit final rules to Congress and the Comptroller 

General before they may take effect. Final rules may only be annulled by Congress if a joint resolution of disapproval is enacted 

into law. H.R. 10 would amend current law by requiring Congress 

to enact a joint resolution of approval before any major rule may 

take effect. The definition of a major rule, which was originally set 

by the CRA and is left unchanged by H.R. 10, is any rule that the 

Office of Management and Budget determines would have: 

• An annual effect on the economy of $100,000,000 or more; 

• A major increase in costs or prices for consumers; individual 

industries; Federal, State, or local government agencies; or 

geographic regions; or 

• Significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United 

States-based enterprises to compete with foreign-based enterprises in domestic and export markets.1

H.R. 10 specifies special Congressional procedures and explicit 

timelines for enacting a joint resolution of approval for major rules. 

Under H.R. 10, if the Congress fails to enact a joint resolution of 

approval within 70 legislative (or session) days of receiving the 

major rule and accompanying report from a Federal agency, the 

rule may not take effect. Further, the Congress may not reconsider 

a joint resolution of approval relating to that rule in the same Congress. However, a major rule may take effect for one 90-calendarday period without Congressional approval if the President determines via an executive order that the major rule is necessary for 

one of four reasons. These reasons are: to respond to an imminent 

threat to health or safety, to enforce criminal laws, to protect national security, or to implement an international trade agreement. 

Since 1997, which was the first full calendar year following the 

enactment of the CRA, Federal agencies have published 50 or more 

major rules each year. One hundred major rules were issued in 

2010, and 79 major rules have been issued, on average, over the 

past five full calendar years. Fifty major rules have been issued so 

far in 2011 (as of November 8, 2011). Major rules vary greatly in 

scope and in their effect on the Federal budget. For example, major 

rules issued in 2011 include required warnings for cigarette packages and advertisements, Medicare payment rates for inpatient 

psychiatric facilities, and national emission standards for hazVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\HR\OC\HR278P1.XXX HR278P1

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2GAO Federal Rules Database, http://www.gao.gov/legal/congressact/fedrule.html. 

ardous air pollutants from industrial, commercial and institutional 

boilers.2

In general, most major rules with budgetary effects are issued to 

implement current law; therefore, the budgetary effects of such anticipated rules are reflected in CBO’s baseline projections. For example, routine annual rules establish new payment rates for a variety of Medicare services. Such updated payment rates reflect 

changes in the price indices specified to be used for those services 

by current law; the result is often an increase in payment rates 

and thus an increase in spending. 

If H.R. 10 is enacted, baseline projections would no longer reflect 

the budgetary impact of major rules. Accordingly, if the Congress 

later considers a joint resolution of approval for a major rule, the 

estimated budgetary effect of that resolution would include the cost 

or savings of implementing that rule. For example, if H.R. 10 is enacted, baseline projections would no longer assume that payment 

rates for Medicare providers would rise over time without Congressional action. As a result, a Congressional resolution of approval for 

a major rule raising such rates would be estimated as having a cost 

to reflect those higher rates. 

Impact on Federal Spending and Revenues 

Direct Spending. H.R. 10 would prevent all major rules from 

taking effect unless subsequent legislation is enacted. Therefore, in 

assessing the budgetary effects of H.R. 10, CBO considered the 

costs and savings that would be realized if anticipated major rules 

do not take effect. Preventing some major rules from taking effect 

would result in costs, while preventing others would result in savings. CBO expects that the rules with the largest effects on Federal 

spending will be those related to Federal health programs, particularly Medicare, and that enacting H.R. 10 would significantly reduce Medicare spending relative to current law. 

On net, CBO estimates that enacting H.R. 10 would result in 

savings for direct spending over the 2012–2021 period. Such budgetary effects would largely be driven by: (1) preventing annual updates to payment schedules for provision of Medicare services and 

other routine revisions to aspects of selected government programs; 

and (2) significantly altering the implementation of legislation with 

substantial budget effects. 

Many routine major rules are health-related and in particular 

pertain to Medicare. Some examples include rules that establish 

annual increases in payment rates for services provided by hospitals, physicians, and other Medicare providers. Enacting H.R. 10 

would freeze payment structures for those providers at current levels, which would, on net, result in hundreds of billions of dollars 

in savings over the 2012–2021 period. Preventing some major rules 

from taking effect would result in an increase in direct spending 

(from an increase in spending or from a reduction in offsetting receipts). For example, preventing annual increases in premiums 

paid by beneficiaries for Medicare Part B would reduce premium 

collections, and preventing scheduled reductions in payments for 

hospitals that serve a disproportionate share of low-income patients under the Medicaid program would increase costs relative to 


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current law. However, CBO estimates that overall savings would 

likely offset those costs by a substantial amount. 

Enacting H.R. 10 would also affect the implementation of significant legislation for which final rules have not been issued. For example, H.R. 10 would make some major rules related to implementing the Patient Protection and Affordable Care Act (PPACA, 

Public Law 111–148) subject to a joint resolution of approval because a number of rules have not yet taken affect. Many of these 

rules relate to health insurance exchanges, which will become operational in 2014 under current law. Preventing rules governing exchanges from taking effect would, at a minimum, delay implementation of health insurance exchanges, which would in turn result 

in significant savings. 

Revenues. Enacting H.R. 10 would also affect revenues, and 

JCT expects that preventing regulations from going into effect 

could reduce collections of revenues in some cases and increase collections in other cases. JCT cannot determine the sign or magnitude of the possible effects on revenues. 

Impact on Future Legislation 

If H.R. 10 is enacted, the budgetary effect of any joint resolution 

of approval for a major rule would include any direct spending and 

revenue effects of implementing that rule. Further, for future legislation whose implementation would be contingent upon the promulgation of major rules, CBO would estimate the budgetary effects 

assuming those major rules did not take effect. The costs or savings 

associated with those major rules would instead be estimated and 

counted for budget enforcement purposes at the time that joint resolutions to approve those major rules were being considered. 

PAY-AS-YOU-GO CONSIDERATIONS

The Statutory Pay-As-You-Go Act of 2010 establishes budget-reporting and enforcement procedures for legislation affecting direct 

spending or revenues. Pay-as-you-go procedures apply to H.R. 10 

because enacting the legislation would affect direct spending and 

revenues. CBO and JCT cannot determine the sign or magnitude 

of those effects. 

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

CBO expects that H.R. 10 would impose no intergovernmental or 

private-sector mandates as defined in UMRA. By requiring major 

rules to be approved by a joint resolution of Congress and potentially delaying or halting the implementation of those rules, the bill 

could affect public or private entities in a number of ways, including slowing reimbursements and eliminating or changing regulatory requirements. While the costs and savings tied to those individual effects could be significant, CBO has no basis for estimating 

either the overall direction or magnitude of those effects on public 

or private entities because of uncertainty about the nature and 

number of regulations affected. 

ESTIMATE PREPARED BY: 

Federal Costs: Sarah Anders 


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Impact on State, Local, and Tribal Governments: Elizabeth Cove 

Delisle 

Impact on the Private Sector: Paige Piper-Bach 

ESTIMATE APPROVED BY: 

Holly Harvey 

Deputy Assistant Director for Budget Analysis 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 10 increase accountability and transparency in the Federal regulatory process by 

reforming the Congressional Review Act of 1996 to require Congress to approve all new major regulations. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 10 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in 

clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

Section 1. Short Title. 

This Act may be cited as the ‘‘Regulations From the Executive 

in Need of Scrutiny Act of 2011.’’ 

Section 2. Purpose. 

Section 2 explains that the purpose of the REINS Act is to increase accountability and transparency in the Federal regulatory 

process by requiring Congress to approve all new major regulations. 

Section 3. Congressional Review of Agency Rule-Making. 

Chapter 8 of title 5, U.S. Code, is amended to create the following method for congressional review of new major Federal rules: 

801. Congressional review: This section requires enhanced 

reporting of all Federal rules to Congress and the Comptroller 

General and provides that a major rule shall not take effect 

without a Joint Resolution of approval under section 802. Section 801 also caps the time to enact a Joint Resolution of approval at 70 legislative days, and empowers the President to 

grant 90-day waivers for certain emergency situations. Finally, 

Section 801 outlines carry-over provisions from one session of 

Congress to the next. 

802. Congressional approval procedure for major rules: 

Section 802 establishes House and Senate procedures to require both chambers to approve major rules by Joint Resolution, requiring the signature of the President, before such 

major rules can take effect. Section 802 also provides expedited 

procedural mechanisms to ensure that all Joint Resolutions are 

given efficient consideration in both chambers. 


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803. Congressional disapproval procedure for nonmajor 

rules: Section 803 preserves the existing disapproval process 

under the Congressional Review Act for all non-major rules. 

This section permits Congress to disapprove a rule if both 

houses of Congress pass a joint resolution of disapproval that 

the President signs (or if Congress overrides the veto). Section 

803 also provides expedited procedural mechanisms in the Senate. 

804. Definitions: Consistent with long-standing Executive Orders, this section defines ‘‘major rule’’ as any rule that the Administrator of the Office of Information and Regulatory Affairs 

(OIRA) finds may result in an annual effect on the economy of 

$100 million or more; a major increase in costs or prices for 

consumers; or significant adverse effects on the economy. Section 804 defines ‘‘non-major rule’’ as any rule other than a 

major rule. Rules of particular applicability, rules relating to 

agency management, or rules relating to agency organization, 

are exempt from the REINS Act. 

805. Judicial Review: This section provides that no determination, finding, action or omission under this chapter will be 

subject to judicial review. For example, the section would preclude from judicial review a determination by the OIRA Administrator that a rule is a ‘‘major rule’’ or not; a Presidential 

determination that a rule should become effective immediately; 

an agency determination that ‘‘good cause’’ requires a rule to 

go into effect at once; or, a question as to the adequacy of a 

Comptroller General’s assessment of an agency’s report. The 

Committee intends that a court may consider, however, whether a Federal agency has satisfied the requirements under the 

REINS Act for a rule to take effect. Section 805 also preserves 

the ability to challenge a rule based on a lack of statutory authority to adopt the rule or a procedural defect during rulemaking. 

806. Exemption for monetary policy: Like the Congressional Review Act, Section 806 exempts any rules concerning 

monetary policy promulgated by the Board of Governors of the 

Federal Reserve System or the Federal Open Market Committee. 

807. Effective date of certain rules: Section 807 permits 

certain rules relating to hunting, fishing, or camping and certain non-major rules to take effect notwithstanding Section 

801. 

Changes in Existing Law Made by the Bill, as Reported 

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 


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PART I—THE AGENCIES GENERALLY 

* * * * * * * 

øCHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY 

RULEMAKING 

øSec. 

ø801. Congressional review. 

ø802. Congressional disapproval procedure. 

ø803. Special rule on statutory, regulatory, and judicial deadlines. 

ø804. Definitions. 

ø805. Judicial review. 

ø806. Applicability; severability. 

ø807. Exemption for monetary policy. 

ø808. Effective date of certain rules. 

ø§ 801. Congressional review 

ø(a)(1)(A) Before a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress 

and to the Comptroller General a report containing— 

ø(i) a copy of the rule; 

ø(ii) a concise general statement relating to the rule, including whether it is a major rule; and 

ø(iii) the proposed effective date of the rule. 

ø(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit 

to the Comptroller General and make available to each House of 

Congress— 

ø(i) a complete copy of the cost-benefit analysis of the rule, 

if any; 

ø(ii) the agency’s actions relevant to sections 603, 604, 605, 

607, and 609; 

ø(iii) the agency’s actions relevant to sections 202, 203, 204, 

and 205 of the Unfunded Mandates Reform Act of 1995; and 

ø(iv) any other relevant information or requirements under 

any other Act and any relevant Executive orders. 

ø(C) Upon receipt of a report submitted under subparagraph (A), 

each House shall provide copies of the report to the chairman and 

ranking member of each standing committee with jurisdiction 

under the rules of the House of Representatives or the Senate to 

report a bill to amend the provision of law under which the rule 

is issued. 

ø(2)(A) The Comptroller General shall provide a report on each 

major rule to the committees of jurisdiction in each House of the 

Congress by the end of 15 calendar days after the submission or 

publication date as provided in section 802(b)(2). The report of the 

Comptroller General shall include an assessment of the agency’s 

compliance with procedural steps required by paragraph (1)(B). 

ø(B) Federal agencies shall cooperate with the Comptroller General by providing information relevant to the Comptroller General’s 

report under subparagraph (A). 

ø(3) A major rule relating to a report submitted under paragraph 

(1) shall take effect on the latest of— 

ø(A) the later of the date occurring 60 days after the date on 

which— 


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ø(i) the Congress receives the report submitted under 

paragraph (1); or 

ø(ii) the rule is published in the Federal Register, if so 

published; 

ø(B) if the Congress passes a joint resolution of disapproval 

described in section 802 relating to the rule, and the President 

signs a veto of such resolution, the earlier date— 

ø(i) on which either House of Congress votes and fails to 

override the veto of the President; or 

ø(ii) occurring 30 session days after the date on which 

the Congress received the veto and objections of the President; or 

ø(C) the date the rule would have otherwise taken effect, if 

not for this section (unless a joint resolution of disapproval 

under section 802 is enacted). 

ø(4) Except for a major rule, a rule shall take effect as otherwise 

provided by law after submission to Congress under paragraph (1). 

ø(5) Notwithstanding paragraph (3), the effective date of a rule 

shall not be delayed by operation of this chapter beyond the date 

on which either House of Congress votes to reject a joint resolution 

of disapproval under section 802. 

ø(b)(1) A rule shall not take effect (or continue), if the Congress 

enacts a joint resolution of disapproval, described under section 

802, of the rule. 

ø(2) A rule that does not take effect (or does not continue) under 

paragraph (1) may not be reissued in substantially the same form, 

and a new rule that is substantially the same as such a rule may 

not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule. 

ø(c)(1) Notwithstanding any other provision of this section (except subject to paragraph (3)), a rule that would not take effect by 

reason of subsection (a)(3) may take effect, if the President makes 

a determination under paragraph (2) and submits written notice of 

such determination to the Congress. 

ø(2) Paragraph (1) applies to a determination made by the President by Executive order that the rule should take effect because 

such rule is— 

ø(A) necessary because of an imminent threat to health or 

safety or other emergency; 

ø(B) necessary for the enforcement of criminal laws; 

ø(C) necessary for national security; or 

ø(D) issued pursuant to any statute implementing an international trade agreement. 

ø(3) An exercise by the President of the authority under this subsection shall have no effect on the procedures under section 802 or 

the effect of a joint resolution of disapproval under this section. 

ø(d)(1) In addition to the opportunity for review otherwise provided under this chapter, in the case of any rule for which a report 

was submitted in accordance with subsection (a)(1)(A) during the 

period beginning on the date occurring— 

ø(A) in the case of the Senate, 60 session days, or 

ø(B) in the case of the House of Representatives, 60 legislative days, 


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before the date the Congress adjourns a session of Congress 

through the date on which the same or succeeding Congress first 

convenes its next session, section 802 shall apply to such rule in 

the succeeding session of Congress. 

ø(2)(A) In applying section 802 for purposes of such additional review, a rule described under paragraph (1) shall be treated as 

though— 

ø(i) such rule were published in the Federal Register (as a 

rule that shall take effect) on— 

ø(I) in the case of the Senate, the 15th session day, or 

ø(II) in the case of the House of Representatives, the 

15th legislative day, 

after the succeeding session of Congress first convenes; and 

ø(ii) a report on such rule were submitted to Congress under 

subsection (a)(1) on such date. 

ø(B) Nothing in this paragraph shall be construed to affect the 

requirement under subsection (a)(1) that a report shall be submitted to Congress before a rule can take effect. 

ø(3) A rule described under paragraph (1) shall take effect as 

otherwise provided by law (including other subsections of this section). 

ø(e)(1) For purposes of this subsection, section 802 shall also 

apply to any major rule promulgated between March 1, 1996, and 

the date of the enactment of this chapter. 

ø(2) In applying section 802 for purposes of Congressional review, 

a rule described under paragraph (1) shall be treated as though— 

ø(A) such rule were published in the Federal Register on the 

date of enactment of this chapter; and 

ø(B) a report on such rule were submitted to Congress under 

subsection (a)(1) on such date. 

ø(3) The effectiveness of a rule described under paragraph (1) 

shall be as otherwise provided by law, unless the rule is made of 

no force or effect under section 802. 

ø(f) Any rule that takes effect and later is made of no force or 

effect by enactment of a joint resolution under section 802 shall be 

treated as though such rule had never taken effect. 

ø(g) If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency 

may infer any intent of the Congress from any action or inaction 

of the Congress with regard to such rule, related statute, or joint 

resolution of disapproval. 

ø§ 802. Congressional disapproval procedure 

ø(a) For purposes of this section, the term ‘‘joint resolution’’ 

means only a joint resolution introduced in the period beginning on 

the date on which the report referred to in section 801(a)(1)(A) is 

received by Congress and ending 60 days thereafter (excluding 

days either House of Congress is adjourned for more than 3 days 

during a session of Congress), the matter after the resolving clause 

of which is as follows: ‘‘That Congress disapproves the rule submitted by the — — relating to — —, and such rule shall have no 

force or effect.’’ (The blank spaces being appropriately filled in). 

ø(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction. 


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ø(2) For purposes of this section, the term ‘‘submission or publication date’’ means the later of the date on which— 

ø(A) the Congress receives the report submitted under section 801(a)(1); or 

ø(B) the rule is published in the Federal Register, if so published. 

ø(c) In the Senate, if the committee to which is referred a joint 

resolution described in subsection (a) has not reported such joint 

resolution (or an identical joint resolution) at the end of 20 calendar days after the submission or publication date defined under 

subsection (b)(2), such committee may be discharged from further 

consideration of such joint resolution upon a petition supported in 

writing by 30 Members of the Senate, and such joint resolution 

shall be placed on the calendar. 

ø(d)(1) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged 

(under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order 

(even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint 

resolution, and all points of order against the joint resolution (and 

against consideration of the joint resolution) are waived. The motion is not subject to amendment, or to a motion to postpone, or to 

a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall 

remain the unfinished business of the Senate until disposed of. 

ø(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate is in order and not debatable. An 

amendment to, or a motion to postpone, or a motion to proceed to 

the consideration of other business, or a motion to recommit the 

joint resolution is not in order. 

ø(3) In the Senate, immediately following the conclusion of the 

debate on a joint resolution described in subsection (a), and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of 

the joint resolution shall occur. 

ø(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint 

resolution described in subsection (a) shall be decided without debate. 

ø(e) In the Senate the procedure specified in subsection (c) or (d) 

shall not apply to the consideration of a joint resolution respecting 

a rule— 

ø(1) after the expiration of the 60 session days beginning 

with the applicable submission or publication date, or 

ø(2) if the report under section 801(a)(1)(A) was submitted 

during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session 

day after the succeeding session of Congress first convenes. 


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ø(f) If, before the passage by one House of a joint resolution of 

that House described in subsection (a), that House receives from 

the other House a joint resolution described in subsection (a), then 

the following procedures shall apply: 

ø(1) The joint resolution of the other House shall not be referred to a committee. 

ø(2) With respect to a joint resolution described in subsection 

(a) of the House receiving the joint resolution— 

ø(A) the procedure in that House shall be the same as 

if no joint resolution had been received from the other 

House; but 

ø(B) the vote on final passage shall be on the joint resolution of the other House. 

ø(g) This section is enacted by Congress— 

ø(1) as an exercise of the rulemaking power of the Senate 

and House of Representatives, respectively, and as such it is 

deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in 

that House in the case of a joint resolution described in subsection (a), and it supersedes other rules only to the extent 

that it is inconsistent with such rules; and 

ø(2) with full recognition of the constitutional right of either 

House to change the rules (so far as relating to the procedure 

of that House) at any time, in the same manner, and to the 

same extent as in the case of any other rule of that House. 

ø§ 803. Special rule on statutory, regulatory, and judicial 

deadlines 

ø(a) In the case of any deadline for, relating to, or involving any 

rule which does not take effect (or the effectiveness of which is terminated) because of enactment of a joint resolution under section 

802, that deadline is extended until the date 1 year after the date 

of enactment of the joint resolution. Nothing in this subsection 

shall be construed to affect a deadline merely by reason of the postponement of a rule’s effective date under section 801(a). 

ø(b) The term ‘‘deadline’’ means any date certain for fulfilling 

any obligation or exercising any authority established by or under 

any Federal statute or regulation, or by or under any court order 

implementing any Federal statute or regulation. 

ø§ 804. Definitions 

øFor purposes of this chapter— 

ø(1) The term ‘‘Federal agency’’ means any agency as that 

term is defined in section 551(1). 

ø(2) The term ‘‘major rule’’ means any rule that the Administrator of the Office of Information and Regulatory Affairs of the 

Office of Management and Budget finds has resulted in or is 

likely to result in— 

ø(A) an annual effect on the economy of $100,000,000 or 

more; 

ø(B) a major increase in costs or prices for consumers, 

individual industries, Federal, State, or local government 

agencies, or geographic regions; or 

ø(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the abilVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 E:\HR\OC\HR278P1.XXX HR278P1

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ity of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 

The term does not include any rule promulgated under the 

Telecommunications Act of 1996 and the amendments made by 

that Act. 

ø(3) The term ‘‘rule’’ has the meaning given such term in section 551, except that such term does not include— 

ø(A) any rule of particular applicability, including a rule 

that approves or prescribes for the future rates, wages, 

prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions 

thereof, or accounting practices or disclosures bearing on 

any of the foregoing; 

ø(B) any rule relating to agency management or personnel; or 

ø(C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. 

ø§ 805. Judicial review 

øNo determination, finding, action, or omission under this chapter shall be subject to judicial review. 

ø§ 806. Applicability; severability 

ø(a) This chapter shall apply notwithstanding any other provision of law. 

ø(b) If any provision of this chapter or the application of any provision of this chapter to any person or circumstance, is held invalid, 

the application of such provision to other persons or circumstances, 

and the remainder of this chapter, shall not be affected thereby. 

ø§ 807. Exemption for monetary policy 

øNothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of 

the Federal Reserve System or the Federal Open Market Committee.¿ 

CHAPTER 8—CONGRESSIONAL REVIEW OF AGENCY 

RULEMAKING 

Sec. 

801. Congressional review. 

802. Congressional approval procedure for major rules. 

803. Congressional disapproval procedure for nonmajor rules. 

804. Definitions. 

805. Judicial review. 

806. Exemption for monetary policy. 

807. Effective date of certain rules. 

§ 801. Congressional review 

(a)(1)(A) Before a rule may take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to 

the Comptroller General a report containing— 

(i) a copy of the rule; 

(ii) a concise general statement relating to the rule; 

(iii) a classification of the rule as a major or nonmajor rule, 

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dressing each criteria for a major rule contained within sections 

804(2)(A), 804(2)(B), and 804(2)(C); 

(iv) a list of any other related regulatory actions intended to 

implement the same statutory provision or regulatory objective 

as well as the individual and aggregate economic effects of 

those actions; and 

(v) the proposed effective date of the rule. 

(B) On the date of the submission of the report under subparagraph (A), the Federal agency promulgating the rule shall submit 

to the Comptroller General and make available to each House of 

Congress— 

(i) a complete copy of the cost-benefit analysis of the rule, if 

any; 

(ii) the agency’s actions pursuant to sections 603, 604, 605, 

607, and 609 of this title; 

(iii) the agency’s actions pursuant to sections 202, 203, 204, 

and 205 of the Unfunded Mandates Reform Act of 1995; and 

(iv) any other relevant information or requirements under any 

other Act and any relevant Executive orders. 

(C) Upon receipt of a report submitted under subparagraph (A), 

each House shall provide copies of the report to the chairman and 

ranking member of each standing committee with jurisdiction under 

the rules of the House of Representatives or the Senate to report a 

bill to amend the provision of law under which the rule is issued. 

(2)(A) The Comptroller General shall provide a report on each 

major rule to the committees of jurisdiction by the end of 15 calendar days after the submission or publication date as provided in 

section 802(b)(2). The report of the Comptroller General shall include an assessment of the agency’s compliance with procedural 

steps required by paragraph (1)(B). 

(B) Federal agencies shall cooperate with the Comptroller General 

by providing information relevant to the Comptroller General’s report under subparagraph (A). 

(3) A major rule relating to a report submitted under paragraph 

(1) shall take effect upon enactment of a joint resolution of approval 

described in section 802 or as provided for in the rule following enactment of a joint resolution of approval described in section 802, 

whichever is later. 

(4) A nonmajor rule shall take effect as provided by section 803 

after submission to Congress under paragraph (1). 

(5) If a joint resolution of approval relating to a major rule is not 

enacted within the period provided in subsection (b)(2), then a joint 

resolution of approval relating to the same rule may not be considered under this chapter in the same Congress by either the House 

of Representatives or the Senate. 

(b)(1) A major rule shall not take effect unless the Congress enacts 

a joint resolution of approval described under section 802. 

(2) If a joint resolution described in subsection (a) is not enacted 

into law by the end of 70 session days or legislative days, as applicable, beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress (excluding days either 

House of Congress is adjourned for more than 3 days during a session of Congress), then the rule described in that resolution shall be 

deemed not to be approved and such rule shall not take effect. 


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(c)(1) Notwithstanding any other provision of this section (except 

subject to paragraph (3)), a major rule may take effect for one 90- 

calendar-day period if the President makes a determination under 

paragraph (2) and submits written notice of such determination to 

the Congress. 

(2) Paragraph (1) applies to a determination made by the President by Executive order that the major rule should take effect because such rule is— 

(A) necessary because of an imminent threat to health or safety or other emergency; 

(B) necessary for the enforcement of criminal laws; 

(C) necessary for national security; or 

(D) issued pursuant to any statute implementing an international trade agreement. 

(3) An exercise by the President of the authority under this subsection shall have no effect on the procedures under section 802. 

(d)(1) In addition to the opportunity for review otherwise provided 

under this chapter, in the case of any rule for which a report was 

submitted in accordance with subsection (a)(1)(A) during the period 

beginning on the date occurring— 

(A) in the case of the Senate, 60 session days, or 

(B) in the case of the House of Representatives, 60 legislative 

days, 

before the date the Congress is scheduled to adjourn a session of 

Congress through the date on which the same or succeeding Congress first convenes its next session, sections 802 and 803 shall 

apply to such rule in the succeeding session of Congress. 

(2)(A) In applying sections 802 and 803 for purposes of such additional review, a rule described under paragraph (1) shall be treated 

as though— 

(i) such rule were published in the Federal Register on— 

(I) in the case of the Senate, the 15th session day, or 

(II) in the case of the House of Representatives, the 15th 

legislative day, 

after the succeeding session of Congress first convenes; and 

(ii) a report on such rule were submitted to Congress under 

subsection (a)(1) on such date. 

(B) Nothing in this paragraph shall be construed to affect the requirement under subsection (a)(1) that a report shall be submitted 

to Congress before a rule can take effect. 

(3) A rule described under paragraph (1) shall take effect as otherwise provided by law (including other subsections of this section). 

§ 802. Congressional approval procedure for major rules 

(a) For purposes of this section, the term ‘‘joint resolution’’ means 

only a joint resolution introduced on or after the date on which the 

report referred to in section 801(a)(1)(A) is received by Congress (excluding days either House of Congress is adjourned for more than 

3 days during a session of Congress), the matter after the resolving 

clause of which is as follows: ‘‘That Congress approves the rule submitted by the l l relating to l l.’’ (The blank spaces being appropriately filled in). 

(1) In the House, the majority leader of the House of Representatives (or his designee) and the minority leader of the 

House of Representatives (or his designee) shall introduce such 


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joint resolution described in subsection (a) (by request), within 

3 legislative days after Congress receives the report referred to 

in section 801(a)(1)(A). 

(2) In the Senate, the majority leader of the Senate (or his 

designee) and the minority leader of the Senate (or his designee) 

shall introduce such joint resolution described in subsection (a) 

(by request), within 3 session days after Congress receives the 

report referred to in section 801(a)(1)(A). 

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction 

under the rules of the House of Representatives or the Senate to report a bill to amend the provision of law under which the rule is 

issued. 

(2) For purposes of this section, the term ‘‘submission date’’ means 

the date on which the Congress receives the report submitted under 

section 801(a)(1). 

(c) In the Senate, if the committee or committees to which a joint 

resolution described in subsection (a) has been referred have not reported it at the end of 15 session days after its introduction, such 

committee or committees shall be automatically discharged from 

further consideration of the resolution and it shall be placed on the 

calendar. A vote on final passage of the resolution shall be taken on 

or before the close of the 15th session day after the resolution is reported by the committee or committees to which it was referred, or 

after such committee or committees have been discharged from further consideration of the resolution. 

(d)(1) In the Senate, when the committee or committees to which 

a joint resolution is referred have reported, or when a committee or 

committees are discharged (under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at 

any time thereafter in order (even though a previous motion to the 

same effect has been disagreed to) for a motion to proceed to the consideration of the joint resolution, and all points of order against the 

joint resolution (and against consideration of the joint resolution) 

are waived. The motion is not subject to amendment, or to a motion 

to postpone, or to a motion to proceed to the consideration of other 

business. A motion to reconsider the vote by which the motion is 

agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint 

resolution shall remain the unfinished business of the Senate until 

disposed of. 

(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited 

to not more than 2 hours, which shall be divided equally between 

those favoring and those opposing the joint resolution. A motion to 

further limit debate is in order and not debatable. An amendment 

to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution 

is not in order. 

(3) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (a), and a single 

quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate, the vote on final passage of the 

joint resolution shall occur. 


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(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint 

resolution described in subsection (a) shall be decided without debate. 

(e)(1) In the House of Representatives, if the committee or committees to which a joint resolution described in subsection (a) has been 

referred have not reported it at the end of 15 legislative days after 

its introduction, such committee or committees shall be automatically discharged from further consideration of the resolution and it 

shall be placed on the appropriate calendar. A vote on final passage 

of the resolution shall be taken on or before the close of the 15th legislative day after the resolution is reported by the committee or committees to which it was referred, or after such committee or committees have been discharged from further consideration of the resolution. 

(2)(A) A motion in the House of Representatives to proceed to the 

consideration of a resolution shall be privileged and not debatable. 

An amendment to the motion shall not be in order, nor shall it be 

in order to move to reconsider the vote by which the motion is 

agreed to or disagreed to. 

(B) Debate in the House of Representatives on a resolution shall 

be limited to not more than two hours, which shall be divided 

equally between those favoring and those opposing the resolution. A 

motion to further limit debate shall not be debatable. No amendment to, or motion to recommit, the resolution shall be in order. It 

shall not be in order to reconsider the vote by which a resolution 

is agreed to or disagreed to. 

(C) Motions to postpone, made in the House of Representatives 

with respect to the consideration of a resolution, and motions to proceed to the consideration of other business, shall be decided without 

debate. 

(D) All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to a resolution shall be decided without debate. 

(f) If, before the passage by one House of a joint resolution of that 

House described in subsection (a), that House receives from the 

other House a joint resolution described in subsection (a), then the 

following procedures shall apply with respect to a joint resolution 

described in subsection (a) of the House receiving the joint resolution— 

(1) the procedure in that House shall be the same as if no 

joint resolution had been received from the other House; but 

(2) the vote on final passage shall be on the joint resolution 

of the other House. 

(g) This section and section 803 are enacted by Congress— 

(1) as an exercise of the rulemaking power of the Senate and 

House of Representatives, respectively, and as such it is deemed 

a part of the rules of each House, respectively, but applicable 

only with respect to the procedure to be followed in that House 

in the case of a joint resolution described in subsection (a), and 

it supersedes other rules only to the extent that it is inconsistent 

with such rules; and 

(2) with full recognition of the constitutional right of either 

House to change the rules (so far as relating to the procedure 


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38 

of that House) at any time, in the same manner, and to the 

same extent as in the case of any other rule of that House. 

§ 803. Congressional disapproval procedure for nonmajor 

rules 

(a) For purposes of this section, the term ‘‘joint resolution’’ means 

only a joint resolution introduced in the period beginning on the 

date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days 

either House of Congress is adjourned for more than 3 days during 

a session of Congress), the matter after the resolving clause of which 

is as follows: ‘‘That Congress disapproves the nonmajor rule submitted by the l l relating to l l, and such rule shall have no 

force or effect.’’ (The blank spaces being appropriately filled in). 

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction. 

(2) For purposes of this section, the term submission or publication date means the later of the date on which— 

(A) the Congress receives the report submitted under section 

801(a)(1); or 

(B) the nonmajor rule is published in the Federal Register, if 

so published. 

(c) In the Senate, if the committee to which is referred a joint resolution described in subsection (a) has not reported such joint resolution (or an identical joint resolution) at the end of 15 session days 

after the date of introduction of the joint resolution, such committee 

may be discharged from further consideration of such joint resolution upon a petition supported in writing by 30 Members of the Senate, and such joint resolution shall be placed on the calendar. 

(d)(1) In the Senate, when the committee to which a joint resolution is referred has reported, or when a committee is discharged 

(under subsection (c)) from further consideration of a joint resolution described in subsection (a), it is at any time thereafter in order 

(even though a previous motion to the same effect has been disagreed to) for a motion to proceed to the consideration of the joint 

resolution, and all points of order against the joint resolution (and 

against consideration of the joint resolution) are waived. The motion 

is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to 

reconsider the vote by which the motion is agreed to or disagreed 

to shall not be in order. If a motion to proceed to the consideration 

of the joint resolution is agreed to, the joint resolution shall remain 

the unfinished business of the Senate until disposed of. 

(2) In the Senate, debate on the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited 

to not more than 10 hours, which shall be divided equally between 

those favoring and those opposing the joint resolution. A motion to 

further limit debate is in order and not debatable. An amendment 

to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution 

is not in order. 

(3) In the Senate, immediately following the conclusion of the debate on a joint resolution described in subsection (a), and a single 

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ance with the rules of the Senate, the vote on final passage of the 

joint resolution shall occur. 

(4) Appeals from the decisions of the Chair relating to the application of the rules of the Senate to the procedure relating to a joint 

resolution described in subsection (a) shall be decided without debate. 

(e) In the Senate the procedure specified in subsection (c) or (d) 

shall not apply to the consideration of a joint resolution respecting 

a nonmajor rule— 

(1) after the expiration of the 60 session days beginning with 

the applicable submission or publication date, or 

(2) if the report under section 801(a)(1)(A) was submitted during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session day 

after the succeeding session of Congress first convenes. 

(f) If, before the passage by one House of a joint resolution of that 

House described in subsection (a), that House receives from the 

other House a joint resolution described in subsection (a), then the 

following procedures shall apply: 

(1) The joint resolution of the other House shall not be referred to a committee. 

(2) With respect to a joint resolution described in subsection 

(a) of the House receiving the joint resolution— 

(A) the procedure in that House shall be the same as if 

no joint resolution had been received from the other House; 

but 

(B) the vote on final passage shall be on the joint resolution of the other House. 

§ 804. Definitions 

For purposes of this chapter— 

(1) The term ‘‘Federal agency’’ means any agency as that term 

is defined in section 551(1). 

(2) The term ‘‘major rule’’ means any rule, including an interim final rule, that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and 

Budget finds has resulted in or is likely to result in— 

(A) an annual effect on the economy of $100,000,000 or 

more; 

(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government 

agencies, or geographic regions; or 

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability 

of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. 

(3) The term ‘‘nonmajor rule’’ means any rule that is not a 

major rule. 

(4) The term ‘‘rule’’ has the meaning given such term in section 551, except that such term does not include— 

(A) any rule of particular applicability, including a rule 

that approves or prescribes for the future rates, wages, 

prices, services, or allowances therefore, corporate or financial structures, reorganizations, mergers, or acquisitions 


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40 

1 5 U.S.C. §§ 801–08 (2011). 

thereof, or accounting practices or disclosures bearing on 

any of the foregoing; 

(B) any rule relating to agency management or personnel; 

or 

(C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. 

§ 805. Judicial review 

(a) No determination, finding, action, or omission under this 

chapter shall be subject to judicial review. 

(b) Notwithstanding subsection (a), a court may determine whether a Federal agency has completed the necessary requirements under 

this chapter for a rule to take effect. 

(c) The enactment of a joint resolution of approval under section 

802 shall not be interpreted to serve as a grant or modification of 

statutory authority by Congress for the promulgation of a rule, shall 

not extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and shall not form part 

of the record before the court in any judicial proceeding concerning 

a rule except for purposes of determining whether or not the rule is 

in effect. 

§ 806. Exemption for monetary policy 

Nothing in this chapter shall apply to rules that concern monetary policy proposed or implemented by the Board of Governors of 

the Federal Reserve System or the Federal Open Market Committee. 

§ 807. Effective date of certain rules 

Notwithstanding section 801— 

(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or 

subsistence activity related to hunting, fishing, or camping; or 

(2) any rule other than a major rule which an agency for 

good cause finds (and incorporates the finding and a brief 

statement of reasons therefore in the rule issued) that notice 

and public procedure thereon are impracticable, unnecessary, or 

contrary to the public interest, 

shall take effect at such time as the Federal agency promulgating 

the rule determines. 

* * * * * * * 

Dissenting Views 

INTRODUCTION

H.R. 10, the ‘‘Regulations From the Executive in Need of Scrutiny Act of 2011,’’ (REINS Act) is a flawed attempt to make the 

rulemaking process more subject to Congressional oversight and accountability. In effect, however, the bill will substantially delay and 

potentially prevent agency rulemaking, at great risk to public 

health and safety, by requiring that any major new rule be affirmatively approved by Congress and the President. The bill effectuates 

this process by amending the Congressional Review Act 1 (CRA) to 


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41 

2Pub. L. No. 111–148, 124 Stat. 119 (2010). 

3Pub. L. No. 111–203, 124 Stat. 1376 (2010). 

4The other organizations include: 350.org, AhEeCOSH, Alliance for a Just Society, American 

Federation of Government Employees, American Rivers, ARISE CHICAGO, Arkansas Interfaith 

Committee for Worker Justice, Association of Flight Attendants-CWA, BlueGreen Alliance, 

Breast Cancer Action, California Rural Legal Assistance Foundation, Center for Biological Diversity, Center for Science in the Public Interest, Clean Air Watch, Clean Water Action, Community Organizations in Action, Consumer Federation of America, Consumers Union, Defenders 

of Wildlife, Demos, Earth Day Network, Earthjustice, Easter Seals, Environment America, Environmental Defense Fund, Equal Justice Center, Friends of the Earth, Gray Panthers, 

Greenpeace USA, Health Access California, Health Care for America Now, Interfaith Worker 

Justice, Interfaith Worker Justice Committee of Colorado, International Union, United Automobile, Aerospace, & Agricultural Implement Workers of America (UAW), 3 of 3, National Audubon Society, National Consumers League, National Council for Occupational Safety and Health, 

National Gay and Lesbian Task Force Action Fund, National Women’s Health Network, Natural 

Resources Defense Council, OMB Watch, Our Bodies Ourselves, People for the American Way, 

Pesticide Action Network North America, Physicians for Social Responsibility, ProgressNow, 

Public Citizen, Reproductive Health Technologies Project, Republicans for Environmental Protection, RICOSH, Safe Tables Our Priority (S.T.O.P.), Sierra Club, South Florida Interfaith 

Worker Justice, Southern Environmental Law Center, The National Consumer Voice for Quality 

Long-Term Care, The TMJ Association, The Wilderness Society, Transport Workers Union of 

America AFL–CIO, U.S. PIRG, United Steelworkers, United Support & Memorial for Workplace 

Fatalities, USAction, Voces de la Frontera, Women’s Voices for the Earth, Workers Interfaith 

Network. See Letter from 72 organizations to Representative John Conyers, Jr., Ranking Member, Committee on the Judiciary (Feb. 11, 2011) (on file with the United States House of Representatives, Comm. on the Judiciary, Democrats). The American Association for Justice also 

submitted a letter opposing H.R. 10 to Representative John Conyers, Jr., Ranking Member, 

Committee on the Judiciary (Feb. 1, 2001) (on file with the United States House of Representatives, Comm. on the Judiciary, Democrats). 5See Letter from 66 law professors to Members of the United States Senate and United States 

House of Representatives (Feb. 8, 2011) (on file with the United States House of Representatives, Comm. on the Judiciary, Democrats). 

require Congressional approval of major rules (i.e., rules with an 

annual impact on the economy of at least $100 million) before they 

may become effective. 

This legislation is based on the false premise that regulation is 

bad for business, only results in costs, and stifles job creation. H.R. 

10 is unnecessary because Congress already has sufficient tools to 

conduct effective oversight, which include narrowing delegations of 

authority to agencies, controlling agency appropriations, and conducting oversight of agency activity. In addition, H.R. 10 presents 

serious Constitutional concerns as it may violate inherent separation of powers principles. 

By requiring Congressional approval of major rules, H.R. 10 

would serve as a procedural ‘‘chokehold’’ in multiple ways on Federal agency rulemaking and undermine the ability of agencies to 

provide essential protections to Americans. This legislation is a 

thinly disguised attempt to prevent the implementation of critical 

laws, such as the Patient Protection and Affordable Care Act 2 and 

the Dodd-Frank Wall Street Reform and Consumer Protection Act.3

The REINS Act is strongly opposed by a broad coalition of 72 environmental, labor, and consumer organizations, including the 

AFL–CIO, the American Federation of State, County and Municipal Employees, the American Lung Association, Families USA, the 

National Association of Consumer Advocates, the League of Conservation Voters, and the Union of Concerned Scientists, Science 

Integrity Division.4 Additionally, 66 respected academics in the 

fields of administrative and environmental law also oppose the 

REINS Act because it is ‘‘unnecessary to establish agency accountability and unwise as a matter of public policy because it undercuts 

the implementation of laws intended to protect people and the environment.’’ 5

For the foregoing reasons and others discussed more fully below, 

we must respectfully dissent and urge opposition to H.R. 10. 


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6 5 U.S.C. § 801(b) (2011). 

7See 5 U.S.C. § 802 (2011) (outlining congressional disapproval procedure). 8 5 U.S.C. §§ 601 et seq. (2011). 9Pub. L. No. 104–4, 109 Stat. 48 (1995). 

DESCRIPTION AND BACKGROUND

The REINS Act would dramatically change agency rulemaking 

by requiring all new major regulations to be affirmatively approved 

by both Houses of Congress and the President before they can take 

effect. It should be noted, however, that Congress already has the 

authority under the CRA to disapprove such rules.6 Pursuant to 

the CRA, any agency rule automatically takes effect absent a joint 

resolution of disapproval enacted by Congress within 60 legislative 

days from receipt of the rule.7 H.R. 10 amends the CRA to create 

a new process for major rules whereby they may only take effect 

upon Congressional and Presidential approval. By imposing this 

unrealistic and unworkable requirement, the REINS Act will effectively prevent Federal rulemaking and thereby threaten public 

health and safety as well as the economic soundness of our Nation. 

Section 2 of the REINS Act sets forth the substantive provisions 

of the legislation. New Section 801(a)(1)(A) requires a Federal 

agency to submit a report to each House of Congress and to the 

Comptroller General of the Government Accountability Office 

(GAO) a report containing: (1) a copy of the rule; (2) a concise general statement relating to the rule; (3) a classification of the rule 

as a major or non-major rule, including the rule’s classification specifically addressing each element of the definition of a ‘‘major rule;’’ 

(4) a list of any other related regulatory actions intended to implement the same statutory provision or regulatory objective, together 

with a description of the rule’s individual and aggregate effects; 

and (5) the rule’s proposed effective date. With respect to the rule’s 

classification as a major rule, the report must indicate: (1) whether 

the rule has an annual effect on the economy of $100 million or 

more; (2) whether the rule imposes a major increase in costs or 

prices for consumers, individual industries, Federal, state, or local 

government agencies, or geographic regions; or (3) whether the rule 

imposes significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United Statesbased enterprises to compete with foreign-based enterprises. 

In addition, new section 801(a)(1)(B) requires an agency to submit to GAO and both Houses of Congress: (1) a cost-benefit analysis of the rule, if any; (2) actions taken pursuant to the Regulatory 

Flexibility Act; 8 (3) actions taken to comply with the Unfunded 

Mandates Reform Act of 1995; 9 and (4) any other relevant information or requirement under any other act or executive order. 

Under new section 801(a)(1)(C), each House of Congress must 

provide copies of the report required by 801(a)(1)(A) to the Chair 

and Ranking Member of each House and Senate standing committee with jurisdiction to report a bill to amend the provision of 

law under which the rule is issued (hereinafter ‘‘Committees of Jurisdiction’’). 

Pursuant to new section 801(a)(2)(A), the GAO must provide a 

report on each major rule to the Committees of Jurisdiction within 

15 calendar days from the date on which an agency submitted the 

report required by section 801(a)(1)(A). The GAO’s report must inVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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clude an assessment of the agency’s compliance with 801(a)(1)(B). 

New section 801(a)(2)(B) specifies that agencies must cooperate 

with the GAO in providing information relevant to preparing its report required under 801(a)(2)(A). 

New section 801(a)(3) provides that a major rule takes effect 

upon enactment of a joint resolution of approval or whatever the 

enactment date is in the rule following enactment of the joint resolution, whichever is later. 

New section 801(a)(4) retains current law; i.e., nonmajor rules 

take effect after 60 days if Congress does not enact a joint resolution of disapproval. 

New section 801(a)(5) clarifies that if a joint resolution of approval is not enacted, a joint resolution relating to the same rule 

cannot be considered in the same Congress by either House. 

New section 801(b)(1) prohibits a major rule from taking effect 

unless Congress enacts a joint resolution of approval pursuant to 

the Act. In turn, new section 801(b)(2) deems a major rule as not 

approved and without effect if a joint resolution of approval concerning that rule is not enacted within 70 legislative or session 

days beginning on the date on which Congress receives the report 

required by section 801(a)(1)(A), excluding days that either House 

is adjourned for more than three days during session. 

New section 801(c) sets forth certain temporary exceptions to the 

Congressional approval process for major rules. New section 

801(c)(1) provides that a major rule may take effect for one 90-calendar-day period if the President makes a determination under section 801(c)(2). New section 801(c)(2), in turn, authorizes the President to determine by executive order that a major rule should take 

effect notwithstanding the requirements of this statute if such rule 

is: (1) necessary because of an imminent threat to health or safety 

or other emergency; (2) necessary for the enforcement of criminal 

laws; (3) necessary for national security; or (4) issued pursuant to 

a statute implementing an international trade agreement. New section 801(c)(3), however, clarifies that the President’s exercise of authority under this subsection does not affect Congressional approval procedures outlined in new section 802. 

New section 801(d) addresses instances when major rules are 

submitted to Congress within 60 legislative or session days prior to 

the adjournment of a Congressional session through the date Congress first convenes its next session. New section 801(d)(1) states 

that any rule submitted within such period is subject to the Act’s 

approval and disapproval procedures in the succeeding session. 

New section 801(d)(2)(A) specifies that, in such a circumstance, the 

rule must be treated as if it were published in the Federal Register 

on the 15th session or legislative day after the succeeding session 

convenes and considers the report on such a rule to have been submitted on such day. New section 801(d)(2)(B) specifies that this 

subsection should not be construed to affect the requirement that 

a rule be submitted to Congress before it can take effect. Finally, 

new section 801(d)(3) provides that a rule in this circumstance 

takes effect as otherwise provided for by law, including pursuant 

to the other provisions of the Act. 

Although new Section 802 is not within the jurisdiction of our 

Committee, an explanation of this provision is necessary to place 

the remainder of the bill in perspective. Subsections (c) and (d) deVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00043 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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tail the expedited Senate procedures for consideration of joint resolutions of approval. Subsection (c) requires that a Committee of Jurisdiction be automatically discharged from further consideration of 

a joint resolution if it has not reported the joint resolution within 

15 session days after the joint resolution’s introduction. The vote 

on final passage of the joint resolution must take place on or before 

the 15th session day after the relevant Committees of Jurisdiction 

report the joint resolution or are discharged from further consideration of such joint resolution. 

New section 802(d)(2) limits total Senate debate time on a joint 

resolution of approval (including all debatable motions and related 

appeals) to a mere two hours, to be divided evenly between those 

in support and those in opposition to the joint resolution. A motion 

to further limit debate is in order, but not debatable. Amendments 

and motions to postpone, to proceed to consideration of other business, or to recommit the joint resolution are not in order. 

New section 802(e) details expedited procedures in the House of 

Representatives for consideration of joint resolutions of approval. 

New section 802(e)(1) requires that a Committee of Jurisdiction be 

automatically discharged from further consideration of a joint resolution if it has not reported the joint resolution by the end of 15 

legislative days after the joint resolution’s introduction. The vote on 

final passage of the joint resolution must take place on or before 

the 15th legislative day after the relevant Committee of Jurisdiction report the joint resolution or are discharged from further consideration of such joint resolution, further limiting the Committee’s 

time for consideration. 

New section 802(e)(2)(B) limits total debate time in the House of 

Representatives on a joint resolution of approval to a mere two 

hours, divided evenly between those in support and those in opposition to the joint resolution. A motion to further limit debate is not 

debatable. Amendments to and motions to recommit the joint resolution as well as motions to reconsider the vote on the joint resolution are not in order. 

New section 802(f) concerns the instance when one House of Congress, before it passes a joint resolution of approval, receives a joint 

resolution of approval from the other chamber. In such an instance, 

the House that has not yet passed the joint resolution will continue 

following its procedures as if no joint resolution had been received 

from the other chamber, but the vote on final passage must be on 

the other chamber’s joint resolution. 

New section 803 sets forth an expedited procedure for consideration of non-major rules. Our Committee does not have jurisdiction 

over this section. 

Although new section 805(a) prohibits judicial review of any determination, finding, action, or omission under the Act, subsection 

(b) clarifies that, notwithstanding subsection (a), a court may review an agency’s compliance with the Act’s requirements. 

New section 807 excepts from the Act’s requirements any major 

or nonmajor rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping. Notably, 

this exception is not extended to other important matters such as 

those implicating critical public health and safety issues. With respect to a nonmajor rule, section 807 retains the exception for instances where an agency finds good cause that notice and proceVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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10See, e.g., Unofficial Tr. of Markup of H.R. 10, the ‘‘Regulations of the Executive in Need 

of Scrutiny Act of 2011,’’ by the H. Comm. on the Judiciary, 112th Cong., at 16 (Oct. 25, 2011). 11 Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs on Small Firms, Rep. 

No. SBAHQ–08–M–0466 (Sept. 2010), available at http://archive.sba.gov/advo/research/ 

rs371tot.pdf. 12See REINS Act—Promoting Jobs and Expanding Freedom by Reducing Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial and Admin. Law of the H. Comm. 

on the Judiciary, 112th Cong. (2011) (statement of Sally Katzen, former OIRA Administrator); 

see also Sidney Shapiro et al., Setting the Record Straight: The Crain and Crain Report on 

Regulatory Costs (2011), available at http://www.progressivereform.org/articles/SBAl RegulatorylCostslAnalysisl1103.pdf. 13Sidney Shapiro et al., Setting the Record Straight: The Crain and Crain Report on Regulatory Costs (2011), available at http://www.progressivereform.org/articles/SBAl RegulatorylCostslAnalysisl1103.pdf. 14 Id. 15 Congressional Research Service, Analysis of an Estimate of the Total Costs of Federal Regulations, R41763 (2011). 16 Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to the author of the CRS report). 17 Id. The Economic Policy Institute also issued a critique of the Crain study outlining similar 

concerns with the study’s methodology and data. See John Irons & Andrew Green, Flaws Call 

for Rejecting Crain and Crain Model: Cited $1.75 Trillion Cost of Regulations Is Not Worth Repeating (2011), available at http://w3.epi-data.org/temp2011/IssueBrief308.pdf. 

dure are impracticable, unnecessary, or contrary to the public interest. 

CONCERNS WITH H.R. 10

I. THE REINS ACT IS BASED ON FALSE PREMISES ABOUT

REGULATORY COSTS

Proponents of the REINS Act assert that Federal agency regulations impose excessive costs on businesses, stifle job creation, and 

hobble the Nation’s economic growth. The facts are otherwise. 

A. The Benefits of Regulations Significantly Outweigh Their Costs 

In support of their arguments concerning the costs of regulation, 

proponents regularly cite 10 a widely debunked study by economists 

Nicole and Mark Crain, which claims that Federal rulemaking imposes a cumulative burden of $1.75 trillion a year.11

Critics of this study note its flawed assumptions and methodologies.12 For example, the Center for Progressive Reform (CPR) observed that the study does not account for any benefits of regulation.13 Additionally, CPR documented that the study did not rely 

on actual data on costs imposed by Federal regulation in the 

United States.14 Indeed, the CPR found that the Crain study’s 

methodology was defective because, in calculating economic costs, 

it relied on World Bank international public opinion polling on how 

friendly a particular country was to business interests. 

Likewise, the independent, nonpartisan Congressional Research 

Service (CRS) criticized much of the Crain study’s methodology.15

CRS reported that the authors of the study admitted that it was 

‘‘not meant to be a decision-making tool for lawmakers or Federal 

regulatory agencies to use in choosing the ‘right’ level of regulation. 

In no place in any of the reports do we imply that our reports 

should be used for this purpose. (How could we recommend this use 

when we make no attempt to estimate the benefits?)’ ’’ 16 CRS concluded that ‘‘a valid, reasoned policy decision can only be made 

after considering information on both costs and benefits’’ of regulation.17

Further, the Office of Management and Budget (OMB) has annually estimated the costs of regulations, which have been substanVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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18Office of Management and Budget, 2011 Report to Congress on the Benefits and Costs of 

Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities 21, available at http://www.whitehouse.gov/sites/default/files/omb/inforeg/2011lcb/2011lcbalreport.pdf. 19See REINS Act—Promoting Jobs and Expanding Freedom by Reducing Needless Regulations: Hearing Before the Subcomm. on Courts, Commercial and Admin. Law of the H. Comm. 

on the Judiciary, 112th Cong. (2011) (statement of Sally Katzen, former OIRA Administrator). 20 Id. 21 Environmental Protection Agency, Benefits and Costs of the Clean Air Act, Second Prospective Study—1990 to 2020 (2011) available at http://www.epa.gov/air/sect812/prospective2.html 22 Id. 23See Ian Urbina, Drilling Down: Regulation Lax as Gas Wells’ Tainted Water Hits Rivers, 

N.Y. Times, Feb. 26, 2011; Ian Urbina, Drilling Down: Wastewater Recycling No Cure-All in Gas 

Process, N.Y. Times, Mar. 1, 2011; Ian Urbina, Drilling Down: A Tainted Water Well, and Concern There May Be More, N.Y. Times, Aug. 3, 2011 (investigative series on the dangers associated with the controversial natural gas drilling technique known as fracking). 

tially lower estimates than those reported in the Crain study. Significantly, OMB’s reports to Congress include data on the benefits 

of regulations. The latest such report concluded that for fiscal year 

2010, Federal regulations cost between $6.5 billion and $12.5 billion and generated between $18.8 billion and $86.1 billion in benefits.18 According to OMB, the costs of regulations during the tenyear period from FY 1999 through FY 2009 were between $43 billion and $55 billion, while their benefits ranged from $128 billion 

to $616 billion.19 Therefore, even if one uses OMB’s highest estimate of costs and its lowest estimate of benefits, the regulations 

issued over the past ten years have produced net benefits of $73 

billion to our society. Such estimates were consistent across Democratic and Republican administrations.20 Given that the benefits of 

regulations consistently exceed the costs, the need for any legislation that would make the issuance of regulations more difficult or 

time consuming is certainly in question. 

The benefits of regulation are also apparent when viewed 

through the lens of prevention. For example, a 2011 Environmental 

Protection Agency report found that the public health benefits of 

clean air regulations far outweigh the compliance cost to industry.21 The report concluded that restrictions on fine particle and 

ground-level ozone pollution mandated by the 1990 Clean Air Act 

amendments would prevent 230,000 deaths and produce benefits of 

about $2 trillion by 2020.22

Alternatively, the costs of not regulating can be significant. The 

New York Times recently published a series of articles highlighting 

the danger of natural gas extraction practices that led to toxic contamination of the drinking water of potentially millions of people. 

This contamination was the result of a lack of regulation, often because regulatory authorities were fearful of confronting a lucrative 

and politically powerful industry.23

While a cost-benefit analysis of the current regulatory process 

clearly establishes the fact that the benefits well exceed the costs, 

the REINS Act itself will definitely result in more costs than benefits. The real costs of the REINS Act will be the resultant delay, 

uncertainty, and actual harm to the economy and society from the 

Congressional approval process dictated by the legislation. Highly 

beneficial rules will be delayed or even abandoned as a result of 

the failure of Congressional action. The benefit of imposing yet another significant procedural step before a major rule may become 

effective is ephemeral, evidenced by the fact that the CRA has only 

been used once to disapprove a rule in the 15 years it has been in 

effect. 


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24 Unofficial Tr. of Markup of H.R. 10, the ‘‘Regulations of the Executive in Need of Scrutiny 

Act of 2011,’’ by the H. Comm. on the Judiciary, 112th Cong., at 50, 119 (Oct. 25, 2011). 25See, e.g., Memorandum from Eric Cantor to House Republicans (Aug. 29, 2011) (on file with 

the House Majority Leader) available at http://majorityleader.gov/blog/2011/08/memo-on-upcoming-jobs-agenda.html. (‘‘By pursuing a steady repeal of job-destroying regulations, we can help 

lift the cloud of uncertainty hanging over small and large employers alike, empowering them 

to hire more workers.’’). 26 Bureau of Labor Statistics, Economic News Release, Extended Mass Layoffs (Quarterly) 

News Release (Aug. 10, 2011), available at http://www.bls.gov/news.release/archives/ 

mslol08102011.htm. 27The Regulatory Accountability Act of 2011: Hearing on H.R. 3010 Before the H. Comm. on 

the Judiciary, 112th Cong. (2011) (statement of Christopher DeMuth, American Enterprise 

Instutute). 28See William C. Dunkelberg & Holly Wade, NFIB Small Business Economic Trends (2011) 

available at http://www.nfib.com/Portals/0/PDF/sbet/sbet201109.pdf. 29See Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall St. J., July 18, 2011. 30 Bruce Bartlett, Misrepresentations, Regulations and Jobs, N.Y. Times, Oct. 4, 2011 available 

at http://economix.blogs.nytimes.com/2011/10/04/regulation-and-unemployment. 

In an effort to quantify the cumulative benefits of major rules regarding air quality, water quality, and food safety, Representative 

Mike Quigley (D–IL) offered an amendment to have the independent, nonpartisan GAO conduct a study of this matter. Similarly, Representative Steve Cohen (D–TN) offered an amendment 

to exempt from H.R. 10’s Congressional approval requirement any 

proposed rule that OMB determines would result in a net benefit 

to society. Both Members observed that when the benefits of a rule 

to society outweigh its costs, society has an interest in ensuring 

that the rule take effect without unnecessary delay.24 Representative Quigley’s amendment failed by a vote of 12 to 21 and Representative Cohen’s amendment also failed by a vote of 13 to 22. 

B. Regulations Do Not Hinder Job Creation 

Proponents of H.R. 10 claim government regulations interfere 

with job creation because they create uncertainty for businesses, 

thereby preventing them from investing and hiring.25

To the contrary, regulations have no determinable effect on job 

creation. For instance, a survey from the Bureau of Labor Statistics 

that tracks companies’ reasons for large layoffs found that during 

the first and second quarters of 2011, 144,746 layoffs were attributable to poor ‘‘business demand,’’ while only 1,119 were attributable to ‘‘government regulations.’’ 26

Indeed, one of the Majority’s own witnesses, during a recent 

hearing on another anti-regulatory bill, testified that when it comes 

to linking jobs and regulations, the ‘‘focus on jobs . . . can lead to 

confusion in regulatory debates’’ and that the employment effects 

of regulation ‘‘are indeterminate.’’ 27 Similarly, the National Federation of Independent Business’s latest monthly survey of its 

members reveals that poor sales, not regulations, are by far the 

biggest deterrent to hiring.28 In addition, the Wall Street Journal’s 

July 2011 survey of business economists found that ‘‘The main reason U.S. companies are reluctant to step up hiring is scant demand, rather than uncertainty over government policies, according 

to a majority of economists.’’ 29

According to Bruce Bartlett, an economist who worked in the Administrations of both Presidents Ronald Reagan and George H.W. 

Bush, the idea that cutting regulations will lead to significant job 

growth is ‘‘just nonsense. It’s just made up.’’ 30 He further opined 

that ‘‘regulatory uncertainty is a canard invented by Republicans 

that allows them to use current economic problems to pursue an 


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31 Id. 32 Northeast States for Coordinated Air Use Management (NESCAUM), Economic Analysis of 

a Program to Promote Clean Transportation Fuels in the Northeast/Mid-Atlantic Region (2011) 

(on file with Natural Resources Defense Council) available at http://switchboard.nrdc.org/blogs/ 

ngreene/CFS%20Economic%20Analysis%20Report%20INTERNAL.PDF. 33 Id. 34 Natural Resources Defense Council et al., Supplying Ingenuity: U.S. Suppliers of Clean, 

Fuel-Efficient Vehicle Technologies (2011), available at http://www.nrdc.org/transportation/ 

autosuppliers/files/SupplierMappingReport.pdf. 35 Id. 36 Unofficial Tr. of Markup of H.R. 10, the ‘‘Regulations of the Executive in Need of Scrutiny 

Act of 2011,’’ by the H. Comm. on the Judiciary, 112th Cong., at 62 (Oct. 25, 2011). 37 Cement Sector Regulatory Relief Act of 2011, H.R. 2681, 112th Cong. (2011). 

agenda supported by the business community year in and year out. 

In other words, it is a simple case of political opportunism, not a 

serious effort to deal with high unemployment.’’ 31

Rather than hindering growth, regulations actually play a role in 

promoting job growth. A report by Northeast States for Coordinated Air Use Management (NESCAUM) demonstrates a direct 

correlation between environmental regulations and job growth in 

the Northeast. It found that by enacting stricter fuel economy 

standards and pursuing cleaner forms of energy, more jobs would 

be created.32 Specifically, NESCAUM found that stricter fuel economy standards and regulations governing cleaner forms of energy 

would increase employment from 9,490 to 50,700 jobs; increase 

gross regional product, a measure of the states’ economic output, 

by $2.1 billion to $4.9 billion; and increase household disposable income increases by $1 billion to $3.3 billion.33

According to a recent report from the Natural Resources Defense 

Council (NRDC), the United Auto Workers (UAW), and the National Wildlife Federation (NWF), vehicle emissions standards and 

clean vehicle research, development and production are already responsible for 155,000 jobs at 504 facilities in 43 states and the District of Columbia.34 According to the same report, 119,000 jobs 

have been created in this industry since 2009 alone.35

By preventing the promulgation of rules, the REINS Act would 

seriously stifle economic growth and the creation of new jobs. To 

highlight this issue, Representative Hank Johnson (D–GA) offered 

an amendment during the Committee markup of H.R. 10 to exempt 

from the bill’s Congressional approval requirement any proposed 

rule that OMB determines would result in job growth.36 Representative Johnson’s amendment, however, failed by a vote of 14 to 21. 

II. THE REINS ACT IS UNNECESSARY BECAUSE CONGRESS ALREADY HAS

OVERSIGHT AUTHORITY OVER FEDERAL AGENCY RULEMAKING

Congress already has various mechanisms at its disposal to oversee and influence the Federal agency rulemaking process. In its 

simplest and most straightforward form, Congress can delegate 

rulemaking authority to agencies with greater specificity or restriction, which would limit an agency’s rulemaking authority either 

from the outset or through later amendment of an agency’s organic 

statute. Indeed, Congress can simply pass legislation to stay the effect of an existing rule, as the House recently voted to do with respect to the Environmental Protection Agency’s cement manufacturing standards.37

Further, Congress can impose restrictions on agency rulemaking 

through the appropriations process. These restrictions can take a 

variety of forms, including restrictions on the finalization of parVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00048 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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38See Congressional Research Service, Congressional Influence on Rulemaking and Regulation 

Through Appropriations Restrictions, RL 34354 (2008). 39These amendments primarily targeted environmental regulations and regulations implementing health care reform legislation. H.R. 1, 112th Cong. (2011). 40 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2011). 41 2 U.S.C. §§ 1501 et seq. (2011). 42 5 U.S.C. §§ 601 et seq. (2011). 43 44 U.S.C. §§ 3501 et seq. (2011). 44Pub. L. No. 104–121, § 242, 110 Stat. 847, 857 (1996). 45Regulations from the Executive in Need of Scrutiny Act of 2011: Hearing on H.R. 10 Before 

the Subcomm. on Courts, Commercial and Admin. L. of the H. Comm. on the Judiciary, 112th 

Continued 

ticular proposed rules, restrictions on regulatory activity within 

certain areas, restrictions on implementation or enforcement of certain rules, and conditional restrictions that prevent a rule from 

taking effect until an agency takes certain steps.38 For instance, no 

fewer than 19 out of the 67 amendments to H.R. 1, the ‘‘Full-Year 

Continuing Appropriations Act, 2011,’’ were aimed at de-funding 

the promulgation or implementation of existing and proposed regulations.39

Congress can also prescribe rulemaking procedures. Prior examples include the Administrative Procedure Act,40 which was enacted in 1946 to establish baseline procedures for rulemaking. Others include the Unfunded Mandates Reform Act,41 the Regulatory 

Flexibility Act,42 the Paperwork Reduction Act,43 and the Small 

Business Regulatory Enforcement Fairness Act,44 all of which 

added procedural and analytical requirements to the agency rulemaking process. In addition, the CRA already allows Congress to 

disapprove of an agency rule. 

Finally, Congress can exert influence over rulemaking through 

its oversight activities, whether through periodic oversight hearings, GAO reports, or informal contacts with the agencies. Such 

oversight activity can ensure that agencies are subject to democratic accountability for their actions. 

III. THE REINS ACT WILL SEVERELY RESTRICT FEDERAL RULEMAKING, 

THEREBY UNDERMINING THE ABILITY OF AGENCIES TO PROTECT

PUBLIC HEALTH AND SAFETY

The REINS Act will severely restrict agency rulemaking by adding a significant procedural step to the rulemaking process and, 

through expedited procedures for Congressional consideration of 

major rules, will afford industry another opportunity to stop major 

rules from going into effect. In so doing, the REINS Act threatens 

agencies’ ability to protect public health and safety. 

A. The Congressional approval requirement adds an unnecessary 

and dangerous additional step to the rulemaking process for 

major rules that will further ossify the rulemaking process and 

create even more opportunities for private special interests to intervene 

The REINS Act effectively acts as a chokehold on major Federal 

agency rulemaking by requiring Congressional assent to major 

rules before they can take effect. This approval process would be 

in addition to an already heavily proceduralized rulemaking process that often takes years to conclude. Worse yet, Congressional inertia would effectively constitute a veto of even critically needed 

rules.45


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Cong. (2011) (statement of David Goldston, Director of Government Affairs, Natural Resources 

Defense Council) (‘‘Agencies often take several years to formulate a particular safeguard, reviewing hundreds of scientific studies, drawing on their own experts in science and economics, 

empaneling outside expert advisors, gathering thousands of public comments, and going though 

many levels of executive branch review’’). 46 Id. 47REINS Act—Promoting Jobs and Expanding Freedom by Reducing Needless Regulations: 

Hearing Before the Subcomm. on Courts, Commercial and Admin. L. of the H. Comm. on the 

Judiciary, 112th Cong. (2011) (statement of Sally Katzen, former OIRA Administrator). 48See Constitutional Amendment to Restore Legislative Veto: Hearing Before the Subcomm. on 

the Constitution of the S. Comm. on the Judiciary, 98th Cong. (1984); An Amendment to Sec. 

13 of S. 1080, The Regulatory Reform Act, to Provide for Congressional Review of Agency Rules: 

Hearing Before the Subcomm. on Admin. Practice and Proc. of the S. Comm. on the Judiciary, 

98th Cong. (1984); On the Impact of the Supreme Court Decision in the Case of Immigration and 

Naturalization Service v. Chadha Which Found the Legislative Veto Unconstitutional: Hearing 

Before the H. Comm. on Rules 98th Cong. (1983); Legislative Veto and the ‘‘Chadha’’ Decision: 

Hearing Before the Subcomm. on Admin. Practice and Proc. of the S. Comm. on the Judiciary 

98th Cong. (1983); The Supreme Court Decision in INS v. Chadha and its Implications for Congressional Oversight and Agency Rulemaking: Hearing Before the Subcomm. on Admin. Law and 

Govt’l Rels. of the H. Comm. on the Judiciary, 98th Cong. (1983). 49 H.R. 3939, 98th Cong. Title II (1983). Then-Rep. Trent Lott (R–MS) was the sponsor of this 

legislation, which was cosponsored by 79 Members, all but five of them Republicans. 50OMB Watch, Roberts Showed Prudence in Reg Reform Initiative (2005), available at 

www.ombwatch.org/node/2652; see also Alliance for Justice, Report on the Nomination of John 

G. Roberts to the United States Supreme Court 78, available at http://www.afj.org/ 

afjlrobertslprehearinglreport.pdf (‘‘In general, Judge Roberts disagreed with proposals to require Congress to approve regulations before they took effect. . . .’’). 51OMB Watch, Roberts Showed Prudence in Reg Reform Initiative (2005), available at 

www.ombwatch.org/node/2652. 

Additionally, the REINS Act would allow well-subsidized business interests to further influence the rulemaking process. As a result of H.R. 10’s Congressional approval mechanism, Congress will 

need to pass judgment on major rules often without the opportunity to make a well-informed decision about their merits. Major 

rules generally involve highly technical and complex scientific data 

as well as other types of evidence that require substantive expertise to decipher. Simply put, Congress lacks the time and the resources to provide meaningful review of such rules 46 and it will be 

susceptible to well-funded lobbying efforts by special interests. 

Adding to the concern about Congress’s ability to provide meaningful review of major rules is the fact that Congress would have 

only 70 legislative days within which to act, and Committees of Jurisdiction would have only 15 legislative days to consider a proposed rule’s merits. Moreover, floor time in each chamber is limited 

to just two hours of debate, evenly divided. As former OIRA Administrator Sally Katzen explained, ‘‘Experience during the 111th Congress compels the conclusion that there will not be time to consider 

and approve even the most worthy rules [under the REINS Act].’’ 47

This is not the first time that a congressional approval mechanism for agency rulemaking has been considered. In the early 

1980’s, Congress held a number of hearings on this concept 48 and 

a bill was introduced that would have required affirmative Congressional assent to all major rules.49 Wisely, Congress chose not 

to pursue such a mechanism. Chief Justice John G. Roberts, Jr., 

when he was an Associate White House Counsel in 1983, criticized 

this legislation for ‘‘hobbling agency rulemaking by requiring affirmative Congressional assent to all major rules.’’ 50 He further 

noted that such a provision ‘‘would seem to impose excessive burdens on the regulatory agencies in a manner that could well impede the achievement of Administration objectives.’’ 51


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52 42 U.S.C. §§ 2011 et seq. (2011). 53 Unofficial Tr. of Markup of H.R. 10, the ‘‘Regulations of the Executive in Need of Scrutiny 

Act of 2011,’’ by the H. Comm. on the Judiciary, 112th Cong., at 74–76 (Oct. 25, 2011). 54 Id. at 104. 55 Id. 56 Id. at 32. 

B. By restricting rulemaking for major rules, the REINS Act threatens public health and safety 

While the REINS Act is clearly unnecessary and unworkable, its 

most pernicious effect will be putting the health, welfare and safety 

of Americans at risk. In addition to the monetary benefits of regulations, regulations promote improved air quality, healthier children, reduced discrimination, protection of our public health and 

safety, protection of human dignity, and other non-quantifiable but 

fundamental values. The costs of delaying these highly beneficial 

rules could be substantial. 

The meltdown of the nuclear reactors at the Fukushima Daiichi 

power plant in Japan earlier this year in the aftermath of a devastating earthquake and tsunami illustrate the dangers of ineffective regulation. In response to the disaster, the U.S. Nuclear Regulatory Commission under the Atomic Energy Act 52 promulgated six 

rules to increase safety of American nuclear reactor facilities. At a 

minimum, the REINS Act would delay the implementation of these 

rules. At worst, it could prevent them from ever going into effect. 

As Representative Quigley observed at the Committee markup of 

H.R. 10, stronger, more effective regulations may have prevented 

various disasters, including the financial fraud committed by 

Enron; coal mine fires; the tragic commuter airline crash that occurred in Buffalo, New York; the financial crisis in Wall Street that 

resulted from deregulation of financial products; and contaminated 

food items such as cantaloupes, turkey, hamburgers and eggs that 

have caused numerous deaths. As he explained, regulations play a 

critical role in ensuring the safety of the bridges we drive across, 

or the water we drink, or the food we consume.53

For example, three years ago, traces of the toxic chemical melamine were found in infant formula that was manufactured by an 

American company. It is likely that the REINS Act would have 

substantially delayed any corrective regulation issued in response 

to this contamination event. In response to this concern, Representative Sheila Jackson Lee (D–TX) offered an amendment at the 

Committee markup of H.R. 10 to exempt any proposed rule relating 

to infant formula, as defined by the Federal Food, Drug, and Cosmetic Act.54 Although Representative Jackson Lee emphasized the 

need to protect the most vulnerable, namely, infants,55 her amendment failed by a vote of 13 to 22. Similarly, Ranking Member John 

Conyers, Jr. (D–MI) offered an amendment to exempt from the bill 

any rule that protects or saves lives.56 This amendment also failed 

on party lines by a vote of 13 to 20. 

Finally, the REINS Act, if enacted, would consume vast amounts 

of limited Congressional time and resources, which would necessarily have to be diverted from other critical legislative, oversight, and constituent responsibilities. In calendar year 2010 alone, 

Federal agencies issued 94 major new rules that would have been 


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57Office of Information and Regulatory Affairs, Office of Management and Budget, available at http://www.reginfo.gov/public/do/eoHistReviewSearch;jsessionid=9f8e89cb30d62463a3e4b86440 

60b5cee60195668b93.e34ObxiKbN0Sci0Lch8Ma3eKa30Re6fznA5Pp7ftolbGmkTy (last visited November 1, 2011). 58 462 U.S. 919 (1983) (holding that a one-House legislative veto violated the Constitution’s 

bicameralism and presentment clauses). 59 Id. 60See Morrison v. Olson, 487 U.S. 654 (1988) (outlining tests for evaluating statutory schemes 

under separation of powers doctrine). 

subject to the REINS Act’s requirements.57 Meanwhile, there were 

only approximately 116 legislative days in the House during that 

same time period. Under these constraints, there would not have 

been enough time for Congress to consider and approve even the 

most worthy rules while also fulfilling its other responsibilities. 

Even under expedited procedures, Congress would likely be forced 

to ignore other important duties, doing a further disservice to the 

American people. 

IV. THE REINS ACT OFFENDS SEPARATION OF POWERS PRINCIPLES

The REINS Act presents serious Constitutional concerns by offending separation of powers constraints in two respects: (1) by providing for what may be an unconstitutional one-House legislative 

veto; and (2) by effectively turning Congress into a ‘‘super administrative agency.’’ 

Under H.R. 10’s Congressional approval mechanism, one House 

of Congress can effectively veto an agency’s rule by simply not acting within the 70-legislative-day time frame provided for in the bill. 

Such a mechanism would be, in effect, indistinguishable from the 

one-House legislative veto that the Supreme Court held to be unconstitutional in INS v. Chadha.58 The Court held in that decision 

that a veto of a Federal agency’s legislative act was itself a legislative act that required passage by both Houses of Congress and presentment to the President for his signature.59 Under H.R. 10, one 

House could effectively veto agency rules without meeting the Constitutional requirements discussed in Chadha. 

Another possible separation of powers issue presented by the bill 

is that by making major rules effective only upon Congressional approval, the REINS Act turns major rules issued by Federal agencies into mere advisory rules. Through the REINS Act, Congress 

seeks to increase its own power over Executive Branch junctions 

and, in so doing, usurps a constitutional directive to the Executive 

Branch to ‘‘take care that the laws be faithfully executed.’’ 60

CONCLUSION

H.R. 10 does nothing to create jobs or improve the economy. Instead, it throws sand in the gears of government by making it 

nearly impossible to enact important new regulations. By requiring 

that each House pass and the President sign each new major regulation, this misguided legislation will require Congress to expend 

time and expertise that it does not have, while increasing the opportunity for private interests to influence the process. This bill is 

not the solution for the many problems currently facing the American people. 

In fact, H.R. 10 is an unworkable solution to an artificial problem. There is no evidence that regulations stifle job creation. What 

we do know, however, is that regulations play a critical role in proVerDate Mar 15 2010 06:36 Nov 11, 2011 Jkt 019006 PO 00000 Frm 00052 Fmt 6659 Sfmt 6602 E:\HR\OC\HR278P1.XXX HR278P1

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61 Executive Office of the President, Statement of Administration Policy on S. 1786, LongTerm Surface Transportation Extension Act of 2011 (Nov. 3, 2011). 

tecting the health of all Americans, ensuring the safety of our 

workers, promoting the integrity of our financial system, and preserving the environment. Delaying or thwarting these critical 

measures imperils our Nation’s well-being. These are tangible benefits of regulations that far outweigh any perceived costs. Indeed, 

the Administration has expressed nearly identical concerns about 

similar legislation pending in the Senate. It stated that such legislation would ‘‘delay and, in many cases, thwart implementation of 

statutory mandates and execution of duly enacted laws, increase 

business uncertainty, undermine much-needed protections of the 

American public, and create unnecessary confusion. There is no 

justification for such an unprecedented requirement.’’ 61

The REINS Act is not necessary because Congress already has 

myriad tools at its disposal, such as limiting delegations of authority to agencies, controlling agency appropriations, staying the effect 

of specific rules, and holding oversight hearings. These tools, unlike 

the REINS Act, do not trample the separation of powers and will 

not lead to government gridlock. 

For all of the foregoing reasons, we strongly oppose H.R. 10 and 

we urge our colleagues to join us in opposition. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

MIKE QUIGLEY. 

TED DEUTCH. 

Æ 


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