Congressional Republicans reintroduce REINS Act with new provisions

By

Ballotpedia staff

In this edition of Checks and Balances:

Federal stories:

  • Congressional Republicans reintroduce REINS Act with new provisions. 
  • Federal judge blocks BLM rule on natural gas flaring.
  • SCOTUS hears oral arguments in two administrative law challenges.
  • Congressional Republicans aim to block ten rules using CRA in September. 

State story:

  • 24 Republican attorneys general oppose California’s electric truck regulation.

Commentary:

  • Law professors Gillian Metzger and Ilan Wurman debate the scope of federal agency authority following Loper Bright Enterprises v. Raimondo. 

Regulatory Tally:

  • 144 proposed rules and 263 final rules added to the Federal Register in September.
  • OIRA’s regulatory review activity.
  • Highlighted rule implementing research integrity requirements for recipients of Department of Health and Human Services (HHS) funds for research.

In Washington

Congressional Republicans reintroduce REINS Act with new provisions

What’s the story?

Rep. Kat Cammack (R-Fla.) and Sen. Rand Paul (R-Ky.) on Sept. 18 reintroduced the Regulations from the Executive in Need of Scrutiny (REINS) Act in the 118th Congress with four additional provisions that would:

  • Authorize individuals to “argue that the average person would not have known their actions violated federal law if the [statute] did not clearly state it” during agency enforcement proceedings.
  • Authorize individuals to file a lawsuit against the enforcement of any agency rule and allow courts to invalidate the rule or classify it as a major rule subject to the REINS Act. 
  • Require congressional approval of agency guidance (not just rules) with an economic impact of $100 million or more.
  • Exempt deregulatory agency actions from the congressional approval requirement. 

The background

The REINS Act is a legislative proposal that would require congressional approval of major agency rules with an economic impact of $100 million or more before they can take effect. It would broaden the Congressional Review Act (CRA), which currently allows Congress to block agency regulations after they take effect with resolutions of disapproval.

Republican lawmakers have introduced the REINS Act during every session of Congress since 2009. The previous versions of the REINS Act were identical. The 2024 reintroduction proposes the first changes to the legislation in 15 years.  

The bill is part of a broader debate surrounding the balance of power between the legislative and executive branches in relation to administrative rulemaking. Supporters argue the legislation would restore the separation of powers, make Congress accountable for regulatory decisions, and increase transparency in the rulemaking process. 

Opponents argue the act could hinder the efficiency of regulatory agencies, delay necessary regulations, and undermine agencies’ expertise in topics where Congress lacks detailed knowledge. They also say it would increase political gridlock.

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Federal judge blocks BLM rule on natural gas flaring

What’s the story?

The United States District Court for the District of North Dakota on Sept. 12 temporarily blocked a U.S. Bureau of Land Management (BLM) rule regarding natural gas flaring in five states.

Judge Daniel Traynor argued the requirements “conflict with other federal and state laws, and they add nothing more than a layer of federal regulation on top of existing federal regulation.” He granted the states’ request for an injunction, saying, “[T]he Plaintiffs have shown they are likely to succeed on the merits of their claim the 2024 Rule is arbitrary and capricious.” 

The background

BLM published the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” rule on April 10, which set limits on natural gas waste from venting and flaring (the burning of excess gas) during oil and gas production on federal and tribal lands.

BLM Director Tracy Stone-Manning argued the rule “represents a common sense, fair, and equitable solution to preventing waste that provides a level playing field for all of our energy-producing communities.”

North Dakota, Montana, Texas, Utah, and Wyoming filed a lawsuit on April 24, arguing the agency “attempt[ed] to expand the Final Rule’s reach by unlawfully asserting federal regulatory authority over oil and gas that is owned by the States and private parties.”

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SCOTUS hears oral argument in two administrative law challenges

What’s the story?

The Supreme Court on Oct. 7 and 8 heard oral arguments in two cases related to administrative law:

  • Williams v. Washington—a case challenging whether plaintiffs must pursue all state administrative remedies before filing a claim in court. 
  • Garland v. VanDerStok—a case challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) authority to issue a rule regulating firearms parts kits. 

Williams v. Washington: the arguments

The New York Times journalist Adam Liptak wrote about the justices’ responses at oral argument. Justice Neil Gorsuch argued that “the claimants [plaintiffs] had not pursued other ways to get relief in the state court.” Justice Sonia Sotomayor argued there should be a limit to delays in state administrative remedies. Justice Brett Kavanaugh said court precedent supported the plaintiffs in the case. 

Williams v. Washington: the background

A group of plaintiffs in 2022 challenged delays from the Alabama Department of Labor in processing unemployment benefits. They argued the lags violated their due process rights and statutory rights under the Social Security Act of 1935. 

The Alabama Supreme Court dismissed the case in 2023, arguing the plaintiffs needed to exhaust all state administrative remedies before filing a lawsuit. 

The claimants appealed the case to the U.S. Supreme Court, arguing the state court’s decision violated precedent established in Patsy v. Board of Regents. 

Garland v. VanDerStok: the arguments

SCOTUSblog analyst Amy Howe argued the court’s majority would likely uphold the ATF rule based on the oral arguments. Howe said Chief Justice John Roberts and Justice Amy Coney Barrett seemed skeptical of the challengers’ arguments, writing, “Barrett seemed to dismiss the ‘critical machining operations’ standard as ‘a little made up.’” 

Justices Clarence Thomas and Neil Gorsuch questioned U.S. Solicitor General Elizabeth Prelogar on whether the ATF rule was consistent with previous agency practice and the Gun Control Act (GCA).  

Garland v. VanDerStok: the background

ATF issued a rule in 2022 to amend the definition of a firearm to include weapon parts kits, which the agency refers to as ghost guns. Gun owners and advocacy groups challenged the rule, arguing ATF did not have the statutory authority under the GCA to issue the rule. 

The U.S. Court of Appeals for the Fifth Circuit affirmed a lower court decision to block enforcement of the rule, arguing, “Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct.” 

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Congressional Republicans introduced CRA resolutions against ten rules in September

What’s the story?

Republican lawmakers aimed to block ten agency rules using Congressional Review Act (CRA) resolutions in September. Two resolutions passed out of committee. The resolutions opposed the following regulations:

  • A Securities and Exchange Commission (SEC) rule changing the registration process for certain types of annuity funds. Rep. Gary Palmer (R-Ala.) introduced the resolution on Sept. 25.
  • An Environmental Protection Agency (EPA) rule amending National Emission Standards for Hazardous Air Pollutants (NESHAP) for lime manufacturing plants. Rep. Palmer introduced the resolution on Sept. 25.
  • An Equal Employment Opportunity Commission (EEOC) rule requiring covered entities to provide accommodations for women seeking abortions. Rep. Mary Miller (R-Ill.) introduced the resolution on Sept. 20.
  • An Internal Revenue Service (IRS) rule finalizing regulations regarding “required minimum distributions from qualified plans; section 403(b) annuity contracts, custodial accounts, and retirement income accounts; individual retirement accounts and annuities; and certain eligible deferred compensation plans.” Rep. Palmer introduced the resolution on Sept. 19.
  • A National Labor Relations Board (NLRB) rule restoring a regional director’s authority to delay a board-conducted representation election when unfair labor practice claims have been filed. Rep. Eric Burlison (R-Mo.) and Rep. Palmer introduced resolutions on Sept. 16 and Sept. 19. 
  • A National Park Service (NPS) rule prohibiting bear baiting and clarifying trapping regulations on national preserves. Sen. Daniel Sullivan (R-Alaska) introduced the resolution on Sept. 19.
  • An EPA rule implementing guidelines and new source performance standards for fossil fuel-powered generators. Rep. Troy Balderson (R-Ohio) introduced the resolution, which passed the House Committee on Energy and Commerce on Sept. 18.
  • An EPA rule requiring major polluters under NESHAP to remain under the major source classification, even if their source status changes. Rep. Brett Guthrie (R-Ky.) introduced the resolution on Sept. 17.
  • A Department of Labor (DOL) rule amending guidelines for employer groups or associations acting on behalf of individual employers to set up an Association Health Plan (AHP). Rep. Tim Walberg (R-Mich.) introduced the resolution, which passed the House Committee on Education and the Workforce on Sept. 11.
  • An Office of Management and Budget (OMB) Controller Alert recommending agencies adopt signage and public notification requirements to promote transparency for projects funded by specific legislation. The Government Accountability Office (GAO) issued a report on Aug. 29 classifying the alert as a rule and subjecting it to the CRA. Sen. Ted Cruz (R-Texas) introduced a CRA resolution on Sept. 10.

The background 

Lawmakers have attempted to block 88 agency rules using the CRA so far in 2024. None of the resolutions have been enacted as of Oct. 15. 

Congress has used the CRA to repeal 20 rules since its enactment in 1996, including three rules during the Biden administration and 16 rules during the Trump administration. 

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In the states

24 Republican attorneys general oppose California’s electric truck regulation

What’s the story? 

Twenty-four Republican attorneys general sent a letter on Sept. 16 to the Environmental Protection Agency (EPA) asking the agency to block the California Air Resources Board’s (CARB) Advanced Clean Fleets regulation, which would require fleet owners operating in the state to use electric trucks. 

The attorneys general argue California’s regulation impacts national transportation industries and violates the sovereignty of other states. They say the federal Clean Air Act (CAA) preempts states from establishing emission standards for motor vehicles. South Carolina Attorney General Alan Wilson (R) said, “[W]e cannot allow one state to dictate policy on an issue that’s reserved for the federal government.”

The EPA and CARB had not responded to the letter as of Oct. 15. 

The background

The Advanced Clean Fleets regulation set emission standards for truck fleets starting in 2024 and established standards to transition all California trucks to zero emissions by 2045. CARB Chair Liane Randolph argued the regulation was “a reasonable and innovative approach to clean up the vehicles on our roads and ensure that Californians have the clean air that they want and deserve.”

The CAA sets federal emission standards for motor vehicles. Under the act, states can request waivers to enact different standards “at least as protective of public health and welfare as applicable Federal standards.” 

California requested a preemption waiver and authorization on Nov. 15, 2023, under the CAA to implement the rule. The waiver would allow the state to enact standards stricter than the CAA. It had not been granted as of Oct. 15, 2024. 

Following the CARB’s waiver request, the EPA published a notice on July 12 in the Federal Register scheduling a public hearing and opening a written comment period. 

Republican attorneys general from Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming signed the letter to the EPA opposing the waiver request. 

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Harvard Law Forum debates agency authority following Loper Bright 

Law professors Gillian Metzger and Ilan Wurman participated in Harvard Law School’s Rappaport Forum on Oct. 1. The experts debated the scope of federal agency authority following the Supreme Court’s decision to overturn Chevron deference in Loper Bright Enterprises v. Raimondo. 

While Metzger agreed [with Wurman] that the Court’s decisions did not exactly spell the end of the administrative state, she was far less optimistic about agencies’ ability to solve important problems moving forward. “Agencies are going to be way more cautious,” she said. “I think that courts are claiming greater and greater authority over administrative decision-making and adopting implausibly narrow views of agency power.” […]

From Wurman’s perspective, the real question was why the rulings weren’t unanimous. “Some of the Supreme Court’s recent and controversial administrative law decisions should have been 9-0,” he said.

That’s because, in Wurman’s view, little separates the majority opinion in Loper Bright and Justice Elena Kagan’s dissent, especially considering Kagan’s controlling opinion in the 2019 case Kisor v. Wilkie.

Want to go deeper? 

  • Click here to read the full text of “Did the administrative state die with Chevron?” by Rachel Reed.

Regulatory tally

Federal Register

The Federal Register publishes proposed and finalized administrative agency rules and regulations, policy statements, and interpretations of existing rules every federal working day. The Federal Register’s September highlights are as follows:

Office of Information and Regulatory Affairs (OIRA)

OIRA reviews all significant actions, defined as rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. Significant regulatory actions also include agency rules that may conflict with other regulations or with the priorities of the president. OIRA’s September regulatory review activity included the following actions:

  • Review of 46 significant regulatory actions. 
  • Five rules approved without changes; recommended changes to 40 proposed or final rules; one rule subject to a statutory or judicial deadline.
  • As of Oct. 1, 2024, OIRA’s website listed 152 regulatory actions under review.
  • Notable regulation: OIRA approved the intent of, but recommended changes to, a U.S. Department of Health and Human Services (HHS) final rule implementing research integrity requirements for recipients of HHS funds for research. The requirements included a process for contesting Office of Research Integrity (ORI) findings of research misconduct and HHS administrative actions. The appeals process now requires an administrative law judge (ALJ) to review and adjudicate based on the administrative record, removing the requirement for a de novo review of evidence that does not defer to the agency’s judgment or position. The final rule, titled Public Health Service Policies on Research Misconduct, will take effect on Jan. 1, 2025. 
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