The Other Side of REINS: How Requiring Legislative Approval of Major Rules Could Protect Regulations and Provide Regulatory Stability

For the last decade or so, deregulatory-minded members of Congress and state legislatures have looked to the “Regulations from the Executive in Need of Scrutiny” (REINS) Act as their North Star – the guiding deregulatory light that could properly restore Congress’ Article I powers and provide a much needed check on regulatory agencies. To illustrate: 

• Senator Rand Paul (R-KY) stated the act would hold Congress more accountable for costly federal rules and give Americans a greater voice in response to what he termed an “unaccountable administrative state.”  
• Former Rep. Jim Sensenbrenner (R-Wis.) quipped, “The REINS Act would place a desperately needed check on unelected bureaucrats, saving taxpayers money.” 
• North Carolina State Rep Allen Chesser (R-Nash.) declared, “The NC REINS Act is about giving the people of North Carolina a stronger voice in the rules that shape their lives” because “[r]ight now, unelected bureaucrats can impose regulations with major financial consequences without direct oversight from the General Assembly.” 
• Wisconsin Senate Majority Leader Devin LeMahieu said, “State agencies currently have the power to pass harmful regulations with little oversight from the legislature that can cost Wisconsin businesses and citizens tens of millions of dollars in compliance and lost revenue. The REINS Act improves transparency in the rule making process and gives the legislature more power to hold unelected bureaucrats accountable. 

It is true that the REINS Act provides a critical check on regulatory agencies’ ability to impose costly regulations on the American people, as Americans for Prosperity has made undoubtedly clear. However, it turns out the bill could also protect key regulations during judicial scrutiny in jurisdictions that have stopped affording judicial deference to regulatory agencies while providing the regulated community with a much-needed sense of regulatory clarity.  

In Loper Bright v. Raimondo, the U.S. Supreme Court overturned the 40-year-old Chevron doctrine, which granted agencies tremendous discretion to reinterpret the scope of their own authority, leading to unprecedented regulatory uncertainty and executive overreach. In overturning Chevron, the Supreme Court affirmed Congress’s exclusive authority to make law under Article I of the Constitution, restoring the separation of powers as established by the Constitution. Similarly, eighteen states—from Delaware to Arizona—have imposed limits on judicial deference either legislatively, judicially, or through ballot measures.  

By ending judicial deference, the Supreme Court and eighteen states have made clear that, absent express legislative authorization of an agency action, courts will no longer defer to the agency when the statue is ambiguous and, therefore, that action is less likely to survive judicial scrutiny. Given this reality, it is critical that legislatures in these jurisdictions speak unambiguously when they wish to ensure agencies have the authority to promulgate regulations. While Americans for Prosperity stands ready to work with legislatures at all levels of government to ensure they have the tools necessary to draft the type of unambiguous and robust legislation required, there remains the reality that many previously passed laws (and even future laws) contain ambiguities. This is why it is time for those who may have previously derided the REINS Act to reevaluate their position. Many REINS detractors may feel that the various forms of the REINS Act are intended to make regulation harder; however, absent judicial deference the reality is that the REINS Act could be more important than ever to protect the most vital regulations from the almost inevitable judicial scrutiny they will face.  

How could a bill intended to “hold unelected bureaucrats accountable” protect the very regulations they issue from being overturned by the courts?  The key, as always, is in the language of the bill. For example, one of the current introduced versions of the federal REINS Act specifically says that congressional approval of a regulation “shall not be interpreted to serve as a grant or modification of statutory authority by Congress.” However, there is no reason that REINS skeptics could not engage with in good-faith negotiations to revise this language and specifically state the inverse—that approval of a regulation through the REINS process “shall serve as a legislative affirmation of the agency’s authority” to issue the rule.  By enabling legislatures to approve of regulations prior to their enactment and incorporating language expressly stating that approval of a regulation is a grant of authority, the REINS Act would send a clear signal to courts that the legislature has in fact authorized the agency to take such action thereby giving confidence to legislatures, regulatory agencies, and—most importantly—citizens across the country that the regulations approved through the REINS process will likely be valid law for years to come.  

Further, not every state has incorporated into their REINS Act language explicitly preventing the process from being relevant to the question of statutory authority, which may provide some protection in court. For example, Idaho has required legislative approval of regulations for decades, (of note, Idaho’s legislature only rejects roughly 5% of regulations reviewed annually). Given the legislative review of regulations, courts in Idaho generally uphold regulations that have undergone this legislative scrutiny, and, 2024, the Idaho Supreme Court explicitly affirmed the legislature’s power to pre-approve rules promulgated by executive agencies.

Similarly, in Georgia, to promulgate a regulation, the Department of Community Health must send any proposed regulation to the legislative health committees and, if both committees object within 30 days, the proposed regulation cannot be adopted. The Georgie Supreme Court, in upholding this process as constitutional and affirming the validity of a regulation in question, noted “the failure of the legislative health committees to object to a proposed regulation creates a presumption that the regulation reflects the intent of the legislature.”

The confidence that a regulation will have lasting power will also afford the American public and, in particular, businesses immense cost savings. For far too long the political climate has led to “regulatory ping-pong” with some of the nation’s most critical and controversial regulations, wherein a regulation is promulgated by one party, immediately challenged in court, appealed, and ultimately just flipped the minute the other party takes over the executive branch. This lack of confidence in what the law will be on everything from water rights and protections to internet neutrality means that regulated entities—from businesses to environmentalists—cannot simply adopt a compliant policy and move forward. Instead, they must retain lawyers and consultants in perpetuity—if they can afford to do so—to try and understand what the law is at a given moment and to adopt policies in line with said law. For America’s small businesses who cannot afford the privilege of expensive lawyers and consultants, they are often left to guess and hope they don’t find themselves on the wrong side of an enforcement action simply for not being able to keep up with the ever-changing rules.  

Thus, by passing legislation that ensures legislatures have the ability to approve or disapprove of major rules prior to them going into effect, these legislatures will also be affording the regulated community the confidence that the rule at issue will not easily be changed absent a future act of the legislature—which is a slower process that those subject to regulations would be more able to track and adapt to without the need of costly legal experts.