What should the Supreme Court’s originalist justices do when confronted with nonoriginalist precedents on which citizens have relied?
Reforming Regulation: Nondelegation and the REINS Act.
In my last post, I wrote about how the Congress might be able to limit executive power. In the near future, the most likely possibility is that the Republicans would gain control of the Presidency, keep control of the Congress, and have an ideological commitment to constraining executive power. Whether this is likely or not, it is certainly a real possibility.
In a recent concurrence, Justice Thomas wrote an opinion making the argument for a reinvigoration of the nondelegation doctrine. If the Supreme Court were willing to agree with Justice Thomas and hold delegations to be unconstitutional, then executive power would be constrained. But unfortunately this seems extremely unlikely.
Another way delegations would be constrained is if Congress were to return to a system of limited delegations by eliminating or constraining the various regulatory statutes that delegate broad legislative authority to the agencies. Unfortunately, it seems obvious that Congress would be unwilling to do this and that the President would oppose it.
But there is yet another possibility: one could pass a cross cutting law that required congressional approval before agencies could adopt major rules. This type of law – which is known as the REINS Act – would operate to significantly reduce delegations to the agencies.
Under the Act, major regulations would have to be approved by the Congress before they could be put into effect. Each house of Congress would have an up or down vote on the regulation proposed by the agency. To minimize the time for delay and debate, the vote would be on the proposed regulation rather than on amendments that either house might propose.
I am sympathetic to the REINS Act as a means of both cutting back on delegations and constraining executive regulation. At least some of the time, I believe that Congress would be unwilling to enact the regulations that the agencies propose.
Unfortunately, I am skeptical that a Republican Congress would be willing to enact the REINS Act – even if we assume, as I think is right, that there is a strong ideological commitment among Republicans in favor of it.
The Act would require members of Congress, many times each year, to take responsibility for voting on controversial regulations. Moreover, as there would be no opportunity to consider amendments, the members would be forced to vote on a specific piece of legislation, which would put them in an extremely vulnerable situation politically. Consequently, I think it is unlikely that the members would be willing to place themselves in this situation. Their personal interests would outweigh their ideological interests.