Wednesday, July 28, 2010

[Republican] Regulatory Reform and the Constitution

Mark Tushnet

The Republican leadership has gotten behind a proposal for congressional review of proposed regulations. (It's called the Regulations from the Executive in Need of Scrutiny Act, but I'm not going to give the acronym because I regard the "acronymization" of legislation as a symptom of the degradation of our national legislative processes.) The proposal distinguishes between major and non-major regulations proposed by executive agencies. Non-major regulations become effective unless Congress enacts a joint resolution (subject to the President's signature) of disapproval. This is a standard report-and-wait provision, and raises no constitutional questions.

The provision dealing with major regulations is different. These become effective only if Congress adopts a joint resolution approving them (see Section 802). The proposal would amend the rules of each chamber to ensure that a rule with significant support in each chamber will come to the floor for a vote on a resolution of approval. My question -- and it's a genuine one -- is how this statute can be consistent with Chadha. On the face of it, it's worse than the legislative veto at issue in Chadha from the point of view of the separation-of-powers principles articulated there. In Chadha a regulation would become law unless it was disapproved by majority in one chamber.* Under the Republican proposal a major regulation would not become law unless it is approved by majorities in both chambers (and the resolution approving the regulation is signed by the President, which presumably would be a formality except in situations of presidential transition -- which is probably already sufficiently dealt with by the Corrections Day procedure).

The Republican proposal comes with findings and changes in the rules of each chamber. These might be sufficient to support the proposal's constitutionality under the functional approach adopted by the Chadha dissent, but it's not clear to me how the proposal is consistent with the majority opinion in Chadha. I'm willing to concede that I might be missing something here, but I'd appreciate enlightenment on the argument supporting the proposal's constitutionality.

* In addition, in Chadha the legislative-veto provision was statute-specific, making it possible to argue, though the majority rejected (or more accurately) ignored the argument, that the agency action could not affect legal rights until the time for the exercise of the legislative veto had expired. It's harder to make that argument for a general provision like the Republican proposal, although I suppose it could be regarded as a pro tanto (or nunc pro tunc, if you like that Latin phrase) amendment of all existing delegations of regulatory authority.

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