Congress needs to assert authority over government regulations
The Capitol Dome is seen as lawmakers prepare to depart for the holiday recess, at the Capitol in Washington, Thursday, Dec. 14, 2023. (AP Photo/J. Scott Applewhite)
It’s now effectively illegal to manufacture or sell incandescent light bulbs in the United States, thanks to a Biden administration regulation setting minimum efficiency standards that went into effect in August. The change is just one illuminating example of how government regulations dictate how Americans live. PVC pipes could be next.
But more rules are coming, whether the American people or their representatives in Congress like it or not. Under new White House guidance, federal agencies will use a new framework for analyzing the costs and benefits of planned federal regulations. The new approach will place greater weight on the future benefits of regulations, including mitigating climate change, and the distributional effects of regulation, such as equity.
This may sound like a paperwork exercise for bureaucrats and economists, but the implications should be salient for American households already struggling to pay the bills. “The simplest way to sum up their effects is generationally,” explained the New York Times’s Jim Tankersley; “[the new cost-benefit rules] would enable the government to impose more costly regulations for Americans today, in hopes of saving money and lives in the future.” As one regulatory expert put it, the new approach “appears to depart from the goal of offering decisionmakers a transparent presentation of how efficient and effective different options are, and instead seems to bend the analytical methods to point to desired outcomes.”
For frustrated congressional Republicans concerned about the administrative state, there’s little they can do to change the Biden administration’s regulatory plans. Since the 1980s, Republican and Democratic administrations have asserted broad discretion to use their executive authority to shape how the federal government manages and implements regulations, with little pushback from the other side of Pennsylvania Avenue.
In recent years, the Trump and Biden administrations have implemented significant changes to the federal regulatory process through executive action (read: the rules on rules). The Trump administration used executive orders to constrain federal regulatory costs. For example, a 2017 Trump executive order required federal agencies to cap federal regulatory costs, and to establish a “one in, two out” “budget” for new regulations. One of President Biden’s first acts after becoming president in 2021 was to revoke the Trump administration’s policy. Now, new cost-benefit analysis guidance reflects the Biden administration’s preference for aggressively using regulations to achieve their policy goals. Given the pendulum-swinging nature of federal regulatory policy, a new Republican president in 2025 could quickly reverse the Biden administration’s changes.
In other words, the federal government’s approach to regulations, which cost the American economy as much as $2 trillion annually, changes dramatically based on who is president. Now, even how the federal government analyzes the costs and benefits of proposed federal regulations will likely change depending on which party holds the White House.
Members of Congress have attempted to assert greater legislative authority over federal regulations. Lawmakers have used the Congressional Review Act to use legislative action to overturn federal rules during periods of presidential transition. But these opportunities are rare.
Conservative lawmakers also attempted legislative reforms to the federal regulatory process to give Congress greater power to review federal regulations. In June, the House of Representatives passed the REINS Act, which would require Congress to legislatively affirm major rules or those that would have an economic impact larger than $100 million or more. But the bill is unlikely to move in the Democrat-controlled Senate. Even a less aggressive regulatory reform bill, like the Regulatory Transparency Act sponsored by Sens. James Lankford (R-Okla.) and John Thune (R-S.D.), which would require more regulatory impact analysis and expand judicial review, has little chance to move in the upper chamber under its current leadership.
But one area of potential bipartisan, common ground would be to strengthen Congress’s ability to analyze federal regulations, which would allow lawmakers to better use their legislative, appropriations, and oversight powers to influence the federal regulatory process. During the 117th Congress, the House Select Committee on Modernizing the Congress passed a bipartisan recommendation for Congress to examine “how increased regulatory and legal resources could help strengthen the role of the legislative branch.” This recommendation in turn led to a nonpartisan review by the Government Accountability Office (GAO), which is expected to be published in the coming months.
In the past, regulatory experts have recommended that Congress create a Congressional Regulation Office, similar to the Congressional Budget Office, to give the legislative branch an independent source of regulatory reviews and cost-benefit analyses. Another strategy would be to expand the nonpartisan GAO’s staffing and authorities to conduct regulatory oversight and analyses.
Congressional Republicans are right to push for reforms like the REINS Act to give Congress greater power over the regulatory state, but they’re unlikely to pass in the current political environment. So they should also pursue incremental and institutional reforms to improve the legislative branch’s ability to oversee regulations. In light of the Biden administration’s new cost-benefit analysis guidance, establishing a new Congressional Regulation Office or regulatory review mission team within GAO would be a reasonable place to start.
Dan Lips is head of policy and Satya Thallam is non-resident senior fellow with the Foundation for American Innovation.