Overlooked Provision to Require Congressional Vote on Every Regulation
Contracts have fine print. So does a 320-page Republican-backed House bill to cut spending and raise the debt limit.
Buried under headline-grabbing provisions about contentious spending cuts is an overlooked section to require congressional approval of all major regulations – from required operating cords on custom windows to the percentage of electric passenger vehicles U.S. automakers must produce, many of which take years to reach a final version.
While there is an argument for congressional oversight of administrative regulations, the objective of the provision in the Republican legislation is to discourage rulemaking, especially if it runs counter to the political views of a congressional majority. The provision also would give the House GOP majority the ability to nullify legislation passed by the previous Democratically controlled Congress.
Before a regulation could go into effect, it must pass an up-or-down congressional floor vote, without the possibility of amendments. If voted down, the regulation could not be proposed again for at least one year.
“It may seem like it’s in the weeds, but it really affects all of us,” says Susan Dudley, director of the regulatory studies center at George Washington University and the top regulatory official in the George W. Bush administration. Like most people, Dudley said she was unaware the provision had been slipped into the lengthy debt ceiling legislation.
Congress already has the power to quash regulations, but the process is cumbersome, requiring majority votes in the House and Senate and the signature of the President. As a result, few regulations are ever rejected.
A decade ago, former Kentucky Republican Congressman Geoffrey Davis proposed something similar called the REINS Act for Regulations from the Executive in Need of Scrutiny. Davis faulted vague legislative language for giving regulators too much latitude to interpret legislative intent. His remedy, if passed, may tip the scales against regulations, some experts say.
“If you starve the beast by never allowing implementing regulations to issue, then you have in effect nullified legislation,” claims Sally Katzen, co-director of the legislative and regulatory process clinic at New York University and the top regulatory official in the Clinton administration. Katzen underlined the political dimension of the issue, pointing out Republicans trot out voting on regulations only when a Democrat occupies the White House.
University of Michigan law professor Nicholas Bagley offers a blunter explanation, “What they want to do is to make it impossible to regulate. It’s hard to get anything through Congress, even in the best of times, and now is not the best of times.”
A negotiated agreement is hard to envision with diametrically opposed political positions.
Stalled Debt Ceiling Negotiations
The GOP legislation, which narrowly passed the House, is unlikely to become law as negotiations remain stalled with roughly two weeks before the debt ceiling is eclipsed. President Biden has remained firm in calling for a simple debt ceiling increase. Senate Democrats have encouraged Biden to consider unilaterally bypassing the debt ceiling by invoking a provision of the Fourteenth Amendment that says the United States pays its bills.
House Republicans have threatened to retaliate if Biden pulled an end run. Legal experts have predicted invoking the Fourteenth Amendment would lead to litigation. Treasury Secretary Janet Yellen has dismissed workarounds and insisted Congress needs to raise the debt ceiling.
A negotiated agreement is hard to envision with diametrically opposed political positions. One suggested compromise would combine spending cuts with tax increases. Democrats are chary of spending cuts and Republicans have ruled out tax increases. That doesn’t leave a lot of negotiating space.
Biden has offered to negotiate spending levels with Republicans after the debt ceiling is raised. Republicans believe their maximum political leverage requires holding the debt ceiling vote hostage.
The latest top-level meeting between Biden and congressional leaders was cancelled to allow senior White House and congressional staff to hammer out possible areas of agreement. Biden has postponed the second leg of his Asian trip to return to the nation’s capital for any potential final negotiations.
As an added incentive to find a compromise, Congresswoman Abigail Spanberger, D-Virginia, and Congressman Brian Fitzpatrick, R-Pennsylvania, introduced the No Pay for Congress During Default or Shutdown Act.
Saving McCarthy’s Speakership
A political factor in stalemated negotiations is the lack of wiggle room by Speaker Kevin McCarthy. To win the speakership, McCarthy gave numerous concessions to the conservative wing of the Republican caucus.
Aware of the political box McCarthy is in, House Democrats have pledged to oppose any move by conservatives to depose him as speaker if he negotiates a debt ceiling deal with Biden. House Republicans hold 222 seats and Democrats have 213 seats. At least publicly, McCarthy hasn’t shown an inclination to pursue the deal with House Democrats. Now the conservative faction of his caucus us urging McCarthy to withdraw from negotiations and, presumably, let the nation default on its loan payments.
Meanwhile, Democrats are pressing ahead on a procedural move that could force a vote on the debt limit if high-level negotiations break down. House Democratic Leader Hakeem Jeffries, D-New York, is urging all his 213 caucus members to sign a discharge petition that could force a floor vote on raising the debt limit. To force the floor vote, all House Democrats would need to be joined by at least five House Republicans. McCarthy dismissed the idea as a “political game”.
Background on the Fourteenth Amendment
Considered by historians as a milestone for civil rights, the Fourteenth Amendment extended citizenship to former slaves and guaranteed the right to due process and equal protection.
The Disqualification Clause in Section 3 of the amendment, which became topical after the January 6 Capitol attack, bars anyone who has “engaged in insurrection or rebellion” from holding public office.
The standoff over the national debt has engendered debate over the meaning of Section 4 of the amendment, known as the Public Debt Clause.
After the Civil War and assassination of President Lincoln, lawmakers set out terms of the Confederacy’s surrender and the rebellious states’ re-entry into the Union. As part of that process, the Fourteenth Amendment was proposed and ratified containing a provision that protected public debt held by the federal government, while prohibiting payment of debt held by Confederate states.
“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned,” Section 4 reads. That section was added because of fears that if former Confederate states regained political power in Congress, lawmakers might repudiate federal debts and guarantee Confederate debt.
“Southerners were used to having their way in Congress – they had dominated the institution from 1787 until secession in 1861 – and many believed that when their representatives arrived in the House and Senate, they would be able to tear up the nation’s IOUs,” explains legal scholar Garrett Epps. “Section 4 was the response.”