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John Walke’s Blog

"Congressional Hecklers' Veto Act" Subverts Law Enforcement

John Walke

Posted October 28, 2011 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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In the law there is a concept called a "heckler's veto" to describe the ability -- but not the right -- of a person to be loud and obnoxious enough to drown out the free speech of others.

This week House Republicans on the Judiciary Committee passed the legislative equivalent of a Congressional Hecklers' Veto Act.

On a straight party line vote, the Committee's Republican majority passed H.R. 10, Regulations from the Executive in Need of Scrutiny Act of 2011, or the REINS Act.

This legislation would grant just one chamber in Congress, either the House or Senate, the ability and legal right to exercise a heckler's veto against enforcement of laws of the United States. Extremists in either political party could lead just one chamber to refuse to allow existing laws to be enforced out of ideological disdain for those laws, favoritism of corporate interests over Americans, obstructionism, corruption or inaction.

How can this be, you say? I thought laws could be adopted or changed only if approved by majorities in the House and Senate, followed by presidential signature. Once such laws are properly enacted, the executive branch must enforce the laws unless overturned by the judicial branch, right? Isn't that what Articles I, II and III of the Constitution and separation of powers are all about?

True, today. Once laws are adopted in this manner, federal agencies like the Food and Drug Administration or Environmental Protection Agency carry out and enforce those laws pursuant to congressional instructions. But not if the REINS Act were adopted and threw that constituional process in the dustbin of two centuries of American history.

It's surprising that the REINS Act has not gotten more public attention, or raised more alarm over the federal government becoming even more partisan, gridlocked, corrupt and just plain broken.

Extremists in the House of Representatives today, for example, cannot readily block enforcement or change laws of the United States, due to more responsible refusals by the Senate and the spectre of a presidential veto.

So House Republicans in droves are resorting to legislation that would bypass those democratic checks and balances. The REINS Act grants extremists in the House (or Senate) -- again, in either political party -- the ability to block enfocement of laws and thereby change those laws as a practical matter just by becoming Congressional hecklers who stomp their feet and refuse to allow laws passed by earlier congresses to be carried out.

For example, the House could be dominated by a faction sincerely opposed to health and safety standards out of passionate ideological beliefs that are outlier views among the broader American public -- even as those views curry favor among corporate interests that donate heavily to that faction. This hypothetical Congress could even have abysmal approval ratings by the American people hovering around, say, 9%.

Suppose one session of Congress passes legislation banning melamine in powdered infant formula and the president signs the legislation into law. The Food and Drug Administration undertakes a rulemaking to enforce the newly enacted law by issuing the detailed regulations that ban melamine in powdered infant formula, creating a period for phase-out by formula manufacturers, an inspection regime etc.

Then in the very next session of Congress a few months later, the positions of enough members in the newly seated House change to produce a majority that favors reversing the ban. This could be because members changed their minds, or an election caused the House to switch to a different political party. This reversal even could result because some original nominal supporters of the melamine ban voted for the law for political gain, but never truly supported it and would welcome the opportunity to quietly kill the ban.

Today, reversal of House support for the melamine ban could not amend or scrap the law -- due to continuing Senate and White House support for the ban. 

The REINS Act would change all that. The REINS Act would create the radical situation in which just House opposition to the ban now could unilaterally block the FDA rules that carry out and enforce the congressional melamine ban.

That is the purpose of the REINS Act. For its supporters, that is the REINS Act's selling point: stopping a rogue agency, here the FDA.

But just who is the rogue entity here? Surely it is the new House majority, that now wishes to use the REINS Act to subvert law enforcement of the melamine ban, because that House majority lacks the political support and votes to reverse the ban through traditional democratic means. This is why the REINS Act would be such a radical departure from American democracy.

REINS Act supporters are disingenuosly trying to cast federal agencies as the villains in this political passion play, when those agencies are carrying out and enforcing laws of the land adopted by Congress and signed by the president. It is the REINS Act supporters, by contrast, that wish to subvert enforcement of federal laws without mustering the political support to change those laws in the House and Senate and persuade the president to sign the legislation.

Congress already has the power to review federal agency regulations, and to change or block those regulations with majority votes in the House and Senate and presidential signature. (One law conferring that power is called the Congressional Review Act. But the inherent legislative authority of Congress also allows them to legislate essentially any matter not prohibited by the constitution.) That is the constitutional process for passing or changing laws.

The law also has a technical term hailing from the English common law to characterize arguments that may persuade one chamber of a bicameral legislative body (like Congress), but fail to persuade the other chamber or the president. Those arguments are called "losers."

The REINS Act would turn losers into kings of the Hill, hecklers into autocrats with the power to veto enforcement of duly enacted laws of the United States.

Earlier this week, I testified before another House subcommittee in opposition to a terribly drafted bill, H.R. 1633 [pdf], the Farm Dust Regulation Prevention Act of 2011, that engages in excessive congressional delegations of overbroad and vague authorities to EPA, with the objective of deregulating industrial soot pollution from the Clean Air Act.

I observed that the Judiciary Committee was simultaneously considering the REINS Act, purportedly to deal with this very same transgression of excessive delegations by Congress to federal agencies. H.R. 1633 embodies that transgression. Yet many House G.O.P. co-sponsors of the REINS Act also are co-sponsoring H.R. 1633.

Don't be fooled for one moment into thinking that the REINS Act will do anything about these overbroad, vague delegations. Or that this is even what the REINS Act really is about.

No, what the REINS Act really means to do is hand over to hecklers, ideologues and extremists the unilateral ability to block enforcement of federal laws they wish had never been adopted -- but that they don't have the votes to change.

There should be a legal term for that too: coup d'extremists.

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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