The REINS Act: A Step Forward, But No Constitutional Cure

If at first you don’t succeed, try try try . . . [insert 13 more tries here] again. This is the story with the Regulations from the Executive in Need of Scrutiny Act of 2025 (“REINS Act”). A piece of legislation that has been—in one form or another—reintroduced in each new Congress as far back as at least 2009. Although the chance of passage is still small, NCLA’s recent win in Relentless Inc. v. Department of Commerce has sparked an interest in executive agencies that might just move the needle.

As a practical matter, Representative Kat Cammack and Senator Rand Paul’s proposal is a solid attempt at restraining the overzealous administrative state. By requiring that all “major” rules (defined as $100 million or more in economic impact) are subject to Congressional approval, the likely result is far fewer industry-crushing regulations.

That’s a good result.

However good its practical results may be, the law misses the more fundamental, constitutional problem with agency rulemaking: Congress should be legislating in the first instance, not agencies. Under the Constitution, Congress was endowed with “all” legislative power of the Federal government. U.S. Const. art. I, § 1. The President is charged with merely “tak[ing] care” that passed laws are “faithfully executed.” U.S. Const. art. II, § 3.

On the other hand, agencies, in the Constitution’s eyes, have no independent source of power. They only “wield executive power” on behalf of, and under the strict supervision of, the President. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 204 (2020).

As extensions of a non-legislator, agencies certainly shouldn’t be legislating. Certainly not “major” policies, but minor policies as well. The REINS Act reasserts some of Congress’s authority, but implicitly allows agencies to broadly keep exercising authority that is not theirs.

A better, constitutional solution is possible.

First, we should recognize that most modern agencies have two functions. As they should, agencies often perform the prototypical executive function of enforcement on behalf of the President. As they should not, they often promulgate rules that govern the lives of everyday Americans just like a law passed by Congress and signed by the President would, but with fewer steps or democratic accountability. In other words, they carry out “executive” and “legislative” roles.

As a representative example, a quick look at recent activity by the Federal Trade Commission (“FTC”)—the agency charged with preventing “unfair methods of competition”—shows this dichotomy. 15 U.S.C. § 45(a)(2).

On July 21, 2025, the FTC launched proceedings against Accelerated Debt Settlement Inc. for allegedly defrauding consumers. Press Release, Federal Trade Commission, FTC Halts Illegal Debt-Relief Operation that Falsely Impersonated Businesses and the Government, Harming Consumers (July 21, 2025). Like any other prosecutorial action, the FTC went to court to prevent violations of the law and “monetary relief.” Id.

In their other capacity, the FTC recently proposed rules to change their enforcement authority against multi-level marketing programs. Press Release, Federal Trade Commission, FTC Proposes Rule Changes and New Rule to Deter Deceptive Earnings Claims by Multilevel Marketers and Money-Making Opportunity Sellers (January 13, 2025).

Without weighing in on the possible value of these rules, it is clear that the proposal is not “carrying out laws” but rather creating new laws under which regulated businesses would have to operate. Their original grant of enforcement authority was statutory. See 15 U.S.C. § 45(a)(1). Yet, they substantively change that grant without having to return to Congress.

This dual responsibility exists in agencies across the administrative state. As the Constitution requires, it’s time to separate them. Enforcement-side responsibilities (and the staff who carry them out) should remain in the executive branch. Included in these executive responsibilities is the limited authority necessary to create procedural rules (like prescribing specific forms, documents required to access agency services, or setting internal policies). By definition, this includes applying the law to specific facts (like the decision to award a patent or to decline to prosecute an alleged criminal).

But the legislative power?

It’s time to give that back to Congress.

Congressional committees should assume supervisory authority over the rulemaking staff of agencies. In the FTC example, that would mean placing their staff under the House Committee on Energy and Commerce and the Senate Committee on Commerce, Science, & Transportation. To preserve agencies’ ability to promptly address problems, Congress should implement a system that provides for rapid consideration of committee proposals.

The REINS Act will go a great distance in reducing the volume of unconstitutional overreach. But only by returning legislative authority to Congress can we restore the separation of powers and democratic accountability the Constitution demands.

August 1, 2025