You would think Democrats would jump at the opportunity to curb President Trump’s powers. Yet, they have made it clear that they would filibuster a bill to do that.
Their hostility is directed at the Regulations from the Executive in Need of Scrutiny, or REINS, Act, which gives lawmakers on Capitol Hill power to review executive actions. And given their determination and ability to filibuster they can stop it in its tracks.
But Sen. Ted Cruz, R-Texas, is proposing an innovative way to check the progress of the runaway regulatory state by making it part of a renegotiated NAFTA deal.
Regulations impose a huge cost on businesses, about $2 trillion according to industry estimates a few years ago. Trump and Congress have rolled back some of the worst regulations, but agencies will continue issuing new regulations and revising old ones, especially when a Democrat takes the White House. These serve mostly to stultify the economy and act as a barrier to entry, protecting big businesses that can afford the regulations and enriching lobbyists and lawyers. Just as bad, the barrage of costly regulations undermines our Constitution by allowing the executive to make law without reference to Congress.
Republicans have pushed the REINS Act for years. It would require congressional approval of every new regulation that costs more than $100 million. About three percent of all regulations reach that threshold. In short, the legislation would, if enacted, prevent the executive branch from becoming its own legislature.
The House passed this bill a year ago. The Senate’s Government Affairs Committee approved it last year, as well. Trump has pledged to sign it. But a Democratic filibuster has killed it in the Senate.
Again, Democrats theoretically have reason to back this bill, which would provide a congressional check on the president, whom Democrats portray as a power-hungry madman. There’s a decent chance Dems will control at least one chamber next year, and the REINS Act would give them another check on Trump's power.
But the party of the Left has no interest in curbing costly regulations or limiting government power, so the REINS Act languishes despite probably having majority support.
This is where Cruz’s gambit, which he explained to the Washington Examiner in a meeting in his Senate office, comes in.
A 2015 bill restored Trade Promotion Authority, which provides for expedited consideration of any legislative changes prescribed by trade deals. Legislation covered under TPA is not subject to filibuster or amendment.
TPA, of course, has to do with trade and barriers to trade. Costly regulations are often concrete barriers to trade. Environmental regulations, safety regulations, labor regulations, and others keep out foreign competition. Free trade requires that all such regulations be narrowly tailored to a legitimate purpose such as protecting the environment, consumers, workers, etc. But governments and industry often collude to create regulations that mostly protect domestic business from foreigners.
So when Trump renegotiates NAFTA, one way to guard against regulations that hobble business would be by sticking the REINS Act into NAFTA. Then a bare majority of the Senate could pass it and Trump could sign it into law.
The REINS Act shifts power back to the legislature by tying the hands of the administration. If Senate Democrats really fear Trump as an authoritarian, they should seize this opportunity. If Democrats don't go for it, Trump ought to use TPA to do it anyway.