Elected Lawmakers use REINS Act to Reclaim Constitutional Authority

To read the entire MacIver Institute article click here.

In 2017, conservatives across the state cheered the passage of the REINS Act (Regulations from the Executive in Need of Scrutiny), a law designed to make administrative rule-making much harder and to give the legislature active oversight of executive branch rule promulgation.

That would only make sense because rule promulgation, as a matter of definition, exists only to implement legislative intent as expressed through democratically enacted statutes. Rulemaking must always depend upon a grant of power or authority from the legislative branch to the executive.

For years, however, Wisconsin’s bureaucratic Colossus had thwarted the legislature using both macro-political and micro-political means. To cite just one example, for decades the state Department of Natural Resources (DNR) brandished a broad interpretation of the state’s Public Trust doctrine—often rubber-stamped by progressive Dane County judges—as a way to foreclose most development in northern Wisconsin, while micro-politically pursuing often-changing interpretations of its own rules and state statutes to box in and punish property owners at the local level.

With the REINS Act, conservatives saw hope. For one thing, the law included several important reforms of the rule-making process. One provision requires state agencies to perform economic impact statements for each proposed rule and, if the implementation and compliance costs exceed $10 million over two years, the agency must halt its promulgation of the rule, either until it modifies it enough to meet the threshold or until the legislature passes and the governor signs a bill authorizing promulgation anyway.

That might be harsh, or maybe legislators have since then begun to explore their new powers. Either way, state Rep. Adam Neylon (R-Pewaukee), a co-chairman of the JCRAR, says he believes the law has worked as intended and has given the legislature a better look at what the administrative state is up to.

“It has been very effective,” Neylon said in an interview with the MacIver Institute recently. “Some of the nuts and bolts of it have brought more transparency into the system, where now we can have a public hearing at the beginning of the process. I think that’s been very helpful and impactful for being able to have people that come in and testify.”