Legislative oversight is not overreach—it is legislative duty
In the era of DOGE, many Americans are talking and thinking about regulatory reform and the cost of regulation on taxpayers in a new way. This essential conversation is encouraging and should continue, but regulatory reform and accountability are an old and vital concern. In recent years, legislators at the state and federal levels have been discussing one such policy, often referred to as a REINS (Regulations from the Executive in Need of Scrutiny) Act, but which at its core is a legislative branch concern: reclaiming its proper role as the government branch tasked with making law.
Targeted legislative oversight is not a referendum on the executive branch; it is a bolstering of the intentional and impactful separation of powers set in place by America’s Founders and mirrored in the states. Articles I, II, and III of the U.S. Constitution reflect the Framers’ understanding that three coequal branches of government are necessary to ensure proper checks and balances that protect liberty. And, as state constitutions were drafted, they also followed this structure. Neither our nation’s Founders nor the states imagined the expansion of a fourth branch of government—the administrative state.
But the administrative state functions as a fourth branch of government that takes on all the powers of the other three. The legislature is tasked with making the law, the executive is tasked with enforcing the law, and the judiciary is tasked with interpreting the law. Administrative agencies often claim the power to do all three—serving as the rule drafter, the rule enforcer, and the rule interpreter. But agencies have only the power the legislature gives them and—even when necessary—are always tools to carry out legislative intent. They are not lawmakers, nor are they equal to any branch. Regulations have the effect of law. Therefore, the elected lawmakers who created agencies that make rules must be involved in overseeing the approval of those rules.
Bills that provide for legislative oversight of agency rulemaking ensure that agencies are performing their proper role supporting policies enacted by the people’s representatives and that regulations with a significant fiscal impact on state residents and businesses are thoroughly vetted and approved by those representatives. This type of legislative oversight is crucial to the proper function of a limited government of, by, and for the people. Some legislatures, like Idaho and West Virginia, have embraced their responsibility to the electorate by reviewing every rule. Others have set monetary thresholds that trigger review of rules that will have a major economic impact on individuals and businesses. Just last year, both Kansas and Indiana enacted laws that require the legislature to review proposed rules that meet a certain economic impact. Florida and Wisconsin have been doing this since 2010 and 2017, respectively.
Accountability in rulemaking is not a one-strand cord. In fact, each branch plays a role in ensuring the tools in the agency toolbelt are serving citizens, not stacking the deck against them. In conjunction with the legislature, the executive branch should be actively engaged in the rulemaking process. That is why, in addition to targeted legislative review, governors—not unelected bureaucrats—should personally approve all rules before they are finalized. Like legislators, governors are elected officials accountable to the citizens of the state, and they should provide appropriate checks on agency influence. In this way, both the branches are working together in their complementary constitutional roles to hold the administrative state in check. (Read more on the judiciary’s role to provide unbiased review of agency action and why states need independent ALJs.)
In addition to forward-looking legislative oversight, states should implement regulatory sunset and meaningful cost-benefit analysis to streamline the deregulatory and rulemaking process.
Idaho is a leading example of the positive impact of regulatory sunset: Since implementing sunset review in 2019, 95% of agency rules have been eliminated or streamlined, and the state’s economy has only benefited. It is now the least-regulated state, according to a 2024 study by the Mercatus Center. Across the country, Virginia also provides an excellent example of how to implement impactful cost/benefit analysis while retaining necessary agency functions, with its Office of Regulatory Management review process, which includes review of every rule and guidance document, a streamlined form for agencies to efficiently submit information, and consideration of impact on the economy. (The Federalist Society’s Fourth Branch Podcast has an in-depth discussion of both Idaho and Virginia’s reforms.)
For more information on targeted legislative review, separation of powers, and other regulatory reform opportunities, visit our legislation page or contact .
