[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL REVIEW ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 6, 2007
__________
Serial No. 110-165
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
----------
NOVEMBER 6, 2007
Page
OPENING STATEMENTS
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 2
WITNESSES
The Honorable John V. Sullivan, Parliamentarian, United States
House of Representatives, Washington, DC
Oral Testimony................................................. 4
Prepared Statement............................................. 5
Mr. Mort Rosenberg, Specialist in American Public Law,
Congressional Research Service, Washington, DC
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Ms. Sally Katzen, Visiting Professor, George Mason University
School of Law, Washington, DC
Oral Testimony................................................. 26
Prepared Statement............................................. 28
APPENDIX
Material Submitted for the Hearing Record
Answers to Post-Hearing Questions from the Honorable John V.
Sullivan, Parliamentarian, United States House of
Representatives, Washington, DC................................ 44
Answers to Post-Hearing Questions from Mort Rosenberg, Specialist
in American Public Law, Congressional Research Service,
Washington, DC................................................. 46
Answers to Post-Hearing Questions from Sally Katzen, Visiting
Professor, George Mason University School of Law, Washington,
DC............................................................. 48
CONGRESSIONAL REVIEW ACT
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TUESDAY, NOVEMBER 6, 2007
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:06 p.m., in
room 2237, Rayburn House Office Building, the Honorable Linda
Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Johnson, and Cannon.
Staff present: Eric Tamarkin, Majority Counsel; Daniel
Flores, Minority Counsel; and Adam Russell, Professional Staff
Member.
Ms. Sanchez. The Committee on Commercial and Administrative
Law will come to order. And I will now recognize myself for a
short statement.
In 1996, under a Democratic President, a Republican
Congress passed as a part of the Contract with America, the
Congressional Review Act. This act created procedures for
legislative oversight of administrative rulemaking. Eleven
years later I hope that the parties can once again come
together in a bipartisan effort to examine some of the
processes of the CRA.
The CRA established a provision, the joint resolution of
disapproval, by which Members of Congress may disapprove agency
rules found to be too burdensome, excessive, inappropriate,
duplicative or otherwise objectionable. Since the CRA was
signed into law, 43 joint resolutions of disapproval have been
introduced relating to 32 rules. None of the House joint
resolutions have passed the House, and only three of the Senate
joint resolutions passed the Senate.
Only one Senate joint disapproval resolution of the
Occupational Safety and Health Administration's controversial
ergonomic standards, in March 2001, also passed both the House
and Senate. This disapproval was the result of an unusual
confluence of factors, including the White House and both
houses of Congress in the hands of the same political party, a
contentious rule promulgated in the waning days of an outgoing
Administration, longstanding opposition to the rule by some in
Congress and by a broad coalition of business interests, and
encouragement of repeal by the President.
The entities tasked with implementing the CRA have faced
significant administrative burdens. The CRA requires that all
agencies promulgating a rule must submit a report to each house
of Congress and to the comptroller general at the General
Accounting Office.
To date agencies have submitted 47,136 rules. As a result,
GAO, the parliamentarians and the clerk's office in the House
and Senate have experienced a deluge of paperwork. According to
the House Parliamentarian, who is testifying today for the
second time before this Subcommittee on this issue, the number
of annual executive branch communications to the speaker of the
House has nearly tripled since the enactment of the CRA.
In order to relieve some of the administrative burdens of
the CRA and to reduce duplicative paperwork, former Judiciary
Committee Chairman Henry Hyde introduced H.R. 5380 in the 106th
Congress with current Chairman of the Committee, Mr. Conyers,
former Representative George Gekas and Representative Gerald
Nadler as co-sponsors. I look forward to hearing ideas from our
witnesses on how to improve the congressional oversight of
executive branch agency rulemaking and whether the previously
introduced legislation is an appropriate approach for reforming
and streamlining the CRA. I believe many of my colleagues join
me in seeking a balanced approach that will allow us to
effectively perform our oversight function.
At this time, I am now pleased to recognize my colleague,
Mr. Cannon, the distinguished Ranking Member of the
Subcommittee for his opening remarks.
Mr. Cannon. Thank you, Madam Chair. We are here today to
look at the Congressional Review Act, a law passed by Congress
and an important tool in the oversight of administrative
rulemaking. As I have highlighted in the past, when Congress
passes complex legislation, it often leaves many of the details
to the agencies authorized to enforce the laws. This body must
remain vigilant over those details and how they are filled in
by the agencies. We must do that through congressional
oversight.
To support that essential effort, the Congressional Review
Act established a mechanism for Congress to review and
potentially disapprove of Federal agency rules through an
expedited legislative process. It requires agencies to report
to Congress and the comptroller general information to help us
assess the merits of the rules.
We have yet to actually disapprove of many rules under the
act. That is not to say that many rules in the past did not
merit review or that many rules were not controversial. That is
not to say that we will not in the future disapprove of many
rules. We may, but so far we haven't.
This raises a couple of questions. First, are there ways in
which the act itself may be impeding our ability to oversee
rulemaking? Second, are unnecessary burdens accumulating on
those who help us review agency rules as we, for whatever
reason, do not move through the Congress enough disapprovals of
agency rules.
Those interviews include, for example, the House
Parliamentarian's office. Third, to what extent should the
Congress review agency actions? I personally believe agency
actions, including guidance documents, policy statements,
changes to program manuals, and personnel handbooks should be
reported to Congress for review. I also believe regulations
should be voted on by Congress before they become law.
Let me just pause for a moment here and point out that the
problem with this hearing is that we are dealing with one
aspect of our role in Congress. And we are doing that in a
world that has changed rapidly around us where government has
become much more complex, where the extent of rulemaking and
guidance documents have become much more complex. And all of
that in the context of a law that we passed in the 1960's and
really hasn't been updated.
So what we need to get back to, this study that we have had
done ongoing for the last 6 years, begun by former Chair George
Gekas, and on a bipartisan basis studied by academics across
the country, to deal with the complexities that we have found
ourselves in and the tools that we are not availing ourselves
of as we deal with these complex issues in a world where people
need to understand what the rules are so they can operate their
businesses from day to day. So I think we need to do that.
That said, our witnesses will help us sort some of these
issues that relate solely to the CRA today. But I want to
stress that we should sort them out with an eye to making the
Congressional Review Act more efficient and more effective, not
with an eye just to shift the burdens from one body to another
and not with an eye to give up on the act in any way. Why?
Because just shifting the burden isn't real reform. And giving
up on the act simply is not an option.
And I think that is what our panel will help us understand
today. As I stressed at the outset, this body must remain
vigilant over agency efforts to fill in the nuts and bolts of
the statutes we pass. And we must do that through real
congressional oversight.
I thank you, Madam Chair. And I yield back.
Ms. Sanchez. I thank the gentleman for his statement.
Without objection, other Members' opening statements will
be included for the record. Without objection, the Chair will
be authorized to declare a recess of the hearing at any point.
I am now pleased at this time to introduce the witnesses
for today's hearing. Our first witness is Mr. John Sullivan.
Mr. Sullivan has served as the House Parliamentarian from 2004
to the present. Prior to his current appointment, he served as
both the assistant parliamentarian and counsel to the House
Committee on Armed Services. Mr. Sullivan served in the United
States Air Force from 1974 until 1984.
Welcome, Mr. Sullivan.
Our second witness is Mort Rosenberg. Mr. Rosenberg is a
specialist in American public law in the American law division
at CRS. For more than 25 years Mr. Rosenberg has been
associated with CRS. Prior to his service with that office, he
was chief counsel to the House Select Committee on Professional
Sports.
And he has held a variety of other public service
positions. In addition to these endeavors, Mr. Rosenberg has
written extensively on the subject of administrative law.
We welcome you, Mr. Rosenberg.
Our final witness is Sally Katzen. Professor Katzen is a
visiting professor of law at George Mason University from the
University of Michigan Law School where she taught
administrative law and information technology policy courses.
Prior to joining academia, Professor Katzen served nearly 8
years in the Clinton administration first as the OIRA
administrator, then as deputy assistant to the President for
economic policy and deputy director of the National Economic
Council in the White House, and finally as the deputy director
for management at OMB.
And I thank you as well for being here.
Thank you for agreeing to testify at today's hearing.
Without objection, your written statements will be placed into
the record in their entirety. And we are going to ask that you
please try to limit your oral remarks to 5 minutes.
You all, I am sure, having all testified before Congress,
are aware of the lighting system. The light will turn green.
When you have 1 minute remaining it will turn yellow as a
warning. And when it turns red, your time has expired.
We would appreciate it if you would conclude your testimony
when you see the red light so that we can get to everybody. And
after each witness has presented their oral testimony
Subcommittee Members will be permitted to ask questions subject
to the 5-minute limit.
With that, I will invite Mr. Sullivan to please proceed
with his testimony.
TESTIMONY OF THE HONORABLE JOHN V. SULLIVAN, PARLIAMENTARIAN,
UNITED STATES HOUSE OF REPRESENTATIVES, WASHINGTON, DC
Mr. Sullivan. Thank you, Madam Chair, Mr. Ranking Member. I
am glad to be here with you to discuss this important matter. I
have no narrative to add to my written testimony. And I won't
take up your time by paraphrasing what I have already
submitted. But rather, I will be prepared to answer your
questions when we get to that point. And I will let you go on
to the statements by my colleagues. Thank you for having me.
[The prepared statement of Mr. Sullivan follows:]
Prepared Statement of the Honorable John V. Sullivan
Ms. Sanchez. I think that is probably the shortest oral
testimony this Subcommittee has ever received. We will, of
course, elicit some, I am sure, testimony during our
questioning period.
Mr. Rosenberg. Can I have his 4 and-a-half minutes?
Ms. Sanchez. We will give you a little more leeway, Mr.
Rosenberg. And at this time, I am going to invite you to go
ahead and present your testimony.
TESTIMONY OF MORT ROSENBERG, SPECIALIST IN AMERICAN PUBLIC LAW,
CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC
Mr. Rosenberg. Thank you very much, Madam Chair, Mr.
Cannon. It is a pleasure to be here again. Just quick, one
thing I was--I have been with CRS for 35 years.
Ms. Sanchez. My apologies, sir.
Mr. Rosenberg. I am very pleased to be before you again,
this time to discuss the Congressional Review Act, a statute
that I have closely monitored since its enactment in 1966. Your
Committee's continued focus on this important piece of
legislation is both opportune and hopefully propitious.
As the CRS report on the decade of experience under the CRA
details, we know enough now to conclude that it has not worked
well to achieve its original objectives. That is to set in
place an effective mechanism to keep Congress informed about
the rulemaking activities of Federal agencies and to allow for
expeditious congressional review and possible nullification of
particular rules.
The numbers that you have told us about, the 46,000 rules
that have been reported and the over 700 major rules, only one
of which has been nullified, are quite telling about the effect
of the rule, I believe. Commentators have expressed the belief
that the negation of the ergonomics rule was a singular event
and not likely soon to be repeated.
Furthermore, not nearly all the rules defined by the
statute as covered are reported for review. The number of
rules, of covered rules is likely to be significantly more than
the number that are actually submitted for review.
Federal appellate courts in that period of 11 years had
negated all or parts of about 60 rules, a number, which while
significant in some respects, is comparatively small in
relation to the number of rules issues in that period. Indeed,
at a hearing that you held in September, Professor Jody Freeman
of Harvard presented the tentative conclusions of a study of
judicial review of rulemaking that, contrary to popular myth,
apparently the courts are not part of the problem, that indeed,
the number of rules that have been, you know, successfully
challenged is quite small. And the major part of them are
limited to two agencies.
The framers of this legislation anticipated that the
effective utilization of a new reporting and review mechanism
would draw the attention of the rulemaking agencies and that
its presence would become an important factor in the rule
development process. That has not happened because the
ineffectiveness of the CRA review mechanism soon became readily
apparent both to agencies and observers.
The lack of a screening mechanism to identify rules that
warranted review and the absence of an expedited consideration
process in the House that complemented the Senate's procedures
and numerous interpretative uncertainties of the key statutory
provisions arguably have deterred its use. By 2001, one
commentator opined that if the perception of a rulemaking
agency is that the possibility of congressional review is
remote, ``it will discount the likelihood of congressional
intervention because of the uncertainty about where Congress
might stand on that rule when it is promulgated years down the
road, an attitude that is reinforced so long as the agency
believes that the President will support its rules.''
Further reinforcing the perception that Congress would not
likely intervene in rulemaking, particularly after 2001, has
been in the emergence of what has been called by one scholar as
the new presidentialism, which encompasses the notion of the
unitary executive and expansive presidential control of the
executive bureaucracy. We have reached the stage today where if
the executive presumes without serious challenge from Congress
that when Congress delegates rulemaking or other discretionary
decision-making authority to agencies, it is also a delegation
to the President, which allows him to freely control when and
how that authority is to be executed.
But there is some light in the tunnel to report. Due to the
present and past leadership of this Subcommittee, attention has
been given to the perceived flaws in the CRA.
In 2006 and 2007, suggestions for at least a modest
remediation of the perceived flaws in the CRA, if for no other
reason than to maintain a credible congressional presence in
the process of a delegated administrative lawmaking, were
presented in a number of forums. These included hearings by
this Subcommittee, a symposium held by the Congressional
Research Service, CRS and GAO reports, and academic writings.
Participating witnesses and panelists concurred that the role
of Congress as the Nation's dominate policy maker was being
threatened by widespread agency evasion of notice and comment
rulemaking requirements and the frequent calls for increased
presidential control of agency rulemaking.
Most important, I believe, during this period was the
catalogue of legislative options for remedying the flaws of the
CRA presented in your Subcommittee's interim report on the
administrative law project. Some of those options would not
even require the passage of a law.
Among the seven options suggested by the report, which
could be explored today, include establishing a joint Committee
by rule of each house to act as a clearinghouse and a screening
mechanism for all covered rules; second, amending the CRA to
limit it to review only of major rules; third, amending the act
to make it clear that the failure to report a covered rule is
subject to judicial enforcement; fourth, to amend the act to
make it clear that an up or down vote is on the entire reported
rule; and fifth, amend the act to clarify that a disapproved
rule does not disable an agency from promulgating a rule in
that area without further authorization from Congress.
With that, I will conclude and await some questions. Thank
you.
[The prepared statement of Mr. Rosenberg follows:]
Prepared Statement of Morton Rosenberg
Ms. Sanchez. Thank you for your testimony, Mr. Rosenberg.
At this time, I would invite Professor Katzen to present
her testimony.
TESTIMONY OF SALLY KATZEN, VISITING PROFESSOR, GEORGE MASON
UNIVERSITY SCHOOL OF LAW, WASHINGTON, DC
Ms. Katzen. Thank you, Chairman Sanchez, Ranking Member
Cannon, Members of the Subcommittee. I will try to summarize in
my oral statement the written testimony.
I would urge you, as you consider changes to the CRA,
whether they be necessary or desirable, to keep in mind that
the CRA was intended to serve an extraordinarily important
function, namely, to reassert congressional accountability for
what has become known as the administrative state.
The broad delegations of authority from Congress to the
agencies, which have been sanctioned by the courts and are now
an integral part of our modern government, invariably
diminished the power of Congress vis-a-vis that of the
President. To address this balance and to reclaim
accountability for the administrative state, Congress enacted
the CRA.
The Chairman noted that this was a bipartisan effort. It
was passed by a Republican Congress and signed by a Democratic
President. He signed the bill not because he had to, but
because he wanted to. He saw it as a contribution to good
government.
Now, there are two major concerns that have been raised,
one having to do with the administrative burden of the act--the
costs--and questions about its efficacy--the benefits. Let me
start with the latter.
It has been noted that there have been very few joint
resolutions of disapproval that have been introduced, and only
has been enacted, and the low numbers are being used to show
that the act doesn't work. But the numbers are also equally
consistent with the notion that the act is working, and that
the agencies have been doing a usually good job, faithfully
performing their functions, especially knowing that Congress is
looking over their shoulders.
In fact, the congressional disapproval mechanism was not
intended for the run-of-the-mill case. That was not its
objective at the beginning, and I don't think it should be the
test by which it is evaluated today.
It was to be used only in those infrequent instances where
there was such opposition to an agency rule that the Congress
was willing to put aside its other work and to express its
concern in an official way, knowing full well that the
President, in most such cases, would choose to support the
agencies and then veto the joint resolution.
In any event, notwithstanding the paucity of instances
where the joint motions or the joint resolution has been
enacted, I firmly believe that the fact that the CRA requires
agencies to send their rules to Congress before they take
effect, and that there is an opportunity for Congress--in
admittedly rare cases--to disapprove of the rule, serves as a
real check on agency excesses, and, at a minimum, reasserts
congressional authority. In other words, the CRA remains an
effective watch dog even though it doesn't bark. GAO and CRS
have subscribed to this position, to at least some extent, in
the materials that I point out in the written testimony.
I suggest in my written testimony that the burden on the
parliamentarian and others could be reduced by authorizing or
requiring agencies to submit their rules to Congress
electronically, which is how they send them to the Federal
Register. I stress, however, that all materials covered by the
CRA should continue to be sent to Congress, not to the GAO, but
to Congress, without any exceptions so that the agencies are
aware of the fact that it is Congress to whom they are
beholden, it is Congress which has given them the authority,
and it is Congress which is the ultimate lawmaker in our
government.
For related reasons, I think it is important to retain the
requirement that, once they are received by the Congress, they
go to the Committees of jurisdiction, not be filtered through
some intervening Committee, or ask the Committees to access
some control database.
These Committees are the ones that have the expertise and
programmatic experience and, therefore, are in the best
position to evaluate whether an impending rule is consistent
with congressional intent. With electronic processing the
burden on the parliamentarian would be reduced, but systematic
and timely notice to the Committees would remain.
A far more dramatic change, affecting substance rather than
process, would be to redraw the coverage of the act. As you
know, the CRA covers all rules because Congress has authority
and has delegated that authority for all rulemaking. So the act
covers the major rules, those generally having an annual affect
of $100 million or more, and the thousands of non-major rules
issued each year. I hope during the question and answer period
I can address why Congress would not want to have to take an
affirmative step with respect to those non-major rules.
Limiting the scope of CRA to the more important rules would
reduce congressional authority. But it would enable Congress to
focus on the rules that have the greatest impact and are likely
to be the most important rules. This is the tradeoff that was
reflected in President Clinton's executive order whereby, OIRA
no longer reviews all rules issued by executive branch
agencies, but only the more important ones. We thought that if
you try to do everything, you may not do anything very well.
If Congress were to restrict the coverage of the CRA to
major rules, there are, I think, two critical components that
must accompany this. First, you should not use the major, non-
major dividing line which is currently set forth in the CRA.
The definition of ``major'' in the CRA was taken from Executive
Order 12291, which has not been in effect for 14 years. When
President Clinton signed Executive Order 12866, the definition
of major was encompassed in the term ``economically
significant'' but there were three other categories that were
added to significant. Those categories are important:
materially affect the budget, novel issues, inconsistent
actions that may be taken. If those are not included in the
cutoff, Congress will be cutting off very important rules that
it should be looking at. Now, these definitions of
``economically significant'' and significant were not changed
by President Bush. They have been in effect for over 14 years
and I think have the acquiescence of both parties as the best
criterion by which to determine what is really important. Or
stated another way, if this is what OIRA uses to review
executive branch agency rules, isn't this what Congress should
use.
In that same connection, I would note that as Ranking
Member Cannon said, there is all this guidance out there. Well,
recently the President amended the executive order so that OIRA
would review that guidance. Again, if it is important enough
for OIRA review, it should be subject to congressional review.
The problem with the guidance documents is one that Mr.
Rosenberg has addressed. Agencies are not sending them to the
Congress. Therefore, I think it would be very salutory if there
were changes in the language of the CRA to clarify the initial
intention reflected in the legislative history, but these
guidance documents and manuals, et cetera were intended to be
covered.
I see my time is up. I would love to talk about the section
801(b)(2), which is the prohibition. I hope that we will be
able to get to that during the question and answer period
because I think it is a very important aspect for this act.
Thank you very much.
[The prepared statement of Ms. Katzen follows:]
Prepared Statement of Sally Katzen
Chairman Sanchez, Ranking Member Cannon, and Members of the
Subcommittee. Thank you for inviting me to testify today on the
Congressional Review Act, 5 U.S.C. Sec. Sec. 801-08 (CRA). This Act was
an important step toward reasserting Congressional accountability for
what has become known as the ``administrative state.'' The Subcommittee
is to be commended for convening a hearing, as it has in the past, to
examine how the Act has been working in practice and consider whether
modifications or clarifications of the law would enable it to better
achieve its purposes.
I served as the Administrator of the Office of Information and
Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB)
for the first five years of the Clinton Administration, then as the
Deputy Assistant to the President for Economic Policy and Deputy
Director of the National Economic Council, and then as the Deputy
Director for Management of OMB until January 2001. Among my
responsibilities while I was Administrator of OIRA, I coordinated the
Executive Branch views on the bills that became the CRA and, after its
enactment, worked with the major executive branch regulatory agencies
as they sorted through various implementation issues. I remain active
in the area of administrative law, generally, and rulemaking, in
particular. Since leaving government service, I taught Administrative
Law and related subjects at George Mason University School of Law, the
University of Michigan Law School, and the University of Pennsylvania
Law School, and I have also taught American Government seminars to
undergraduates at Smith College, Johns Hopkins University, and the
University of Michigan in Washington Program. I frequently speak and
have written articles for scholarly publications on these issues.
The CRA was a bipartisan effort, passed by a Republican Congress
and signed by a Democratic President. President Clinton signed the
bill, not because he had to but because he wanted to. He saw it as a
contribution to good government. See Statement on Signing the Contract
with America Advancement Act of 1996 (Mar. 29, 1996) (available at
http://www.presidency.ucsb.edu/ws/?pid=52611).
It may be helpful to provide some background as context for this
characterization of the CRA. Congress has, over the years, enacted
legislation setting forth general principles or goals and then
delegated to the agencies--typically executive branch agencies but
independent regulatory commissions as well--the authority to develop
and issue implementing regulations that have the force and effect of
law. These often broad delegations of authority have been sanctioned by
the courts and are now, by any measure, an integral part of our modern
government. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457
(2001).
One unintended consequence of the vast delegations to agencies was
to significantly diminish the power of the Congress vis-a-vis that of
the President. To reduce this shift in power, Congress has used various
means to exercise authority over the administrative state. The Senate's
role in advising and consenting to presidential appointments at
regulatory agencies, oversight hearings by both the House and the
Senate, and the power of the purse were all useful in this regard, but
necessarily ad hoc, and the latter two strategies were almost always
triggered after rules had gone into effect and their unintended or
undesired consequences were more difficult to redress. One device used
by Congress to retain close control of certain rules, which was used in
nearly 200 hundred provisions, was the one- (or sometimes two-) House
legislative veto, whereby the enabling legislation provided that any
implementing regulations would be laid before the Congress and go into
effect only if neither House objected. This form of oversight was
eventually held unconstitutional in INS v. Chada, 462 U.S. 919 (1983).
Thereafter, the absence of a systematic mechanism for Congressional
oversight of the regulatory apparatus eventually led to the passage of
the CRA. Unlike the one- (or two-) House legislative veto, the CRA is
decidedly constitutional--meeting the presentment and bicameral
requirements of Article I, Sec. Sec. 1 and 7, Cls. 2 and 3 identified
in the Chada case. Also, the CRA was designed to be relatively
efficient by, in effect, nullifying the Senate rules permitting a
filibuster. Thus, with the CRA, if a majority in each House believes
that a rule adopted by an agency is not faithful to Congressional
intent or is otherwise deficient in a serious way, there is a ready
vehicle for Congress to make its views known to the President.
Some commentators and critics of the CRA have asserted that the Act
is ``not working''--pointing to the relatively few Joint Resolutions of
Disapproval that have been introduced and the fact that only one was
enacted into law in the over ten-year history of the CRA. See CRS,
Congressional Review of Agency Rulemaking: An Update and Assessment of
the Congressional Review Act After Ten Years, RL30116, pg. CRS-1 (Mar.
29, 2006) (hereinafter ``CRS Ten-Year Review''); Cindy Skrzycki,
Reform's Knockout Act, Kept Out of the Ring, Washington Post, Apr. 18,
2006, D01. Limited use of the disapproval resolution mechanism may be a
manifestation that the Act is not working; it is, however, equally
consistent with the notion that the Act is working and that agencies
are usually faithfully performing their functions (especially knowing
that Congress will be looking at their final work product--more on that
below). In fact, the Congressional disapproval procedure was not
intended to be used in the run of the mill case. Rather it was to be
used only in those instances where there was such strong disagreement
in Congress with what the agency did that Congress was willing to put
aside other work and express its concern in an official way--knowing
that in most such cases, the President would chose to support his
agencies and thus veto the joint resolution. Stated simply, the
disapproval process itself was intended to be used, and should be used,
only when an agency's work product warrants the attention of Congress
as a whole and is worth a confrontation with the President.
Nonetheless, the fact that the CRA requires that agency rules must
be sent to Congress before they can take effect, and that there is an
opportunity for Congressional review which could--in admittedly rare
cases--result in disapproval of a rule, operates as a real check on
agency excesses, and at a minimum reasserts Congressional authority.
The General Accountability Office (GAO) has previously testified that
``the benefits of compiling and making information available on
potential federal actions should not be underestimated.'' GAO, Federal
Rulemaking: Perspective on 10 Years of Congressional Review Act
Implementation, GAO-06-601T, pg. 4 (Mar. 30, 2006) (hereafter ``GAO
Testimony''). It further suggested that ``the availability of
procedures for congressional disapproval may have some deterrent
effect.'' Id. The Congressional Research Service (CRS) describes the
effect in somewhat more positive terms, such as ``exert[ing] pressure
on the subject agencies to modify or withdraw the rule.'' CRS Ten-Year
Review at CRS-8. In other words, the CRA remains an effective watchdog
over agency rulemaking even when it doesn't bark.
Having said that, there are ways to modify or clarify the Act to
ensure that it captures the agency rules that it should capture and
that it does so in a relatively efficient way. First, there are
concerns about the administrative burden on the Parliamentarian (and
others) resulting from the flood of paperwork that is generated by the
Act's requirements. One way to alleviate this burden is to explicitly
authorize agencies to submit their rules to Congress electronically, as
they typically do when sending materials to the Federal Register for
publication. This would obviously facilitate the processing of the
information provided to Congress and would be in furtherance of the
objectives of the ``E-Government Act of 2002,'' 107 P.L. 347, 116 Stat.
2899, codified at 44 U.S.C. Sec. 101 (2007). The requirement for
electronic submission should encompass all material covered by the CRA,
without any exemption, including rules sent to the Federal Register.
Keeping in place the requirement of 5 U.S.C. Sec. 801(a)(1)(A), that
the agencies send their work product to Congress, keeps the agencies
focused on the fact that it is Congress that delegates rulemaking
authority to the agencies and it is Congress that is ultimately the law
maker in our government.
For related reasons, it is important to retain the requirement of 5
U.S.C. Sec. 801(a)(1)(C) that, once the material is received by the
Congress in electronic form, it should be forwarded to the committees
of jurisdiction rather than leaving it up to the committees to access
some central database. These are the committees that have the expertise
and programmatic experience and are therefore in the best position to
evaluate whether impending rules are consistent with Congressional
intent. With electronic processing, the burden on the Parliamentarian
would be reduced, but systematic and timely notice to the committees of
agency actions within their jurisdiction would remain. Without such
notice, the committees might not promptly focus on soon to be effective
regulations, unless, of course, special interest groups alert them to
potential problems. Given that the strength of the CRA is its
comprehensive coverage, it is best not to leave committee awareness to
happenstance.
A far more dramatic change, affecting substance rather than process
(but which is compatible with the suggestions above) would be to redraw
the coverage of the Act. As noted above, the CRA was deliberately
designed to cover all rules because Congress is the source of authority
for all agency actions that affect the rights and obligations of the
public. As a result, the CRA explicitly covers not only the ``major''
rules--generally those having an annual effect on the economy of $100
million or more, 5 U.S.C. Sec. 804(2)--but also the many thousands of
rules by which the agencies carry out the day to day responsibilities
of government. A rough estimate is that there may be 50-100 major and
2,000-3,000 non-major rules each year. Limiting the scope of the CRA to
the more important rules would somewhat reduce Congressional authority,
but it would enable Congress to focus on the rules that are likely to
have the greatest impact on the public, and it would obviously greatly
reduce the burden of sorting through the flood of less important rules
that the Parliamentarian is currently receiving. This is the type of
trade-off that was reflected in President Clinton's Executive Order
12,866, 58 Fed. Reg. 51735 (1993), whereby OIRA limited its review of
executive branch rules to those defined in the Executive Order as
``significant.'' See EO Sec. 6(a)(3)(a). We believed that it was better
to focus our limited resources on the more important rules, recognizing
that if you try to do everything, you may not do anything well.
If Congress were to decide to restrict the coverage of the CRA to
the more important agency actions, there are two key, indeed critical,
companion pieces that must be a part of any such change. First,
Congress should most definitely not use the ``major''/``non-major''
dividing line as currently set forth in the CRA. The definition of
``major'' in Sec. 804(2) of the CRA was taken from Executive Order
12,291, 46 Fed. Reg. 13193 (1981), which has not been in effect for
over 14 years. Executive Order 12,866, which replaced Executive Order
12,291, used the term ``economically significant'' to capture much of
what ``major'' encompassed, although there were several important
changes: ``Major'' was defined in Executive Order 12,291 Sec. 1(b) as:
any regulation likely to result in:
1. An annual effect on the economy of $100 million or more;
2. A major increase in costs or prices for consumers,
individual industries, Federal, State, or local government
agencies, or geographic regions; or
3. Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
``Economically significant regulatory action'' (the short-hand term for
those rules captured by Sec. 6(a)(3)(C)) is defined in Executive Order
12,866 Sec. 3(f) as:
any regulatory action that is likely to result in a rule that
may:
1. Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or
tribal governments or communities
Executive Order 12,866 Sec. 3(f) also added three other categories
of ``significant'' regulations, namely, those that:
2. Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set
forth in this Executive order.
The definitions of ``economically significant'' and ``significant''
regulatory actions have been in effect since 1993 and have not been
changed in any way by President Bush. As a result, these are the
operative definitions for review of executive branch rules by OIRA. If
Congress were to limit its review of agency actions under the CRA to
the more important rules, these definitions are the best criteria for
determining the scope of the Act. Using these definitions would bring
the number of rules covered under the CRA to several hundred a year--
still well below the number that are now sent to Congress, but
presumably a manageable amount. More importantly, as noted, these are
the criteria that OIRA uses for presidential review, and if a rule is
important enough for presidential review, it should be subject to
Congressional review.
A related point is that if Congress were to decide to narrow the
scope of the CRA, it should simultaneously clarify, in legislative
language, that the CRA covers not only rules subject to the
Administrative Procedure Act's notice and comment requirements, but
also any interpretive rules, guidance documents, and other similar
statements of policy that will have a future effect on the rights and
obligations of the public. Making explicit that the CRA covers such
agency actions--albeit only those that also fall within the definition
of ``significant'' if that is made the test of coverage--would resolve
any lingering doubts on the scope of the Act. Both the GAO and the CRS
have opined that this is the correct interpretation of the CRA. GAO
Testimony at 4 (``CRA contains a broad definition of the term `rule,'
including more than the usual notice and comment rulemakings published
in the Federal Register under APA''); CRS Ten-Year Review at CRS-24
(``it was meant to encompass all substantive rulemaking documents--such
as policy statements, guidances, manuals, circulars, memoranda,
bulletins and the like--which as a legal or practical matter an agency
wishes to make binding on the affected public''). Yet it is not
altogether clear that this is how the agencies are reading the statute.
Both GAO and CRS note that there are instances where agencies are not
forwarding their work products to Congress, Id at CRS-40, with the GAO
stating that when OIRA is notified of unfiled rules, agencies then file
the rules ``or offer an explanation of why they do not believe a rule
is covered.'' GAO Testimony at 4. In five of the eight cases where GAO
was asked to follow-up on a non-filing, GAO said that the supposedly
non-covered agency actions were, in GAO's opinion, within the scope of
the CRA. GAO Testimony at 4-5. Clarifying in legislative language the
intended breadth of the Act would be instructive to, and hopefully
productive for, the agencies.
There are two further observations on this point. First, for the
reasons set forth above, Congress should ask GAO to send the list of
unfiled rules that it currently sends to OIRA to the Congressional
committees of jurisdiction as well. Second, as the Subcommittee will
recall, earlier this year, President Bush amended Executive Order
12,866 to bring within its scope significant agency guidance documents.
See EO 13,422 Sec. 3, 72 Fed. Reg. 2763 (2007). Clearly the
Administration believes that these documents warrant review by OIRA;
again, at a minimum, anything that OIRA reviews should be subject to
review by Congress.
Finally, I would like to comment on Sec. 801(b)(2), which prohibits
agency issuance of a rule ``in substantially the same form'' after
passage of a joint resolution of disapproval unless Congress, by law
subsequent to the disapproval resolution, authorizes the issuance of
such a rule. Only one Joint Resolution of Disapproval has been enacted
since the CRA became law, but the consequences of that disapproval are
draconian--far more draconian than was originally intended. As CRS has
noted, a disapproval resolution applies to the rule as a whole, which,
as in the case of the ergonomics rule that was disapproved, can cover a
vast area. CRS, Congressional Review of Agency Rulemaking: An Update
and Assessment After Nullification of OSHA's Ergonomics Standard,
RL30116, pg. 14-15 (Washington, D.C., Jan. 6, 2003). When the Bush
Administration, which supported the disapproval resolution, went back
to the drawing board and tried to craft a new rule that would pass
muster with Congress, it concluded that it could not, under the CRA,
draft any rule relating to ergonomics. If that view prevails--namely,
that no new rule affecting the same subject matter can issue without
new Congressional authorization--then there could well be an extended
period of time where nothing could be done to deal with an admittedly
serious problem so long as the agency's first attempt was unsuccessful.
Yet, as CRS has noted, other provisions of the CRA, particularly the
provision extending for one year any statutory or judicial deadlines
for a rule that is disapproved, strongly suggest that the CRA was not
intended to be a permanent bar. CRS Ten-Year Review at CRS-34-35. Nor
was it so understood within the Administration when the bill was
signed. The Subcommittee should therefore consider changing the
prohibition so that it extends only for the duration of the Session (or
of the Congress) during which the disapproval resolution was enacted.
Agencies should be able to take a disapproved rule, fix it, and
resubmit it at the next Session (or next Congress). The CRA would then
have the salutary effect it was intended to have.
This brings me back to where I started: CRA is good government. It
reasserts Congress' legitimate role and responsibility for the
administrative state. It is not an empty shell or mere formality--even
if there are few disapproval resolutions filed or enacted. The point is
that, with the CRA, the agencies are aware that Congress has an
opportunity to review their work before it takes effect and that, on
occasion, other sets of eyes and different minds will examine what the
agencies have done and evaluate its consistency with the Congressional
mandate by which it was authorized. In an age where divided government
is more frequently the norm than the exception, there will sometimes be
a different perspective coming from the Hill than from the other end of
Pennsylvania Avenue. The CRA is an important way to ensure that those
different perspectives are taken seriously.
Thank you again for the opportunity to testify today. I look
forward to answering any questions you may have.
Ms. Sanchez. Thank you, Professor Katzen.
We will now proceed to the rounds of questioning. And I
will begin with Mr. Sullivan.
Dr. Katzen has suggested that perhaps the CRA could be
reformed to permit agencies to submit rules to Congress
electronically. Is that a viable reform that could reduce
paperwork and reduce the burden on the parliamentarian's
office?
Mr. Sullivan. Madam Chair, I think that would be a step.
And as my colleagues have noted, my input to the Committee has
been largely logistical on these things. But I am not here to
whine about our workload.
I wonder whether it would have any material effect on your
effort to optimize the coverage and the effect of the act. I am
not sure it would. Electronic wouldn't be hand trucks of boxes
of documents.
Ms. Sanchez. Right. I read your testimony about that. And I
thought all that paperwork is probably----
Mr. Sullivan. For a small operation like ours it is more
significant than might meet the eye. And, you know, digital is
better than analogue in that case. But I am not sure from the
broader perspective from which my colleagues speak about the
intention here.
And we are talking about delegation of quasi-legislative
power and what kind of strings should you attach to it, to the
delegation itself or what kind of oversight mechanism should
you array to make sure that it is prudently exercised. And I am
not sure whether the streamlining by electronic submission
affects that equation.
Ms. Sanchez. Okay. What about considering eliminating the
submission requirement in the CRA for non-major rules? Do you
support that idea? And if you do, how would that impact the
work----
Mr. Sullivan. I would support anything--I am sorry.
Ms. Sanchez. And if you do support that, how would that
impact the workload in your office?
Mr. Sullivan. I am not sure of what the numbers are between
major and non-major. But I certainly would recommend anything
that dealt with a more selective universe of rules. I think
that would more focus the oversight.
I start from the tenant that Congress doesn't need the CRA
in order to disapprove a rulemaking. If Congress sees a bad
rule, it can by act of Congress disapprove it. It doesn't need
the CRA to do it.
Now, sometimes there are needs to set up either an approval
mechanism, an approval requirement saying we will give you a
rulemaking power, but we have to approve it by act of Congress.
So you can do the leg work for us, and then we will exercise
the legislative power ourselves.
The other option, the one taken by the CRA, is to provide
some boost to the Congress' disapproval reaction, some
expedition. But as it happens, the CRA doesn't expedite
anything in the House. And in the end, all it does from the
House's point of view is to facilitate vigilance, facilitate
the vigilance that should go on. In the ordinary case,
Committee council being experts in their jurisdiction keep an
eye on the agencies for whom Congress has enabled rulemaking in
their jurisdiction and a watchful eye on them.
Now, perhaps merely facilitating vigilance has the kind of
deterrent effect that my colleagues mentioned, that the
agencies know that they are being watched more than they
otherwise might. But that seems like a very marginal benefit to
me.
Ms. Sanchez. Thank you.
Mr. Rosenberg, given the fact that there are these large
volumes of information that are provided to Congress pursuant
to the CRA and that that has only resulted in a limited number
of joint resolutions of disapproval having been introduced and
only one having succeeded, do you think that CRA is not working
and should be repealed? Because Professor Katzen obviously
feels that the argument can be made the other way. And I am
interested in getting your opinion on that.
Mr. Rosenberg. Not working because it is not--it is flawed
in the way that it looks at the rules and the way it receives
them. It doesn't receive enough information to start with. You
get a report from GAO which simply says we have got a rule that
has been in the Federal register. And it complies with all the
executive orders and other rules in conformity.
It doesn't deal with analysis of whether the rule is cost
beneficial or would, you know, has been looked at for cost
effectiveness or anything like that. That is the information
that comes over and drops on a Committee.
I don't know who it is in the Committees that do it, but my
experience has been that a rule that is controversial, whether
it is a major rule with an economic--tremendous economic impact
or a lesser rule that, you know, impacts on constituents or
small businesses or whatever it may be, it is only when
somebody pokes the bear over here that you get some reaction to
it.
There is a need for a CRA if there is expedited review.
There would be an even better reason for a CRA if there is
expedited review in the House.
A second thing is an information clearinghouse mechanism
that provides the appropriate Committees with sufficient
information on which to determine whether they should take some
action, whether a joint resolution of disapproval should be
filed in either house. If you had a concurrent, you know,
expedited procedure, you would see an awful lot more out there.
I tried to find anecdotal evidence of what Professor Katzen
was saying, that, sure, it is having an impact. It must be
because it is a wall. I looked at what has been happening the
last 6, 10, 12, 14 years. There is less and less acquiescence,
less and less cooperation between the executive branch and
Congress with regard to oversight.
You know, you have more than enough instances of refusals
to provide access to information with regard to any kind of
decision making and a refusal to obey subpoenas upon occasion
without response by the Congress. There is a need for an
effective CRA to keep Congress even.
I mean, we are talking about separation of powers here.
They used to call the old 122941, you know, in OIRA at that
time the 800-pound gorilla in the house. I think it is 1,600
pounds now with the kind of changes and the aggressive use of
the executive order and the amendments to the executive order.
I won't go on.
Ms. Sanchez. Thank you, Mr. Rosenberg. My time has expired.
I will now recognize my colleague, Mr. Cannon, for 5
minutes.
Mr. Cannon. Thank you, Madam Chair. You know, I couldn't
help thinking of the imperial presidency, Mr. Rosenberg, as you
were speaking about what I think you called the new
presidentialism and what Professor Katzen later then called the
administrative state. And so, we are sort of in this like
remarkable hearing where our personal views--and I don't know
that I--I am not sure I speak for the Chairman here, but I
think I do and the panel members--have all transcended party
and even branch and have said we have something, we have a
problem we have to deal with.
And I was telling some of the panel members before--and I
think this story is actually important and maybe ought to go on
the record. I have a constituent that has a service that is
complicated and allowed by the IRS, but without particular
guidance. And in a conference call in which my constituent was
excluded but which many other people, 20 or 30 other people
were on the conference call, a bureaucrat demeaned the
constituent and said that they would never get guidance if he
had his way.
So I called the senior person in the general counsel's
office and asked about it. And I had an interesting experience.
He talked about their schedule for guidance papers. So what
we have here is an environment of complex regulation where a
personality can assert himself, maybe improperly. It appeared
that way on the surface. Maybe it was not improper. We have a
role for curbing individual antagonism. But the context of that
role is law.
In other words, we don't let people make decisions. We have
a rule of law. And yet that rule of law can't take place
because it has to be scheduled, and the person who may have had
a problem with my particular constituent may actually have
something to do with what gets scheduled or not. And in the
meantime, business goes on.
And so, we find ourselves with an administrative process
that does not take into consideration the vast amount of
activity that individual bureaucrats and cumulatively agencies
have to participate in. And in that mix, I know that our
parliamentarian has a huge burden. And we want to eliminate the
paper part of that burden at least. But we are not in Congress
in any way organized to even act consistently or coherently
with OIRA.
We put all the burden on a very small parliamentarian staff
and virtually none on our Committee staff, as I think Professor
Katzen had suggested where the burden ought to be. And
therefore, the only oversight we have is the very inadequate
oversight, which today is slightly better from what it was
under the Republicans.
I think one of the big mistakes Republicans made when they
took over Congress is they decided to show the world that they
could cut expenses. And so, we got rid of all of our oversight
staff or virtually all of our oversight staff.
And we have had significant arguments among ourselves as
Republicans over that. But clearly, we have not done anywhere
near the oversight. As the budget of government has doubled
over the last 10 or so years, our oversight activity has
diminished and only increased slightly under the new Democratic
majority.
So what we find ourselves is in a position of not doing
oversight, of having laws developed, regulations developed or
regulatory activities evolving through the activities of
individuals without the kind of oversight that we need. So this
hearing is dramatically important.
And in that context, let me just ask. If you talk about the
CRA, then we are talking about what we do with paperwork and
what we do internally. But we are talking about the
Administrative Procedure Act, don't we need to deal with that
before we can actually deal with how Congress oversees
effectively what we are doing in the Administration?
And let me just put another question on the table, going
back to the imperial presidency and whatever name we use for
it. We have more judges, more adjudication that happens in the
agencies than we have with Article 3 judges.
And we have vastly more law than we produce here in
Congress. Shouldn't we in Congress be thinking in terms of
shrinking that, strengthen the presidency by taking more
control, not just over regulations, but perhaps over
administrative judges?
And, Professor Katzen, would you mind responding first, and
then we will move across the dais?
Ms. Katzen. Trying to keep my answer brief, you raise some
very important points. The APA is clearly relevant.
The APA, the Administrative Procedure Act, which was
written in 1946, deals with, for the most part--this is great
simplification--the interaction between the agency and the
public, what kind of input the public has and how the agency
has to treat those comments. That is clearly relevant. But this
is the other end of the process, which is having delegated the
authority, what reins does the Congress want to keep on the
agencies, and how does it manifest that?
So, I think you can look at the CRA without looking at the
APA, though I would encourage you to work on the APA because
there are lots of issues there that warrant attention and, I
think, updating.
Having said that, the concept of review in this discussion
that I find troubling in one major respect is that rules are
not all the same.
We talked ``major,'' and ``non-major.'' And I would beg of
you to think ``significant,'' ``non-significant'' instead of
``major,'' ``non-major'' for the reasons I explained. But even
among the biggies and the little guys there are huge
differences.
The parliamentarian said he was not completely up to date
on the numbers. It is roughly 50 to 100 ``economically
significant'' rules a year, another 200 to 300 ``significant''
rules a year and 2,000 to 3,000 ``non-significant'' rules a
year. But what are these non-significant rules? One of the ones
that I know help populate the ``non-significant'' world are
FAA, Federal Aviation Administration, air worthiness
directives.
Do you really want to stand between the FAA issuing an air
worthiness directive to take a plane out of operation or to fix
a screw or to change a motor or to reinforce a door and have it
go through the--no, you want those rules to be able to
function. Those are the routine elements of Congress.
Setting the course----
Mr. Cannon. I don't mean to mix your words, but----
Ms. Katzen. Go ahead.
Mr. Cannon. But this is really a vital issue that I would
like to just--if the Chair would indulge me. The fact is you
have to have guidance that can't go through Congress. But on
the other hand, you want to have clarity about the process that
develops the base rule.
Don't we need to be more subtle in our thinking between
what is guidance that is clearly guidance and which over time
becomes formalized, so that you have the ability to set--as you
suggested before the hearing, Congress doesn't set or review
the times that we change for daylight savings time. The
railroads, the other commissions do those sorts of detailed
things.
But ultimately when you make a decision about how the time
should change, that may evolve actually into a rule that
becomes part of a rule that is overseen. In other words, don't
we need to deal with--we have a world that is so radically
different. We have wickies today. That means we can accumulate
and collaborate and develop a wisdom that is greater than any
individuals and certainly than any bureaucrats.
Don't we need to have some kind of process where we have
clarity of decision on issues like screws and reinforcing doors
and then on the other side, a cumulation of that process into a
rule that we know has clarity? So you have certainty that you
have to replace the screw. Then you have certainty about what
the context of that replacing of the screw is because the
larger rule goes through a process that is informed by each of
the decisions that are more subtle.
Ms. Katzen. Yes, in a word.
Mr. Cannon. Thank you. And that seems to me to be the task
of this Committee. I appreciate that.
Ms. Sanchez. Were you finished with your response,
Professor?
And did anybody else on the panel want to comment to the
question or comments that Mr. Cannon posed?
Ms. Katzen. I guess I just would like to add that the
reason I went through the FAA's air worthiness directives,
which are rules, and all the other rules, is you can't talk
about them as though they are the same thing. You have to go
through the slicing and dicing and making those kinds of
distinctions. And this discussion, which lumps it all together,
is difficult to navigate.
Mr. Rosenberg. Let us start with the APA and about amending
it or doing something with it. APA is a very special law. It
has been around since 1946 and, as Professor Katzen has noted,
hasn't been amended. I think there have been, you know, little
things here and there.
APA is a special law that is like our Constitution except
it is the Constitution for our administrative processes. It has
stop signs, and it has protections, and it has due process
concerns. And those remarkably, if you study the history prior
to 1946 and the 8-year battle to get the APA passed, what you
will see is the 1946 enactment has become a charter of the
Constitution which has been amended, interpreted as time has
changed.
And it has morphed and tempered, you know, with help of the
courts, sometimes with, you know, statutory, with imaginative
devices that ACUS helped during its 28-year period. Those kinds
of things helped it.
I don't think we have to dive into it unless there is
something egregiously wrong with the general public
participation and reviewability and accountability provisions
that are there now that have worked. What we have to look at is
broader and look back on--it is dealing with Professor
Katzen's--let us cut it down to significant rules.
What determines what is a significant rule? You thought it
was pretty significant with regard to your constituent.
Mr. Cannon. And that is only guidance.
Mr. Rosenberg. And that is guidance. But when a guidance--I
have never understood the OMB new bulletin on guidance which
says that they will review it if it has $100 million impact.
Now, there may be a couple of guidances out there that some way
or another have $100 million.
But that seems to be treading very closely on what a rule
is. If it has $100 million impact, to my mind, there is a
presumption that perhaps there is something substantive about
this that has an effect on persons outside the executive branch
and outside the government and on private citizens if it has
that much of an impact.
What we are dealing with is--and remember what the CRA
says. The CRA says that it is for--concerning what is a major
rule, the only one who determines it is the OIRA administrator.
Now, I don't know that we want OIRA and what it does to be
the one that determines what is a significant rule that
Congress might be interested in. I don't know how you can write
a statute that says, you know, whatever OIRA is interested in
we should be interested in it, too, and that has to be sent
over somehow or another.
I don't think you can give the power to a jurisdictional
Committee, you know, in the statute to say they can point to a
rule and say send it up. I think there may be a charter problem
there.
You know, and I don't think you have a choice of all the
rules as there are now or specified rules and some other.
Whoever determines whether it is a major rule or a significant
rule that is important.
Stepping back even further, we have got to be cognizant of
the fact that there is a competition that is built into the
Constitution between the President and Congress with respect to
decision making in the executive branch. The fight since the
New Deal, especially as more agencies have become more
proliferous and also their powers have become more extensive,
that the focus is on the agency, on agency decision making and
who controls agency decision making.
And over the last since the Reagan administration more and
more agency decision making, particularly with regard to
rulemaking has fallen into hands of the executive. I am not
against executive, you know, review. I think it is beneficial
and an important aspect of open government and also, you know,
effective government and efficient government.
But to the exclusion of Congress, the more Congress gets
excluded from that decisional processes and unable to monitor
and control and police the enormous amounts of delegated power,
delegated lawmaking power it has given, I think we have to
think about the future as, you know, it is not likely that any
President in the future is going to accept less of power than
has been claimed and asserted, you know, during the last 6, 8
years or 12 years and even during the Clinton administration.
Mr. Cannon. Madam Chair, would you indulge me to just
follow up on clarifying one point?
Ms. Sanchez. I will, although we have gone way over time
with your questioning. I will grant you an additional minute.
We are also expecting votes.
Mr. Cannon. I thank the Chair.
Ms. Sanchez. And I do want to allow Mr. Johnson an
opportunity to ask questions.
Mr. Cannon. Certainly. I apologize to Mr. Johnson in
advance here.
If I could restate what I think you are saying, Mr.
Rosenberg, the APA is important because like the Constitution,
it is based on principles. And those principles haven't
changed. And they won't change.
My concern is that the context in which we are applying
those principles has changed dramatically. So the number of
decisions being made, the number of people at lower and lower
levels making decisions which may or may not be significant to
OIRA but may be significant to a business ought to be captured
somehow with the new tools that are available to capture those.
So I have never advocated a throwing out and redoing of APA,
only of updating it on the margins. And is that consistent with
what you are suggesting?
Mr. Rosenberg. Context does not override basic principles,
whether it is the principles that underlie the APA or the
principles that underlie the separation of powers.
Mr. Cannon. Exactly.
Mr. Rosenberg. Undermining them, undermining the ability of
Congress to be the prime policy maker in the separation of
powers is dangerous.
Mr. Cannon. I think we agree entirely. The question is
don't we have tools today, and don't we have a need because of
the growth of government and decision makers within government
to use new tools to help make the principles of the APA
applicable at increasingly low levels of government.
Mr. Rosenberg. If you are thinking the CRA is a tool, it is
an ineffective tool. If it was amended and made effective so
that Congress can be more accountable about its delegations and
also assure that there is transparency and there is
accountability in the executive, yes, that is fine. That is
creating new tools, you know, to accomplish those basic, you
know, constitutional and administrative law, you know, precepts
and protecting them----
Ms. Sanchez. The time of the----
Mr. Rosenberg [continuing]. Will be very beneficial.
Ms. Sanchez [continuing]. Gentleman has expired.
Mr. Cannon. Thank you, Madam Chair. I yield back.
Ms. Sanchez. And I will recognize Mr. Johnson for 5 minutes
of questions.
Mr. Johnson. Thank you, Madam Chair. I will try my best to
come up with 5 minutes worth of material. I will say that I
stayed awake last night pondering the realities of this
information that we are receiving today and tried my best to
engender some type of enthusiasm. And I was woefully unable to
do so.
Mr. Cannon. If the gentleman will yield, he has chosen the
right Committee.
Mr. Johnson. I am very impressed that my friend, Mr.
Cannon, has been completely successful at being enthusiastic
about it. So my hat is off to you, sir. And you are welcome to
utilize another 10 minutes of my time that I will probably----
Mr. Cannon. As long as the gentleman will not go to sleep
during that period.
Mr. Johnson. It was recently reported that because the
Administration has been frustrated by the legislative process,
Mr. Rosenberg, that the President has endeavored to achieve
policy objectives through executive orders or agency
rulemaking. What reforms to the CRA are the most important in
strengthening congressional oversight of agency rulemaking?
Mr. Rosenberg. First, having an adequate screening
mechanism with respect to rules, whatever which ones are going
to be reported, whether they are all the rules, the major
rules, significant rules, whatever they are. It needs to be a
mechanism that--and one particular model is a joint Committee
that is not a substantive, not a legislative Committee, but a
Committee from both houses that receives the rules, has an
ability to look at them in-depth, to get help, let us say, of
GAO to do cost benefit, cost effectiveness analysis, any other
analysis necessary so that a judgment can be made by a joint
Committee with respect to rules they find significant, that
then recommends them to the jurisdictional Committees; second,
a process, a coordinate process of expedited consideration in
the House, both houses; third, dealing with certain
interpretative flaws that are in the CRA.
I think it wouldn't be destructive or threatening to the
executive. It would put back on a par that is probably
necessary for the maintenance of the separation of powers.
Mr. Cannon. Would the gentleman yield?
Mr. Johnson. Yes.
Mr. Cannon. In that scenario, Mr. Rosenberg, would you
suggest that perhaps if the Committee of jurisdiction decides
that there is a problem with the rule that it can hold that
rule from going into effect during some sort of a legislative
deferral to rules and therefore, having a bigger bite with the
agency?
Mr. Rosenberg. Are you saying to have a----
Mr. Cannon. Some way to have a holdup on a rule.
Mr. Rosenberg. A mini-veto?
Mr. Cannon. Yes, based upon a majority of a Committee. In
other words, what would you do to give teeth to Congress over
the rules that come to us?
Mr. Rosenberg. Well, you can't give them legislative veto
powers. In other words, you can't have these rules unless you
make all rules recommendatory and have a fast track process for
taking care of 99.9 percent of them and filtering them through.
That is not likely to receive, you know, blessing either here
in the House or certainly not by the President.
Mr. Cannon. You think the President would veto that idea?
Mr. Rosenberg. I think he would laugh his way to the veto
table.
Mr. Cannon. He might laugh his way into an override.
Mr. Rosenberg. I don't think there could be--no, but I
think that a mechanism that--and the joint Committee is one
that I think has a political efficacy, too. You are not
impinging on the jurisdictions of the Committee's in both
houses.
What you are doing is having recommendations which then can
be acted upon in an expeditious way. That could be frightening.
That would truly be frightening to, you know, the agencies.
They would take notice.
I mean, preferably we know that the agencies are between a
rock and a hard place between OMB and OIRA and jurisdictional
Committees. But if the choice be made nowadays in the last
decade or more, they are going to do what OIRA and OMB says.
Mr. Cannon. Madam Chair, I note that the time has expired.
But I think that Professor Katzen would like to respond. And
so, I ask unanimous consent that the gentleman's time be
extended so that she can respond.
Mr. Johnson. Thank you. I was just getting ready to reclaim
what little time I had.
Ms. Sanchez. Mr. Johnson, Mr. Cannon ate up all your time.
I just want that noted for the record. In the future you might
be a little more judicious about how many minutes you do yield
to him.
Mr. Cannon. And Mr. Johnson didn't go to sleep. This is an
amazing hearing.
Ms. Sanchez. Professor Katzen, you will be allowed to
answer.
I just want to advise Members we have been called across
the street to vote. We do need to wrap up the hearing.
So if you could be brief, we would appreciate that.
Ms. Katzen. I will try, although there has been a lot said
that I think is far more complicated. A joint Committee is
something, notwithstanding my enormous respect for Mr.
Rosenberg, that I am very dubious about. Think about who signs
up for such a Committee. Think about who does the work on such
a Committee.
Ms. Sanchez. Probably Mr. Cannon and not Mr. Johnson.
Ms. Katzen. I am not sure Mr. Cannon would be happy looking
at 4,000 rules each year, which is why I say the Committees of
jurisdiction are the ones that have the expertise and the
experience to recreate that, or I should say to attempt to
recreate that in a new joint Committee would be, I think, to
create another bureaucracy. And I ordinarily don't use the
``b'' word as a bad word. But in this instance, there would be
a layering effect that will not provide the institutional
benefits that you might otherwise want to have.
With respect to expedition, having participated into the
wee hours of the morning in negotiating the CRA back in 1995, I
can tell you there was not one whit of concern about the House.
If the leadership of the House wants to bring something up, it
has the ability to do it. The problem has always been the
Senate.
And what the CRA did--and I know I am speaking on the House
side, not the Senate side--but please believe me that what the
CRA does is bypass the possibility of filibuster, and that was
enormous. It was monumental. It was not swallowed easily by the
Senate. It was incredibly significant. I don't think you have
to change the rules in the House to achieve any kind of result
like that.
In terms of the clarifications, I would join Mr. Rosenberg
there. I think it is not clear that it is extant to the kinds
of guidance documents that have been stipulated. And the
agencies are not sure of it.
I would, as a matter of personal privilege having served as
administrator of OIRA for 5 years, take exception to the
characterization of who decides what is ``significant'' and
whether that is a good place to be. And I would like to engage
with the Committee on the process that OIRA uses. And it is not
purely subjective, and we are not hiding the ball. We are not.
How could I say we? It has been over 10 years since I
served in that capacity. But as an institution, OIRA doesn't
try to hide the ball on that. So it strikes me that one has to
take some of the things you have heard today with just a tiny
grain of salt.
Ms. Sanchez. Thank you. And I want to thank all of the
witnesses for their testimony today.
Without objection, Members will have 5 legislative days to
submit any additional written questions which we will forward
to the witnesses and ask that you answer as promptly as you can
so that they can be made a part of the record. Without
objection, the record will remain open for 5 legislative days
for the submission of any additional material.
And I want to thank again our panelists for their time and
their patience. And this hearing on the Subcommittee of
Commercial and Administrative Law is adjourned.
[Whereupon, at 3:04 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Answers to Post-Hearing Questions from the Honorable John V. Sullivan,
Parliamentarian, United States House of Representatives, Washington, DC
Answers to Post-Hearing Questions from Mort Rosenberg, Specialist in
American Public Law, Congressional Research Service, Washington, DC
Answers to Post-Hearing Questions from Sally Katzen, Visiting
Professor, George Mason University School of Law, Washington, DC