[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                      RULEMAKING PROCESS AND THE 
                        UNITARY EXECUTIVE THEORY 

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 6, 2008

                               __________

                           Serial No. 110-177

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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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
      Sean McLaughlin, Minority Chief of Staff and General 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

                              ----------                              

                              MAY 6, 2008

                                                                   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 Susan E. Dudley, Administrator, Office of 
  Information and Regulatory Affairs, Office of Management and 
  Budget, Washington, DC
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Peter L. Strauss, Professor, Columbia Law School, New York, 
  NY
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44
Mr. Curtis W. Copeland, Ph.D., Specialist in American National 
  Government, Congressional Research Service, Washington, DC
  Oral Testimony.................................................    62
  Prepared Statement.............................................    64
James L. Gattuso, Esq., Senior Fellow in Regulatory Policy, Roe 
  Institute for Economic Policy Studies, The Heritage Foundation, 
  Washington, DC
  Oral Testimony.................................................   104
  Prepared Statement.............................................   105
Mr. Rick Melberth, Ph.D., Director of Regulatory Policy, OMB 
  Watch, Washington, DC
  Oral Testimony.................................................   108
  Prepared Statement.............................................   110

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Chris Cannon, a 
  Representative in Congress from the State of Utah, and Ranking 
  Member, Subcommittee on Commercial and Administrative Law......     4

                                APPENDIX
               Material Submitted for the Hearing Record

Article submitted by the Honorable Chris Cannon, a Representative 
  in Congress from the State of Utah, and Ranking Member, 
  Subcommittee on Commercial and Administrative Law..............   128
Response to Post-Hearing Questions from the Honorable Susan E. 
  Dudley, Administrator, Office of Information and Regulatory 
  Affairs, Office of Management and Budget, Washington, DC.......   142
Response to Post-Hearing Questions from Peter L. Strauss, 
  Professor, Columbia Law School, New York, NY...................   152
Response to Post-Hearing Questions from Curtis W. Copeland, 
  Ph.D., Specialist in American National Government, 
  Congressional Research Service, Washington, DC.................   155
Response to Post-Hearing Questions from James L. Gattuso, Esq., 
  Senior Fellow in Regulatory Policy, Roe Institute for Economic 
  Policy Studies, The Heritage Foundation, Washington, DC........   158
Response to Post-Hearing Questions from Rick Melberth, Ph.D., 
  Director of Regulatory Policy, OMB Watch, Washington, DC.......   165


                      RULEMAKING PROCESS AND THE 
                        UNITARY EXECUTIVE THEORY

                              ----------                              


                          TUESDAY, MAY 6, 2008

              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 2141, Rayburn House Office Building, the Honorable Linda 
Sanchez (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Sanchez, Johnson, Cannon, and 
Keller.
    Staff present: Susan Jensen, Majority Counsel; Daniel 
Flores, Minority Counsel; and Adam Russell, Majority 
Professional Staff Member.
    Ms. Sanchez. This hearing of the Committee on the 
Judiciary, Subcommittee on Commercial and Administrative Law 
will now come to order.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing at any time.
    I will recognize myself for a short statement.
    A year ago last February, this Subcommittee held a hearing 
on President Bush's Executive Order 13422. This new order 
substantially amended President Clinton's Executive Order 
12866, an order that had guided the OMB regulatory review 
process for the preceding 13 years.
    Specifically, the order requires agencies to identify 
specific market failures or problems that warrant a new 
regulation. Furthermore, agency heads are now required to 
designate a presidential appointee as an agency policy officer 
to control upcoming rulemaking.
    Many are very concerned that Executive Order 13422 would 
further politicize regulations, several of which were 
specifically created by experts to protect the health and 
safety of our citizens.
    I am concerned that the main thrust of this new order 
appears to be intended to shift control of the rulemaking 
process from the agencies, the entities that have the most 
substantive knowledge and experience, to the White House.
    The New York Times, for example, reported that President 
Bush's order strengthens the hand of the White House in shaping 
rules that have, in the past, often been generated by civil 
servants and scientific experts. Commentators observed that it 
represented just another clandestine power grab by the 
Administration. These thoughts and concerns were not just 
expressed by the so-called ``liberal media'' or partisan 
operatives.
    The independent fact finding arm of Congress, the 
Congressional Research Service, for example, says the revisions 
made by Executive Order 13422 represent a clear expansion of 
presidential authority over rulemaking agencies.
    CRS also notes that the order can be viewed as part of a 
broader statement of presidential authority presented 
throughout the Bush administration from declining to provide 
access to executive branch documents and information to 
creating presidential signing statements indicating that 
certain statutory provisions will be interpreted consistent 
with the President's view of the unitary executive.
    Under this theory, the President, and only the President, 
can and should make the final decision. That is a rather 
serious observation coming from a preeminently nonpartisan 
source.
    Today, more than 1 year later, our concerns are even 
greater, as illustrated by the latest controversies involving 
the rulemaking process. These issues range from the 
Administration's overriding the EPA's proposed air quality 
standards for ozone levels to efforts by the Vice President to 
delay the promulgation of a rule protecting Wright whales from 
annihilation.
    Accordingly, I very much look forward to hearing the 
testimony and appreciate the witnesses' willingness to 
participate in this hearing.
    At this time I would now recognize my colleague, Mr. 
Cannon, the distinguished Ranking Member of the Subcommittee, 
for his opening remarks.
    Mr. Cannon. Thank you, Madam Chair.
    I would like to extend a welcome to all of our witnesses 
today, including Ms. Dudley, and want to point out that this 
topic is really of great importance to our country. And I would 
like to thank you all for coming to share your ideas with us.
    Before I start, I would like to invite everyone to take a 
step back and to take a look at the big picture with me. 
Seventy-five years ago, the modern administered state exploded 
upon us with Franklin Roosevelt's New Deal and continued to 
mushroom to the Fair Deal, the New Frontier, and the Great 
Society.
    By the time we reached the late 1970's, Congress had 
enacted an enormous Federal bureaucracy, producing an equally 
enormous number of regulations. They had done this largely by 
delegating to that direction much of Congress' own legislative 
power. By the time of the Carter administration, Congress' 
ability to write broad framework statutes mandating that 
bureaucracy write legislative rules, filling in the details of 
Congress' decisions, had risen practically to the state of a 
very high arm.
    What was the result? A weakened Congress, an immensely 
strengthened but wholly unaccountable Federal bureaucracy, a 
skyrocketing Federal budget and a staggering regulatory burden 
on our citizens and our economy, spreading in every direction 
as far as the eye could see or the mind could imagine.
    It took the executive some time, but eventually it woke up 
to the need to restore sanity to this situation, and starting 
with the Reagan administration, the Executive Office of the 
President began to assert increased presidential control over 
myriad rulemaking activities in the Federal agencies.
    In 1981, through Executive Order 12291, President Reagan 
consolidated new regulatory review authority in the Office of 
Management and Budget. Much of this authority was housed in 
OMB's Office of Information and Regulatory Affairs.
    In 1985, through Executive Order 12498, President Reagan 
also consolidated in OIRA White House review of agencies' 
regulatory development agendas. The administration of President 
George H. W. Bush continued this basic framework, and with some 
moderate adjustment, so did the Clinton administration. The 
Clinton administration's refinements occurred largely through 
Executive Order 12866, issued in 1993.
    The administration of the current President Bush has 
followed substantially this same framework. It has also brought 
within that framework the agencies' burgeoning production of 
guidance; guidance often used by agencies to embellish their 
regulatory regimes while avoiding judicial review.
    There are those who say 25 years into this reaction by the 
presidency that the Bush administration has gone too far. They 
claim that the current President has unduly cut into the 
authority of Federal agencies. They say that Congress should 
step in to curtail executive authority over the executive 
branch.
    I see a very different picture in which over time Congress 
excessively delegated its authority to unelected officials in 
executive branch agencies, in which the executive wisely and 
consistently saw a need to restore order and accountability, 
and in which the solution to any overly zealous leadership of 
the executive branch by the executive is not the clipping of 
the executive's wings but the strengthening of Congress.
    And on that point, I think we should have bipartisan 
agreement, because if a weak Congress foists off on the Nation 
a weak executive, all we will be left with is an uncontrolled 
Federal bureaucracy and no one, no one, can want that. If the 
executive is not within its rights in leading executive branch 
agencies, then what has become of the Constitution?
    So how do we strengthen Congress? Easy. We just pick up the 
tools Congress already has at its disposal and we use them with 
vigor. We legislate instead of delegating our legislative 
rights to the Federal bureaucracy. That is, Congress should 
vote on regulations before they become law. We also ought to 
make our laws clear enough that they don't need vast amounts of 
interpretive regulations.
    We vigilantly oversee the executive through our oversight 
and we legislate in response to what we find. The fact is, we 
have been woefully inadequate for many years in oversight staff 
and oversight activities. We emphasize our power of the purse, 
sending strong signals to the executive about how we want him 
to lead the executive branch. And we at long last realize the 
promise of the Congressional Review Act, to pick up and 
disapprove agency rules that we think violate the substantive 
laws we pass, the Administrative Procedure Act or other 
procedural laws.
    What will the result of all of this be? A strong and 
accountable Congress pitted against a strong and accountable 
executive, and a robust debate that can be only good for the 
country, which is precisely what the framers of the 
Constitution intended.
    I thank you, Madam Chair, and I yield back.
    [The prepared statement of Mr. Cannon follows:]
 Prepared Statement of the Honorable Chris Cannon, a Representative in 
 Congress from the State of Utah, and Ranking Member, Subcommittee on 
                   Commercial and Administrative Law
    I'd like to extend a welcome to all of our witnesses.
    This is a topic that is of great importance to our country. I'd 
like to thank you all for coming.
    But before we start, I'd like to invite everyone to take a step 
back and look at the big picture with me.
    Seventy-five years ago, the modern administrative state exploded 
upon us with Franklin Roosevelt's New Deal.
    It continued to mushroom through the Fair Deal, the New Frontier, 
and the Great Society.
    By the time we reached the late 1970s, the Congress had erected an 
enormous federal bureaucracy, producing an equally enormous number of 
regulations.
    And they had done this largely by delegating to that bureaucracy 
much of Congress' own legislative power. By the time of the Carter 
Administration, Congress' ability to write broad framework statutes, 
mandating that the bureaucracy write legislative rules filling in the 
details of Congress' decisions, had risen practically to the state of 
high art.
    What was the result? A weakened Congress; an immensely strengthened 
but wholly unaccountable federal bureaucracy; a skyrocketing federal 
budget; and a staggering regulatory burden on our citizens and our 
economy, spreading in every direction as far as the eye could see.
    It took the Executive some time, but eventually it woke up to the 
need to restore sanity to this situation.
    Starting with the Reagan Administration, the Executive Office of 
the President began to assert increased presidential control over 
myriad rulemaking activities of the federal agencies.
    In 1981, through Executive Order 12291, President Reagan 
consolidated new regulatory review authority in the Office of 
Management and Budget. Much of this authority was housed in OMB's 
Office of Information and Regulatory Affairs. In 1985, through 
Executive Order 12498, President Reagan also consolidated in OIRA White 
House review of the agencies' regulatory development agendas.
    The Administration of President George H.W. Bush continued this 
basic framework, and, with some moderate adjustments, so did the 
Clinton Administration. The Clinton Administration's refinements 
occurred largely through Executive Order 12866, issued in 1993.
    The Administration of the current President Bush has followed 
substantially this same framework. It also has brought within that 
framework the agencies' burgeoning production of guidance--guidance 
often used by agencies to embellish their regulatory regimes while 
avoiding judicial review.
    There are those who say, twenty-five years into this reaction by 
the Presidency, that the Bush administration has gone too far. They 
claim that the current President has unduly cut into the authority of 
the federal agencies. They say that Congress should step in to curtail 
the Executive's authority over the Executive Branch.
    I see a very different picture in which, over time, Congress 
excessively delegated its authority to unelected officials in Executive 
Branch agencies; in which the Executive wisely and consistently saw a 
need to restore order and accountability; and in which the solution to 
any overly zealous leadership of the Executive Branch by the Executive 
is not the clipping of the Executive's wings, but the strengthening of 
Congress.
    Because, after all, if a weak Congress foists off on the Nation a 
weak Executive, all we will be left with is an uncontrolled federal 
bureaucracy--and no one can want that.
    And if the Executive is not within his rights in leading Executive 
Branch agencies, then what has become of our Constitution?
    So how do we strengthen Congress? Easy. We just pick up the tools 
Congress already has at its disposal--and we use them with vigor.
    We legislate instead of delegating our legislative rights to the 
federal bureaucracy. That is, Congress should vote on regulations 
before they become law. We also ought to make our laws clear enough 
that they do not need vast amounts of interpretive regulations.
    We vigilantly oversee the Executive through our oversight--and we 
legislate in response to what we find.
    We exercise our power of the purse, sending strong signals to the 
Executive about how we want him to lead the Executive Branch.
    And we at long last realize the promise of the Congressional Review 
Act to pick up and disapprove agency rules that we think violate the 
substantive laws we pass, the Administrative Procedure Act, or other 
procedural laws.
    What will the result of all this be? A strong and accountable 
Congress, pitted against a strong and accountable Executive, in a 
robust debate that can only be good for the country--which is precisely 
what the framers of the Constitution intended.
    I yield back the remainder of my time.

    Ms. Sanchez. I thank the gentleman for his statement.
    Without objection, other Members' opening statements will 
be included in the record.
    I am now pleased to introduce the witness for our first 
panel of today's hearing. Our witness on the first panel is 
Susan Dudley.
    On April 4, 2007, Ms. Dudley was appointed to serve as the 
administrator of the Office of Information and Regulatory 
Affairs, OIRA, of the Office of Management and Budget. Prior to 
her service at OIRA, Ms. Dudley served at the nonprofit 
Mercatus Center at George Mason University, where she directed 
the regulatory studies program from 2003 to 2006.
    As an adjunct professor at the George Mason University 
School of Law, she designed and taught courses on regulations 
and led regulatory clinic. Ms. Dudley also served as a career 
civil servant, working as a policy analyst at the Environmental 
Protection Agency from 1984 to 1985, an economist at OIRA from 
1985 until 1989 and an economist advisor to the Commodities 
Futures Trading Commission from 1989 to 1991.
    From 1991 until 1998, she was a consultant to government 
and private clients at Economists, Incorporated.
    Ms. Dudley has authored more than 25 scholarly publications 
on regulatory matters ranging from e-rulemaking to electricity, 
health care, the environment and occupational safety.
    I want to thank you for your willingness to participate in 
today's hearing. Without objection, your written statement will 
be placed into the record, and we would ask that you limit your 
oral remarks to 5 minutes.
    You will notice that we have a lighting system that starts 
with a green light. At 4 minutes, it will turn yellow, warning 
you that you have about a minute left. And at 5 minutes, the 
light will turn red. If you are mid-thought when your time 
expires, we will of course allow you to finish your last 
thought.
    After you have presented your testimony, Subcommittee 
Members are permitted to ask questions subject to the 5-minute 
limit.
    So, with that, I would invite Ms. Dudley to please proceed 
with her testimony.

  TESTIMONY OF THE HONORABLE SUSAN E. DUDLEY, ADMINISTRATOR, 
    OFFICE OF INFORMATION AND REGULATORY AFFAIRS, OFFICE OF 
             MANAGEMENT AND BUDGET, WASHINGTON, DC

    Ms. Dudley. Thank you, Chairwoman Sanchez and Ranking 
Member Cannon. Thank you for inviting me to testify today.
    As administrator of the Office of Information and 
Regulatory Affairs, and as you mentioned, Madam Chairman, as 
someone who has served as a career economist on the OIRA staff 
in the 1980's, I am pleased to be here today to talk with you 
about OIRA's role and the history of executive oversight of the 
regulatory process.
    OIRA was created as part of the Office of Management and 
Budget by the Paperwork Reduction Act of 1980, more than 25 
years ago. Staffed almost exclusively by career civil servants, 
OIRA has served Administrations both Democratic and Republican, 
for decades, by providing centralized oversight and interagency 
coordination of Federal information, regulatory and statistical 
policy.
    Even before Congress created OIRA, though, Presidents had 
established regulatory oversight mechanisms within the 
executive office of the President. For example, President 
Carter relied on several EOP agencies, including OMB, to 
implement his executive order on improving government 
regulations.
    Each President since then has built on that foundation and 
over the course of more than three decades, regulatory analysis 
has emerged as an integral part of government accountability, a 
valuable tool for understanding the likely effects of 
regulations.
    The nonpartisan nature of this principled approach is 
reinforced by the fact that during the current Bush 
administration we have continued to operate under President 
Clinton's Executive Order 12866 with some minor amendments that 
I would be happy to discuss.
    Over the last 7 years, the Bush administration has further 
built on these foundations to enhance the oversight and 
accountability of the regulatory process. First, we have 
enhanced OIRA's transparency. We have taken advantage of the 
Internet to list on our Web site all regulations under review. 
We also provide on our Web site lists of any meetings held with 
outside parties on rules under review.
    Second, over the last 5 years e-rulemaking has transformed 
access to Federal Government rulemaking process. 
Regulations.gov has brought government-wide information 
together and made it searchable and accessible for anyone with 
access to the Internet.
    Third, OIRA has undertaken several initiatives to improve 
the information and analysis on which new regulations are 
based. These are summarized in my written testimony, so today I 
will focus on two initiatives in which this Committee had 
expressed an interest in the past.
    One, the first, is the final bulletin for Agency Good 
Guidance Practices. And the other is the January 2007 
amendments to Executive Order 12866. While I was not at OMB 
when these were issued, I can provide you with an update on how 
they are being implemented.
    In January 2007, after soliciting and responding to public 
and interagency comments, OMB issued a final bulletin for 
agency good guidance practices to increase the quality, 
accountability and transparency of agency guidance documents. 
Most agencies have substantially complied with these 
requirements by updating their Web sites so the public can know 
what guidance applies to them and have the opportunity to 
provide feedback on significant guidance.
    For example, EPA and the Department of Labor have done 
outstanding jobs of making their guidance documents available 
to the public. Other agencies have made a lot of progress, but 
have not met all of the bulletin's requirements, and we are 
continuing to work with the agencies. But overall, we are 
pleased with their progress.
    On the same day that OMB released the final bulletin, the 
President issued Executive Order 13422, which amended EO 12866, 
to clarify OMB's authority to coordinate interagency review of 
agency significant guidance documents. Before issuance of these 
amendments, OMB reviewed some agency guidance documents, but 
the process was not as systematic.
    EO 13422 also made several process amendments to EO 12866 
to encourage good government practices, and I would be happy to 
discuss implementation of those if you would like.
    But in conclusion, let me wrap up by observing that the 
executive oversight of agency rulemaking has a long history 
that transcends party lines. It is important for a well-
functioning, accountable regulatory system that meets the needs 
of the American people.
    Thank you.
    [The prepared statement of Ms. Dudley follows:]
          Prepared Statement of the Honorable Susan E. Dudley

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Ms. Sanchez. Thank you, Ms. Dudley.
    We will now begin the questioning, and I will begin by 
recognizing myself for 5 minutes of questions.
    I am interested in knowing, Ms. Dudley, what your view of 
the power of the President is to determine the substance of 
final rules? Do you think that that is appropriate?
    Ms. Dudley. I am not a constitutional lawyer, but I believe 
the role of executive oversight, as they have been established 
by President Carter and subsequent Presidents.
    Ms. Sanchez. Okay. If Congress says that an agency and not 
the President should promulgate regulations in a particular 
area, should the President be able to substitute his or her 
judgment for that of the agency to whom Congress has delegated 
the rulemaking authority?
    Ms. Dudley. Executive Order 12866 that we operate under now 
that was issued by President Clinton in 1993, it gives the 
agencies primacy in writing their regulations. And my office's 
role is coordination, review, to ensure consistency with the 
principles in the executive order.
    Ms. Sanchez. So if I am understanding your answer 
correctly, the agency would have the final determination of the 
rulemaking?
    Ms. Dudley. That is how Executive Order 12866 is 
characterized, yes.
    Ms. Sanchez. Okay. Because my understanding is that in 
Section 7 of Executive Order 12866 the President will resolve 
differences between the agencies and OIRA unless otherwise 
prohibited by law, and I am sort of interested in knowing how 
you view that restriction.
    For example, could Congress prevent the President from 
making the final decision on an agency rule?
    Ms. Dudley. I would probably have to defer that to a 
constitutional lawyer.
    Ms. Sanchez. You don't have an opinion either----
    Ms. Dudley [continuing]. In my long experience in this in 
the regulatory world, but that wouldn't be my expertise.
    Ms. Sanchez. No opinion on the----
    Mr. Cannon. She is asking can we limit the President's 
authority. We do that all the time.
    Ms. Sanchez. I am asking somebody who has inside knowledge 
whether or not it--because there is this discussion whether 
Executive Order 12866 is significantly different from 13422. 
And I maintain that there is quite a large difference in the 
two executive orders, that they are--the point that I am trying 
to get at is that Executive Order 12866 gives agencies, I 
think, primary authority. And that Executive Order 13422, by 
the subtle changes, the changes that it has made, is trying to 
take away some of that agency power and put it into the hands 
of the executive office. And that is my concern. So I am 
interested in knowing----
    Ms. Dudley. I could comment on that. Actually, that 
language in Executive Order 12866 is unchanged. So it is the 
same language in both, as is the appeals process.
    There is a change in the appeals process that we can 
discuss if you like, but that language remains unchanged.
    Ms. Sanchez. Okay. In your written statement, you mentioned 
the efforts of your predecessor, John Graham, to increase the 
transparency of OIRA reviews. Dr. Graham, however, also said 
that OIRA has its greatest impact on agency rules during 
information reviews and that agencies should not disclose the 
changes that are made to rules during this period, at OIRA's 
suggestion, even after the rules have been published in the 
Federal register.
    How, then, can you say that OIRA is transparent when it is 
not transparent about the most important part of the process?
    Ms. Dudley. Informal review of rules is something that 
agencies might initiate before they have a draft that is really 
ready for primetime. And so at their request we will begin to 
look at pieces of regulations before it is ready to be formally 
submitted.
    As I understand it, that is not a new process that John 
Graham created. That is something that has been ongoing in the 
Clinton administration as well.
    Ms. Sanchez. I understand that, but how can you say that 
the process should be more transparent if indeed there is a 
great amount of changes that happen during the informal 
process?
    Ms. Dudley. During the informal process, that is a time 
when often the agency itself is also working on the regulation. 
I don't know when would be the bright line to draw and when any 
draft or idea should be made public.
    A decision has been made that when a regulation is 
submitted formally for OMB review, we provide both that draft 
and we also provide the draft regulation as it leaves OMB, at 
the conclusion of review.
    So that is something that I think it is quite a bit of 
transparency. There is always a struggle to balance the need 
for public to get information and the ability for frank 
discussions of a deliberative nature before something is 
complete. And I think that is the balance that has been made.
    Ms. Sanchez. Final question before time runs out. In your 
written statement, you mentioned OMB Circular A4 and OIRA's 
increased emphasis on cost-benefit analysis. In your opinion, 
does OIRA apply that circular equally among the agencies?
    Ms. Dudley. Circular A4 is actually a--it is based on best 
practices that were issued in the Clinton administration. It is 
applied to the extent that statutes permit, and there are some 
statutes that the full range of things discussed in A4 can be 
applied and others that cannot.
    So, no, it would not be applied equally.
    Ms. Sanchez. My last point was going to be that most of the 
rules from the Department of Homeland Security have not had 
monetized cost and/or benefits, yet they have been approved by 
OIRA, while at the same time rules from EPA have been rejected 
by OIRA because they hadn't fully monetized the costs or 
benefits.
    And I think that there is--the question that I have is why 
would the two be treated differently, if the intent is that 
that circular would apply to all of them?
    Ms. Dudley. I guess I am not sure I agree with the premise 
that EPA regulations have been rejected if they don't fully 
monetize costs and benefits. The fact of the matter is, EPA is 
very good at doing regulatory analysis. They have been doing it 
for longer, and they do a very good job of their regulatory 
analysis, which includes cost-benefit analysis, but not 
exclusively.
    Department of Homeland Security is a newer agency and we 
are working closely with them. There are struggles. Some of the 
benefits and costs of Homeland Security regulations are 
difficult to get a handle on.
    Ms. Sanchez. But if the goal is to have everybody doing the 
cost-benefit analysis and some rules are being rejected because 
it is not adequate and others that are less forthcoming about 
information, about the costs and benefits, are being allowed to 
pass, there seems to me some disparate treatment of rules from 
different agencies.
    Ms. Dudley. And that is where I can't agree with you. I 
don't think that you could find--maybe you could. I don't think 
that EPA rules are being rejected because the cost-benefit 
analysis is not adequate.
    Ms. Sanchez. Okay. We will have to agree to disagree.
    I will now recognize Mr. Cannon for 5 minutes of questions.
    Mr. Cannon. Thank you, Madam Chair.
    In your good guidance practices, you talked about 
transparency. Do you encourage agencies to create transparency 
in requests for guidance as well as the guidance that is given 
by the agency?
    In other words, if a person says, ``I need to know how you 
are going to implement the law in my case,'' he explains the 
case, is that going to be made available to other people who 
might have similar questions?
    Ms. Dudley. So do you mean people might ask for 
clarification and a letter that provides clarification?
    The good guidance practices applies to significant 
guidance. Significant in economically significant. That might 
not be classified as a significant guidance if it applied only 
to one company or a small group of entities. So it may not 
cover that.
    Mr. Cannon. I have a problem with significant, a word that 
has some kind of content but it is hard to describe what it 
actually is. And in a world where Google makes information 
freely available, significant seems to me to plummet, and it 
actually bumps into the--it may irritate bureaucrats at some 
point in time, but if you--I am just going to give a little bit 
of counsel that I hope you will take kindly. And that is that I 
think that agencies should be much more transparent and open. 
And that if an individual has a question that is important to 
him or his company, the fact that a bureaucrat can say this is 
not significant, may be the basis for actual persecution, 
something that we have actually seen among my constituents, and 
I suspect everyone else's constituents has as well.
    So I would hope that in the pursuit of transparency, we 
recognize the radically lowered cost of information.
    And with that, Madam Chair, I appreciate your questioning, 
and I yield back the remainder of my time.
    Ms. Sanchez. The gentleman yields back.
    At this time I will recognize Mr. Keller, the gentleman 
from Florida, for 5 minutes of questions.
    Mr. Keller. Thank you, Madam Chairman.
    Administrator Dudley, thank you for being here today.
    Executive Order 13422 and its accompanying good guidance 
bulletin have now been in effect for 15 months. What, in your 
view, has been the overall impact of this executive order and 
the bulletin?
    Ms. Dudley. I would say the main impact of both is that 
guidance documents are--the public has a greater opportunity to 
see and comment on guidance documents. They should be placed on 
agencies Web sites with easy access so that the public can not 
only see what applies to them, but see comments on that.
    And in terms of the executive order, it is the guidance 
provision, because those guidance documents, the most 
significant of them, OMB knows about them and when necessary we 
conduct interagency review.
    Mr. Keller. Aside from the public nature of the guidance 
documents, what in your view has been the chief practical 
differences in OIRA and agency practices since the executive 
order and the good guidance bulletin were issued?
    Ms. Dudley. Of the non-guidance provisions, I would say the 
requirements for the regulatory policy officer. Regulatory 
policy officers were a component of the original executive 
order, and what the January 2007 amendment did is it made 
them--required that they be presidential appointees.
    We now know who they are. It is posted on our Web site, the 
list of both the office as well as the individual serving in 
that capacity, for every agency. And I think that has made it 
more transparent for the public and for us.
    Mr. Keller. Mr. Copeland, who will testify in a little bit, 
suggests in his written testimony that Executive Order 13422 
eliminated the requirement that regulatory policy officers 
report to their agency heads. Is that suggestion correct, in 
your view?
    Ms. Dudley. No. We provided implementation guidance for the 
executive order and the good guidance and made very clear that 
the regulatory policy officer, it is a presidential appointee, 
but he is serving in an agency. So it is the general counsel of 
an agency, the deputy secretary, sometimes the assistant 
secretary for policy. So these are existing positions who have 
their existing reporting framework through the director of the 
agency.
    So as always, it is the head of the agency that has that 
ultimate authority.
    Mr. Keller. Okay. Thank you.
    Mr. Copeland also suggests, I think, that Executive Order 
13422 amendments to the regulatory review process will somehow 
slow down the process. Are you aware of any evidence that that 
has happened?
    Ms. Dudley. I don't have any evidence of that. We are 
reviewing the same number of regulations that we were before 
the executive order was passed. I have statistics. And we have 
been reviewing about 600 regulations a year since the nineties, 
since 1993.
    Mr. Keller. Okay. Thank you.
    And Madam Chairman, I will yield back the balance of my 
time.
    Ms. Sanchez. The gentleman yields back the balance of his 
time.
    I want to thank Ms. Dudley. You may now be excused and we 
will take a short recess to allow our second panel of witnesses 
to be set up and to come forward to the dais.
    [Recess.]
    Ms. Sanchez. The Committee is now resumed.
    I am pleased to welcome our second panel of witnesses.
    Our first witness is Professor Peter Strauss. Professor 
Strauss is the Betts professor of law at Columbia Law School. A 
renown scholar of administrative law, Professor Strauss has 
taught that subject at Columbia for the past 36 years, just a 
short period of time.
    Professor Strauss clerked for Associate Justice William 
Brennan and Chief Judge David Bazelon of the United States 
Court of Appeals for the District of Columbia.
    It is an honor to have you testify before the Subcommittee 
again, Professor Strauss, and we want to welcome you.
    Our second witness is Curtis Copeland. Dr. Copeland is a 
specialist in American national government at CRS. His 
expertise appropriately relevant to today's hearing, is Federal 
rulemaking and regulatory policy.
    Dr. Copeland has previously testified before this 
Subcommittee and he is one of three CRS experts who are 
assisting the Subcommittee in the conduct of its administrative 
law project.
    Prior to joining CRS, Dr. Copeland held a variety of 
positions at the Government Accountability Office over a 23-
year period.
    It is good to see you again, Dr. Copeland. Thank you for 
being here.
    Our third witness is James Gattuso. Mr. Gattuso is a 
research fellow in regulatory policy for Roe Institute for 
Economic Policy Studies at the Heritage Foundation. 
Specifically, Mr. Gattuso handles regulatory and 
telecommunications issues. Previously, Mr. Gattuso served as a 
policy analyst for the Heritage Foundation with responsibility 
for a broad range of issues, including telecommunications, 
transportation and anti-trust policy.
    Prior to joining Heritage, he was vice president for policy 
at the Competitive Enterprise Institute. In that position, he 
oversaw CEI's policy work and supervised the overall management 
of the organization.
    Before joining CEI in 1997, Mr. Gattuso served as vice 
president for policy development with Citizens for a Sound 
Economy from 1993 to 1997, where he directed the research 
activities of that organization. From 1990 to 1993, he was 
deputy chief of the Office of Plans and Policy at the Federal 
Communications Commission.
    So welcome to you, Mr. Gattuso.
    Our final witness is Rick Melberth. Dr. Melberth joined OMB 
Watch in November 2006 as director of Federal regulatory 
policy, a program which works to protect and improve the 
government's ability to develop and enforce safeguards for 
public health, safety, environment and civil rights. He directs 
all activities related to policy, advocacy, analysis, research, 
monitoring and public education.
    Prior to joining OMB Watch, Dr. Melberth was the director 
of internal planning and formerly the associate director of the 
environmental law center at the Vermont Law School. He helped 
design the curriculum and taught courses in the Master's 
program.
    Dr. Melberth has written several pieces about decision-
making in government and environmental issues during his 
academic career and while working as an independent consultant 
and policy analyst.
    I want to thank you all for your willingness to participate 
in today's hearing. You have heard about the lighting system. I 
am just going to remind you, you have 5 minutes for your 
testimony and you will get a series of lights; green when you 
begin your testimony, yellow when you have a minute remaining, 
and red when your time has expired.
    I am going to apologize because I am going to need to go to 
the floor to debate a bill of mine, and so we will have 
somebody else filling in in the Chairman position, and that 
will be Mr. Johnson.
    But at this time I would invite Professor Strauss to begin 
his testimony.

           TESTIMONY OF PETER L. STRAUSS, PROFESSOR, 
               COLUMBIA LAW SCHOOL, NEW YORK, NY

    Mr. Strauss. Chairwoman Sanchez, Ranking Member Cannon, 
Congressmen Keller and Johnson, I am deeply honored to be 
present today for this important hearing.
    You have got my prepared testimony and it doesn't make much 
sense to read the bulk of it. You ought to appreciate from the 
excellent submissions of others and what your experience has 
also taught you, which is that presidential oversight of 
rulemaking has been with us for more than three decades. 
Indeed, the academic community and my impression as well is 
that Congress is in agreement that, within its limits, at 
least, the practice of executive oversight is a sound one.
    At the same time, and responding to Ranking Member Cannon's 
remarks about delegation, it seems to me that Congress commits 
limited tasks to administrative agencies, and when it does so 
it expects them to be performed with fidelity to scientific 
judgment and observance of the limited factors that Congress 
may have made relevant.
    The present difficulties in my judgment arise from 
presidential practices that threaten these limits. Maybe next 
year, with former senators in the White House, respect for 
Congress' work will return to a greater degree than one now 
sees.
    We all do understand that the Constitution creates a single 
chief executive officer, the President, as the head of 
government. Congress defines the work that its statutes detail. 
We have a unitary executive. Disagreement is about what the 
President's function is.
    But once Congress has created a government agency and said 
what its responsibilities are, we know that the roles of 
Congress and the court are to oversee the agency in its 
assigned work, not actually to perform that work.
    When Congress authorizes the EPA to regulate pollution or 
OSHA to regulate workplace safety, can the President decide 
these matters? Or is he too only to oversee the agency's 
decision processes?
    Our Constitution it seems to me is quite specific about 
this. It recognizes that departments will have duties. It 
permits Congress to assign duties to administrative agencies 
rather than the President. And when it does, the President is 
not the decider of these matters. Attorney General Wirt back in 
1823 told President Monroe that the President's role is to give 
general superintendence to those to whom Congress has assigned 
executive duties as it could never have been the intention of 
the Constitution that he should in person execute the laws 
himself.
    Were the President to perform a statutory duty assigned to 
another, he would not only not be taking care that the laws 
were faithfully executed, but he would be violating them 
himself. That is, the assignment of decisional responsibility 
to others is a part of the laws to whose faithful execution the 
President is to see. And when agency officials treat the 
President as the person entitled to decide matters the Congress 
has committed uniquely to their judgment, they too fail in 
their obligations to the law.
    They do have to consult with him. The Constitution is quite 
specific about that. But at the end of the day, they are the 
ones responsible for deciding any matters that Congress places 
in their charge.
    I do want to be clear. These are not simple issues. We have 
a single chief executive. The President's politics stand behind 
appointments to high office and he properly claims 
opportunities to discuss his Administration's policy 
preferences with his appointees. Indeed, the Constitution's 
text is explicit that he can demand consultation, in writing, 
on matters within. But then this is the word the Constitution 
uses--the duties of their offices. They are the ones with the 
duties.
    The right to discipline any appointee, even an independent 
regulatory commissioner who refuses to consult him and hear his 
views, is the President's. And insofar as it creates a 
framework for consultation, Executive Order 12866 reflects a 
sound view of executive authority, and it would do so even if 
it were fully extended to the independent regulatory 
commissions, as many of us have recommended.
    The difficulties arise when the President reaches past 
consultation to demanding particular decisions. This is the 
subtle ground between hearing out the President and obeying 
him. And this is the issue that concerns me here.
    Chairwoman Sanchez made some reference to the matters that 
have been in the papers in recent weeks. They are only 
examples, and I don't think my limited time permits me to go 
into them, but they do suggest that a fair amount of bending 
science is going on. Or to put it another way, that the 
President has been injecting into the decision process factors 
that Congress has specifically forbidden the agencies 
responsible for these decisions to take into account.
    The courts have said, responding to your instructions, and 
on arguments from the solicitor general, that costs are not a 
part of the EPA's business. They have tolerated the delegation 
to the EPA of the vast authority that it has on the 
understanding that it won't be considering costs. But what is 
motivating the apparent interference with EPA's judgment about 
ozone standards?
    Mr. Johnson. [Presiding.] Professor Strauss, your time has 
expired. If you would wrap up.
    Mr. Strauss. Yes, absolutely. Just one other thing that I 
would like to say, if I may, which is to suggest that among the 
possible responses the Congress might have is the one that I 
heard Ranking Member Cannon mention, the power of the purse.
    When the House attempted to exercise that power last summer 
in connection with the President's remarkable amendments to 
Executive Order 12866, I understand that OMB responded with the 
claim that a failure to appropriate funds for OIRA would be an 
unconstitutional intrusion on the President's constitutional 
authority, the power of the unitary executive. What a laughable 
claim that is.
    The President, like the King of England in his battles with 
Parliament, has got to rely on you for the funds he desires, 
and if you find him abusing his authority, you can withhold 
those funds.
    Thank you again for the privilege of testifying today.
    [The prepared statement of Mr. Strauss follows:]

                 Prepared Statement of Peter L. Strauss

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Johnson. Thank you, Professor Strauss, and it has come 
to our attention that you have to depart early from this 
hearing, but your testimony has generated such interest that we 
would like to take the opportunity to question you prior to us 
hearing from the other witnesses. So I will begin.
    Dr. Copeland says that there may be little difference in 
practice between the unitary executive position in which the 
President can and should make the final decision and the 
traditional or presidential oversight perspective since even in 
the traditional perspective, the President can have the last 
word if he is willing to fire someone and take the political 
heat.
    How do you respond to that?
    Mr. Strauss. Well, this goes in part to my concerns about 
the regulatory policy officers, which I expressed to this 
Committee at its hearing shortly after Executive Order 13422 
was promulgated.
    It is the regulatory policy officer who is going to be 
fired, the presidential appointee who is directly responsible 
to OIRA, and this is not necessarily a person in the position 
that the head of an agency is in political terms to take the 
political heat, would be involved in standing up to the 
President and saying, ``If you want to displace my judgment, 
Mr. President, you are going to have to send me home.''
    That political heat has been felt on numerous occasions and 
it constrains Presidents. If they have to operate in public by 
firing someone, that is quite a different setting, at least in 
my judgment, from the psychology that attends and understanding 
that I have the legal obligation to do what the President tells 
me to do--if an administrator understands that at the end of 
the day it is her judgment and she has the right to make that 
judgment, it will often be the case that the President will not 
respond.
    It may indeed often be the case that what she has heard 
about the President wants ``X'' from a member of the White 
House bureaucracy will not be anything that crossed the 
President's desk or the President's mind at all. There is a 
terrific piece in the recent law school literature by 
professors at Vanderbilt University Lisa Bressman and Michael 
Vandenbergh detailing conversations they had with senior 
officials at EPA during both the Clinton and the first Bush 
administrations. And what she reports was that they were 
hearing from many different groups in the name of the President 
in the White House and in many different ways. It is not just 
one person.
    I think getting clarity--it is going to be the President 
who fires the administrator of the EPA if that is what 
happens--getting clarity and getting the political heat that 
will attend that--we can all think of occasions where the 
President has indeed let the administrator of EPA go. Ann 
Gorsuch comes to mind. And then in the wake of that, Congress' 
authority over who would replace her creates a decided 
restraint on the kind of environmental policy that the 
presidential administration is able subsequently to carry 
forward.
    So I just don't agree with the proposition that these are 
equivalent.
    Mr. Johnson. Thank you, Professor Strauss.
    I will now yield the balance of my time and yield to Mr. 
Cannon for questions.
    Mr. Cannon. Thank you.
    I appreciate the fact you asked a question about firing, 
because it seems to me that as coarse as that is, that really 
is one of the clear authorities of the President and is now 
well-established historically.
    So in considering your testimony, Professor Strauss, I find 
that we have very few differences. Hardly anything of 
substance. I would characterize the President's authority to 
fire exactly as you have. It is a heavy-handed kind of thing.
    I think personally it would be wonderful if the President 
said I am going to change my administrators regularly and 
often, and allow people to come in with a fresh perspective and 
do something and then move on in their lives.
    I mean, if you can shorten the time frame of getting a 
message from Washington to Boston and back as much as we have 
from horseback to e-mail, we ought to be able to move 
administrators back and forth. That would take the support of 
the Senate, I think, and that would be nice, if we could work 
together in that regard.
    And I appreciate, by the way, your explanation. I was going 
to ask you about Article 2 and how that, the faithfully 
executed clause, how that works, and I think that your view--
that you have dealt with those things quite well.
    Probably the only place where we really disagree is in how 
this relates to the practice of this Administration or the last 
Administration. I am not sure it is a partisan thing, but what 
we have--in fact, I am intrigued by your last comment, when you 
were talking about many people talking with people at EPA in 
the name of the President. The problem is, the President can't 
possibly know what all those people think or what their 
personal agendas are. But it is the complexity of government 
that leads us to the point where we have that lack of clarity.
    But the problem with many people and many ideas and one 
President's name is a problem that relates to the complexity of 
government. Aren't we better off focusing on how we can change 
that complexity, for instance taking agencies--I would not at 
this point suggest EPA, by the way, but something like, say, 
for instance, the Surface Coal Mining Administration--that is 
already operated by States, and turning that into an interstate 
compact and letting the States deal with that so that they can 
decide policy and not have the President and his minions or his 
delegates interfering?
    Mr. Strauss. Well, I think that cooperative federalism is 
often a useful way to go. One has to be careful not to try to 
use it in situations where States will be attempting to take 
advantage of one another but where you can reliably see that 
all have the same interests, for sure.
    Mr. Cannon. I suspect when you say taken advantage, are you 
suggesting that if they had an interstate compact instead of 
Federal control, some States might want to make it cheaper and 
easier to produce coal than other States?
    I am joking here a little bit, because I actually was at 
Interior and oversaw the writing of those regulations, both for 
reclamation and enforcement.
    But my point is that it may actually be healthy to have the 
debate in States. Do we want to have lower standards of 
reclamation or do we want to preserve the quality of our State. 
I think that the States are pretty much, in that particular 
case and generally speaking, going to demand a higher standard 
than I think even the Federal Government would demand.
    Mr. Strauss. It is entirely possible.
    The risk in interstate compacts that the framers foresaw 
and which has often come up in the past is that North Carolina 
apple producers will want to do something that puts Washington 
apple producers at a disadvantage. That is the matter against 
which you have to be----
    Mr. Cannon. And hence the founders' requirement in the 
Constitution that we do it by Federal legislation. See, that is 
the context.
    Mr. Strauss. Right.
    Mr. Cannon. Thank you.
    Let me just point out, I think that the other place where--
I don't think that we have actually disagreed, but as a matter 
of emphasis, I think sort of the core of your statement goes to 
what is forbidden by Congress, is a term you used. Isn't that 
really our problem, to be clear in how we delegate? Because if 
we say the administrator of EPA will make this decision, we 
have the ability to limit the President, he is then left with 
the Constitutional context but with a stronger position as to 
the decision he makes, and ultimately fire me if he disagrees 
with the President.
    Mr. Strauss. I think we are getting into here into what may 
seem a subtle disagreement between myself and the current dean 
at the Harvard Law School, Elena Kagan, who has taken the 
position, which is a respectable position in academic circles, 
that it ought to be presumed that when Congress passes a 
statute empowering the head of EPA or whomever to do something, 
that actually the President does have the right to call the 
shots, but that Congress could always say, ``No, no, we mean 
explicitly the head of the EPA and, Mr. President, you stay out 
of it.''
    My position rather is when you pass a statute that says to 
the EPA you are to set Clean Air Act standards, and we want you 
to set Clean Air Act standards following the following 
criteria, which don't happen to include cost, that is enough, 
because if it once gets into the White House, you are never 
going to have that control over is it just the science, is it 
just the best available technology, or is somebody figuring out 
that, well, this would be less costly for the economy, which 
wisely or not you in Congress have taken out of EPA's 
consideration.
    Mr. Cannon. I think that I probably agree with Ms. Kagan on 
that particular point, but it is narrow.
    Thank you for your testimony.
    I yield back.
    Mr. Strauss. Thank you very much.
    Mr. Johnson. Thank you.
    And thank you for your testimony, Professor Strauss.
    Mr. Strauss. I won't have to leave for another 45 minutes. 
I will stay at the table, if you don't mind.
    Mr. Johnson. All right.
    Dr. Copeland, please begin your testimony.

TESTIMONY OF CURTIS W. COPELAND, Ph.D., SPECIALIST IN AMERICAN 
     NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, 
                         WASHINGTON, DC

    Mr. Copeland. Thank you very much, Mr. Johnson, Mr. Cannon. 
Thank you very much for inviting me here to discuss Federal 
rulemaking and the unitary executive principle.
    Since 1981, the center of presidential influence on 
rulemaking has been OMB's Office of Information and Regulatory 
Affairs, which must approve most significant rules before they 
are published in the Federal register.
    OIRA's role has varied by presidential administration, but 
during the current Bush administration it has returned to the 
gatekeeper role that it had during the Reagan years. That 
gatekeeper role has been manifested in various ways, including 
an increased emphasis on cost-benefit analysis during OIRA 
reviews, an early increase in the use of return letters, the 
increased use of informal OIRA reviews of agency rules, 
extensions of OIRA reviews for months or even years beyond the 
90-day time limit, the development of OMB bulletins on peer 
review, risk assessment and agency guidance practices.
    Also, Executive Order 13422, among other things, eliminated 
the specific requirement that agency regulatory policy officers 
report to agency heads and gave those officers the general 
authority to control rulemaking activity in the agencies. The 
order also expanded OIRA's reviews to include significant 
agency guidance documents. And taken together, all of these 
actions by the Bush administration represent what appears to be 
the strongest assertion of presidential power in the area of 
rulemaking in at least 20 years.
    There seem to be at least three perspectives regarding 
presidential power and rulemaking. One is the unitary executive 
principle position, which asserts that the President should be 
able to make the final decision regarding substantive agency 
rules, even when Congress has assigned rulemaking activities to 
the agencies.
    Another is the traditional or classical perspective, which 
says the President cannot make the final decision on rules 
assigned to the agencies, but can attempt to influence agency 
officials up to and including firing them if they disagree.
    The third position, as Professor Strauss just said, is one 
advocated by Dean Elena Kagan of Harvard University, in which 
the President can determine the substance of agency rules, but 
not if Congress has specifically prohibited or limited the 
presidential intervention.
    Ultimately, though, these three positions may represent 
distinctions without a substantive policy difference, for in 
all three the President can ultimately dictate the outcome if 
he is willing to pay the political cost associated with the 
dismissal of an appointee.
    One of the clearest examples of presidential power in the 
area of rulemaking occurred in relation to a recent EPA rule on 
ozone. It was clear from the memoranda and letters later 
released that EPA initially resisted but ultimately adopted 
OIRA's and the President's position on the rule.
    Notably, the President's authority to make the final 
decision in agency appeals of OIRA decisions was established by 
executive order during the Clinton administration.
    The EPA ozone case was somewhat unique in that it pulled 
back the curtain on how final regulatory decisions can be made 
under presidential review. However, in many cases it is very 
difficult for outsiders to know what effect OIRA or the various 
presidential initiatives have had on particular rules.
    For example, although OIRA says it has its greatest impact 
on rules during informal reviews, it also says that agencies 
should not disclose the changes made during those reviews to 
the public, even after the rules are published in the Federal 
Register.
    Also, it is currently unclear what effects recent changes 
in risk assessment, peer review, guidance documents and 
regulatory policy officers are actually having on agency rules.
    Although all regulations start with an act of Congress, 
Congress has been arguably less active than the President in 
recent years in controlling the rulemaking agenda. If Congress 
decides it wants to asserts more authority in agency 
rulemaking, it would have a number of options.
    For example, it could, one, ask nominees during the 
confirmation process how they would react to presidential 
rulemaking direction that was contrary to statutory 
requirements. Two, consider giving agency heads ``for cause'' 
removal protection. Three, consider restricting the ability of 
OIRA to review certain types of rules. Four, specifically 
indicate that the agency head, not the President, has final 
rulemaking authority in certain areas. Five, increase the 
transparency of OIRA's review process. And, six, be more 
specific in its delegations of rulemaking authority to the 
agencies.
    Mr. Chairman, I am happy to conclude my prepared statement. 
I would be happy to answer any questions at this time.
    [The prepared statement of Mr. Copeland follows:]
                Prepared Statement of Curtis W. Copeland

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Johnson. Thank you, Dr. Copeland.
    Mr. Gattuso, please proceed.

     TESTIMONY OF JAMES L. GATTUSO, ESQ., SENIOR FELLOW IN 
 REGULATORY POLICY, ROE INSTITUTE FOR ECONOMIC POLICY STUDIES, 
            THE HERITAGE FOUNDATION, WASHINGTON, DC

    Mr. Gattuso. Mr. Chairman, Members of the Subcommittee, 
thank you for inviting me here today to discuss this important 
topic.
    President John Kennedy is said once to have told a 
petitioner in his office, ``I agree with you, but I don't know 
if the government will.'' And that statement encapsulates in 
many ways the questions being discussed today. To what extent 
can or should the President be able to ensure that his views 
and priorities are reflected in the decisions of the executive 
branch.
    Charged in the Constitution with taking care that the laws 
be faithfully executed, Presidents often find their efforts 
frustrated by the machinery of the executive branch which they 
themselves head. Nowhere is the challenge greater than in the 
area of regulation. Over 50 agencies produce thousands of new 
rules each year, and some 70,000 pages in the Federal Register.
    That is why starting a generation ago Presidents began to 
establish systematic review processes for the promulgation of 
regulations.
    Since the first review processes were established, seven 
Administrations, five Republican and two Democratic, have built 
upon them. Each has changed the system in various ways, most 
improving upon that of its predecessor, but none has challenged 
its basic utility or legitimacy.
    The debate over the Constitutional status of the system is 
joined, however, when that system conflicts with congressional 
assignments of responsibility or discretion to others within 
the executive branch. In such cases, some have argued, 
including the earlier witnesses today, that the President may 
not substitute his judgment for the judgment of the officer 
selected by the President to perform a particular duty. In 
other words, the President is not the ``decider'' but merely 
the ``overseer'' of decisions by others.
    In my view, the problem with this contention is that the 
Constitution invests executive power in a President of the 
United States of America, not in plural Presidents, not in a 
President and other officers designated by Congress, but in a 
President. The idea that the executive power is shared or can 
be unbundled is contrary to the common sense meaning of the 
language of Article 2.
    It also would be a surprise to millions of people voting 
today in Indiana and North Carolina to hear that their votes 
are not for a President who can decide issues, a President who 
can set policy, but merely an overseer of decisions by others, 
a consultant, someone who guides but does not lead. I think 
that is contrary to the common understanding of our political 
system.
    That said, I believe also that the theoretical differences 
in the debate over the unitary executive may not come down to 
much in practical application. There may be less here than 
meets the eye.
    Critics of the unitarian executive concept largely 
recognize the President's power to articulate priorities and 
views, request adherence to them and dismiss those that do not 
help carry out his agenda. Conversely, most proponents of the 
unitary executive view accept Congress' power to assign initial 
responsibility and duties to other officers in the executive 
branch as long as the President has ultimate authority over the 
policies that are set.
    In practice, executive branch officers, being appointees of 
the President, in the vast majority of cases accept the 
articulated priorities of the President, and when they do not, 
resignation or dismissal is the next likely option.
    When that resignation or dismissal is not on the table 
explicitly, it is always on the table implicitly. As I think 
anyone who has served in the executive branch would realize, 
that if they explicitly contest a specific decision of the 
President or someone who is representing or speaking for the 
President, they can do that, but they had better have their 
bags packed just in case.
    And frankly, this is as it should be for many reasons. The 
most important of these, and perhaps counter-intuitively, is 
the check that clear responsibility provides over presidential 
power. A President cannot simply mumble, ``My hands are tied,'' 
when he is ultimately responsible for decisions. I think that 
limits presidential power and is good for our political system.
    Critically, however, none of this means that Congress has 
no authority in regulatory policy. In fact, it still has 
primary authority. This can be exercised in several ways. 
Congress can simply make a statute more explicit. Or, even 
better, make its intent clear in the first instance when 
legislating. Secondly, under the Congressional Review Act of 
1996, a particular regulatory decision may be specifically 
disapproved by Congress under expedited rules of procedure.
    Thirdly, Congress' influence over regulatory policy could 
be expanded through the creation of institutions within 
Congress, such as a congressional regulation office. Such an 
office, which would be similar to the Congressional Budget 
Office, could review the regulatory impact of legislative 
proposals and report on the effects of rules adopted by 
agencies. In this way, a congressional regulation office could 
act as both a complement to and a check on the power of OIRA.
    Thank you for your time. I will be glad to answer any 
questions.
    [The prepared statement of Mr. Gattuso follows:]
                 Prepared Statement of James L. Gattuso
    Madam Chairman and Members of the Subcommittee: thank you for 
inviting me here today to discuss this important topic.\1\
---------------------------------------------------------------------------
    \1\ The views I express in this testimony are my own, and should 
not be construed as representing any official position of The Heritage 
Foundation.
---------------------------------------------------------------------------
    ``I agree with you, but I don't know if the government will,'' 
President John Kennedy is said to have once told a visitor.'' \2\ 
Kennedy's lament encapsulates in many ways the questions being 
discussed today. To what extent can--or should--a president be able to 
ensure that his views and priorities are reflected throughout the 
executive branch?
---------------------------------------------------------------------------
    \2\ Quoted in Elena Kagan, ``Presidential Administration,'' 114 
Harvard L. Review 2245 (2001).
---------------------------------------------------------------------------
    It's not just a matter of constitutional principle. Perhaps the 
greatest challenge faced by presidents in this regard is a practical 
one. Charged by the constitution with ``tak[ing] care that the laws be 
faithfully executed,'' they often find their efforts frustrated by the 
machinery of the executive branch which they head. Reflecting this 
frustration, Harry Truman predicted difficulties for his successor, the 
former general Dwight Eisenhower: ``[H]e'll say, 'Do this! Do That!' 
And nothing will happen.'' \3\
---------------------------------------------------------------------------
    \3\ Ibid.
---------------------------------------------------------------------------
    Nowhere is the challenge been greater than in the area of 
regulation. More than 50 agencies, ranging from the Animal and Plant 
Inspection Service to the Bureau of Customs and Border Protection, have 
a hand in federal regulatory policy. With nearly 250,000 employees, 
they produce over 4,000 new rules--and some 70,000 pages in the Federal 
Register--each year.
    Managing this regulatory machinery in a way that not only reflects 
the president's priorities but faithfully executes the will of Congress 
and the mandates of the courts is no easy task. That is why, starting a 
generation ago, presidents began to establish systematic review 
processes for the promulgation of regulations.
    The first such process was created in 1971, when President Richard 
Nixon required regulatory agencies to perform ``quality of life'' 
analyses of significant new regulations. Supervised by the Office of 
Management of Budget, the analyses were to outline regulatory analyses 
and their costs.\4\
---------------------------------------------------------------------------
    \4\ See, Murray Weidenbaum, ``Regulatory Process Reform: From Ford 
to Clinton,'' Regulation (1997).
---------------------------------------------------------------------------
    Gerald Ford expanded on this process, making control of regulatory 
growth part of his war on inflation, requiring agencies to prepare 
``Inflation Impact Statements,'' which were reviewed by the White House 
Council on Wage and Price Stability. Ford also set up a cabinet-level 
group to focus on other initiatives to control the cost of regulation.
    Despite a different party affiliation, Jimmy Carter continued--and 
even expanded--regulatory review mechanisms during his Administration, 
continuing the practice of conducting economic analyses of proposed 
regulations and setting up a cabinet-level Regulatory Analysis Review 
Group to review proposed new rules.
    Upon taking office, Reagan established a ``Task Force on Regulatory 
Relief,'' chaired by Vice President George Bush, to oversee review of 
the regulatory process. In addition, he issued an executive order--E.O. 
12291--detailing the review system. And perhaps most importantly from 
an institutional point of view, he charged the newly created Office of 
Information and Regulatory Affairs with oversight of that process.
    The Reagan executive order on regulation continued in place during 
President George Bush's term, with a cabinet-level Council on 
Competitiveness headed by the Vice President taking the place of the 
Task Force on Regulatory Relief. OIRA continued to manage the review 
process, although no permanent OIRA chief was ever confirmed.
    In 1993, President Bill Clinton replaced the Reagan-era Executive 
Order on regulatory review procedures with one of his own, E.O. 12866. 
Among the changes in the Clinton order were greater transparency 
requirements and a limitation of review requirements to ``significant'' 
rules. But the basic structure of the review system was kept in place.
    Further reflecting the continuing stability of the review system, 
President George W. Bush has kept the Clinton executive order in place. 
During his tenure, however, OIRA has issued a series of guidance 
documents for agencies--rather from a ``best practices'' guide for 
regulatory impact analyses, to expanded requirements for peer review--
to improve the consistency and quality of reviews under the executive 
order. Most recently, the Administration amended the executive order in 
several, relatively minor, ways----including expanding the role of 
agency ``regulatory policy officers.''
    Today--37 years after the first requirements were imposed, and 28 
years after the creation of OIRA--centralized regulatory review is an 
almost universally accepted part of regulatory landscape. Since the 
first review processes were established, seven Administrations--five 
Republican and two Democratic--have built upon them. Each changed the 
system in various ways, most improving upon that of its predecessor, 
but none has challenged its basic utility or legitimacy.
    As six former OIRA Administrators--including Sally Katzen, the 
administrator under Bill Clinton--wrote in a 2006 joint letter: ``All 
of us . . . recognize the importance of OIRA in ensuring that federal 
rules provide the greatest value to the American people. In our view, 
objective evaluation of regulatory benefits and costs, and open, 
transparent, and responsive regulatory procedures, are necessary to 
avert policy mistakes and undue influence of narrow groups.'' \5\
---------------------------------------------------------------------------
    \5\ James C. Miller III, Christopher DeMuth, Wendy L. Gramm, Sally 
Katzen, John Spotila and John D. Graham, letter the Honorable Susan M. 
Collins and Joseph Lieberman, September 20, 2006.
---------------------------------------------------------------------------
    And, despite early questions by some, the constitutionality of the 
idea of centralized White House review of rulemaking is today not 
seriously challenged. As early as 1981, in fact, the D.C. circuit 
recognized ``the basic need of the President and his White House staff 
to monitor the consistency of agency regulations with Administration 
policy.'' \6\
---------------------------------------------------------------------------
    \6\ Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981).
---------------------------------------------------------------------------
    Moreover, it could be argued that some type of review is 
constitutionally required in order for the president to reasonably meet 
his constitutional duty to ``take care that the laws are faithfully 
executed''.
    To the extent there is any debate over the constitutional 
legitimacy of the process, it is when it conflicts with congressional 
assignments of responsibility or discretion to inferior officers within 
the executive branch. In such cases, some have argued, the president 
may not substitute his judgment for the judgment of the officer 
selected by Congress to perform a particular duty. As argued by Peter 
Strauss of Columbia Law School in previous testimony, the president is 
not ``the decider,'' but merely the ``overseer of decisions by 
others.'' \7\ While the chief executive oversees the performance of 
other executive branch officers, it is argued, he may not assume the 
decisional responsibility granted to them by Congress. Thus, in this 
view, the executive order's provision that disagreements between a 
regulatory agency head and the OIRA administrator be decided by the 
president is unconstitutional.
---------------------------------------------------------------------------
    \7\ Testimony of Peter Strauss before he Subcommittee on 
Investigations and Oversight, Committee on Science and Technology, 
April 26, 2007.
---------------------------------------------------------------------------
    The problem is that this theory flies in the face of the principle 
that executive power under the constitution is not shared--the concept 
of a ``unitary executive.'' Article II of the constitution flatly 
states that, ``[t]he executive power is vested in a President of the 
United States of America.'' Not in plural ``presidents,'' or ``a 
president and other officers designated by Congress,'' but in ``a 
President.''
    The unitary executive concept is not an exotic theory, but one of 
the most commonly-held tenets of our constitutional system. As Steven 
Calabresi and Saikrishna Prakash have observed: ``[T]hat the President 
must be able to control the execution of federal laws is easily 
understood and resonates strongly with the very earliest lessons we 
learn about our constitutional system.'' \8\ And, consistent with those 
lessons, the framers of the constitution clearly rejected the idea of a 
shared executive--rejecting proposals for a multiple presidency and for 
a decision-sharing council.
---------------------------------------------------------------------------
    \8\ Steven G. Calabresi and Saikrishna B. Prakash, ``The 
President's Power to Execute the Laws,'' 104 Yale L.J. 541 (1994).
---------------------------------------------------------------------------
    In modern America, there are of course many examples of non-unitary 
executives. Most states, for example, have one or more elected 
statewide executive officers besides the governor, ranging from 
attorneys general to insurance commissioners. Christopher Berry and 
Jacob Gerson of the University of Chicago, in a forthcoming article, 
write in favor of a similar system for the federal government, 
suggesting the possibility of a ``directly elected War Executive, 
Education Executive, or Agriculture Executive.'' \9\ However, even to 
outline the idea of an ``unbundled executives'' underscores the fact 
that that is not the system we currently have.
---------------------------------------------------------------------------
    \9\ Christopher R. Berry and Jacob E. Gersen, ``The Unbundled 
Executive,'' forthcoming, University of Chicago Law Review.
---------------------------------------------------------------------------
    Of course, the differences between the sides in the current debate 
over the president's powers are not that stark. The unitary executive 
concept does not deny to Congress the assignment of duties to 
individual officers within the executive branch, as long as the 
president is able to exercise ultimate responsibility.
    Conversely, few advocate a fully unbundled executive for the 
federal government. For the most part, even critics of the unitary 
executive concept recognize the president's power to articulate 
priorities and views, request adherence to them, and to dismiss those 
who do not help carry out his agenda.\10\
---------------------------------------------------------------------------
    \10\ With Congress in turn, having some ability to prevent such 
dismissals, the limitations of which are themselves a matter of debate.
---------------------------------------------------------------------------
    This is important, since in practice the president almost never 
needs to issue an ``order'' to a regulatory officer make a particular 
decision. Even in cases where the president serves as the final arbiter 
in a dispute under regulatory review process, the officers involved--
being appointees of the president--almost always accept the articulated 
priorities of the president. And when they do not, resignation or 
dismissal is the next likely option.
    In this sense, the theoretical differences in the debate over the 
unitary executive may not come down to much in practical application. 
Under most any view, the president can legitimately exercise control 
over the rulemaking process.
    And this is as it should be, for many reasons. The most important 
of these--perhaps counter-intuitively--is the check that clear 
responsibility provides over presidential power. Were authority shared 
among multiple persons in the executive branch, it would be relatively 
easy for the chief executive to avoid accountability for his actions. 
He would always be able to point his finger to some other officer, and 
mumble ``my hands were tied.'' But with ultimate authority vested in 
the president, he is held to account for decisions, enabling voters--as 
well as other policymakers--to assign blame or credit.
    It should also be noted that a strong, system of centralized 
regulatory review, anchored in presidential authority, does not 
necessarily imply either more or less regulation. It simply means that 
the president's priorities--whatever they are--will be more accurately 
represented in decision making.
    Lastly, none of this means that Congress has no role--or indeed 
does not have the primary role--in the regulatory policy. Just as the 
constitution provides the president with executive power, Congress has 
ultimate legislative authority. If Congress disagrees with how the 
terms of a statute are applied in rules promulgated by the executive 
branch, it can simply make the statute more explicit (or even better, 
make its intent clear in the first instance).
    Moreover, under the Congressional Review Act of 1996, a particular 
regulatory decision may be specifically ``disapproved'' by Congress. 
The statute--though so far rarely used--provides for expedited 
consideration by both Houses of a resolution of disapproval of a 
specific rulemaking. If approved by Congress, the resolution can take 
effect, even over a presidential veto, given sufficient support in 
Congress.
    More generally, Congress's influence over regulatory policy could 
also be expanded through institutional changes within Congress, 
including the creation of a ``Congressional Regulation Office.'' While 
Congress today receives detailed information from the Congressional 
Budget Office on the state of the budget and on proposals that would 
affect the budget, it has no similar source of information on 
regulatory programs. A Congressional Regulation Office would help to 
fill this gap. Such an office could review the regulatory impact of 
legislative proposals and report on the effects of rules adopted by 
agencies. In this way, it could act as both a complement to and a check 
on OIRA.
    Lastly, to minimize the need for White House intervention in agency 
decision-making, policymakers should strengthen the ability of agencies 
themselves to evaluate the effects of their own regulations. Review and 
analysis need not be an adversarial process. Ideally, critical 
examination of the purpose and effects of proposed rules begins within 
the agency itself. To facilitate this, policymakers should ensure that 
each agency has sufficient analytical resources, and well as well-
designed internal review office to ensure that those resources are used 
meaningfully.
    Systematic and centralized regulatory review of federal regulations 
is not only a legitimate use of presidential power, but--given the vast 
scope of rulemaking--virtually essential to taking care that the laws 
are faithfully executed. Congress nevertheless retains a primary role 
in regulatory policy--which can be exercised through more explicit 
legislation, review of specific rulemakings, and by expanding its own 
institutional capability to review and analyze the effects of rules.
    Thank you for your time. I would be glad to answer any questions.

    Mr. Johnson. Thank you, Mr. Gattuso.
    Dr. Melberth, would you grace us with your testimony, 
please.

TESTIMONY OF RICK MELBERTH, DIRECTOR OF REGULATORY POLICY, OMB 
                     WATCH, WASHINGTON, DC

    Mr. Melberth. Mr. Johnson, Mr. Cannon, thank you for the 
opportunity to appear today.
    OMB Watch has monitored Federal regulatory policy and 
changes for the last 25 years. It is our view that today's 
regulatory process goes far beyond centralizing regulatory 
authority and instead gives the President unique and 
unparalleled authority, thus subordinating agency 
responsibility to implement statutory requirements.
    The application of the unitary theory gives the President 
control over substantive decision-making of agencies. This has 
the perverse impact of injecting and elevating politics into 
decisions where science and rational judgment should prevail.
    In the end, we believe the public is poorly served by 
applying this unitary theory to regulatory decision-making and 
it threatens the Constitutional separation of powers.
    I would like to focus my testimony on one aspect of the 
changes to the regulatory process created by President Bush, 
specifically the changes made by Executive Order 13422 to the 
concept of the regulatory policy officer.
    The role of the RPO as envisioned by EO 12866 was to 
coordinate and implement agency responsibilities regarding 
regulatory planning and review. The RPO's role, in practice, 
was somewhat different across agencies, but the essential 
points are that the RPOs were appointed by agency heads, 
reported to these agency heads, and were participants in the 
regulatory process within the agency, not the driver of that 
process.
    The final responsibility for agency rulemaking rested with 
a politically-appointed agency head confirmed by the Senate.
    Two of President Bush's amendments to EO 12866 impact the 
RPO. First, agencies are now required to designate a political 
appointee as their RPO. Second, the officer's responsibilities 
are increased. The RPO is now charged with approving an 
agency's regulatory plan, a responsibility previously given to 
the agency head.
    The responsibilities of these agencies have been 
substantially increased, yet they are not subject to Senate 
confirmation in their role as RPOs and their actions are not 
public. Subsequently, the RPOs are not likely to be accountable 
to Congress or to the American people.
    We have also expressed concern that the point at which a 
rulemaking shall commence is unclear. This ambiguity could 
allow the RPO to exert influence at any stage in the rulemaking 
process and could prevent important scientific research or 
analysis from taking place. Nor do we know when or whether an 
RPO has prevented a rulemaking from taking place or the hurdles 
that may exist to begin or continue a rulemaking.
    What remains among our greatest concerns, however, about 
the RPO structure is the opportunity for unprecedented 
interference in the information that goes into those regulatory 
decisions. The RPO structure has the potential to allow 
interference in the collection and analysis of all types of 
information necessary to make important public health and 
safety, environmental and workplace regulatory decisions.
    Having been given the power to initiate regulations, we 
fear the RPO will further decrease agency rulemaking discretion 
and increase the trend toward OIRA dictating agency rulemaking. 
OIRA's involvement in agency decision-making is already well 
documented. For example, in September 2003, GAO issued a report 
on OMB's role in reviewing agency health safety and 
environmental rules and among the findings are that OIRA's 
greatest influence, by its own admission, is over rules in the 
period before draft rules are submitted to OIRA for review.
    OIRA made changes to rules regarding tire pressure safety, 
control of air omissions, hazardous air pollutant listings, and 
minimizing adverse environmental impacts from cooling water 
intake structures.
    Currently, various White House officials are interfering in 
a National Oceanic and Atmospheric Administration rule to 
extend protections to the North Atlantic Right Whale. In April 
2008, documents obtained by the Union of Concerned Scientists 
and released by the House Oversight and Government Reform 
Committee show that not only is OIRA delaying the Right Whale 
rule, but it is actively working to undermine the scientific 
basis for the regulation.
    The documents show that two offices, the Council of 
Economic Advisors and the Office of Science and Technology 
Policy, reanalyzed aspects of the regulatory science and 
attempted to use their analyses to question NOAA's findings. 
Another document shows the office of the Vice President 
questioned the validity of published studies NOAA is using as 
the basis for the rule and contended the agency lacks ``hard 
data.''
    This certainly appears to be a situation in which political 
appointees are attempting to change the result of rigorous 
scientific analysis by altering data to fit a political result 
where science and rational judgment should prevail. Today's 
regulatory structure allows political appointees to have 
greater control over the substance of regulations. Politics 
supersedes scientific and technical information that is 
critical to protecting our environment and health and safety.
    This concludes my remarks. Thank you.
    [The prepared statement of Mr. Melberth follows:]
                  Prepared Statement of Rick Melberth
    Thank you for the opportunity to testify before you today. I am 
Rick Melberth, Director of Regulatory Policy for OMB Watch. OMB Watch 
is a nonprofit, nonpartisan research and advocacy center promoting an 
open, accountable government responsive to the public's needs. Founded 
in 1983 to remove the veil of secrecy from the White House Office of 
Management and Budget, OMB Watch has since then expanded its focus 
beyond monitoring OMB itself. We currently address four issue areas: 
right to know and access to government information; advocacy rights of 
nonprofits; effective budget and tax policies; and the use of 
regulatory policy to protect the public.
    It is in the context of OMB Watch monitoring federal regulatory 
policies for the past 25 years that I appear before you today. My 
testimony focuses on 1) a brief history of centralized review of agency 
regulations, 2) the changes to the regulatory process made by the Bush 
administration, 3) issues of concern with requiring Regulatory Policy 
Officers (RPOs) to be presidential appointees, and 4) a few examples of 
executive branch intrusions into agency decision making processes. It 
is our view that today's regulatory practices go far beyond 
``centralizing'' regulatory review and give the president unique and 
unparalleled authority, thus subordinating agency responsibility to 
implement statutory requirements. The application of the unitary theory 
gives the president and a cadre of employees that represent the 
president control over the substantive decision making of agencies. 
This has the perverse impact of injecting and elevating politics into 
decisions where science and rational judgment should prevail. In the 
end, we believe the public is poorly served by applying this unitary 
theory to regulatory decision making, and it threatens the 
constitutional separation of powers.

                    I. History of Centralized Review

    The 1980 Paperwork Reduction Act, among other things, created a 
small office within the Office of Management and Budget (OMB), the 
Office of Information and Regulatory Affairs (OIRA), to coordinate the 
information collection activities of federal agencies. Designed as a 
good government law, the PRA was used as a vehicle by the Reagan 
administration to reduce government red tape, a Reagan campaign 
promise. It gave OIRA the power to approve any collection of 
information from 10 or more people, including paperwork associated with 
implementing regulations.
    In February 1981, a few weeks after taking office, President Reagan 
issued Executive Order 12291 (E.O. 12291) which established a major 
role for OMB--and OIRA in particular--in the review and approval of 
proposed rules put forth by federal agencies. Under the order the 
Director of OMB ``is authorized to review any preliminary or final 
Regulatory Impact Analysis, notice of proposed rulemaking, or final 
rule based on the requirements of this Order.'' \1\ The other notable 
condition imposed by this order was the requirement that agencies use a 
cost versus benefits analysis to be reviewed by OIRA as an important 
factor justifying the need for regulatory action.
---------------------------------------------------------------------------
    \1\ Executive Order 12291, Sec. 3(e)(1). Federal Register Vol. 46, 
p. 13193, February 19, 1981.
---------------------------------------------------------------------------
    There have been a number of reports and congressional hearings 
demonstrating how E.O. 12291 shifted the balance of power, giving the 
White House OMB new leverage over agencies. OMB was known to have 
changed the substance of agency rules and for agencies that bucked the 
tide, OMB would keep rules under review forever, a type of hostage 
taking. This led to OMB being nicknamed the ``black hole.'' Moreover, 
E.O. 12291 and the PRA gave OIRA several bites of the same apple. It 
reviewed an agency's proposed rule, its paperwork to carry it out, and 
its final rule. At any time, OMB could force the agency to do what it 
wanted. And in the backdrop was always fear that OMB also controlled 
the agency's budget. OMB carried a big stick.
    Still not satisfied that it had enough control over agency 
rulemaking, in January 1985, President Reagan issued a second executive 
order (E.O. 12498) that created a regulatory planning process to 
coordinate the agencies' regulatory plans with the administration's 
regulatory objectives. An agency was now to ``submit to the Director of 
the Office of Management and Budget (OMB) each year, starting in 1985, 
a statement of its regulatory policies, goals, and objectives for the 
coming year and information concerning all significant regulatory 
actions underway or planned.'' \2\ One effect of this order was to 
provide OMB with access to agency decision making before proposed rules 
were submitted to OMB for review under E.O. 12291, and before the 
public's right to comment on proposed rules as set out in the 
Administrative Procedure Act (APA).
---------------------------------------------------------------------------
    \2\ Executive Order 12498, Sec. 1(a). Federal Register Vol. 50, p. 
1036, January 8, 1985.
---------------------------------------------------------------------------
    As noted at the time, OMB felt it was too hard to change the 
substance of rules when it did its E.O. 12291 review. They argued that 
various constituencies and advocacy efforts were already in place. As 
OIRA Administrator Douglas Ginsburg said in December 1984: ``Agencies 
have been working on proposed regulations long before they come to 
notice and comment. Then we get ourselves in a confrontation with the 
agency over the end product.'' \3\ Accordingly, OMB wanted to intercede 
in the agency process as early as possible. Hence, the idea for E.O. 
12498 was born.
---------------------------------------------------------------------------
    \3\ OMB Watch, Through the Corridors of Power: A Citizen's Guide to 
Federal Rulemaking, (Washington, DC: OMB Watch, 1987), p. 26.
---------------------------------------------------------------------------
    These two orders, combined with the statutory authority granted 
under the PRA, created what we now recognize as centralized regulatory 
review, i.e., White House review of regulations for consistency with 
the president's policy priorities. The power to coordinate information 
collection and to review proposed and final regulations in a policy 
office of the White House, made OMB the equivalent of a political 
censor over agency actions. Even if it did not censor, its authority to 
subordinate agency decision making was clear.
    As Christopher DeMuth and Douglas Ginsburg, both OIRA 
administrators, wrote in the Harvard Law Review (March 1986), White 
House centralized review of regulations was an ``appropriate response 
to the failings of regulation.'' \4\ They noted that regulation tends 
``to favor narrow, well-organized groups at the expense of the general 
public'' \5\ and that centralized review, on the other hand, 
``encourages policy coordination, greater political accountability, and 
more balanced regulatory decisions.'' \6\ Yet our perspective is 
exactly opposite. Centralized review, as epitomized by the role of 
OIRA, has further politicized the rulemaking process, brought less 
accountability, and produced less protective rules.
---------------------------------------------------------------------------
    \4\ DeMuth, Christopher C.and Douglas H. Ginsburg, ``Commentary: 
White House Review of Agency Rulemaking'' in Harvard Law Review, Vol. 
99, (1986) p. 1081.
    \5\ Ibid., p. 1080.
    \6\ Ibid., p. 1081.
---------------------------------------------------------------------------
    During the presidency of George H. W. Bush, the Quayle Council on 
Competitiveness emerged to further politicize the regulatory process by 
giving the Vice President's office authority to oversee OIRA's actions. 
The Quayle Council also provided greater access to campaign 
contributors and business interests concerned with regulatory burdens--
and none of its activities were required to be disclosed. The Quayle 
Council interfered with numerous health, safety, and environmental 
regulations to the benefit of regulated businesses.\7\ It even imposed 
an extended moratorium on regulations in 1992. All this contributed to 
a highly centralized reviewing authority cloaked in secrecy. To the 
public, Congress and the courts, the agency issuing the regulation was 
held accountable; yet the White House, through OMB and the Quayle 
Council, was pulling the strings.
---------------------------------------------------------------------------
    \7\ Bass, Gary D., ``Executive Management'' in Changing America: 
Blueprints for the New Administration, edited by Mark Green. New York: 
Newmarket Press, 1992.
---------------------------------------------------------------------------
    On the first day that President Clinton took office in 1993, he 
ended the Quayle Council and called for a more accountable and 
transparent rulemaking process. Several months later, in September, he 
revoked the Reagan orders but consolidated their requirements in 
Executive Order 12866. This is the executive order, with amendments, 
that provides the framework for the current regulatory process.
    Most of the elements of centralized review as defined by the Reagan 
orders remained intact, including the use of cost-benefit analysis, 
annual regulatory planning, the preparation of regulatory impact 
analyses, and the prohibition on any agency action on a rule until 
after it has been reviewed by OIRA. The biggest change was in limiting 
the regulations to be reviewed to the most significant rules, whereas 
the Reagan orders required all regulations to be reviewed by OIRA. In 
addition, the order requires greater transparency on the part of OIRA 
regarding communications about proposed rules with those outside of 
government. It also requires each agency head to establish a regulatory 
policy officer ``who shall report to the agency head.'' \8\ Note the 
requirement that it is the agency head who shall appoint the RPO and 
the agency head to whom the RPO reports.
---------------------------------------------------------------------------
    \8\ Executive Order 12866, Sec. 6(a)(2). Federal Register Vol. 58, 
p. 51735, September 30, 1993.
---------------------------------------------------------------------------

               II. Bush Administration Regulatory Changes

    President George W. Bush has made two amendments to E.O. 12866 
during his presidency. The first, in February 2002, received little 
public attention and only had a minor impact on the regulatory process. 
E.O. 13258 removed from the Clinton order the roles assigned to the 
Vice President and reassigned those duties to the Director of OMB and 
other senior policy advisors. E.O. 12866 had the Vice President playing 
the role of mediator between the agency heads and OMB when disputes 
arose over a regulatory policy decision.
    Even though the Vice President's role was removed by the Bush 
order, it turns out that Vice President Cheney has played an active 
role in shaping selected regulations. In a Washington Post series about 
the Vice President, the paper recounted his personal involvment in 
overturning an Endangered Species Act decision affecting the Klamath 
River basin in Oregon, among others.\9\ Later in this testimony, I 
provide more evidence of the Vice President's involvement.
---------------------------------------------------------------------------
    \9\ Becker, Jo and Bart Gellman, ``Leaving No Tracks.'' The 
Washington Post, June 27, 2007. ``Because of Cheney's intervention, the 
government reversed itself and let the water flow in time to save the 
2002 growing season, declaring that there was no threat to the fish. 
What followed was the largest fish kill the West had ever seen, with 
tens of thousands of salmon rotting on the banks of the Klamath 
River.''
---------------------------------------------------------------------------
    The second change came on January 18, 2007, when President Bush 
issued amendments to E.O. 12866 which continued the shift toward 
further centralizing regulatory power in OIRA. These amendments, 
prescribed in E.O. 13422, shift power away from the federal agencies, 
which are given regulatory power by legislative enactments, and usurp 
congressional powers. It is another brick in the foundation this 
administration has been building for a unitary theory of the 
presidency, one in which not only the executive branch is superior to 
the other branches in our constitutional system but that the White 
House exhibits significant control over the agencies.
    After E.O. 13422 was issued, OMB Watch issued an analysis of the 
changes and expressed our concern about this continued accretion of 
power in OIRA. We wrote that among the changes:

          The executive order shifts the criterion for 
        promulgating regulations from the identification of a problem 
        like public health or environmental protection to the 
        identification of a ``specific market failure (such as 
        externalities, market power, lack of information . . . that 
        warrant new agency action.''

          It makes the agencies' Regulatory Policy Officer a 
        presidential appointee and gives that person the authority to 
        approve any commencement or inclusion of any rulemaking in the 
        Regulatory Plan, unless specifically otherwise authorized by 
        the agency head.

          It requires each agency to estimate the ``combined 
        aggregate costs and benefits of all its regulations planned for 
        that calendar year to assist with the identification of 
        priorities.''

          It requires ``significant'' guidance documents to go 
        through the same OMB review process as proposed regulations 
        before agencies can issue them.

          It also requires ``economically significant'' 
        guidance documents (those that are estimated to have at least a 
        $100 million effect on the economy, among other criteria) to go 
        through the same OMB review process as ``significant'' 
        regulations.\10\
---------------------------------------------------------------------------
    \10\ OMB Watch, A Failure to Govern: Bush's Attack on the 
Regulatory Process, March 2007, p. 3. Available at http://
www.ombwatch.org/article/articleview/3774

I want to focus my testimony at this point on one aspect of these 
changes created by E.O. 13422, the regulatory policy officer.

                III. The Regulatory Policy Officer (RPO)

    As noted above, the regulatory policy officer is a creation of the 
Clinton era executive order. Under Section 6 of E.O. 12866, Centralized 
Review of Regulations, the responsibilities of the agencies and of OIRA 
are outlined. Section 6(a)(2) states:

        Within 60 days of the date of this Executive order, each agency 
        head shall designate a Regulatory Policy Officer who shall 
        report to the agency head. The Regulatory Policy Officer shall 
        be involved at each stage of the regulatory process to foster 
        the development of effective, innovative, and least burdensome 
        regulations and to further the principles set forth in this 
        Executive order.

    The role of the RPO as envisioned was to coordinate and implement 
agency responsibilities regarding regulatory planning and review of 
regulations. These responsibilities are described in the preceding 
paragraph of the order and include: 1) allowing ``meaningful'' public 
participation in the regulatory process, 2) informing stakeholders of 
pertinent regulations, 3) providing OIRA with a list of planned 
regulatory actions, 4) providing OIRA with cost-benefit analyses for 
significant regulatory actions, and 5) making available to the public 
information on proposed and final regulations.
    The RPO's role in practice was somewhat different across agencies. 
Not every agency maintained one designated RPO. The Department of 
Agriculture (USDA), for example, had various officials serving as de 
facto RPOs. Issue expertise determined where responsibilities rested on 
a specific regulation. In the Department of Energy, the RPO functioned 
as an agency counselor. The RPOs were not necessarily political 
appointees in all agencies, but the final regulatory decisions within 
agencies were in the hands of political appointees ultimately, usually 
the agency head or his or her designee. The essential points are that 
RPOs were appointed by agency heads, reported to those respective 
agency heads, and were participants in the regulatory process within 
the agency, not the driver of that process. The final responsibility 
for agency rulemaking rested with the politically appointed agency 
head, confirmed by the Senate.
    Two of President Bush's amendments to E.O. 12866 impact the RPO. 
First, agencies are now required to designate a political appointee as 
their RPO, and were to do so within 60 days of the issuance of the 
amendments. New text also requires OMB to verify this designation.
    Second, in addition to changing the requirements of the designated 
RPO, the Officer's responsibilities are increased. The RPO will now be 
charged with approving an agency's Regulatory Plan, a responsibility 
previously given to the agency head. The amendments state that ``no 
rulemaking shall commence nor be included'' for consideration in the 
agency's regulatory plan without the political appointee's approval. 
The Regulatory Plan includes the most important regulations which an 
agency plans in a given year.
    In OMB Watch testimony in April 2007, we expressed concern about 
the increased politicization these changes may have introduced into 
agency decision making:

        By requiring the Officer to be a political appointee, the 
        amendments suggest a further politicization of the regulatory 
        process. OMB Watch is concerned that by installing a political 
        appointee as the RPO and increasing the responsibilities, that 
        appointee will significantly affect an agency's ability to 
        regulate in a fair and nonpartisan fashion.\11\
---------------------------------------------------------------------------
    \11\ Testimony of Gary Bass, Executive Director of OMB Watch before 
the House Committee on Science and Technology, Subcommittee on 
Investigation & Oversight, April 26, 2007, on ``Amending Executive 
Order 12866: Good Governance or Regulatory Usurpation?'' Available at: 
http://www.ombwatch.org/article/articleview/4096/1/360?TopicID=7

    In late July, 2007, OMB released a list of RPOs for each agency. Of 
the 29 RPOs on the list, 27 have been confirmed by the Senate in their 
agency roles but not in their role as RPOs. The remaining two are 
political appointees who did not require any Senate confirmation. Nine 
of the sixteen cabinet level RPOs are General Counsel positions.
    OIRA Administrator Susan Dudley framed this as a good government 
measure because one person will be accountable for major regulatory 
decisions in each agency.\12\ This could not be further from the truth. 
The responsibilities of these officials have been substantially 
increased, yet they are not subject to Senate confirmation in their 
role as RPOs and their actions are not public. Subsequently, the RPOs 
are not likely to be accountable to Congress or the American people. 
Given the ability to significantly impact regulatory outcomes, these 
people should be confirmed by the Senate for these additional job 
responsibilities--responsibilities not foreseen when they were 
confirmed for their current positions.
---------------------------------------------------------------------------
    \12\ Skrzycki, Cindy, ``Bush, Congress Battle to Control 
Bureaucracy,'' Bloomberg News, July 17, 2007.
---------------------------------------------------------------------------
    We also have expressed concern that the point at which ``a 
rulemaking shall commence'' is also unclear. OIRA has provided a vague 
and unhelpful definition and has acknowledged the commencement of a 
rulemaking may differ from agency to agency.\13\ This ambiguity could 
allow the RPO to exert influence at any stage in the rulemaking process 
and could prevent important scientific research or analysis from taking 
place. Nor do we know when or whether an RPO has prevented a rulemaking 
from taking place or the hurdles that may exist to begin and continue a 
rulemaking. If the current RPO approach is not changed by the next 
president, we encourage Congress to investigate how RPOs perform their 
responsibilities, and to establish disclosure policies to close the gap 
in transparency of this aspect of the rulemaking process.
---------------------------------------------------------------------------
    \13\ In an April 25 memo instructing agencies on how to comply with 
the E.O. and the Final Bulletin, OIRA included the following definition 
of ``commence'' as it pertains to agency rulemaking: ``The point at 
which a rulemaking commences may vary from one agency to the next, 
depending on each agency's procedures and practices, and may vary from 
rulemaking to rulemaking. As a general matter, a rulemaking commences 
when the agency has decided as an institutional matter that it will 
engage in a rulemaking. At the latest, the rulemaking will commence 
when the rulemaking receives a Regulation Identification Number 
(RIN).'' M-07-13, Implementation of Executive Order 13422 (amending 
Executive Order 12866) and the OMB Bulletin on Good Guidance Practices 
(April%, 2007), available at: http://www.whitehouse.gov/omb/memoranda/
fy2007/m07-13.pdf
---------------------------------------------------------------------------
    In some agencies, the amendments related to the RPO may have little 
effect on regulatory development. In the case of the Department of 
Energy, the RPO is already a political appointee albeit without the 
sole responsibility to initiate regulations and without final decision 
making authority over regulations (unless one or both powers have been 
delegated to the RPO by the agency head). The White House is unlikely 
to have a greater or lesser impact on the way in which regulations are 
formulated within that agency. Similarly, the process in the Department 
of Labor is likely to go unchanged.
    In other agencies, however, the RPO change will likely centralize 
the regulatory process and create OIRA-like structures within agencies 
even though OIRA has been criticized over the years for exerting 
political influence. In the case of USDA, this change, if followed, 
will end the process of dividing regulatory authority based upon 
experience and expertise. Instead, the RPO will ultimately be 
responsible for all regulatory decision making and be involved in 
regulatory discussions from the beginning of agency considerations. 
Furthermore, installing a political appointee where one did not 
previously exist will facilitate White House input into agency 
regulatory matters.
    We acknowledge that a president has the right to oversee agency 
decision making and hold accountable those agency heads to whom he has 
delegated responsibility. Professor Peter Strauss has pointed out in 
his testimony before this Subcommittee and in other testimony and 
writings--and others have addressed as well--the distinction between 
making that decision and delegating that decision to accountable 
political appointees. This debate is an important one to have and to 
constantly revisit as each president makes his or her mark upon the 
institution of the presidency.
    When Congress, however, explicitly legislates that a regulatory 
decision shall be made by an agency head and that decision shall be 
based on specific criteria, there is virtually no basis for reasonable 
people to disagree that the president does not have the authority to 
make the decision. The instance of President Bush overriding the EPA 
decision in the ozone rulemaking that Prof. Strauss discusses is one 
such example of constitutional overreaching.
    What remains among our greatest concerns, however, about the RPO 
structure as required by E.O. 13422 is the opportunity for 
unprecedented interference in the information that goes into those 
regulatory decisions before policy makers are rightfully involved in 
the final agency decision. For agency experts to do their jobs as 
mandated by Congress in statutory delegations to agencies, information 
critical to those policy decisions must be free from political 
interference. The RPO structure has the potential to allow interference 
in the collection and analysis of all types of information necessary to 
making important public health and safety, environmental, and workplace 
safety regulatory decisions.
    But, of course, the public will never know the extent to which RPOs 
have stopped, delayed, or interfered with the quality of decision 
information because there is no transparency and accountability imposed 
on the RPOs. There are numerous documented instances where OIRA has 
interfered in agency decisions and in the information used to make 
those decisions, as this testimony documents below.
    To what extent will the RPO be a de facto OIRA official sitting in 
the agency coordinating and carrying out the responsibilities of the 
OIRA desk officers during the pre-rulemaking stage? Having been given 
the power to initiate regulations, we fear the RPO will further 
decrease agency rulemaking discretion and increase the trend toward 
OIRA dictating agency rulemaking. Transparency can prove our fear is 
groundless.

         IV. Executive Office of the President Intrusions into 
                         Agency Decision Making

    As I mentioned above, the involvement by OIRA in agency decision 
making is well-documented. For example, in September 2003, the General 
Accounting Office (GAO) (as the Government Accountability Office was 
then known) issued a report on OMB's role in reviewing agency health, 
safety, and environmental rules.\14\ Among the findings are that OIRA's 
greatest influence over rules is in the period before draft rules are 
submitted to OIRA for review, and that rules from EPA and the 
Department of Transportation were the rules most significantly changed 
and returned. Among the changes OIRA made were to rules regarding:
---------------------------------------------------------------------------
    \14\ General Accounting Office, OMB's Role in Reviews of Agencies' 
Draft Rules and the Transparency of Those Reviews. September 2003. 
Available at: www.gao.gov/cgi-bin/getrpt?GAO-03-929.

          tire pressure safety (mostly to do with changing the 
---------------------------------------------------------------------------
        cost-benefit analysis),

          control of air emissions rules (by changing language 
        that EPA was ``considering'' adoption of standards from 
        ``proposing'' the adoption of standards, thus affecting the 
        cost-benefit analysis)

          hazardous air pollutants from wood product coatings 
        (by delaying the compliance dates of the rule from 2 to 3 years 
        after the date of the final rule)

          proposed nonconformance penalties for heavy-duty 
        diesel emissions (by changing EPA's choice of discount rates, 
        fuel prices, and changing language regarding assumptions)

          listing manganese as a hazardous waste (OIRA deferred 
        action on listing manganese thus killing the rule outright) and

          minimizing adverse environmental impacts from cooling 
        water intake structures (by making changes to which industries 
        would be covered by the rule by changing scientific and 
        engineering standards).\15\
---------------------------------------------------------------------------
    \15\ This case was challenged in court. The Supreme Court has 
recently granted certiorari and will hear this case in its new term.

    More recently, we have seen many more examples of OIRA's work to 
delay, weaken, or override agency regulations proposed by agencies, and 
continued interference in generating the information that goes into 
these decisions. The ozone decision is but one instance, although 
perhaps the most blatant, of executive branch interference at the 
decision making level.
A. Interference in Regulatory Standards
    Although the Vice President was removed from the regulatory process 
by E.O. 13258, OMB Watch has documented instances in which 
representatives from Vice President Cheney's office have been involved 
in high profile environmental and national security regulations during 
OIRA's meetings with industry representatives, especially in 2007. Not 
only did someone from the Office of the Vice President (OVP) attend 
meetings about setting the ozone standard, but also attended four 
meetings about Department of Homeland Security (DHS) chemical security 
regulations. The final rules were actually weaker in their reporting 
thresholds than what DHS proposed. According to information posted on 
the OMB website, as of November 2007, OIRA had held more than 540 
regulatory review meetings since E.O. 13258 was issued in 2002. A 
representative from OVP has been present at only 11, about two percent. 
However, eight of those 11 meetings have occurred since February 2007, 
including the four meetings on the DHS chemical security rule.\16\
---------------------------------------------------------------------------
    \16\ OMB Watch, Vice President Reemerging in Regulatory Review 
Meetings. November 6, 2007. Available at: http://ombwatch.org/article/
articleview/4067/1/85/?TopicID=2.
---------------------------------------------------------------------------
    Currently, various White House offices are interfering in a 
National Oceanic and Atmospheric Administration (NOAA) rule to extend 
protections to the North Atlantic right whale. OIRA is serving both as 
a party to the interference and as a conduit through which other 
offices can exert pressure.
    After initiating the rulemaking in 1998, NOAA's National Marine 
Fisheries Service published a notice of proposed rulemaking in June 
2006 which, if finalized as written, would impose a speed limit of 10 
knots on large shipping vessels traveling in the Atlantic Ocean during 
seasons when the right whale is most active. NOAA decided to take this 
course of action because collisions with ships are one of the leading 
causes of death for the North Atlantic right whale. The agency 
estimates the right whale population has dwindled to about 300 with at 
least 19 deaths caused by ship strikes in the past 22 years.\17\
---------------------------------------------------------------------------
    \17\ National Oceanic and Atmospheric Administration, Proposed Rule 
to Implement Speed Restrictions to Reduce the Threat of Ship Collisions 
with North Atlantic Right Whales, Federal Register, Vol. 71, p. 
36299,June 26, 2006.
---------------------------------------------------------------------------
    In February 2007, NOAA sent a draft of the final rule to OMB for 
review. Under E.O. 12866, OIRA is to review proposed rules within 90 
days with one possible extension of 30 days. The rule remains under 
review 440 days later.
    In April 2008, documents obtained by the Union of Concerned 
Scientists and released by the House Oversight and Government Reform 
Committee show that not only is OIRA delaying the right whale rule, it 
is actively working to undermine the scientific basis for the 
regulation.\18\
---------------------------------------------------------------------------
    \18\ The documents are available on the committee's website at: 
http://oversight.house.gov/story.asp?ID=1921.
---------------------------------------------------------------------------
    The documents show that two offices, the Council of Economic 
Advisors and the Office of Science and Technology Policy, reanalyzed 
aspects of the regulatory science and attempted to use their analyses 
to question NOAA's findings. The CEA recalculated statistical models 
and questioned the validity of published literature in an attempt to 
undermine NOAA's finding that ship speed bears a relationship to whale 
mortality. Another document shows the Office of the Vice President 
questioned the validity of published studies NOAA is using as the basis 
for the rule and contended the agency lacks ``hard data.''
    Nowhere in any of the documents does a White House official express 
an opinion on the rule or present alternative policy options. However, 
the scientific opinions the officials are advancing would weaken NOAA's 
scientific argument and allow opponents to more easily assail the rule. 
Ultimately, this kind of scientific interference can lead to weaker 
protections, or a complete absence of protections.
B. Interference in Generating Information
    Curtis Copeland from the Congressional Research Service (CRS) has 
provided testimony to the Subcommittee addressing the numerous ways in 
which OIRA has used administrative mechanisms to interfere with the 
generation of information important to setting standards. I do not wish 
to repeat Dr. Copeland's testimony, but only to reiterate there have 
been many mechanisms employed by OIRA to impact the quality of 
information produced by agency experts. Among those mechanisms are 
directives on the use of cost-benefit analysis, peer review guidelines, 
data quality challenges, and an unsuccessful attempt to impose a one-
size-fits-all risk assessment process on agencies. What follows are a 
few examples of this interference in health and safety standards.
    OIRA and other political staff have increasingly waded into the 
scientific aspects of decision making, even before that science becomes 
relevant for any particular rulemaking. Most environmental, public 
health, and safety standards are based on rigorous scientific research 
and findings. By controlling the scientific information behind these 
standards, politics can erode the very foundation upon which 
regulations are built.
    One example is EPA's Integrated Risk Information System (IRIS). 
IRIS is a publicly searchable database for studies and information on 
the human health effects of chemical substances. EPA scientists and 
policymakers use the information in the database to make determinations 
about the risk of various substances. EPA studies both the carcinogenic 
and noncarcinogenic effects of substances and determines safe or 
tolerable exposure thresholds when possible. IRIS assessments can 
inform regulatory action intended to protect humans from the harmful 
effects of certain substances.
    In 2004, according to a GAO report, OMB directed EPA to begin 
routinely submitting draft assessments to OMB for an interagency 
review. Previously, the need for reviews had been determined on a case 
by case basis.\19\ At two points in the current IRIS process, EPA must 
submit drafts of chemical assessments to OMB for review. OMB does the 
bulk of its interfering during these review periods. OMB voices its own 
opinions on the chemical assessment and solicits the opinions of other 
federal agencies such as the Department of Defense, the Department of 
Energy, and NASA. EPA is prohibited from proceeding with the assessment 
until it receives explicit approval from OMB.\20\
---------------------------------------------------------------------------
    \19\ Government Accountability Office, Chemical Assessments: Low 
Productivity and New Interagency Review Process Limit the Usefulness 
and Credibility of EPA's Integrated Risk Information System, March 
2008. GAO-08-440. Available at: http://www.gao.gov/new.items/
d08440.pdf.
    \20\ Ibid.
---------------------------------------------------------------------------
    OMB may interfere with the chemical assessments by suggesting to 
EPA its own scientific judgments or by forcing EPA to consider 
scientific studies that fit OMB's policy preferences. Alternatively, or 
additionally, OMB can delay work on an assessment. The IRIS process 
contains no time limits for the OMB review period.
    In April 2008, EPA announced changes to its IRIS procedures which 
now involve OMB at even more stages in the process. The changes 
emanated from a working group comprised of officials from EPA, OMB, the 
Pentagon, and other federal agencies. All comments from OMB or other 
agencies will continue to be considered deliberative executive branch 
proceedings, allowing any incidences of scientific manipulation to 
evade public scrutiny.
    In another example, in March 2007, a Department of Interior 
investigation found Julie A. MacDonald, the deputy assistant secretary 
for fish, wildlife and parks, allowed political considerations to taint 
a number of decisions in which the Fish and Wildlife Service (FWS) 
decided not to consider certain species endangered. Among the 
transgressions, MacDonald leaked internal agency documents to industry 
lobbyists and intimidated agency staff in order to manipulate 
scientific evidence. MacDonald resigned in April 2007 as a result of 
the scandal. In response to public pressure and the scrutiny of the 
House Natural Resources Committee, FWS decided to review eight 
endangered species decisions by MacDonald. In November, FWS announced 
it had confirmed impropriety in seven of the eight decisions and is now 
reviewing them.
    Another example of scientific interference this time coupled with 
censoring government officials came to light in October 2007. Dr. Julie 
Gerberding, Director of the Centers for Disease Control and Prevention, 
had her testimony about the threat global warming poses to public 
health substantially cut by OMB before Dr. Gerberding was allowed to 
testify before the Senate Environment and Public Works Committee on 
October 23rd. Seven pages, about half, of the testimony was deleted 
from the draft submitted for OMB's review. The removed sections 
included information on extreme weather events and food and water-borne 
disease, among other things. Climate Science Watch obtained a copy of 
the draft as submitted and the censored version and posted the two on 
its website the day after the hearing.\21\
---------------------------------------------------------------------------
    \21\ See these postings at Climate Science Watch's website, 
available at: http://www.climatesciencewatch.org/index.php/csw/details/
censored_cdc_testimony/
---------------------------------------------------------------------------
    Lastly, I would like to recommend to the committee two reports 
recently issued by the Union of Concerned Scientists that have broadly 
documented examples of political interference in scientific 
information.\22\ The first of these, Federal Science and the Public 
Good: Securing the Integrity of Science in Policy Making, documents 
interference across federal agencies providing specific examples, like 
the above, of misrepresenting science and the results of research, 
deleting and editing scientific information, and suppressing science, 
among other examples.
---------------------------------------------------------------------------
    \22\ Union of Concerned Scientists, Science Integrity Program, 
Federal Science and the Public Good: Securing the Integrity of Science 
in Policy Making. February 2008. Available at: http://www.ucsusa.org/
scientific_integrity/restoring/scientificfreedom.html. And Interference 
at the EPA: Science and Politics at the U.S. Environmental Protection 
Agency. April 2008. Available at: http://ucsusa.org/
scientific_integrity/interference/interference-at-the-epa.html.
---------------------------------------------------------------------------
    The second of these reports has received much greater public 
attention because the voices in the report are those of EPA scientists 
whose work has been made much more difficult by political interference 
at the agency. Interference at the EPA: Science and Politics at the 
U.S. Environmental Protection Agency, contains the results of surveys 
of almost 5500 EPA scientists. Almost 30 percent of the EPA scientists 
from across the country responded to the surveys with devastating 
results. Nearly 60 percent of the respondents experienced political 
interference in their work and that this interference has been higher 
in the last five years than previously. In the essays accompanying the 
surveys, the respondents generally cite OMB as the source of the 
external interference.

                             V. Conclusions

    It is unlikely that centralized regulatory review will end any time 
soon. Many have argued that it is needed in such a vast and complicated 
federal government. It can provide inter-agency coordination, ensure 
that regulations are not in conflict with existing or other proposed 
rules, and provide a valuable planning and coordination function. We 
believe, however, that today's regulatory practices go well beyond the 
benefits of centralized review. Current practices give the president 
unique and unparalleled power to alter the collection and dissemination 
of information and to shape the substance of agency rulemakings--all 
behind the scenes. Even more striking is that a small number of OIRA 
staff have controlled this process all in the name of the president. In 
doing so, the implementation of agency statutory requirements may 
become secondary to the policies and priorities of the president as 
interpreted by the OIRA staff.
    The application of the unitary theory as it is practiced in this 
administration and framed in executive branch directives gives the 
president, and a cadre of employees that represent the president, 
control over the substantive decision making of agencies. As a result, 
politics is injected and elevated into decisions where science and 
rational judgment should prevail. Political appointees have greater 
control over the substance of regulations; politics supersedes 
scientific and technical information that is critical to protecting our 
environment and health and safety at home and in the workplace. Even if 
this were not empirically true, the appearance would still exist, 
thereby tainting the public's perception of the regulatory process.
    The current structure of the rulemaking process has several costs. 
There is now the potential for even greater conflict between the 
statutory authority delegated to the agencies by Congress and executive 
priorities. When the president has the ability to override this 
statutory delegation of authority, the balance of power between 
Congress and the Presidency is altered. There is the perception, if not 
the reality, that special interests are favored heavily over the needs 
of the public. This process does not lead to better rules and public 
protections. When the president makes a substantive regulatory decision 
based on political considerations, scientifically-based protective 
standards are vitiated. Finally, we can be assured that if Congress 
does not act, OIRA will remain the equivalent of a political censor 
over congressional mandates and agency decisions.
    Admittedly, there are grey areas where ``coordination'' ends and 
``substantive interference'' begins. When OIRA changes a word in a 
proposed rule, it may help to make the regulation more understandable. 
On the other hand, it may intentionally change the very meaning of the 
rule. While it may be appropriate for OIRA to coordinate, we believe it 
is wrong to interfere with substantive agency decisions.
    We believe there are solutions Congress can pursue. First, Congress 
can review the role the White House plays in this review process with 
an eye toward removing or limiting OIRA's powers. Congress could define 
the powers it is willing to give to OMB regarding regulatory review. 
Since the 1981 Reagan Executive Order, Congress has chosen not to 
legislate in this area; hence OMB operates through the extension of 
presidential constitutional authority. Congress could also restrict in 
legislation OIRA's ability to review certain rules promulgated under a 
statute. This would require, of course, the ability of Congress to 
overcome a presidential veto or some other administrative recourse the 
president might exercise.
    Second, Congress could place the statutory responsibility for 
agency decisions in the Senate-approved agency heads, not regulatory 
policy officers and not OIRA. If the review of an agency action is 
judged to be inconsistent with the priorities of the president, the 
president then should exert influence on the appointed agency head. 
This would also permit Congress to hold the ultimate policy maker 
accountable by removing the authority for regulatory decisions from an 
unaccountable agency subordinate. Similarly, Congress could choose to 
move centralized regulatory review out of OIRA and into another agency 
outside the Executive Office of the President. This would likely reduce 
OIRA's clout and influence over the substantive work of agencies.
    Third, to the extent that centralized review of agency regulations 
remains lodged in OIRA or some other presidential office, Congress 
could seek mechanisms to hold that office accountable. One mechanism 
for this, we believe, is subjecting OIRA to the requirements of the 
Administrative Procedure Act. If OIRA makes substantive regulatory 
decisions, it should be subject to the accountability provisions of the 
APA including subject to court actions. Coupled with this increased 
accountability, Congress could expand the requirements for defining 
what must be disclosed in agency regulatory dockets. Transparency 
requirements such as this would allow Congress, the courts, and the 
public to know the extent to which the executive has taken control over 
substantive agency regulatory outcomes.
    Finally, regardless of the extent of partisan control over the 
legislative and executive branches, we urge Congress to exert its 
constitutional oversight control and restore the historical separation 
of powers balance so that unitary expansion of the executive branch is 
held in check.
    Thank you for the opportunity to appear before you. This concludes 
my testimony. I'm happy to answer your questions.

    Mr. Johnson. All right. Thank you, Dr. Melberth.
    At this time I will recognize Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I am intrigued by the testimony. Professor Strauss and I 
have largely agreed with a very tiny disagreement. But I am 
actually going to ask the panel to go in a little different 
direction, here, because what I am really concerned about is 
not this issue that is before us today, because I think 
academically Professor Strauss has really nailed it down and it 
has come down to a fairly close issue.
    But I am wondering what we do in the future in America, 
because--particularly, Dr. Melberth, in your role--using the 
Internet could be an incredibly attractive way to help focus on 
government. But the way to do it, it seems to me, is to get 
people more involved. Not just in responding to things that 
they may feel urgent, but actually in overseeing what 
government does.
    In others words, you have all seen Wikipedia. You have got 
millions of people that have contributed to articles and there 
are dozens, millions, of articles on Wikipedia, not all 
correct, but awfully good, frankly, at least in my experience. 
And it has a self-regulating process for deciding what is good.
    I looked at the Web site for OMB Watch, Mr. Melberth, and 
you tend to be--is it fair to say left in the political 
spectrum?
    Mr. Melberth. Progressive might be the word we would 
choose.
    Mr. Cannon. Would that mean, like, Socialist? I am just 
kidding, here, although that is historically where I think it 
would come down.
    It seems to me that this issue is not a left or right 
issue. In fact, frankly, it is a more academic issue.
    Are you familiar, Mr. Melberth, with a Jim Harper, who has 
a site called Washington Watch? He would call himself I think 
right and conservative. But are you familiar with his site at 
all?
    Mr. Melberth. No, sir. I am not.
    Mr. Cannon. Take a look at it. Because my point is, left or 
right is not very important. Actually knowing what government 
does is. So you are sitting here and talking about things that 
bother you and using Union of Concerned Scientists, which has a 
political agenda, and very clearly has a political agenda, and 
doesn't want the funding of its agenda changed, is not so 
helpful as to say rather than conclude, I think the term is--
science and rational judgment is a term that has been used a 
couple of times in this discussion. Well, that is often used to 
cover over a political and financial agenda.
    Much better, it would seem to me--and I am lecturing a 
little bit here, but I would like your response in particular, 
Dr. Melberth--much better to get the American people involved 
in what OMB does, in the guts of it, like with Wiki. You have 
got somebody that has an interest in a particular rule, let him 
take a look at it.
    We asked Ms. Dudley earlier about this, but if you have 
transparency in the rulemaking process, and transparency means 
electronic access to anybody with a computer, anywhere with 
access to the Internet, can we not create the new world that I 
think Mr. Obama is showing us with a couple of million donors, 
that the Wikipedia shows up with millions of people 
participating in sharing knowledge? Is this not a noble goal, 
instead of causing people to react to something, that you 
characterize OMB has done, but rather to guide them into 
actually helping you look at what is going on in the regulatory 
process in America?
    Mr. Melberth. We certainly agree that this process should 
be far more transparent than it is. There is far too much of 
this that is out of the eye of the public and so they don't 
know what is going on. And the role of the RPO exacerbates 
that. It doesn't enlighten it. Because no one knows what the 
RPO is doing.
    It is the decision-making process that the RPO goes through 
and the agency is not required to disclos it. We don't have 
knowledge of when an agency rulemaking commences. We don't know 
when that decision might be or how often----
    Mr. Cannon. Let me interject, because my time is expiring.
    I would really love for you guys at OMB Watch to engage 
people, left or right, progressive or conservative, I don't 
care, in the process of pushing for transparency and then 
looking at the data that we have. Take a look at the--I think 
it is called Washington Watch. Again, different political 
persuasion, but I think the goal ought to be similar to what 
you are looking at.
    Is there any reason that you or others see why we shouldn't 
be using modern Google-type technology to allow us to have 
virtually complete access to everything that happens in 
government?
    I see Dr. Strauss has a comment, but maybe we can just go 
down the panel.
    Mr. Melberth. Mr. Cannon, we have actually been a leader in 
transparency and the use of technology for the 25 years that 
OMB Watch has existed.
    Mr. Cannon. I think you--I have a yellow light. Let me 
suggest that you have done--I am not criticizing you at all. 
But I am hoping that you will go to the next step, which is 
draw people into the review, the citizen review process, 
instead of just energizing a base. Because I think that what 
happens, the energized base comes to the middle, everybody 
comes to the middle, and we have a better run country.
    Mr. Melberth. We are indeed trying to do that, yes.
    Mr. Strauss. I couldn't agree more with the gentleman. At 
some point during your questioning of Administrator Dudley, I 
was reminded of what has been for a long time my favorite 
Internet site for demonstration to my students, at least, which 
is a site maintained by the National Highway Transportation 
Safety Administration, on which they post all their general 
counsel letters advise. Somebody, Mercedes Benz, Volkswagen, 
whomever, writes in, asks for some advise about the meaning of 
a rule.
    Every one of those letters is on this Web site, is 
immediately searchable. What you would have had to pay $5,000 
to a Washington law firm to go through those records and find 
10 years ago you now get in 30 seconds.
    This is the stunning transformation of the field that is 
occuring and whatever the Congress can do to encourage it, it 
ought to do. I know there have been difficulties between 
Congress and OMB in particular over the past few years about 
the funding of electronic rulemaking development that have 
tended to put the brakes on that development. It looks in 
exactly the direction the Congressman is suggesting, and I hope 
those difficulties can be resolved.
    Mr. Cannon. I thank the gentleman. I am certainly looking 
forward to that.
    Mr. Chairman, I ask unanimous consent to speak for an 
additional minute.
    Mr. Johnson. Without objection.
    Mr. Cannon. And I just want to follow up on what you said, 
Professor Strauss.
    I have a constituent that has a problem with the IRS. I 
have gotten involved. I have spoken with the--you have the 
general counsel and then you have got several other deputy 
general counsel. I have spoken with the next senior person in 
the legal system in the IRS, and the system that they use for 
deciding what to decide is more complicated than the decisions 
they issue.
    It is appalling and it is--the subject in this particular 
case, I am comfortable saying, it is obviously skewed by the 
desires of individuals instead of by the desire for policy. And 
if we had transparency there--now, that is a lot more difficult 
than it may be with the Transportation Department in one area 
of their oversight. Nevertheless, if we had that kind of 
transparency, bureaucrats would be much more responsible for 
what they do and also how they affect not just broad policy but 
individual businesses.
    And in addition to that, all businesses could operate with 
more clarity, because they would have at least the answers that 
have been given by guidance to other people.
    And so you understand that I am on a mission here. It is 
not a partisan mission, not at all critical of OMB Watch, 
except I would like you to draw more people in, because I think 
more people will draw you away from progressive and toward the 
middle, not that progressive is bad or that conservative is 
good, but if we are in the middle, we get a lot more done. And 
this is an area where we actually really do desperately need to 
progress, without biting into the left meaning of the term, but 
to progress in America. And it is all there and the technology 
is available.
    So I thank you, Mr. Chairman, for allowing me to 
pontificate here, but this is what this Committee should do and 
this is the major jurisdiction of this Committee that we ought 
to be expanding and ought to be pushing. There is no place else 
in Congress that they look at these issues as we do.
    Thank you and I yield back.
    Mr. Johnson. Thank you, Congressman Cannon.
    I have a couple of questions.
    Would anyone wish to comment on Administrator Dudley's 
testimony? If not, then Mr. Copeland, I would like to ask you, 
one of the Bush administration initiatives that you discussed 
is increased use of informal OIRA reviews. Can you describe 
what informal OIRA reviews are and why they are important?
    Mr. Copeland. Sure. Essentially, the formal process is that 
after the agency head has signed off on a rule, the agency will 
send it to OMB for formal review. That is when the 90-day clock 
starts. The executive order says that OIRA has 90 days, 
essentially, to review the rule.
    Informal review is when the agency will send over drafts of 
the rule, either at OIRA's request or at the agency's 
initiative, for a pre-submission discussion. So it is 
essentially while they are formulating the rule.
    And OMB has said they have their biggest impact on agency 
rulemaking during this informal, pre-formal submission process.
    The problem in terms of transparency is that OMB has 
interpreted the requirement--there is a requirement in 
Executive Order 12866 that says the agency is to disclose the 
changes made at OMB's suggestion or recommendation. OMB has 
interpreted that to mean only during formal review. I have seen 
rules that have gone back and forth between OMB and the agency 
several times over a several week or even several month 
process, during informal review, get submitted to OMB, have a 
1-or 2-day formal review process, and under OMB's 
interpretation, the only thing that has to get disclosed is 
what happens in that 1 or 2 days.
    So the problem is that there is little transparency during 
the informal review process, and that is the period in which 
OMB says they have their greatest impact.
    Mr. Johnson. Is the Bush administration the first 
Administration to use this informal review process?
    Mr. Copeland. No, sir. The Clinton administration used it. 
Other Administrations back to the start of OIRA in 1981 have 
used it.
    I would say that both the previous OIRA administrator and 
other observers, agency people, have said that it seems to have 
been ratcheted up during this Administration, that there is 
greater use of informal review and that as a consequence there 
is less transparency about the effects that OIRA has on the 
agencies' rules.
    Mr. Johnson. All right. Thank you.
    Mr. Gattuso, do you think it is appropriate for the Vice 
President, who has no scientific expertise or responsibilities, 
to delay a final rule for more than a year that would provide 
protection for Right Whales?
    Mr. Gattuso. Well, first off I would point out--and thank 
you for raising that, since it was one of the witnesses earlier 
who referred to the Vice President as a political appointee, 
and we do have to remember that the Vice President is not a 
political appointee. He is an elected official, one of two 
individuals in the country elected nationwide. I think that in 
that status, the Vice President certainly has every right to 
ask questions, to ask executive branch officials to justify 
their actions, to convey his own views.
    The question of how long something would be delayed, what 
kind of questions are asked, I think depends entirely upon the 
subject at issue. I am not going to defend every action every 
Vice President has ever taken, but in terms of the Vice 
President's right to ask these questions and receive answers as 
to the activities of the executive branch, I think that is 
entirely appropriate.
    We hear a lot about politicization of the process. It 
reminds me a little bit of the movie Casablanca. Politics. 
Politics going on in the rulemaking process. Much of this is a 
political process in the sense of getting information out, 
balancing between the unelected officials carrying out their 
responsibilities, the elected officials with responsibility to 
their voters and the country in terms of ensuring certain 
policies and priorities. And those elected representatives, by 
the way, include Congress.
    So short answer, yes, the Vice President has a role.
    Mr. Johnson. Thank you. And I will yield the balance of my 
time to Congressman Cannon.
    Mr. Cannon. Thank you.
    I just have one other question I can't resist asking this 
panel, and let me ask Mr. Gattuso in particular, but if anyone 
else would like to answer, I know that, Dr. Copeland, we have 
talked about these issues in the past, but if Congress were to 
make lively use of the Congressional Review Act, including our 
ability to review rulemaking agencies' case by case compliance 
with the Administrative Procedure Act and other administrative 
law, don't you think that would go a long way to policing the 
roles of the bureaucracy and the President in Federal 
rulemaking?
    Mr. Gattuso. I agree. The Congressional Review Act is 
probably one of the most under-used mechanisms that the 
Congress has in its quiver. I believe it has only been used 
once in its 10-year history, at least been all the way through 
the process once, and it is tailor-made.
    It was specifically enacted in order to let Congress voice 
its will, to implement its well as to regulations when a 
regulatory body has, in Congress' view, misinterpreted what 
Congress had in mind.
    And by the way, it can be used both to further regulation 
or to hinder it. It is not specific as to which direction that 
pendulum goes.
    Mr. Strauss. I am going to have to disagree.
    The principle place, I think, for expressing the 
disagreement is to point out that before you can get a 
regulation under the Congressional Review Act, it must have 
survived this process. That is to say it will have presidential 
approval at some level or another.
    And consequently, any resolution of disapproval that the 
Congress might vote is subject to the possibility of 
presidential veto. It is not at all accidental that the one 
opportunity you have had to use the Congressional Review Act 
was an opportunity that fell between Administrations, a rule 
issued by Democratic administration that was then vetoed by the 
Congress after the Democratic administration had ceased to 
exist and had been replaced by a Republican administration 
whose head agreed with what the Congress did in disapproving 
OSHA's ergonomics rule.
    Mr. Cannon. We are actually, of course, considering some 
adjustments to the Congressional Review Act. We have a bill 
that has been passed out of Subcommittee and another one that 
we think will come along fairly soon that would, we hope, 
change that.
    If we changed it so that we at least had a more political 
role in reviewing regulations, would that change your view? In 
other words, does Congress have a role here?
    Mr. Strauss. There have been serious suggestions made by my 
friend and at least area colleague, Paul Verkuil, notably that 
one ought to replace the current technique for rulemaking by 
something more or less analogous to what I think is done in 
many European countries, where rulemaking proposals would 
essentially be fast-tracked legislation and would not take 
effect unless enacted by Congress.
    This would dramatically change the landscape generally, 
whether--is an occasion for a different meeting than today.
    Mr. Cannon. I think we have actually dealt with that, of 
course, in the past, as you know. And there was a large 
consensus that the current act does not work. And so if other 
panelists would like to comment on the possibility of more 
congressional involvement in regulatory processes, I would be 
quite interested to hear either Dr. Copeland or Mr. Melberth.
    Mr. Melberth. Well, we do have some suggestions for what 
Congress can do to be more involved and take some control. We 
don't believe the Congressional Review Act is an appropriate 
vehicle to do that. But we would look forward to working with 
Congress to find a way in which Congress could be more involved 
in that process.
    Mr. Cannon. We have actually been working on this, as I 
think Dr. Copeland knows and Professor Strauss, for the last 6 
years. Actually, no, we are almost 8 years now into this 
process. And so we have had a lot of academic water under the 
bridge here and we are actually trying to hope we can do 
something in the short-term.
    Dr. Copeland, did you want to comment at all?
    Mr. Copeland. I would just agree that it would essentially 
take two-thirds of both houses to overturn a rule that the 
President agrees with. And so you do have this really high 
hurdle to jump.
    I would point out, though, that there are a number of other 
options that Congress does have. Greater specificity in their 
delegations of rulemaking authority to the agencies would make 
it less likely that Congress would object, because the agencies 
would be constrained in their discretion. To the extent that, 
you know, the agencies are regulating separate from what 
Congress intended.
    Mr. Cannon. Of course, I believe the academic momentum has 
been toward the question that Professor Strauss is close to 
stating, although it was not the point of his comment, which is 
that it would not be an overturning of a regulation, but rather 
voting on regulations before they become law, in which case you 
don't have a two-thirds majority problem.
    Mr. Copeland. Correct.
    Mr. Cannon. Now, we are not at a point of making that leap 
yet or jumping into a rubicon that might be too swift for us, 
but it is my view and I think the view of the Chairman of the 
full Committee and other Members of the Committee that this is 
an area that we ought to be much more aggressively involved in.
    And that, of course, is a very long discussion, and we 
probably should end the hearing since we have a vote.
    So thank you, Mr. Chairman, for your indulgence, and I 
yield back.
    Mr. Johnson. Thank you, Mr. Cannon.
    I would like 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 then forward to the witnesses and ask that you 
answer as promptly as you can to be made a part of the record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any other additional 
materials.
    Again, thanks for your time and for your patience.
    This hearing on the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 3:33 p.m., the Subcommittee was adjourned.]




















                            A P P E N D I X

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               Material Submitted for the Hearing Record

 Article submitted by the Honorable Chris Cannon, a Representative in 
 Congress from the State of Utah, and Ranking Member, Subcommittee on 
                   Commercial and Administrative Law

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Response to Post-Hearing Questions from the Honorable Susan E. Dudley, 
Administrator, Office of Information and Regulatory Affairs, Office of 
                 Management and Budget, Washington, DC

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 Response to Post-Hearing Questions from Peter L. Strauss, Professor, 
                   Columbia Law School, New York, NY

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  Response to Post-Hearing Questions from Curtis W. Copeland, Ph.D., 
  Specialist in American National Government, Congressional Research 
                        Service, Washington, DC

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Response to Post-Hearing Questions from James L. Gattuso, Esq., Senior 
Fellow in Regulatory Policy, Roe Institute for Economic Policy Studies, 
                The Heritage Foundation, Washington, DC

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     Response to Post-Hearing Questions from Rick Melberth, Ph.D., 
        Director of Regulatory Policy, OMB Watch, Washington, DC

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