[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
REINS ACT--PROMOTING JOBS AND EXPANDING FREEDOM BY REDUCING NEEDLESS
REGULATIONS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, COMMERCIAL
AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JANUARY 24, 2011
__________
Serial No. 112-7
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Commercial and Administrative Law
HOWARD COBLE, North Carolina, Chairman
TREY GOWDY, South Carolina, Vice-Chairman
ELTON GALLEGLY, California STEVE COHEN, Tennessee
TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
TOM REED, New York Georgia
DENNIS ROSS, Florida MELVIN L. WATT, North Carolina
MIKE QUIGLEY, Illinois
Daniel Flores, Chief Counsel
James Park, Minority Counsel
C O N T E N T S
----------
JANUARY 24, 2011
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Commercial and Administrative Law.............................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on Courts,
Commercial and Administrative Law.............................. 3
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
WITNESSES
The Honorable David McIntosh, Mayer Brown LLP
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Jonathan Adler, Professor, Case Western Reserve University School
of Law, Director, Center for Business Law and Regulation
Oral Testimony................................................. 76
Prepared Statement............................................. 78
Sally Katzen, Visiting Professor, New York University School of
Law, Senior Advisor, Podesta Group
Oral Testimony................................................. 86
Prepared Statement............................................. 88
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 8
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on Courts, Commercial and Administrative Law...... 13
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 16
Prepared Statement of the Honorable Mike Quigley, a
Representative in Congress from the State of Illinois, and
Member, Subcommittee on Courts, Commercial and Administrative
Law............................................................ 19
Prepared Statement of the Honorable Trey Gowdy, a Representative
in Congress from the State of South Carolina, and Member,
Subcommittee on Courts, Commercial and Administrative Law...... 102
CRS Report submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 117
APPENDIX
Material Submitted for the Hearing Record
Responses to Post-Hearing Questions from Sally Katzen, Visiting
Professor, New York University School of Law, Senior Advisor,
Podesta Group.................................................. 140
Report from the Center for Progressive Reform (CPR).............. 142
REINS ACT--PROMOTING JOBS AND EXPANDING FREEDOM BY REDUCING NEEDLESS
REGULATIONS
----------
MONDAY, JANUARY 24, 2011
House of Representatives,
Subcommittee on Courts,
Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4 p.m., in
room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Smith, Gowdy, Gallegly,
Franks, Reed, Ross, Cohen, Conyers, Johnson, Watt, and Quigley.
Staff present: (Majority) Daniel Flores, Subcommittee Chief
Counsel; Olivia Lee, Clerk; and Carol Chodroff, Minority
Counsel.
Mr. Coble. The Subcommittee will come to order. I was going
to welcome all the new Members to the Subcommittee, but Mr.
Cohen and I appear to be it. So good to have you on board, Mr.
Cohen, and Mr. Gowdy on my right.
Ground rules, folks. I like to start on time, and I like to
end on time. I hope that is agreeable with everybody. You are
familiar perhaps with the 5-minute rule. And the 5-minute rule,
folks, is not done in any way to frustrate debate but rather to
facilitate the process. Our jurisdictional bounds are broad,
indeed, and we will hustle along and do the best we can. So
when you see that red light appear, that will be your signal
that your 5 minutes have elapsed. And Mr. Cohen and I will not
call in the U.S. Marshal on you then, but you need to wrap up.
The 5-minute rule also applies to Members of the Subcommittee.
We will try to adhere to that as well.
I want to give my opening statement, and I will recognize
Mr. Cohen for his opening statement. Other opening statements
will be made part of the record at the conclusion. Is that
agreeable with everybody?
Today marks the first hearing of the newly constituted
Subcommittee on Courts, Commercial and Administrative Law. And
I think we are going to have Mr. Smith with us, but he is not
hereyet. Chairman Smith has provided our Subcommittee with
jurisdiction over a number of important matters that I hope our
Subcommittee will address during the 112th Congress.
In my view, one of the most important matters is to fine
tune our regulatory process; hence, the introductory oversight
hearing on the REINS Act.
Many in the private sector have alleged that the Obama
administration has cast a cloud of regulatory uncertainty over
some parts of the economy. While it is no secret that our
economy is still soft, perhaps even dismal, unnecessary or
unreasonable regulatory burdens will continue to drive business
investments, in my way of thinking, abroad.
Examples of the need for improvement are prevalent in
virtually every sector of government regulation. For instance,
the Department of Health and Human Services' implementation of
President Obama's health care reform, the financial agency's
implementation of the Dodd-Frank financial reform bill, the
EPA's campaign against carbon dioxide, the FDA's approach to
herbicide, and the Federal Communication Commission's drive to
regulate the Internet and allocate spectrum.
I only mention these examples because they are widely
recognized, and the fact of the matter is that fine-tuning is
needed across the entire regulatory horizon.
Our current regulatory regime has deep historic roots.
Since the days of the New Deal, and especially during the
1960's and 1970's, Congress has delegated more and more of its
legislative authority to Federal agencies. This has been done
through broad and vaguely stated laws that allow Congress to
claim credit for addressing problems but leaves it to the
various agencies to fill in the crucial details through
regulations. The final risk of the wrong decision thus falls on
the agencies and, of course, the economy and America's job
creators. Congress too often escapes both responsibility and
accountability.
The Republican majority that came to Congress in 1994
attempted to address this problem through the Congressional
Review Act. That act, you may recall, gave the Congress greater
tools to disapprove agency regulations that harm the economy,
destroy jobs, or otherwise were counterproductive. Over its
history, however, the Congressional Review Act has not
fulfilled its potential.
During the 108th and 109th Congresses, the Subcommittee on
Commercial and Administrative Law examined ways to improve the
Congressional Review Act and better assert Congress's authority
over legislative regulations. One of the leading ideas for
reform was to amend the Act to preclude regulations from going
into effect until Congress actually approve them. That is
precisely what the REINS Act does for the biggest regulations
Federal agencies issue, those imposing $100 million or more in
costs on our economy.
Today, more than ever, we must consider and enact reforms
that vindicate Congress's authority over the laws. The REINS
Act is front and center among those reforms.
Before reserving the balance of my time, I would like to
extend a warm welcome to our former colleague, Congressman
David McIntosh--it is good to have you back on the Hill--as
well as the other witnesses.
And Mr. Cohen, I said this before our other colleagues came
in, but it is good to have all Members, Republican and Democrat
alike, on this Subcommittee. And now I am pleased to recognize
the distinguished gentleman from Tennessee, Memphis to be
specific, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair. And I appreciate that. As
you know, Tennessee was originally North Carolina, so, in some
ways, we are colleagues beyond being colleagues here.
And I would like to first pay specific attention to, for
the new Members and others, to my Ranking Member of the
Committee, the distinguished, the venerable, the honorable, the
legendary John Conyers. Nice to be with you.
And Chairman Smith and all the other Members, I look
forward to serving with each of you as well, who is not
legendary yet, but he is honorable and a few of those other
things that we will incorporate by reference.
Mr. Coble. Would the gentleman yield just a moment. I
didn't realize that Chairman Smith had come in. I didn't mean
to ignore you, Lamar.
Is Mr. Conyers here as well? Good to see you again.
Mr. Cohen. I would like to start by offering my
congratulations to Mr. Coble, who assumed the Chairmanship of
the Committee. And when I was Chairman, he was as nice as
anybody was to me. Everybody was nice, but he was particularly
nice, and I was always appreciative of that.
You are a gentleman, and I look forward to working with
you.
Mr. Franks was an outstanding Ranking Member, and we worked
together nicely, and I look forward to serving with him.
I am honored to be working as Ranking Member, although I
would rather be working as Chairman, but that is this Congress.
Today's hearing provides us with the opportunity to debate
the merits of H.R. 10, the ``Regulations from the Executive In
Need of Scrutiny Act,'' or REINS. It also gives us a chance to
discuss the appropriate role of Federal regulations in American
life, a conversation I suspect we will continue to have in this
Subcommittee in the 112th Congress.
Although they do not explicitly say, proponents of the
REINS Act appear to believe that almost all regulations are
bad. All their arguments focus on the purported costs that
regulations impose on society. Based on this premise, we have
heard rhetoric about job killing regulation that will stifle
economic growth and impair personal freedom.
What such arguments do not seem to fully appreciate is
regulations can also benefit the economy by policing reckless
private-sector behavior that could undermine the Nation's
economic well-being, and came very, very close to doing it in
2008. Lack of regulations and the economy of the world was on a
precipice, pulled off by President Bush and bipartisan Members
of the Congress in passing the TARP and successive legislation
with the Stimulus Act. We learned that the hard way in the 2008
financial crisis and the problems that ensued there from.
We can look back to the Great Depression, when there was
even more independence from regulations and lack of regulation,
and see what followed there, the Great Depression.
Regulations can facilitate economic activity by providing
clarity for regulated industries where the applicable statutory
language may be too broad or too vague and lead to unnecessary
confusion or even litigation.
Regulations can also serve societal values that may
outweigh economic growth.
Most importantly, regulations help protect the health and
safety of everyday Americans, including our children, our
neighbors, our colleagues, our grandparents, and ourselves and
the public at large.
The fact is that Federal regulations help ensure the safety
of the food that we eat, the air that we breathe, the water
that we drink, the products we buy, the medications we use, the
cars we drive, the planes we fly in, and the places we work.
Indeed, most Americans are able to take for granted the safety
of these things assured because of the existence of Federal
regulations.
The REINS Act threatens to make it harder for such
beneficial regulations to be implemented. Under the Act,
Congress must approve a major rule, one having an economic
impact of $100 million or more, by passing a joint resolution
of approval through both Houses of Congress within 90--70
legislative days after the rule is submitted to Congress. The
President must then sign the joint resolution of approval
before the rule can go into effect.
At the most practical level, I question whether the REINS
Act could work. I have been in Congress long enough to
understand that the crush of business before us will more often
than not prevent us from giving due consideration and approval
to the many rules that may be beneficial and even ultimately
enjoy widespread support if we were to implement the REINS Act.
As with the Congressional Review Act, the underlying
statute that the REINS Act seeks to amend, this idea may seem
better in the abstract than it will be in practice.
Of course, I am not ready to say the REINS Act is a good
idea even in the abstract. While I appreciate the attempt to
reassert some congressional control over agency rulemaking,
there are separation of powers that I think were spoken to
Members of Congress about recently, and Justice Scalia I think
led that talk. And there could certainly be constitutional
objections with separation of powers to the REINS Act, which we
will hear from our witnesses. There is a role for us. There is
a role for the executive. There is a role for the judiciary.
I look forward to our witnesses testimony. I look forward
to working with Chairman Coble and my other colleagues on the
Subcommittee for hopefully a meaningful 112th Congress.
I yield back the remainder of my time.
Mr. Coble. Mr. Cohen, I thank you.
And I thank you as well for your generous remarks at the
opening. I appreciate that.
Statements of all Members will be made a part of the
record, without objection.
And I am told that Mr. Smith and Mr. Conyers would like to
make opening statements, and I recognize the distinguished
gentleman from Texas, the Chairman of the full Committee, Mr.
Smith.
Mr. Smith. Thank you, Mr. Chairman.
And, Mr. Chairman, thank you for chairing this particular
hearing, which I think is going to be one of the most important
of the year.
As you said, I also welcome our former colleague David
McIntosh.
And, David, I hope we get to talk a little bit more later
on, but appreciate your being here, too.
Mr. Chairman, the American people in November voted for
real change in Washington. One change they want is to stop the
flood of regulations that cost jobs and smothers job creation.
Yet, another is to make Washington and Congress more
accountable. The REINS Act makes that change a reality.
Unelected Federal officials for too long have imposed huge
costs on the economy and the American people through burdensome
regulations. Today, these regulatory costs are estimated to be
a nearly incomprehensible $1.75 trillion dollars, roughly
$16,000 per household.
Because the officials who authorize these regulations are
not elected, they cannot be held accountable by the American
people. The REINS Act reins in the costly overreach of Federal
agencies that stifles job creation and slows economic growth.
It restores the authority to impose regulations to those who
are accountable to the voters, their elected Representatives in
Congress.
The Obama administration has under consideration at least
183 regulations that each would impose costs of $100 million or
more on the economy. And when businesses have to spend these
vast sums to comply with these massive regulations, they have
less money to invest to stay competitive in the global economy
and to hire new employees. These costs get passed on to the
American consumers. In effect, these regulations amount to
stiff but unseen taxes on every American.
Last week, in a new Executive Order, President Obama
reiterated the existing authority of agencies to cull outdated
rules from the books and consider impacts on jobs when
regulations are written. This order sounded encouraging but
added little to the rules that already guide the process of
regulations. In the Executive Order, ``distributive impacts''
and ``equity'' are specifically identified among benefits to be
maximized. Job creation is not.
The Executive Order is specifically written not to include
regulations issued to implement the Administration's health
care legislation, and it carves out independent agencies
charged to implement the Dodd-Frank financial reform
legislation. And it won't halt the Environmental Protection
Agency's drive to exercise authority it was never granted. So
the most burdensome and costly regulations are exempted.
The Executive Order, I hope not, may have been all style
and no substance. Until the Executive Order produces real
results, it is just a string of empty words. We must watch what
the Administration does, not what it says.
In 1994, Congress passed the Congressional Review Act to
reassert Congress's authority over the relentless regulation of
the Federal Government. The act has been used just one time to
disapprove of regulation. The regulatory tide continues and
rises even higher. The REINS Act is needed to reduce the cost
of the flood of regulations, free up businesses to create jobs,
and make the Federal Government more accountable. Thank you,
Mr. Chairman.
Mr. Chairman, before I yield back entirely, I would like to
recognize my colleague sitting back of the room, Geoff Davis,
who has been absolutely instrumental in promoting, advancing,
and writing this legislation that we are discussing today.
Mr. Coble. I thank the gentleman.
The Chair is pleased to recognize the distinguished
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Coble.
I join in welcoming our former colleague, Mr. McIntosh,
back here. It is very important. And I ask unanimous consent
that the author of the bill, Representative Davis, come
forward. I think he should be able to make a couple comments
about the bill. I would welcome his sitting at the table. Since
there are only three people there anyway, there is plenty of
room.
Mr. Coble. Mr. Conyers, I would be pleased indeed to have
Mr. Davis come forward. I don't believe, though, he would be
eligible to comment. But we would be glad for him to come
forward to the table if he would like.
Mr. Conyers. You say he can't comment on his own bill in
the Judiciary Committee, the keeper of the Constitution?
Mr. Coble. Well, Mr. Conyers, he was not called as a
witness. And that is why I made that statement.
Mr. Conyers. Okay.
Well, I have got a few questions I would like to ask him
after the hearing, then, if I can. I will be looking forward to
doing that.
I have got a statement that I will put in the record so we
can get to our witnesses. But the most important part of my
statement is that I think we have a constitutional problem on
our hands, and our former colleague alluded to it himself in
his statement. And it is found in article II, section 1, that I
refer all of the distinguished lawyers on this Committee to.
And I am sure we will have enough time to go into this.
The second consideration I would like us to keep in mind as
we go through this important hearing is that the REINS Act may
not be tailored to the problems that it is supposed to address.
We have got some big problems with whether this is feasible.
The feasibility of this act is--well, let's put it like this.
This would affect every law on the books. It is not
prospective, but it would involve every law that is on the
books currently.
Now, I don't want to suggest that the Congress isn't up to
its work, but do you know how much time that that would take to
go through all of the laws to get them, the regulations to the
laws, okayed by the House and the other body, as we delicately
refer to them? It doesn't seem very probable that that could
happen.
So when you consider the fact that we don't have the author
of the bill testifying--and we are glad he is here, of course--
but we also don't have the Administration testifying. Why isn't
somebody from the Administration here? I mean, how can we be
doing this? And I have been told by staff that we are going to
try to report this bill next week sometime.
So, Chairman Coble, I would like to, with all due respect,
ask an opportunity to discuss with you the possibility of an
additional hearing on this matter.
Mr. Coble. Well, if the gentleman would yield. This is an
oversight hearing, and there will be a legislative hearing
subsequently.
Mr. Conyers. Okay. Well, that is consoling. I am glad to
find out.
Now, this is a great new process of order. We do the
oversight hearing first, and then we have a hearing on the
bill. That makes a lot of sense. Why don't we have a hearing on
the bill first? Oh, we are oversighting the condition that has
caused the bill to be created. Is that right?
Mr. Coble. This is the oversight hearing. As I say, the
legislative hearing will be scheduled.
Mr. Conyers. Okay. All right. Well, then I don't have to
ask for another hearing. There is going to be another hearing
on the bill. So I am glad to know that, because I have got a
witness or two in mind that I would like to have partake with
all the other distinguished friends of ours that are here with
us today.
So I thank you very much, Chairman Coble. And I yield back
the balance of my time and ask my statement be included in the
record.
[The prepared statement of Mr. Conyers follows:]
__________
Mr. Coble. And all statements of the Members of the
Subcommittee will be made a part of the record, without
objection.
[The prepared statement of Mr. Cohen follows:]
__________
[The prepared statement of Mr. Johnson follows:]
__________
[The prepared statement of Mr. Quigley follows:]
__________
Mr. Coble. We are pleased to have our panel of three
witnesses with us today.
As has been mentioned previously, Mr. McIntosh, it is good
to have you back on the Hill. Mr. McIntosh now practices at
Mayer Brown LLP in Washington focusing on issues before
Congress and the executive branch. He is a graduate of the
University of Chicago School of Law and a cum laude graduate of
Yale University.
Professor Jonathan Adler teaches at the Case Western
Reserve School of Law, where he is the director of Case Western
Center for Business Law and Regulation.
Professor Sally Katzen is a visiting professor at New York
University School of Law, and Professor Katzen also serves as
senior adviser to the Podesta Group.
It is good to have each of you with us.
And we will start with Mr. McIntosh, and we recognize you,
sir, for 5 minutes.
TESTIMONY OF THE HONORABLE DAVID McINTOSH,
MAYER BROWN LLP
Mr. McIntosh. Thank you. It is a pleasure to be back.
And thank you, Mr. Cohen and Mr. Conyers, for your remarks.
Let me commend the Committee for taking up this question in
the oversight hearing of the regulatory process and the urgency
for looking at, are there ways of making it work better to
reduce the cost of regulations?
And I want to commend Representative Davis for his work in
introducing the REINS Act.
When I was a Member, the Speaker asked me to Chair a
Subcommittee on oversight just on regulations in the Government
Reform Committee, and we looked at a lot of the different
regulatory programs, looked at the overall costs on the
economy. And I have to say, as I was preparing for the
testimony today after I received the invitation, I was startled
at the magnitude of the cost of Federal regulations: $1.75
trillion annually of costs imposed on the economy, about
$15,000 per household; and, in particular, on jobs, where for
large businesses, it costs $7,700 per employee to hire a new
employee to follow the regulatory dictates of the various
Federal programs. And for small businesses, it is even more. It
is over $10,000 per employee.
As Mr. Cohen pointed out, those are the costs. You need to
look at the benefits of regulations when you are making policy
decisions, and Congress does that as it passes the laws, and
the agencies are required to do that under longstanding
executive orders. But the problem that I see that has happened,
and we worked on the Congressional Review Act as a way of
addressing that, is that balancing act of the particular type
of mandatory requirements that get set in a regulation versus
the benefits doesn't come back to Congress for review once the
legislation has been enacted and the regulatory agency has been
empowered to act.
We passed in 1995 the Congressional Review Act as one way
to increase that formally, but as was pointed out earlier, it
has only been used one time. And it is difficult for the
political configuration to work where typically you have got to
have a resolution of disapproval go through both the House and
the Senate and signed by the President. I think the only time
it did work was when President Clinton's administration
proposed a rule and Congress acted and presented a bill to
President Bush about that regulation. And so you saw the
political baton being handed from one party to the other and
willingness for Congress and the President to act.
The REINS Act strikes me as an excellent way of really
strengthening that effort. It is not applied to all
regulations. It is carefully tailored to major regulations that
have a significant and major impact on the economy. It, in many
ways, addresses some of the constitutional questions that come
up from time to time in the various regulatory programs;
specifically, whether Congress has delegated too much authority
to the regulatory agency and needs to retain some of that
authority in the legislative branch in order to perform its
article I duties.
And also, as I point out in the testimony, there are some
enhancements for Presidential authority under article II that
Mr. Conyers mentioned, article II, section 1, where you have a
unified Executive, because the bill applies to both regular
agencies in the executive branch but also the so-called
independent agencies, which the President would have some
greater authority over as a result of the REINS Act.
It is also carefully tailored to fit into what this
Committee is an expert at, and that is thinking about the
processes that should be used for Federal regulations. It
merely says Congress is going to withhold part of its
delegation and gives itself an option to approve the final
result before that has the force of law. It is an addition to
the Administrative Procedures Act and carefully written to be
narrowly tailored to fit into that procedural change. The
parties still have their rights under the Administrative
Procedures Act for other problems that may come up.
So I commend the Committee for taking this up. I urge
Congress to favorably consider the REINS Act and will be glad
to answer any questions when you need me to.
[The prepared statement of Mr. McIntosh follows:]
__________
Mr. Coble. Mr. Adler.
TESTIMONY OF JONATHAN ADLER, PROFESSOR, CASE WESTERN RESERVE
UNIVERSITY SCHOOL OF LAW, DIRECTOR, CENTER FOR BUSINESS LAW AND
REGULATION
Mr. Adler. I thank you, Mr. Chairman and Members of the
Subcommittee, for the invitation to testify today. I appreciate
the opportunity to appear before this Subcommittee to discuss
measures Congress may take to enhance regulatory
accountability.
This is a tremendously important issue. Federal regulation
has been accumulating at a rapid pace for decades. In 2009
alone, Federal agencies finalized over 3,500 new Federal
regulations.
The growth of Federal regulation has imposed significant
costs on American consumers and businesses. According to
estimates, as has been mentioned several times already, the
total cost of Federal regulation exceeds $1 trillion and
approaches $2 trillion per year. This is substantially more
than Americans pay each year in individual income tax.
Insofar as regulations impose a substantial cost, they
operate like a hidden tax. Just like taxes, regulations may be
necessary. They may be important to address public ills or
provide public benefits, and these benefits may be important,
and it may be worthwhile to have many of these regulations. But
that doesn't mean that they are free.
The fact that regulations, like taxes, can both impose
substantial costs and generate substantial benefits makes it
that much more important that there be political accountability
for Federal regulatory decisions.
The increase in the scope of Federal regulation has been
facilitated by the legislative practice of delegating
substantial amounts of regulatory authority and policy
discretion to administrative agencies. All administrative
agency authority to issue regulations comes from Congress. Such
delegation may be expedient or even necessary at times, but it
also has costs. Excessive delegation can undermine political
accountability for regulatory decisions and allow regulatory
agencies to adopt policies that do not align with congressional
intent or public concern.
All too often, Federal regulatory agencies use their
statutory authority to pursue policies that are unpopular or
unwarranted, and all too often, Congress is unable or unwilling
to do something about it.
This problem is magnified by the fact that agencies are
often exercising authority granted years, if not decades, ago.
Take one example that has certainly been discussed already
today: The EPA is currently implementing regulations to control
greenhouse gases under the Clean Air Act, even though Congress
has never explicitly voted to support such regulation. Rather,
the EPA is utilizing authority enacted decades ago. The Clean
Air Act's basic architecture was enacted in 1970, and the Act
has been not significantly modified since 1990. If greenhouse
gas regulation is warranted, this is a decision that should be
made by Congress, not an executive agency acting alone.
The REINS Act offers a promising mechanism for disciplining
Federal regulatory agencies and enhancing congressional
accountability for Federal regulatory decisions. Requiring
congressional approval before economically significant rules
may take effect ensures that Congress takes responsibility for
that handful of regulations, usually only several dozen per
year, that impose major costs and hopefully also provide major
economic benefits.
Adopting an expedited legislative process much like that
which is used for Fast Track Trade Authority, ensures
transparency and prevents a congressional review process from
unduly delaying needed regulatory initiative. Such an approach
can enhance political accountability without sacrificing the
benefits of agency expertise and specialization. Requiring
regulation to be approved by a joint resolution that will be
presented to the President also satisfies the constitutional
requirements of bicameralism and presentment.
The central provisions of the REINS Act is similar to a
proposal made by then Judge Stephen Breyer in a 1984 lecture.
He noted that a congressional authorization requirement is a
constitutional way to replicate the function of a one-House
legislative veto. Requiring congressional approval for the
adoption of new regulatory initiatives, as Breyer noted,
imposes on Congress a degree of visible responsibility.
The REINS Act provides a means of curbing excessive or
unwarranted regulation, but it is not an obstacle to needed
regulatory measures supported by the public. If the agencies
are generally discharging their obligations in a sensible
manner, the REINS Act will have little effect. If the public
supports specific regulatory initiatives, the Act will not
stand in the way. Indeed, it would enhance the legitimacy of
those regulations Congress approves by making it clear that
such initiatives command the support of both the Legislative
and the executive branches. Above all else, the REINS Act
provides a means of enhancing political accountability for
regulatory decisions.
Thank you again for the invitation to testify. And I am
certainly open to any questions you may have.
[The prepared statement of Mr. Adler follows:]
__________
Mr. Coble. And you beat the red light being illuminated,
Professor. I commend you for that.
Professor Katzen, you are recognized for 5 minutes.
TESTIMONY OF SALLY KATZEN, VISITING PROFESSOR, NEW YORK
UNIVERSITY SCHOOL OF LAW, SENIOR ADVISOR, PODESTA GROUP
Ms. Katzen. Thank you Chairman Coble, Ranking Member Cohen,
Members of the Subcommittee, I appreciate the opportunity to
testify today.
As is clear from my written statement, I am not a fan of
H.R. 10.
It is presented as necessary and desirable to combat an
out-of-control regulatory process, but the bill, in my view, is
not tailored to the problem that it is intending to solve. It
is not well-founded, and it will have serious adverse
unintended consequences, including fundamentally changing our
constitutional structure of government.
Now, we have had heard a lot this afternoon about the costs
of regulation. Everyone is citing $1.75 trillion, which is the
high end of an extremely controversial estimate. Very few have
talked about the benefits in monetized form.
As someone who does cost-benefit analysis, and I was a
former administrator of OIRA during the Clinton administration,
you look at both sides of the equation. And OMB, during both
the Obama administration and the Bush administration, filed
reports to Congress in which it quantified and monetized the
costs and the benefits, and consistently over time, the
monetized benefits exceeded the costs by a substantial amount,
consistently producing net benefits for our economy and our
society. We cut back the rules, we lose the benefits.
Second, not all rules, not even all major rules, are alike.
H.R. 10, in its infinite wisdom, exempts the migratory bird
quota rule, because without that rule, which is a major rule,
you can't shoot the birds as they fly to and from Canada. But
there are lots of other rules that industry, the regulated
entities, want and need, rules that provide guidance, rules
that provide predictability or certainty for their operation. I
give in my written statement a number of these.
There are rules that give life to programs, programs like
agricultural subsidies, small business loan guarantees, or
medical reimbursement. Without the eligibility and
accountability provisions, which come in the form of rules,
major rules, you don't have a program, even though Congress has
authorized it or modified it. No rules, no program.s
Other major rules may be good because they reduce burdens.
The OSHA rule, the infamous OSHA that everybody scorns, passed
a rule on cranes and derricks which reduced burdens. It
minimized the costs. Industry had asked OSHA for a negotiated
rulemaking and supported the clarification. Yet all of these
rules would be caught by the H.R. 10 net.
Now, the supporters say, as Mr. Adler did, well, there
won't be any effect. They will all go through. With respect,
our experience during the 111th Congress at least with the
Senate suggests that it is not easy. The drafters of H.R. 10
changed H.R. 3765, its predecessor, from allowing 10 hours of
debate on the debatable issues to 2 hours of debate. But you
still have a quorum call. You still have the vote, and you have
nondebatable motions, which easily could exceed 4 to 5 hours.
For the 65 to 95 major rules each year, the Senate is not
going to find that time. It has been unable, with due respect,
to find blocks of time to process nominations of Administration
officials or even judges. And so the result is that good rules,
meritorious rules, important rules, will not take effect even
though months, in fact years, have been spent with enormous
resources devoted to sorting out the science and technical
difficulties, with public participation, with analyses of all
sorts of issues, with numerous checks throughout the agency,
with numerous checks throughout the Administration, and subject
to judicial review.
What happens if the Senate doesn't get to them? Is all the
time and effort and resources to go for naught? The same rule
cannot be modified once it is final agency action without
starting a rulemaking process over again. To say there is no
effect is not to understand the administrative process.
At a minimum, H.R. 10 introduces additional delay and
uncertainty to an already lengthy and complicated process.
And, finally, for the reasons I set forth in my paper, I
believe there are serious constitutional issues that are raised
that fundamentally challenge the separation of powers,
principles our Founding Fathers incorporated in the
Constitution.
I sketch out some of the arguments. I hear people referring
to Justice Breyer's speech. Since 1983 in his response to
Chadha, there has been a lot of law in the Supreme Court. And
the Morrison v. Olson test is really critical.
I know that I have only 5 minutes. My light is red. I thank
you, Mr. Chairman, but I do hope somebody will pursue this
during the questions so we can look at some of the existing law
and practice in this field. Thank you very much.
[The prepared statement of Ms. Katzen follows:]
__________
Mr. Coble. I thank the witnesses for their testimony.
We will now have Members questioning the witnesses, and we
will apply the 5-minute rule to ourselves as well.
I recognize myself for 5 minutes.
Mr. McIntosh, in your view, what current regulatory efforts
most highlight the need for reforms like those in the REINS Act
and why?
Mr. McIntosh. One, Mr. Adler mentioned the regulation of
carbon dioxide. And my memory there was Mr. Dingell and I tried
to present to the previous EPAs the full legislative history of
the Clean Air Act amendment that made it very clear carbon was
not to be regulated. And there was a lot of back and forth, and
ultimately, the courts have forced their hand. But, to me, that
shows an example of where, if Congress had a procedure in
place, they could reassert that intent, even when the courts
are driving the agencyin a direction that perhaps the agency
itself wasn't initially intending to go down.
A second one would be the net neutrality regulations that
the FCC has proposed. I think there will be a lot of litigation
about the agency exceeding its statutory authority. I think if
Congress had a procedure in place where they could easily pass
that bill, and I think you could get bipartisan support for a
bill nullifying that regulation under the REINS Act procedure,
I think that would save a lot of time and expense and
uncertainty in the private sector as that litigation ultimately
goes forward. And I think, and in talking to my partners who
specialize in the FCC Act, that that very likely could be
thrown out, that it once again would be a great example of how
Congress could effectively ensure there is economic progress
that is made by paying attention to and having a part to play
in that regulation.
Mr. Coble. I thank you, sir.
Professor Adler, in improving upon the Congressional Review
Act, is not requiring Congress to approve at least some agency
rules the next logical step? And in taking that step, what are
the keys to ensuring that the REINS Act or any similar reform
remains constitutional under the rule of INS v. Chadha?
Mr. Adler. I do think it is the next logical step. I think
a mechanism that forces Congress to actually say yea or nay to
substantial regulatory proposal is the next logical step to
ensure that there is political accountability for major
regulatory decisions.
In terms of the constitutional questions, I think INS v.
Chadha is very clear that all that is required is bicameral
presentment. The Supreme Court has said explicitly time and
again that it is axiomatic, that is their word, that all
authority for a Federal agency to adopt legislative type
regulation comes from Congress, and that agencies have no such
authority absent congressional enactment. So, unlike a case
like Morrison v. Olson, where you are dealing with enforcement
authority or arguably, at least in some context, there is some
residual of inherent executive authority or some inherent
authority that executive agencies may have, there is no
inherent authority in any Federal agency to issue regulatory
type rules absent a congressional delegation.
And if Congress wants to delegate less, if Congress wants
to put conditions on the exercise of that delegated authority,
it surely can. And not only did then Judge Breyer note that in
his 1984 lecture or Larry Tribe, the noted constitutional law
professor at Harvard who was, until very recently, an official
in the Obama Justice Department, who likewise said that a
requirement of this sort would be purely constitutional.
The last point I will just make very quickly, Mr. Chairman,
is that we have seen this already in areas that are far more
sensitive in regulation, in the trade context, using this sort
of process for Fast Track Trade Authority is arguably a far
more--a far greater intrusion on executive authority than
anything regarding domestic regulation because trade implicates
the Foreign Affairs Authority. And I don't think many people
argue that Fast Track Trade Authority----
Mr. Coble. I want to kind of beat the red light with
Professor Katzen, if I may.
Pardon me for cutting you off, Mr. Adler.
Professor Katzen, you indicate that executive orders
already constrain agency discretion to promulgate too many
rules. But those orders haven't prevented a flood of
regulation, and they can be withdrawn by the President, can
they not?
Ms. Katzen. Mr. Chairman, an executive order can be
withdrawn by the President or his successor. But 12866 has been
in existence since 1993, September 1993. And while there may be
a flood, in your terms, of rules that have been issued, as I
said, OMB has documented, during the Bush administration as
well, that the benefits exceed the costs consistently over
time.
And I would just mention that Mr. Smith mentioned last week
President Obama reaffirmed the Executive Order in his own
Executive Order. And in fact, the very first sentence says
that, in order to promote the public health, safety, and the
environment while protecting economic growth, innovation, and
job creation--it was the first sentence of his Executive Order.
So I think the record should be clear.
Mr. Coble. My time has expired.
I recognize the distinguished gentleman from Tennessee, Mr.
Cohen.
Mr. Cohen. Thank you, Mr. Chairman. I appreciate it.
Let me ask one question. I may not understand this fully.
As I understand it, Mr. Davis introduced this in the 111th and
the 112th Congress. Was it introduced, either to your knowledge
or to anybody's knowledge, before that?
Ms. Katzen. Last year as H.R. 30765.
Mr. Cohen. In the 111th. But before the 111th, was it
introduced?
Was it, Mr. Adler?
Mr. Adler. I don't know if it is the exact same language,
but similar types proposals have been proposed at various
times.
Mr. Cohen. That required a positive approval by the
Congress?
Mr. Adler. Yes.
Mr. Cohen. When?
Mr. Adler. In the 1984 article that----
Mr. Cohen. Forget 1984. Let's come back to recent history.
Mr. Adler. I don't know, prior to last Congress, when the
last time such a proposal had been introduced. But I know then
Congressman Nick Smith from Michigan had an article about
legislation.
Mr. Cohen. When was that?
Mr. Adler. I want to say 1996, maybe 1997. I am not exactly
sure.
Mr. Cohen. And how about you, Mr. McIntosh? Do you know of
anything?
Mr. McIntosh. I am not aware of----
Mr. Cohen. So, basically, during the Bush years, it was all
like wonderful, and nobody even thought about this, and the
executive authority was great, and we didn't need this. It is
only since Mr. Obama was elected President that we need to do
this. That seems to be the situation. For 8 years, it was
wonderful with Mr. Bush, and the executive did everything
great.
Let me ask you this question. You said--I think it was Mr.
Adler--you said this isn't going to present a problem, that
Congress can do it. Do you understand in the Senate that they
have held up like 50 or 60 judges? And you know--what is it
called? A blue slip? Do you know what a blue slip is? Can you
imagine the Senators? I mean, that is the last ``don't ask,
don't tell.'' You don't ask what you are going to get for it,
and you don't tell what you get for your blue slip. They still
have that in the Senate. How is that going to work? All these
regulations, they do a blue slip. I need a park in my district.
Done. Don't you think that is going to invite basically what I
would think some nefarious type--one Senator can hold it up.
Mr. Adler, is that right? One Senator under the rules we
know today can hold up appointments, can hold up rules and
regulations?
Mr. Adler. Yes. Under the way the rules are typically
applied, they can. But blue slips are a courtesy afforded to
home State Senators for nominations. They are not applied to
legislation. And my read of the bill would not allow holds of
joint resolutions----
Mr. Cohen. Mr. Adler, are you suggesting that we can write
a bill over here that is going to restrict or change the Senate
rules?
Mr. Adler. I think that if the House and the Senate both
passed a bill that is signed into law by the President that
codifies changes to the rules for both Chambers, as has been
done for the Base Closure Commission, for the Fast Track Trade
Authority, for----
Mr. Cohen. You understand that one Senator can hold up a
bill?
Mr. Adler. If the rules allow for it, yes. But I also know
that there are probably about a dozen examples of the House and
Senate passing legislation limiting the rules to prevent those
sorts of holds by limiting debate and by requiring votes to
occur on a scheduled basis. And the two most prominent examples
are with the Base Closures Commission and with the Fast Track
Trade Authority.
Mr. Cohen. Thank you, sir.
Ms. Katzen, let me ask you a question. You were here when
we read the Constitution. Did you watch us read the
Constitution from the floor of the well?
Ms. Katzen. Actually, I did.
Mr. Cohen. You did.
And did you hear--I don't know who read it; I am sure it
was somebody--the article II, section 1, something about all
power being vested in the executive to carry out the laws. Tell
us a little primer of what that means about the executive. And
can they have the ability to execute our laws without rules?
Could they do it without having any rules?
Ms. Katzen. I think that is a serious problem, because
section 1 of article II vests all executive power in the
President. That power includes the power to take care that the
laws be faithfully executed. That is a quote from the
Constitution. That means that when Congress passes the law, it
is up to the President and the subsequent President and the
subsequent President after that, whether they agreed with that
law or not, to carry out the law.
Now, for over a century, administrative agencies have been
implementing or carrying out the law by issuing regulations.
That is how it is done. And so for that reason, I believe that
an attempt by Congress to strip the President of that authority
with respect to major rules is tantamount to an act of
Congress--I am using Chief Justice Rehnquist's words from
Morrison v. Olson--of one branch self-aggrandizing at the
expense of another branch. Or, again using Chief Justice
Rehnquist's words, an act of Congress which would impermissibly
interfere with the President's exercise of his constitutionally
appointed functions. These are serious questions.
I wouldn't be so presumptuous as to say that I know how the
Supreme Court would rule, but if they want to invoke Justice
Breyer, I would refer them respectfully to Justice Scalia as
well, who has been, among all the Justices, the guardian of the
President's powers.
Mr. Cohen. Thank you.
Mr. Chairman, I yield back the remainder of my time beyond
the red light.
Mr. Coble. You didn't violate it too badly.
The Chair recognizes the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Chairman, I would like to make my opening statement be
part of the record, with your consent.
I want to thank all three of our panelists.
Mr. McIntosh, I will start with you.
Mr. Coble. Without objection.
[The prepared statement of Mr. Gowdy follows:]
Prepared Statement of the Honorable Trey Gowdy, a Representative in
Congress from the State of South Carolina, and Member, Subcommittee on
Courts, Commercial and Administrative Law
__________
Mr. Gowdy. Thank you, Mr. Chairman.
What, in your judgment, is the proper balance between the
executive branch and the legislative branch when it comes to
rulemaking and enforcement?
Mr. McIntosh. Let me point out that the Administrative
Procedure Act also constrains how the executive branch writes
its regulations, the processes it must use before they can have
the force of law. So there is a long tradition in our modern
history of Congress asserting constraints over how the
President and the executive branch can issue regulations. It is
fully compatible with that for Congress to say, Before this
regulation that you are proposing, Mr. President, or the
agency, it has to come back to Congress and sit there for
Congress to give its approval of the content of that
regulation.
I think it is fully within Congress's power to do that. I
would point out that for the century prior to the last century,
there were no regulatory authorities or bodies, and the
President was fully capable of exercising his duty under the
Constitution to take care that the laws were faithfully
executed.
So I think this act, perhaps it would be hubris to say that
it goes as far as to restrain the President's executive
authority because it simply doesn't do that. There are ways you
can argue that, in fact, it enhances it, as I mentioned
earlier, vis-a-vis the so-called independent agencies, because
his signature on the bill approving the regulation gives him
control over those agencies and the policies that they develop.
Mr. Gowdy. Mr. Adler, I may have heard you incorrectly. And
if I did, I want to give you a chance to correct. I wrote down
that you said there have been 3,500 regulations promulgated in
the past?
Mr. Adler. In 2009, I think the exact number is 3,503. And,
of those, I don't remember the exact number, but several dozen
of those were major. But the 3,500 number was all regulations
in, I believe, 2009.
Mr. Gowdy. All right. I am just a prosecutor, so forgive me
for not knowing much about civil law. But would the violation
of a Federal regulation be evidence of negligence in a civil
suit?
Mr. Adler. It depends.
Mr. Gowdy. It depends on what?
Mr. Adler. I mean, it depends on the nature of the
regulation; it depends on what is at issue. But, I mean, there
are instances in which that could be evidence of that. It would
depend. I guess it would really depend on a lot of factors,
including what the State laws are.
Mr. Gowdy. Are there any criminal penalties connected with
violations of Federal regulations?
Mr. Adler. There often are criminal penalties associated
with violating----
Mr. Gowdy. How can Congress abdicate its responsibility for
criminal enforcement to a nonelected entity?
Mr. Adler. Well, I think you have hit on the key issue
here, is that Congress, for expedience, has delegated lots of
authority to administrative agencies to develop rules of
conduct in a wide range of detailed and complex areas. And I
think what we have overlooked is that it is ultimately Congress
that is responsible for that authority.
And especially when you have rules that are going to carry
criminal sanctions or, as in the case of the REINS Act, rules
that are estimated to have a substantial effect on the economy,
which is a rough proxy for a really major policy decision that
will affect a large part of the country, I think it is
certainly reasonable to say that we should make sure the people
who are the source of the legislative power in the first place,
Congress, where all legislative power is vested under article 1
of the Constitution, is accountable for that decision and that
members of the public know whether or not their representatives
believe that imposing that sort of rule is or is not a good
idea.
Mr. Gowdy. Ms. Katzen, you do not challenge the
constitutionality of congressional oversight, correct?
Ms. Katzen. Not at all.
Mr. Gowdy. You don't even challenge the wisdom of
congressional oversight.
Ms. Katzen. I endorse it wholeheartedly.
Mr. Gowdy. So when you mentioned that there are
constitutional infirmities in this bill, which, as I read it,
is Congress reclaiming its responsibility/authority for
oversight, what do you mean by ``constitutional infirmities?''
Ms. Katzen. I think the REINS Act goes well beyond
oversight. And the Chairman talked about, in his opening
statement, fine-tuning the regulatory system. I think the REINS
Act is a blunt instrument that goes well beyond oversight. What
it says is that Congress must affirmatively approve an action
that it has already delegated and on which a lot of work,
effort, and resources have been spent in refining and
developing and issuing a rule.
Mr. Gowdy. But you would agree with me, Congress could
reclaim that delegation in the first place, right?
Ms. Katzen. Absolutely. And that is through--the
Congressional Review Act does exactly that, because it
satisfies the bicameral and presentment part of Chadha, and it
says Congress is saying: You can't do that. That is very
different from saying: Before you do anything in this area, you
must come back, even though we have already delegated it to
you, you must come back and get our permission.
Mr. Gowdy. What is the constitutional distinction between
doing the two?
Mr. Coble. The gentleman's time is expired.
Ms. Katzen. I think there is a significant----
Mr. Gowdy. I apologize, Mr. Chairman.
Mr. Coble. You may answer that quickly, Ms. Katzen.
Ms. Katzen. I think there is a significant difference
between the two. And that is why the Congressional Review Act
was originally crafted as it was, to be a change of the law,
not a filter before which implementing a pre-existing law can
go forward.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Coble. Thank you, Mr. Gowdy.
Mr. Conyers?
Mr. Conyers. Thank you, Chairman Coble.
My ex-prosecutor colleague asked why the Congress doesn't
enforce the laws. Well, as McIntosh and Davis and I know, we
pass the laws, we oversight the laws, we do not enforce the
laws. There is a little Federal agency called the Department of
Justice that enforces the laws. So that is my criminal justice
lesson for the day.
Now, this $1.75 trillion annually that has been raised
here, I would like to ask Ms. Katzen, how does that comport
with the issues of the Congressional Budget Office, which has a
different set of figures here? OMB said that major regulations
promulgated over the 10-year period between 1998 and 2008 are
estimated to have cost between $51 billion and $60 billion.
Ms. Katzen. I would love to answer the question, but I know
the red light will go off before I even get halfway there.
The 1.75 comes from a study that was presented in the mid-
1990's that immediately raised all sorts of flags, both as to
the assumptions, the methodology, et cetera. CRS did a very
careful analysis, which I would commend to you, that shows the
different problems that exist.
Now, Congress ordered OMB to do the same thing, to do a
real study. And what OMB did was to come up with the numbers
that you had. They are very large numbers, but they are much
smaller than the 1.75 trillion numbers.
Congress, in its wisdom, said, determine the costs and
determine the benefits. So, as you talk about the $43 billion
to $55 billion in costs, they found $128 billion to $616
billion in benefits. So even if you use the highest end of the
costs and the lowest end of the benefits, you still have net
benefits of $73 billion.
Mr. Conyers. All right. Let me ask you this. Who was it
that made this authoritative statement, allegedly, about over a
trillion dollars? Do you know?
Ms. Katzen. It originally came from a Tom Hopkins study and
then a gentleman whose name I----
Mr. Conyers. Mr. Adler, do you know?
Mr. Adler. I don't know off the top of my head.
But I would just note that the OMB numbers that have been
referenced exclude independent agencies and exclude non-major
rules, which are over 90 percent of the regulations that are
finalized each year. So to compare the OMB numbers with the
other estimates is not----
Mr. Conyers. Mr. McIntosh, do you know?
Mr. McIntosh. Unconstitutional is the subject that Ms.
Katzen has referred to----
Mr. Conyers. But who----
Mr. McIntosh. And lots of people in the literature have
cited that as they have discussed the cost of Federal
regulation.
Mr. Conyers. So everybody says that somebody said it once
and it is in a study somewhere, and so that is about it, huh?
Ms. Katzen, did you want to add anything to this?
Ms. Katzen. Someone just handed me something which uses the
name Mark Crain and Thomas Hopkins, and I think they are the
co-authors of this $1.75 trillion--whatever.
Mr. Conyers. All right. Let me ask this question. If this
REINS Act, which is high up on the list of our new leadership's
agenda--it is the fourth piece of legislation introduced--what
would this do to health-care reform? How would you take an
enormous piece of legislation like this--and I think
``ObamaCare'' is going to be a congratulatory remark in
history--how would this affect it? Wouldn't it just stop it in
its tracks?
Mr. Adler. It depends on what Members of Congress feel
about it. If the majority of those in both houses of Congress
support the regulations that are necessary to implement that
law, then it would go on as before.
The only thing that would stop it, under the REINS Act,
would be is if the majorities of Congress don't support those
regulations. It ensures, essentially, that the American people
get the sort of regulatory policy that the American people
want. And I would think that that is a step toward greater
political accountability and----
Mr. Conyers. Now, well, wait a minute. The majority of the
Congress already passed the bill, and the President signed it
into law.
Mr. Adler. But congressional opinions change. Congress
repeals statutes, revokes statutes, alters statutes.
Mr. Conyers. Well, that is----
Mr. Adler. And one of the problems is you don't really have
legislation that was enacted last year----
Mr. Conyers. Can I ask unanimous consent for 1 additional
minute?
Mr. Coble. Certainly.
Mr. Conyers. Thank you, sir.
Now, look, gentlemen and lady, you all know that any one of
us, to challenge a regulation, all they have to do is walk into
the nearest Federal district court and sue away. And we have
regulations that get reviewed and modified or kicked out. What
is wrong with that?
Mr. Adler. Nothing. But courts don't want to review the
policy merits of regulation. Courts don't ask, is this
regulation a good idea? Are the costs worth the benefits? Is
this something the American people support?
What courts look at is the nonpolicy questions: Were the
rules followed? Was there--and those are two separate
questions. This body is responsible for the policy questions.
Mr. Conyers. But, look, we just passed health care months
ago. You mean we got to go back and look at it again?
Mr. Adler. I think that when you have major legislation and
agencies are implementing that legislation, it is a good idea
for Congress to----
Mr. Conyers. Do you know what this sounds like to me now?
It sounds like a backdoor way of legislating again, when they
are charged with actually just making the rules to implement a
bill already signed into law.
Mr. Coble. Mr. Conyers, your minute is over.
Mr. Conyers. Thank you very much, Mr. Chairman, for your
generosity.
Mr. Coble. Mr. Reed? Mr. Reed is up next for 5 minutes.
Mr. Reed. Oh, thank you, Chairman.
I would like to follow up on the comment that was just made
by Mr. Conyers, when he said the individual, whoever is
objecting to the rule, can sue away. Who pays for that? Who is
the person who has to bring that lawsuit? Usually, it is the
small-business owner. Is it a farmer, is it a gentleman who is
objecting to that regulation?
I will ask Mr. McIntosh that question.
Mr. McIntosh. Yes, sir, you are exactly right. It is the
private party that has been affected by the regulation.
And their recourse is, in fact, very limited, in they have
to argue that the agency failed to follow its own procedures or
acted arbitrarily and capriciously, not that they disagree with
or they feel it is unfair that the regulation imposes burdens,
say, on wheat farmers but not on corn farmers.
And the law says to the agency, the Department of
Agriculture, you go and allocate what should be planted on the
land and, you know, do it in a way that maximizes the return
for agriculture. Well, if the farmer who is adversely affected
by that wants his day in court, all he can say is, ``Well,
sure, they allocated it, but they didn't give me my
allocation.'' The courts say, ``Sorry, you lose. They had to
make that decision.''
And I think Mr. Conyers's later remark reflects correctly
that what the REINS Act would do is say that decision, who gets
which allocation for what crops to do, should actually be a
legislative decision. And so, in many ways, what the bill does
is correct a constitutional deficiency that is inherent in the
regulatory program, where the accountability for legislative
decisions like those never comes back to Congress.
Mr. Reed. Then correct me if I am wrong, Mr. McIntosh. That
bureaucrat who is creating that rule, he is not an elected
official, correct?
Mr. McIntosh. No. He would be typically a civil servant or
assigned by a person appointed by the President.
Mr. Reed. So when I go talk to my small-business
constituent or my farmer in my district and he objects to the
policy, I can't go to him, ``Well, we will vote that guy out
the next time around because we disagree with that policy.'' He
is essentially stuck with that rule, other than the courts that
are available to him. Is that a fair assessment?
Mr. McIntosh. His political recourse would be to join
others to vote enough Members of Congress to change the law or
to vote a new President who would change the regulation, direct
his agency.
Mr. Reed. Okay. I appreciate that.
There has been a lot of objection that I am hearing in this
testimony that one of the problems is the workload that would
be put on Congress, finding the time to go through and develop
that.
Wouldn't we face that same problem if we went through the
enabling legislation and amended the enabling legislation?
Wouldn't that be a tremendous workload on Congress, to go back?
No one objects to the fact that Congress would have that
authority to do it, do you? We could go back through each of
the pieces of legislation, change the enabling authority and
clarify our intent as to what we meant from Congress. No one
objects to that, correct?
Mr. McIntosh. No.
Mr. Adler. Right.
Mr. Reed. So that burden on Congress would be bigger, I
would argue. Am I farfetched on that conclusion, that that
would be a huge burden on Congress?
Mr. McIntosh. Yes, it would. I mean, back in 1995, we
thought about doing that to address a lot of the regulatory
problems, and some of them got dealt with and others didn't.
Let me take, though, 2 seconds to----
Mr. Reed. Please.
Mr. McIntosh [continuing]. Brag about you all. I actually
think Congress can handle that burden. Now, the Senate
continues to mystify me, but the people who are----
Mr. Reed. You are not alone.
Mr. McIntosh [continuing]. In that body say they get things
done by unanimous consent, ultimately. But I think it can be
done.
Mr. Reed. Thank you.
I yield the balance of my time.
Mr. Coble. I thank the gentleman.
The gentleman from Georgia, Mr. Johnson, is recognized.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Adler, isn't it correct that regulations that pertain
to clean air, these are the regulations that you are speaking
of being able to stop?
Mr. Adler. Well, any regulations that----
Mr. Johnson. Yeah. Air quality, water quality?
Mr. Adler. The examples I gave there weren't----
Mr. Johnson. Well, no, no, no, no. I just want you to
answer my questions. Now, water quality, air quality, correct?
Mr. Adler. Yes. Congress should be held accountable for
those.
Mr. Johnson. What about food safety?
Mr. Adler. I think Members of Congress should be willing to
vote to be held accountable.
Mr. Johnson. What about drug safety?
Mr. Adler. I think Members of Congress should be held
accountable by voting on whether or not those regulations are a
good idea.
Mr. Johnson. What about financial reform?
Mr. Adler. Again, Congressman, I don't think Members of
Congress----
Mr. Johnson. I mean, that is covered under--these are
regulations that are brought to bear on big business and
industry----
Mr. Adler. Yes.
Mr. Johnson [continuing]. Primarily.
Mr. Adler. Primarily. And I think----
Mr. Johnson. All right. And so----
Mr. Adler.--Members of Congress should be held more
accountable----
Mr. Johnson. So things like the health and safety of
workers, do you want to be able to stop those kinds of
regulations from becoming the force of law?
Mr. Adler. No. I want my Member of Congress to have to vote
on that decision. I want to know if my Member of Congress
supports it.
Mr. Johnson. Well, tell me now. You contend that, what, $1
trillion per year is what all of these regulations cost? How
many new regulations are promulgated yearly that have that
economic significance?
Mr. Adler. That is the aggregate effect. Between 2000 and
2009, the number of major rules that would be affected by the
REINS Act has been between 50 and 80 per year.
Mr. Johnson. Okay. And you are familiar with the attributes
of the Senate----
Mr. Adler. Yes.
Mr. Johnson [continuing]. In terms of them doing their
work.
Mr. Adler. Yes. And that is why the REINS Act----
Mr. Johnson. And you are aware of the fact that one of
those attributes is not the ability to move quickly, is that
correct?
Mr. Adler. I think that the REINS Act addresses that.
Mr. Johnson. You heard that before, and you know that to be
a fact. Isn't that correct?
Mr. Adler. It is correct.
Mr. Johnson. That the Senate does not move quickly?
Mr. Adler. The Senate has to be forced to move quickly, and
I think the REINS Act accomplishes that.
Mr. Johnson. And so an obscure regulation, you think, would
be enough to cause them to set aside all of their judicial
appointments and other important--treaties that need to be
ratified, all of the legislation that Mr. McIntosh gives us
credit for for producing here in the House, but, because of an
obscure regulation, they would suddenly spring into action. Is
that what you want us to believe?
Mr. Adler. I don't believe regulations dealing with clean
air or clean water or financial services or some of the
examples you gave that cost more than $100 million a year, by
the executive branch's own estimates, is an obscure regulation.
Mr. Johnson. Well, let's talk about obscure regulations.
Who would decide--or, how would it be decided that a regulation
should be subjected to the congressional review under the REINS
Act?
Mr. Adler. The executive branch's cost estimates would
determine that.
Mr. Johnson. Okay. Who would bring that to the attention of
Congress?
Mr. Adler. The REINS Act has a procedure where that
information is automatically transmitted to both houses of
Congress with the regulation once it is finalized.
Mr. Johnson. Who would do that?
Mr. Adler. I would have to check. I think both----
Mr. Johnson.Would it be the U.S. Chamber of Commerce?
Mr. Adler. The agency does it, and I believe the
comptroller general that heads the Government Accountability
Office is responsible for submitting that to both houses. And
then, within 3 days, legislation is automatically introduced,
or the joint resolution is automatically introduced in both
houses. The last draft that I recall reading in legislation----
Mr. Johnson. So there is some ability for politics to
infect the process of actually producing the legislation then.
Mr. Adler. Actually, no. The way the REINS Act is drafted,
there is no amendment----
Mr. Johnson. Well, it would be a government bureaucrat that
would do that?
Mr. Adler. I spend a lot of time doing regulatory policy
and----
Mr. Johnson. How do we get----
Mr. Adler [continuing]. Much worried about the backroom
deals in regulatory agencies than any up-or-down votes on the
floor of the body of the whole.
Mr. Johnson. How will we get politics, Mr. Adler, out of
the rule-making process?
Mr. Adler. We----
Mr. Johnson. And aren't we, by subjecting the rule-making
process to congressional dictates, aren't we, by the very
nature of what we do here in the House, subjecting these rules
to politics----
Mr. Adler. Well, rules----
Mr. Johnson [continuing]. And influence, political
influence, with campaign contributions and whatnot?
Mr. Adler. Rules that govern private behavior are things
that political officials should be held accountable for. And I
believe that sunlight is the best disinfectant, and requiring
all Members of Congress to vote up or down in the body of the
whole is far less subject to special-interest manipulation than
leaving things in the halls of regulatory agencies. Your small-
business man, your small homeowner isn't spending time at the
FCC or the EPA or the USDA lobbying on regulations. I really
deserve to know how Members of Congress feel and then vote.
Mr. Johnson. We just want to remove all regulatory action
here in Congress--less government. Let's cut government, let's
cut regulation, and let's allow the members of the U.S. Chamber
of Commerce and other large businesses that traditionally shut
out small business----
Mr. Coble. The gentleman's time is expired.
Mr. Johnson [continuing]. Just to run roughshod over
society, and whatever will be will be.
I appreciate it. Thank you, sir.
Mr. Coble. The Chair recognizes the gentleman from Arizona,
Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
And thank all of you for being here today.
I guess, Mr. McIntosh, my first question will be to you,
sir. It occurs to me that not only the process here but the
mindset in which agencies write their regulations could be one
of the most significant advantages of this legislation.
Because, you know, if I were the director of an agency and I
were writing regulations and I knew that it was going to be
subjected to the scrutiny and oversight of Congress, that
Congress is going to have to prove it, I would be pretty
careful how I wrote that. I would make sure that it was a
regulation that would comport with a lot of common sense and
that could withstand the rigors of the legislative process
itself.
So, with that, since it only requires Congress to approve
major rules but it could affect and change the culture of the
agency, in what way do you think that that would improve all
rule-making? Or do you think I am just all wet here?
Mr. McIntosh. No, I think you are exactly right, that the
prospect of having the work product that the agency does in
developing a regulation be scrutinized in a debate in Congress
and voted up or down will have, as it does on every other
decision the agency makes where Congress has expressed an
interest, has an impact on their thinking and their calculation
about it. And that provides more accountability, provides more
accountability ultimately to the citizens, who vote on Members
of Congress.
That same accountability, by the way, is also in the
Congressional Review Act. It is more attenuated. But you can
still, by having a discharge position in the House to stop a
rule, rather than the presumption of it--with the presumption
being that it goes forward, or 30 Members of the Senate can
have a discharge position, the mere prospect of a debate, even
if everyone assumes that won't pass, I think, can also have a
salutatory effect on the agencies and their deliberations. So I
am encouraging Members of Congress, while you are deliberating
the REINS Act, to use your authority under the Congressional
Review Act, as well.
But, again, it comes down to sunshine, which Mr. Adler
mentioned. Bringing things out into the public debate has a
tremendous benefit on all of the actors involved.
Mr. Franks. Well, thank you, sir.
You know, I know there is going to be, as already manifest
here, some debate as to the constitutionality of the
legislation. I, for one, am fundamentally convinced that it is
constitutional, but I want to, you know, be open to potential
dissent here.
Those who cite article 2, section 1 of the Constitution
obviously are citing that Executive power should be vested in
the President. And, of course, some of us would cite article 1,
section 1, that the legislative power is vested in the
Congress. And it seems to me that regulation certainly has a
lot of the same characteristics as legislation, so if you are
going to make that case, it is important to consider.
But in constitutional terms, Mr. Adler, is there any
critical substantive difference between the REINS Act and a
statute that treats new regulations as simply proposed
recommendations to Congress for legislative action?
Mr. Adler. No, I don't think there is any significant
difference, and I think both are clearly constitutional under
existing precedent.
Mr. Franks. I am going to give Ms. Katzen an opportunity,
actually, here in a moment. But I wanted to find out, what is
your--why do you postulate that this is constitutional? Is
there anything that you would point out in particular?
Mr. Adler. Well, a couple things. I mean, the bicameral and
presentment requirements have to be satisfied. Both would
satisfy that.
I think that the Supreme Court has made clear, repeatedly,
in numerous opinions, as have lower courts, that all authority
to issue regulations must be expressly granted. There is no
residual authority to issue regulations that comes with other
grants of authority of agencies. It is not something that is
seen as inherently Executive. It is something that, for the
most part, the majority of Federal agencies did not enjoy until
the 1970's. There were some exemptions.
And the presumption had been that, unless agencies are
expressly granted the authority to issue legislative-type
rules, that is an authority they lack. And Congress is not
obligated to delegate that authority. And if Congress wants to
restrain that authority in some way, such as it does here,
there is no constitutional problem. And it doesn't create the
sorts of concerns that might be raised if, for example,
Congress sought to impose similar limits on the exercise of,
say, prosecutorial discretion or other things that are closer
to the court----
Mr. Franks. I understand. No, that is a good answer.
Quickly then, Ms. Katzen, Justice Breyer and Professor
Tribe of Harvard have both published articles supporting a view
that the REINS Act is constitutional. And I know you know that.
But could you specify for us why you think Mr. Adler is wrong
or why Justice Breyer or Professor Tribe are wrong? And do you
think there is any merit to their views whatsoever?
Ms. Katzen. Well, thank you for that open invitation. And
the light is red, but if I may answer?
Mr. Coble. Briefly, if you will, Professor.
Ms. Katzen. I will try.
I think Justice Breyer, who was then a judge, not a
justice, was engaging in what he often does, which is extremely
creative, more-theoretical-than-practical analysis in this
article, which I have read very carefully.
And I think one of the most important things is that he
sees it as a replacement for the one-house veto, which was
invalidated in Chadha. And he saw it as a case by case, going
through each of the statutes, rather than an across-the-board,
blanket provision.
But, most importantly, when he finishes, he makes it very
clear that it is neither practical nor desirable. He questions
the wisdom of it. And if you read the entire article, it is a,
``Well, we could do this kind of stuff, and we could think
about these kinds of--''
Mr. Franks. So, in other words, he thinks it is stupid but
constitutional?
Ms. Katzen. He thinks that it is----
Mr. Coble. The gentleman's time has expired.
Ms. Katzen. But this was before the last several decades of
Supreme Court decisions--in Morrison v. Olson, Mistretta, a few
other cases--in which the Court has been very clear that
separation of powers has a life beyond. They are looking at it
on a functional basis----
Mr. Coble. The time has expired, Professor. If you will
wrap it up.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Coble. The time has expired.
Ms. Katzen. Yes, sir.
Mr. Coble. The gentleman from Illinois.
Mr. Quigley. Thank you, Mr. Chairman.
You know, I am still relatively new here, but I learn
something new every day. Today I learned that it is not good
when someone who is not elected is enforcing our laws,
especially criminal ones. So the next time a police officer
stops me, I am going to say, ``Who elected you?'' Or FBI agents
or State's attorneys or--just go on down the line.
In the end, the only person who is elected in the executive
branch is the Executive. At the county level, I suppose that is
the State's attorney. But in the end, there is some delegation.
This isn't 1776. It is a far more complicated world.
And, ladies and gentlemen, I would respectfully suggest or
defy you to say, I am not going to think about regulation
today. When I get on this commuter airliner, I am not going to
wonder or worry about how many hours' sleep that pilot got last
night. When you come to my hometown in Chicago, the morbidity
and mortality capital of the United States for asthma, don't
think about regulation. Or if you drink our tap water in
Chicago, which has chromium levels--not in the lake, but in the
drinking water--three times higher than the new--I know it is a
bad word--regulation proposed in California. It is the Erin
Brockovich chemical, if you will recall.
So you can decide now or you can decide when you have your
eggs in the morning--a million cases of salmonella last year. I
understand, we all understand, that the President was trying to
strike a balance here. That over-200-year friction between the
executive branch and the legislative branch. And it gnaws on
you when you don't like what they do, so you want to change the
rules when it bothers you.
So I looked at it. And I talk about the President striking
a balance. Mr. McIntosh, Mr. Adler, how many rules do you think
this President's EPA has proposed or finalized in his first 21
months? Just a guess, if you want.
Mr. Adler. Major rules or all rules?
Mr. Quigley. All rules. EPA only, Clean Air Act.
Mr. Adler. Just under the Clean Air Act?
Mr. Quigley. Yeah.
Mr. Adler. My guess would be, just under the Clean Air Act,
probably under a dozen.
Mr. Quigley. It is much higher. It is 87. And I was
appalled. I couldn't believe it. And I thought, well, who could
be more liberal than--maybe the Clinton administration. The
first 2 years, what do you think his numbers were? A hundred
and fifteen. It just shows a trend here. I looked further.
George W. Bush, first 2 years, 146--146.
So, Mr. McIntosh, you used the expression, I believe--and I
don't want to misquote you, former Member--that the courts
``forced their hand'' on carbon. Does that mean you just
disagreed with them?
Mr. McIntosh. No. What I meant by that was the Court, I
think, incorrectly interpreted the bill.
Mr. Quigley. But isn't that--go back to the Constitution.
Now you are disagreeing with two out of three branches. Didn't
the Constitution say that the executive enforces and then the
Supreme Court interprets, and they interpreted. So you are
upset with both of them now.
Mr. McIntosh. Well, at the time, the executive branch
didn't share the Court's interpretation. And I think there was
a fair amount of evidence in the legislative history that
Congress didn't intend that when they passed the Clean Air Act
amendments.
Mr. Quigley. Well, just, if I could, sir, please, let me
just read you the language that you had a problem with, section
202(a)(1): ``which, in its judgment, causes''--we are talking
about carbon here, that you don't have a problem with--``which,
in its judgment, causes or contributes to air pollution which
may reasonably be anticipated to endanger public health or
welfare.''
So we were talking generalities before, but now we are
talking specifics. You don't think that language implies that
there could be a problem that someone in the EPA could
reasonably interpret to endanger the public health or safety?
Mr. McIntosh. No. That section of the Clean Air Act was
intended to give EPA the authority to regulate when substances
that were, at the time that bill was passed, not known to be
problematic for the health become known to them.
But, at the time, people knew of carbon dioxide. And I
would recommend you check with John Dingell, who was the author
of it. They did not intend for that provision of the Clean Air
Act to give authority for EPA to regulate carbon dioxide. They
talked about it in other parts of the bill, decided not to give
that authority.
But let me--the language you cited I think is also a really
important point for another issue that is very key to this
whole debate. And that is, how specific should Congress be when
it delegates the legislative authority to the regulatory
agencies? And there has always been a debate back and forth
about whether general language, like the language you cited, is
appropriate. The consensus is that it has been in the Clean Air
Act, in the language cited there.
But I would point you to an article that I referred to in
my testimony by a professor at Boston University, Gary Lawson,
where he points out that, if you had the ``Goodness and
Niceness Act'' and said to the regulatory agency, ``Promulgate
rules for goodness and niceness, and figure out what the
punishment should be,'' that that would be too broad a
delegation.
So somewhere in there, there is a spectrum. And the
Constitution says, no, the legislature can't delegate all of
its legislative authority to the agencies. The REINS Act gives
you the benefit of protecting against that, because for major
regulations they come back to Congress and then there is a
vote.
Mr. Quigley. Only if you disagree.
Mr. Gowdy. [presiding.] Mr. McIntosh, I apologize, but the
gentleman's time is expired.
The Chair would recognize the gentleman from Florida, Mr.
Ross.
Mr. Ross. Thank you, Mr. Chairman.
You know, it is interesting when we talk about the
regulatory environment. And, as a businessman, one of the
things I have learned is that, if I want to be profitable, if I
want to make sure that I have the right environment, I try to
manage my risks. And the risks I look at, of course, are, you
know, there are some insurance risks, there is the market risk,
there is my resource risk. But one of the things I have learned
is the regulatory risk that exists is almost not manageable.
And the reason it is not manageable is because there are no
trends. There is no way you can anticipate what the regulatory
environment is ever going to be if you want to start or operate
a business.
And, in my particular State, there is a numeric nutrient
water criteria that the EPA is trying to impose, coincidentally
just on Florida, that my ag industry has indicated that it will
cost over 14,000 full- and part-time jobs, lost over $1 billion
annually, cost my phosphate and fertilizer industry $1.6
billion in capital costs and $59 billion in operating costs.
It would seem to me that this act, this REINS Act, would
allow at least some sense of risk management over the
regulatory environment. Wouldn't you agree, Mr. Adler?
Mr. Adler. Oh, certainly.
Mr. Ross. And with regard to even more imposition of
regulatory schemes, I am reminded back years ago when I was in
the legislature--and this is on a smaller scale--but I was
active in a Boy Scout group that had a summer camp. And they
had had this property for 50 years. But they wanted to put an
outhouse on there for the summer camp. But what they found out
is that, even though they had no running water and no
electricity, they had to go get architectural drawings,
engineer-designed approved plans. The DEP had to do a soil
sampling. And by the time they were able to even get anything
in order to meet with the regulatory system, summer camp was
over.
And what it taught me, though, was that logic and reason
isn't always there. Now, I know that H.R. 10 exempts camping,
hunting, and fishing. But without logic and reason, I think you
also lack accountability.
And one of the things--I want to ask you this, Ms. Katzen.
Would not the REINS Act allow for a greater sense of
accountability to where it should belong, and that is in the
congressional oversight of the regulatory environment?
Ms. Katzen. As I said earlier, Mr. Ross, I strongly endorse
the notion of congressional oversight. I have no qualms
whatsoever with your Committees calling up the--you call them
bureaucrats; I would call them committed, career civil servants
and political appointees at the agencies--and ask them, what
are you doing and why are you doing it and what is the support
for it? I think that is wholly appropriate.
But I would answer your earlier question to Mr. Adler
differently. If you are worried about no trend, his answers to
Mr. Quigley's question, was that there is no trend. Last year
Congress passed a health-care bill. This year, it is going to
be implemented, but it is going to come back up. And if one,
not both, but just one house decides they don't like it, then
it is not going to happen. And in 2 years, there will be
another election, and maybe the other chamber will feel
differently.
And the ability to predict what each election--and
elections do have consequences, I do believe that, and I agree
with that. But are you going to change, then, every 2 years the
possibility that the rule is on, the rule is off, the rule is
on, the rule is off, the rule is on, the rule is off? I think
that leads to more uncertainty, less predictability. And----
Mr. Ross. So you would suggest that the status quo is more
certain, in terms of assessing the regulatory risk?
Ms. Katzen. The regularity of process. You pass a bill; you
then turn it over to the executive branch to faithfully carry
out the laws and to issue the regulations. I agree with Mr.
Adler, an agency is not a free agent, cannot do whatever it
likes. It can only do what Congress has said. But if Congress
says, set the limits at this level, and the agency does that,
it is faithfully carrying out the decision that Congress
enacted.
Mr. Ross. But wouldn't you agree that, in terms of
accountability, that you have a greater degree of
accountability where you have elected representation?
Ms. Katzen. Yes. And the initial statute that was passed
that authorizes the agencies is one that is fully accountable
because it was bicameral and presentment. It was passed by both
houses of Congress, and it was signed by the President.
And the fact that now one house may think differently about
it does not lead to greater accountability. What about the
other house, which may like the idea? You have gridlock, you
have problems. And I think those problems create greater
uncertainty for businesses.
Mr. Ross. But with regard to gridlock--and, again, just to
point out something real quickly here--in terms of the bill,
the content of the bill says that, within 3 days of the
regulatory rule, that Senate shall introduce their joint
resolution. So there would not be--there would be an expedited
fashion. So I take issue with you, there being gridlock there.
But I see my time has expired. Thank you.
Mr. Gowdy. Thank you.
On behalf of all of us, we would like to thank our
witnesses for their testimony today.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond as promptly as they can so their answers may be part of
the record.
Without objection, all Members will have 5----
Mr. Conyers. Mr. Chairman, I ask unanimous consent to enter
into the record the CRS report on total costs and benefits of
rules.
Mr. Gowdy. Without objection.
Mr. Conyers. Thank you.
[The information referred to follows:]
__________
Mr. Gowdy. Without objection, all Members will have 5
legislative days to submit any additional materials for
inclusion into the record.
With that, on behalf of all of us, thank you for your
expertise, for your time, and your participation.
This hearing is adjourned.
[Whereupon, at 5:35 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Responses to Post-Hearing Questions from Sally Katzen, Visiting
Professor, New York University School of Law, Senior Advisor, Podesta
Group
Report from the Center for Progressive Reform (CPR)