[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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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


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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

                              ----------                              


               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)




                                 
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