    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

         REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011

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

                                    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

                                       ON

                                    H.R. 10

                                   __________

                                 MARCH 8, 2011

                                   __________

                               Serial No. 112-26

                                   __________

             Printed for the use of the Committee on the Judiciary

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

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                           COMMITTEE ON THE JUDICIARY

                          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

                                  ----------

                                 MARCH 8, 2011

                                                                       Page
                                                                       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..............................     2
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................     5

                                   WITNESSES

    David Schoenbrod, Trustee Professor of Law, New York Law School
      Oral Testimony.................................................    81
      Prepared Statement.............................................    83
    Eric R. Claeys, Professor of Law, George Mason University School
      of Law
      Oral Testimony.................................................    87
      Prepared Statement.............................................    90
    David Goldston, Director of Government Affairs, Natural Resources
      Defense Council
      Oral Testimony.................................................   122
      Prepared Statement.............................................   124

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    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......     4
    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................     7
    Material submitted by the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Ranking Member, Committee on the Judiciary.....................   139

         REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011

                                  ----------

                             TUESDAY, MARCH 8, 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, Gowdy, Gallegly, Franks,
    Reed, Ross, Cohen, Johnson, and Quigley.
        Also Present: Representatives Conyers and Jackson Lee.
        Staff Present: (Majority) Daniel Flores, Subcommittee Chief
    Counsel; Ashley Lewis, Clerk; John Hilton, Counsel; and Allison
    Rose, Professional Staff Member.
        Mr. Coble. The Subcommittee will come to order.
        As I stated in our January, 24, 2011, oversight hearing it
    is no secret that our economy is still soft. Unnecessary or
    unreasonable regulatory burdens will continue to drive business
    investments to other countries, and the result will continue to
    be too few American jobs and too little American prosperity.
    Perhaps more than anything else is Congress' excessive
    delegation of legislative decisions to Federal agencies that
    has produced a flood of Federal regulation that burdens our
    economy. When Congress makes the decisions, it is accountable
    to the voters for the results. When agencies make the
    decisions, they are not.
        Not surprising, therefore, it is the unaccountable agencies
    that churn out regulation after regulation, year after year,
    whether needed or not. The cumulative weight of their
    regulations contributes heavily to the difficulty of our
    economic recovery. So does uncertainty over what regulations
    will come next, particularly what $100 million or $1 billion
    regulations are around the country.
        The REINS Act is an important step, it seems to me, to turn
    this state of affairs around. It returns to Congress the
    decisions over whether the most costly regulations proposed by
    Federal agencies will become effective. And by returning these
    decisions to Congress, it ultimately will return the
    decisionmaking authority to the voters.
        At our January, 2011, oversight hearing on the REINS Act,
    we considered at length the basic policy decision that the
    REINS Act presents. We also began a discussion about the
    constitutionality of the bill. At today's hearing, we will
    continue our consideration of the REINS Act's
    constitutionality. It is my view that the discussion must begin
    from the premise that agencies have legislative rulemaking
    authority only because the Congress has delegated it to them.
    Therefore, when Congress seeks to reclaim some of its
    legislative authorities, that would seem to be inherently
    constitutional.
        I am sure the witnesses will offer us their views on that
    and on ways in which we may be able to improve the REINS Act
    language. I look forward to hearing our witnesses' testimony,
    and reserve the balance of my time, and I am pleased to
    recognize the distinguished gentleman from Tennessee, the
    Ranking Member on this Subcommittee, Mr. Cohen.
        Mr. Cohen. Thank you, Mr. Chair.
        Welcome to the witnesses. I appreciate your coming before
    us.
        Sometimes during a legislative hearing, a Committee will
    examine the particulars of a bill at issue, including the
    quality of its drafting, the need for additional provisions, or
    whether it can be improved or tweaked to make it more
    acceptable to the bill's opponents.
        However, with respect to H.R. 10, the ``Regulations From
    the Executive in Need of Scrutiny Act,'' or ``REINS Act,'' I do
    not see the point of engaging in such a process because such a
    bill is simply an ill-conceived notion, particularly because
    the regulations--the title, Regulations From the Executive in
    Need of Scrutiny, implies directly that the Executive is in
    need of scrutiny. That Executive, of course, is the President
    of the United States; not the president of the Democratic
    Party, but the President of the United States, Barack Obama.
        This act was not needed when George Bush was President,
    apparently. He did not need scrutiny, although, in retrospect,
    with the Nation coming close to falling into the Great
    Depression, the second Great Depression we would have had, he
    needed a lot of scrutiny. Putting us into a war where we didn't
    have weapons of mass destruction, and squandering a trillion
    dollars of our wealth and 4,500 people's lives and a whole lot
    of our reputation around the world, he didn't need scrutiny.
    Only when this man, this great man becomes President, is there
    a need for--let me see the title of this again--executive
    scrutiny. I think that is what it was. Executive in Need of
    Scrutiny Act. Well, in itself I think you can see that it is
    political and not a governmental decision.
        In reviewing the written statements of the two majority
    witnesses, it is clear the real purpose of this hearing is to
    attack at its foundation the administrative system,
    particularly this President. In fact, both witnesses seem to
    take a strong issue with much of the 20th century. In fact,
    this antecedes the President, but certainly his policies embody
    much of the great policies of the last half of the 20th century
    which are under attack in this Congress, this modern government
    is.
        Under H.R. 10, all major rules, that is, rules that have a
    positive or negative economic effect of a hundred million
    dollars or more, and there are increased prices for consumers,
    industries, and government entities, or have significant
    adverse economic impact must be approved by Congress before
    they can take effect. Congress must do so by passing a joint
    resolution of approval through both Chambers under expedited
    process.
        I do not believe the REINS Act is necessary for the
    exercise of congressional control over the administrative
    system. Congress already has a number of means at its disposal
    to shape agency rulemaking. The most straightforward, of
    course, is its power to determine the nature and scope of its
    delegation of authority to an agency. If Congress deems the
    delegation of authority was too broad, it is always free to
    revisit that delegation and, if needed, retract or narrow the
    scope of the agency's authority, always keeping in mind that we
    have three separate and equal branches of government. And that
    should be reminded to us as well as we read the Constitution in
    the first week. And it talked about the three separate
    branches, Article 1 and 2, et cetera.
        Additionally, as it was demonstrated vividly just a few
    weeks ago, Congress can use its power of the purse to stop
    implementation of specific regulations it objects to. For
    instance, no fewer than 19 out of the 67 amendments to H.R. 1,
    the ``Full Year Continuing Appropriations Act 2011,'' or the
    attack on the last half of the 20th century were aimed at
    defunding the promulgation or implementation of existing and
    proposed regulations. Congress can also conduct oversight,
    whether through formal hearings or through less formal
    interactions between agencies and individual Members or
    Committees. Among the first phone calls that small business
    people and other constituents make when they have concerns
    about agency actions are to their Member of Congress, which in
    turn prompts Members to act.
        Finally, Congress has enacted statutes to shape the
    administrative rulemaking process, including the Administrative
    Procedure Act and the Regulatory Flexibility Act. Moreover,
    through the reporting requirements through the Congressional
    Review Act, Congress has kept informed about agency rulemaking
    activity.
        Congress is not shy about objecting to rules it finds
    objectionable, and has the means to impose its will regarding
    such matters. Moreover, each of these mechanisms ensures
    democratic accountability over agency rulemaking. The REINS
    Act, however, would force Congress to pass judgment on major
    rules without the opportunity to make a well-informed decision
    about their merits, leaving them wide open for special
    interests to stifle such rules in Congress.
        Under the bill, Congress has only 70 legislative days to
    pass the joint resolution of approval through both Chambers,
    and is limited to a total of 2 hours of debate in each House;
    only 1 hour for each of those in favor and 1 for those opposed
    to the joint resolution; certainly not enough time for a well-
    informed and intellectual debate of the issues.
        Committees of jurisdiction will only have 15 legislative or
    session days to consider the merits of major rules under their
    jurisdiction, after which a joint resolution of approval is
    automatically discharged.
        Under such a short-circuited process, is Congress really in
    a position to second-guess the merits of rules that in many
    cases took many years of vetting to produce? Instead, Members
    would be bombarded with visits, phone calls, and talking points
    from industry lobbyists who would no doubt take advantage of
    this short-circuited process to shape Members' perspectives
    about the recalls.
        The REINS Act forces Congress to move too quickly while
    pointlessly slowing down the agency rulemaking in a way that is
    not improvement. The REINS Act also threatens to undermine
    Congress' ability to consider other legislative business. For
    example, in calendar year 2010 alone, there were 94 major rules
    while there were only approximately 116 legislative days in the
    House during the same period. We are having less time on the
    floor, now that we have had a change in the 112th Congress in
    how we meet. Even under expedited procedures, Congress would be
    forced to delay important business, doing a further disservice
    to the American people.
        This is not the first time the idea of requiring
    congressional approval has been proposed. It has been
    considered and rejected in the past. Chief Justice John Roberts
    criticized such legislation that was similar to the REINS Act
    in 1983. In a memorandum he objected that such legislation
    would ``hobble agency rulemaking by requiring affirmative
    congressional consent to all major rules,'' and would ``seem to
    impose excessive burdens on the regulatory agencies.''
        We ought not let the political passions at the moment
    produce such a radical change in how our government has worked
    and worked well for more than a hundred years, recognizing the
    three separate and equal branches of government.
        The REINS Act is troubling for many reasons beyond the
    obvious political reins that it tries to project, and I urge my
    colleagues to oppose it.
        I yield back the balance of my time.
        [The prepared statement of Mr. Cohen follows:]
     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
        Sometimes during a legislative hearing, a committee will examine
    the particulars of the bill at issue, including the quality of its
    drafting, the need for additional provisions, or whether it can be
    improved or tweaked to make it more acceptable to the bill's opponents.
        With respect to H.R. 10, the ``Regulations From the Executive in
    Need of Scrutiny Act'' or ``REINS Act,'' however, I do not see the
    point of engaging in such a process because the bill is, simply put, an
    ill-conceived idea.
        In reviewing the written statements of the two Majority witnesses,
    it is also clear that the real purpose of this hearing is to attack at
    its foundation the administrative system. In fact, both witnesses seem
    to take strong issue with much of the 20th Century, at least with
    respect to the development of modern government.
        Under H.R. 10, all major rules--that is, rules that have a positive
    or negative economic effect of $100 million or more, increase prices
    for consumers, industries, and government entities, or have a
    significant adverse economic impact--must be approved by Congress
    before they can take effect. Congress must do so by passing a joint
    resolution of approval through both chambers under expedited
    procedures.
        I do not believe the REINS Act is necessary for exercising
    Congressional control over the administrative system. Congress already
    has a number of means at its disposal to shape agency rulemaking.
        The most straightforward, of course, is its power to determine the
    nature and scope of its delegation of authority to an agency. If
    Congress deems that its delegation of authority was too broad, it is
    always free to revisit that delegation and, if needed, retract or
    narrow the scope of the agency's authority.
        Additionally, as was demonstrated vividly just a few weeks ago,
    Congress can use its power of the purse to stop implementation of
    specific regulations that it objects to. For instance, no fewer than 19
    out of the 67 amendments to H.R. 1, the ``Full-Year Continuing
    Appropriations Act of 2011,'' were aimed at de-funding the promulgation
    or implementation of existing and proposed regulations.
        Congress also can conduct oversight, whether through formal
    hearings or through less formal interactions between agencies and
    individual Members or Committees. Among the first phone calls that
    small businesspeople and other constituents make when they have
    concerns about agency action is to their Member of Congress, which, in
    turn, prompts Members to act.
        Finally, Congress has enacted statutes that shape the
    administrative rulemaking process, including the Administrative
    Procedure Act and the Regulatory Flexibility Act. Moreover, through the
    reporting requirements of the Congressional Review Act, Congress is
    kept informed about agency rulemaking activity.
        Congress is not shy about objecting to rules that it finds
    objectionable and has the means to impose its will regarding such
    matters. Moreover, each of these mechanisms ensures democratic
    accountability over agency rulemaking.
        The REINS Act, however, would force Congress to pass judgment on
    major rules without the opportunity to make a well-informed decision
    about their merits, leaving the door wide open for special interests to
    stifle such rules in Congress.
        Under the bill, Congress has only 70 legislative days to pass a
    joint resolution of approval through both chambers and is limited to a
    total of 2 hours of debate in each House--only 1 hour each for those in
    favor and for those opposed to the joint resolution. Committees of
    jurisdiction would have only 15 legislative or session days to consider
    the merits of major rules under their jurisdiction, after which a joint
    resolution of approval is automatically discharged.
        Under such a short-circuited process, is Congress really in a
    position to second-guess the merits of rules that, in many cases, took
    years of vetting to produce?
        Instead, Members would be bombarded with visits, phone calls, and
    talking points from industry lobbyists, who would no doubt take
    advantage of this short-circuited process to shape Member views about
    the rule.
        The REINS Act forces Congress to move too quickly while pointlessly
    slowing down the agency rulemaking process in a way that does not
    improve it.
        The REINS Act also threatens to undermine Congress's ability to
    consider other legislative business. For example, in calendar year 2010
    alone, there were 94 major rules, while there were only approximately
    116 legislative days in the House during that same time period. Even
    under expedited procedures, Congress would be forced to ignore other
    important business, doing a further disservice to the American people.
        This is not the first time that the idea of requiring Congressional
    approval of agency rules has been proposed. Such a proposal had been
    considered and rejected by Congress in the past.
        Interestingly, Chief Justice John Roberts criticized legislation
    that was very similar to the REINS Act back in 1983. In a memorandum,
    he objected that such legislation would ``hobbl[e] agency rulemaking by
    requiring affirmative Congressional assent to all major rules'' and
    would ``seem to impose excessive burdens on the regulatory agencies. .
    . .''
        We ought not let the political passions of the moment produce such
    a radical change in how our government has worked--and worked well--for
    more than 100 years. The REINS Act is troubling for many reasons, and I
    urge my colleagues to oppose it.
                                   __________

        Mr. Coble. I thank the gentleman from Tennessee.
        The Chair recognizes the former Chairman of the House
    Judiciary Committee, the distinguished gentleman from Michigan,
    for his opening statement.
        Mr. Conyers. Thank you very much, Chairman Coble and
    Ranking Member. I am very happy to be with you all today and to
    also recognize, in addition to the distinguished witnesses, our
    former colleague, Sherwood Boehlert of New York. We are
    grateful that he is once again up on the Hill in this hearing
    room.
        But today we focus on H.R. 10. Now what does REINS stand
    for? Regulations From the Executive in Need of Scrutiny. REINS.
    This is the fourth time in this Subcommittee in less than a
    month and a half that we considered the state of the Nation's
    regulatory system. I want to thank Chairman Coble for having
    this hearing. It was at my request. But I am raising the
    question of this incredible amount of attention that is being
    paid in a number of ways. I have one, two, three, four, five,
    six, seven, eight, nine, ten different hearings in a number of
    Committees in the House of Representatives, but four of them
    come from this very Subcommittee.
        We studied and had a hearing on this same bill on January
    24. And then we had a hearing on the Regulatory Flexibility
    Improvement Act on February 10. And then on February 28 we had
    a hearing on the APA at 65: Is reform needed to create jobs,
    promote economic growth, and reduce costs? And then, of course,
    today we are having yet another hearing on Regulations From the
    Executive in Need of Scrutiny.
        Now, we have got some incredible comments coming in. And
    what I would like to do, if I can, is make the point that there
    must be some concern among ourselves as a Committee and the
    witnesses, who should be very much interested in whether or not
    this bill will threaten the health, the safety, and the welfare
    of the citizens in our country.
        From my experience, we are undeniably in a better place in
    this country today than we were several decades ago, largely as
    a result of regulations that have promoted worker safety,
    improved the environment, and ensured the purity of our foods
    and drugs. Within a generation we have restricted lead in
    gasoline and paint, required autos to be equipped with seat
    belts and air bags, reduced the number of carcinogens that
    appear in our Nation's food, drugs, and cosmetics. We have
    engineered startling health and safety advances, from catalytic
    converters to scrubbers required on smoke stacks, and the
    elimination of chemicals, among them freon and others, that
    were actually burning a hole in the ozone layer. Yet, it is
    unlikely that these health and safety gains we have enjoyed
    would have been possible under the very legislative proposal,
    H.R. 10, that we are considering.
        This measure before us today for the fourth time would
    effectively strip Federal agencies of the authority to
    implement environmental public health and safety protections
    unless a majority in both House and Senate approved the rules
    and then they were signed by the President. I needn't tell you
    how that would slow the process down, how it would complicate
    the agencies from taking care of their responsibility. Things
    move slowly enough in the congressional process now. We
    certainly don't need to have the Congress now reviewing and
    passing on agency regulations.
        Some have gone as far as to suggest that the removal of
    lead from gasoline in the seventies wasn't a result of the
    Congress, that indeed I question if REINS were enacted, we
    would never get anything done. And so my feeling is that giving
    lawmakers a personal stake in updating statutes is totally the
    wrong direction in which to go.
        We have some new Members, the newest party in American
    politics, the Tea Party. I always worry about their positions
    on things as well. And we have had at least one Member before
    the Committee on various regulatory subjects.
        As has been demonstrated in every prior hearing of this
    Subcommittee, we have repeatedly talked about the costs, but
    apparently--I hope accidentally--ignored the benefits. And so
    what I want to do is refer you not only to the Center for
    Progressive Reform, which has recently released ``Setting the
    Record Straight,'' the Crane and Crane report on regulatory
    costs, as well as the Office of Management and Budget that
    estimated that the benefits associated with major regulations
    were between $126 billion to $663 billion--more than ten times
    their cost. This is OMB.
        I will submit the rest of my statement, Mr. Chairman, and
    thank you for your indulgence.
        Mr. Coble. Without objection.
        [The prepared statement of Mr. Conyers follows:]
    Prepared Statement of the Honorable John Conyers, Jr., a Representative
     in Congress from the State of Michigan, and Ranking Member, Committee
                                on the Judiciary
        Today's hearing, focuses on H.R. 10, the ``Regulations From the
    Executive in Need of Scrutiny Act of 2011'' (otherwise known as the
    ``REINS Act''). This hearing marks the fourth time this Subcommittee--
    in less than a month and a half--considers the state of the Nation's
    regulatory system.
        Unfortunately, my colleagues on the other side of the aisle appear
    to be absolutely committed to pursuing a divisive partisan agenda that
    has little prospect of creating jobs and improving the economy.
        Nevertheless, I appreciate Chairman Coble's concurrence with my
    request to hold a legislative hearing on H.R. 10 to follow-up on the
    oversight hearing held on this legislation last January.
        If anything, this second hearing on the REINS Act gives me yet
    another opportunity to highlight this bill's numerous flaws.
        In sum, the REINS Act, if enacted, would impose a drastic cost on
    society.
        It would dramatically change the way necessary and beneficial rules
    are promulgated, by requiring all new major regulations to be
    affirmatively approved by both Houses of Congress and the President
    before they can take effect.
        I am gravely concerned that this bill will threaten the health,
    safety and welfare of our country.
        We are undeniably in a much better place in this country today than
    we were several decades ago largely as a result of regulations that
    have promote worker safety, improve the environment, and to ensure the
    purity of our food and drugs.
        In the span of a generation, we have restricted lead in gasoline
    and paint, required automobiles to be equipped with seatbelts and air
    bags, and reduced the number of carcinogens that appear in our Nation's
    food, drugs and cosmetics.
        We have engineered startling health
        and safety advances from catalytic converters to scrubbers on smoke
    stacks and the elimination of chemicals like Freon that were burning a
    hole in the ozone layer.
        Yet, it is unlikely that any of the health and safety gains we have
    enjoyed would have been possible under H.R. 10.
        This bill would effectively strip federal agencies of the authority
    to implement environmental, public health, and safety protections
    unless a majority in both the House and the Senate approved the rules
    and they were signed by the President.
        Proponents of the REINS Act claim it will increase accountability
    and transparency in the regulatory process.
        For example, one of our witnesses today will argue that Congress is
    no longer accountable to voters because it gives federal agencies the
    responsibility to decide controversial issues.
        He seems to suggest in his written testimony that members of
    Congress cannot be trusted to make hard decisions. He cites the effort
    to remove lead from gasoline in the 1970s.
        Let's talk about lead and gasoline.
        Professor Schoenbrod suggests in his written testimony that in
    1970, Congress wasn't able to protect children from lead and gasoline.
        He claims that Congress was stymied by competing demands: the
    demand to protect children and voters' desire to keep gas cheap.
        If that, indeed, was the case, I question why he would believe that
    in 2011 or 2012, if the REINS Act were to be enacted, Congress would be
    any less stymied?
        Is there reason to believe that ``the past is no longer prologue''
    with respect to Congress?
        Professor Schoenbrod suggests twice in his written testimony that
    the REINS Act would give lawmakers a ``personal stake'' in updating
    statutes, and make Congress more accountable and responsible to the
    people.
        Professor Schoenbrod, I invite you to look around.
        Do you really see a commitment to compromise, and to modulate
    personal views for the greater good from our newest members of
    Congress?
        Do you honestly believe that our newest, Tea Party members of
    Congress are interested in compromising for the greater good, in order
    to update statutes?
        I am afraid the answer is no. In reality, H.R. 10, will serve to
    block essential public health, environmental, and safety protections.
        As demonstrated at each of the three prior hearings on the state of
    our Nation's regulatory system, my colleagues on the other side of the
    aisle repeatedly cite the costs of regulations, but conveniently ignore
    their benefits, which in most instances greatly exceed their costs.
        We already discussed in the first hearing on H.R. 10 the flawed
    economic analysis underlying these claims, and the fact that the key
    study cited in support of this legislation fails to account for the
    overwhelming benefits of regulation--including both cost-benefits and
    benefits improving quality of life.
        At the hearing this Subcommittee held on February 10, 2011 on H.R.
    527, the Regulatory Flexibility Improvements Act of 2011, we entered
    into the hearing record the report that clarifies this issue from the
    Center for Progressive Reform entitled Setting the Record Straight: The
    Crain and Crain Report on Regulatory Costs.
        Also, I should remind my colleagues that the Office of Management
    and Budget--during both the Bush and Obama Administrations--found that
    the benefits of regulation overwhelmingly outweigh the costs.
        Specifically, OMB estimated that the benefits associated with major
    regulations were between $126 to $663 billion, that is, more than ten
    times their cost!
        Others have similarly agreed with this analysis and I expect these
    reports will also be offered to be included in today's hearing record.
        Another concern that H.R. 10 presents is that it will violate
    fundamental separation of powers principles.
        The bill goes well-beyond the careful balance of power envisioned
    by the Constitution by giving Congress both the power to make the laws
    and, in effect, to execute those laws, which would raise significant
    separation of powers concerns.
        As a result, H.R. 10 turns the constitutional process for amending
    legislation on its head.
        In effect, it would authorize either the House or Senate to void or
    block enacted laws when those laws are executed by agencies through
    implementing regulations.
        Moreover, the bill threatens to create what would in effect be an
    unconstitutional one-House legislative veto, because all it requires is
    for one chamber to not act in order to veto a major rule.
        By way of background, the legislative veto is a clause in a statute
    that provides that a particular agency action will not take effect if
    Congress nullifies it by resolution within a specified time period.\1\
    The details of the legislative veto could vary from statute to statute,
    but whatever the particulars, the legislative veto was the means by
    which Congress reserved the power to nullify the executive branch's
    exercise of delegated agency authority.\2\ The basic goal of the
    legislative veto was to allow Congress an opportunity to oversee and
    veto agency decisions, particularly when agencies acted under statutes
    that gave them broad discretion that amounted to a form of
    lawmaking.\3\ The legislative veto was incorporated into many
    individual statutes rather than one overarching statute.
    ---------------------------------------------------------------------------
        \1\ Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, &
    Matthew L. Spitzer, Administrative Law and Regulatory Policy, p. 80
    (4th ed. 1999).
        \2\ Id.
        \3\ Id. at 81.
    ---------------------------------------------------------------------------
        In 1983, the United States Supreme Court held in Immigration &
    Naturalization Serv. v. Chadha \4\ that the legislative veto was
    unconstitutional Chadha was a foreign student who overstayed his
    student visa and was, therefore, subject to deportation.\5\ When the
    Immigration and Naturalization Service (INS) started deportation
    proceedings against Chadha, he applied for a suspension of
    deportation.\6\ Under the Immigration and Nationality Act, the INS had
    the authority to suspend deportations for humanitarian reasons--
    authority that Congress delegated to the Attorney General, who, in
    turn, delegated it to the INS.\7\ The Act, however, contained a
    legislative veto provision that required the Attorney General to report
    to Congress all instances in which the INS suspended deportation and
    allowed each House of Congress to pass a disapproval resolution within
    a certain amount of time.\8\ If either House passed such a resolution,
    the suspension of deportation was invalidated and the deportation had
    to proceed.\9\ In Chadha's case, Congress exercised that veto and
    Chadha challenged its constitutionality in court in response.\10\ The
    Court concluded that the legislative veto provision violated the
    Bicameralism and Presentment Clauses of Article I of the
    Constitution.\11\ These Clauses required, respectively, that
    legislation, including a resolution vetoing an agency action, must pass
    both Houses of Congress and be presented to the President for his
    approval or, if he disapproved, that the bill be re-passed by two-
    thirds of both Houses of Congress.\12\
    ---------------------------------------------------------------------------
        \4\ 462 U.S. 919 (1983).
        \5\ Id. at 923.
        \6\ Id. at 924.
        \7\ Id. at 923-924.
        \8\ Id. at 925.
        \9\ Id.
        \10\ Id. at 926-928.
        \11\ Id. at 954-955, 959.
        \12\ Id. at 946-951.
    ---------------------------------------------------------------------------
        The Chadha decision had a profound impact on the administrative
    system because at the time the decision was handed down, more than 200
    statutes contained legislative veto provisions.\13\ The Chadha decision
    invalidated all of them and Congress lost an important form of control
    over many types of agency action.
    ---------------------------------------------------------------------------
        \13\ Id. at 967 (White, J., dissenting).
    ---------------------------------------------------------------------------
        While Congress continued to have the power to check agency behavior
    through more limited delegations of authority, the appropriations
    process, or oversight, Congress also explored a number of ways that it
    could achieve the objectives of the legislative veto while comporting
    with Article I's mandates after the Chadha decision. One response was
    the Congressional Review Act (CRA), which was enacted with bipartisan
    support in 1996 as part of then-Speaker Newt Gingrich's Contract with
    America.\14\
    ---------------------------------------------------------------------------
        \14\ Ben Geman, Top Republican Eyes Congressional Review Act
    Challenge to EPA Rules, THE HILL, Jan. 2, 2011, available at http://
    thehill.com/blogs/e2-wire/677-e2-wire/135595-upton-eyes-congressional-
    review-act-challenge-to-epa-climate-rules.
    ---------------------------------------------------------------------------
        The CRA requires an agency promulgating a rule \15\ to submit a
    report to both Houses of Congress and to the Government Accountability
    Office (GAO) containing: (1) a copy of the rule; (2) a concise general
    statement describing the rule, including whether it is a major rule
    (i.e., one that will likely have an annual effect on the economy of
    $100 million or more, increases costs or prices for consumers,
    industries or State and local governments, or have significant adverse
    effects on the economy) \16\; and (3) the proposed effective date of
    the rule.\17\
    ---------------------------------------------------------------------------
        \15\ As used in the CRA, the term ``rule'' means ``the whole or
    part of an agency statement of general . . . applicability and future
    effect designed to implement, interpret, or prescribe law or policy. .
    . .'' 5 U.S.C. Sec. 551 (2006). See also 5 U.S.C. Sec. 804(3) (2006)
    (defining ``rule'' by reference to Sec. 551, with certain exceptions).
        \16\ 5 U.S.C. Sec. 804(2).
        \17\ Pub. L. No. 104-121, subtitle E, 110 Stat. 857-74 (1996)
    (codified as 5 U.S.C. Sec. Sec. 801-808).
    ---------------------------------------------------------------------------
        If the rule is a major rule, the agency must further submit to GAO
    and each House of Congress: (1) a complete copy of any cost-benefit
    analysis; (2) a description of the agency's actions pursuant to the
    requirements of the Regulatory Flexibility Act \18\ and the Unfunded
    Mandates Reform Act of 1995 \19\; and (3) any other relevant
    information required under any other act or executive order.\20\
    ---------------------------------------------------------------------------
        \18\ Pub. L. No. 96-353 (1980).
        \19\ Pub. L. No. 104-4 (1995).
        \20\ 5 U.S.C. Sec. 801(a)(1)(B).
    ---------------------------------------------------------------------------
        The CRA authorizes Congress to disapprove an agency rule to which
    it objects. Congress can do so by enacting a joint resolution of
    disapproval.\21\ Such a joint resolution must be introduced within at
    least 60 days of the rule's submission to Congress.\22\ For a joint
    resolution of disapproval to take effect, it must pass both Houses of
    Congress and be signed by the President (thereby meeting the
    Bicameralism and Presentment Clauses' requirements, as required by the
    Chadha decision.) \23\ If a joint resolution is enacted into law, the
    disapproved rule is deemed not to have had any effect at any time.\24\
    Additionally, the CRA prohibits an agency from reissuing a rule that is
    substantially the same as a disapproved rule.\25\ The CRA prescribes
    special expedited procedures for Senate consideration of a joint
    resolution of disapproval, though it does not provide for similar
    procedures in the House of Representatives.\26\
    ---------------------------------------------------------------------------
        \21\ See 5 U.S.C. Sec. 802 (outlining congressional disapproval
    procedure).
        \22\ 5 U.S.C. Sec. 802(a).
        \23\ U.S. Const. Art. I, Sec. 7, cl. 2, 3.
        \24\ 5 U.S.C. Sec. 801(f).
        \25\ 5 U.S.C. Sec. 801(b)(2).
        \26\ 5 U.S.C. Sec. 802(c).
    ---------------------------------------------------------------------------
        Barring congressional action, a major rule goes into effect on the
    latest of three possible dates: (1) 60 calendar days after it has been
    submitted to Congress or has been published in the Federal Register,
    (2) 30 session days after a presidential veto of a joint resolution of
    disapproval or earlier if either House of Congress votes and fails to
    override such veto, or (3) the date on which the rule would otherwise
    have gone into effect absent the CRA review requirement.\27\ A nonmajor
    rule goes into effect as otherwise provided for by law.\28\ In either
    case, Congress still has 60 legislative or session days to disapprove
    the rule.
    ---------------------------------------------------------------------------
        \27\ 5 U.S.C. Sec. 801(a)(3).
        \28\ 5 U.S.C. Sec. 801(a)(4).
    ---------------------------------------------------------------------------
        In addition to being unnecessary, because Congress already has
    control over agency rulemaking through the Congressional Review Act,
    the REINS Act is also dangerous.
        This REINS Act would block or void federal laws protecting public
    health, safety, welfare and the environment through fundamentally anti-
    democratic, and arguably unconstitutional, means.
        As I said during our last hearing, although Congress is charged
    with making the laws, Constitution demands that the Executive Branch
    ``take care that the laws be faithfully executed.''
        This fundamental notion of the separation of powers is the essence
    of what our founding fathers envisioned in the Constitution of this
    great Nation.
        I am concerned that H.R. 10 ``unduly trammels on executive
    authority'' under the separation of powers doctrine that the Supreme
    Court upheld in the 1988 case, Morrison v. Olson.
        A group of sixty-five law professors from across this nation has
    written a letter opposing the REINS Act for legal and policy reasons. I
    would request unanimous consent to enter that letter into the record
    now.
        In addition to the foregoing, I would also like to observe that
    H.R. 10 is not necessary.
        I agree that we can and should ensure that we regulate American
    businesses only when necessary to meet broader societal objectives like
    limiting harmful pollution or preventing worker
        injuries or reducing motor vehicle deaths, and that regulations do
    not needlessly burden regulated industries.
        But H.R. 10 is not necessary to achieve that balance, nor is it the
    appropriate way to do so.
        We already have checks in place to ensure regulations meet these
    objectives.
        For example, the Executive Branch only has the power to regulate
    when Congress passes laws that confer regulatory authority.
        As a further protection against unwarranted regulation, the
    Congressional Review Act allows Congress to disapprove of any
    regulations that a majority in both Houses deem unacceptable.
        Congress also retains its authority to limit funding for regulatory
    programs and to enact new laws if it believes regulatory protections
    are no longer necessary.
        In recognition of the critical role federal regulations play, most
    rules are subject to a very lengthy vetting process involving the
    agency, the Administration and the public, through notice and public
    participation processes.
        The REINS Act is simply unnecessary, and inappropriate policy.
        I look forward to discussing more of these issues and hearing from
    the witnesses today.
        Thank you.

                                   ATTACHMENT

                                   __________
        Mr. Coble. Without objection, additional opening statements
    from other Members will be made a part of the record.
        We welcome our panel today. Let me give you some
    background. David Schoenbrod is a Trustees Professor of Law at
    the New York School of Law and a Visiting Scholar at the
    American Enterprise Institute. He is the co-director of the
    project, ``Breaking the Logjam: An Environmental Law for the
    21st Century.'' The project is a call for bipartisan action for
    smarter, more flexible regulatory programs to protect the
    environment, encourage green technology, and stimulate the
    economy. Professor Schoenbrod is a frequent contributor to the
    Wall Street Journal and the New York Times editorial pages. He
    has been an attorney at the Natural Resources Defense Council,
    published several books, and held faculty positions at Yale
    School of Law and the New York University School of Law.
        At NRDC Professor Schoenbrod has served as codirector of
    the Council's Project on Urban Transportation with Professor
    Sandler. Professor Schoenbrod is a nationally recognized expert
    on injunctions, congressional relations with regulatory
    agencies, and environmental law. He was graduated magna cum
    laude from Yale and was a Marshall Scholar at Oxford.
        Eric Claeys is our second witness. He is a professor at the
    George Mason University School of law. Professor Claeys has
    also taught at the St. Louis University School of Law and the
    University of Chicago School of Law. Prior to teaching,
    Professor Claeys practiced appellate and tort litigation at
    Kirkland & Ellis, and clerked for the Honorable Chief Justice
    William Rehnquist and the Honorable Melvin Brunetti. Professor
    Claeys' scholarship focus is on American property and
    constitutional law, and particularly on the influence of
    American natural law/natural rights theory on the law. He was
    graduated from Princeton University and received his J.D. From
    the University of Southern California.
        Our third and final witness is Mr. David Goldston, who I
    believe is a good friend of yours, Mr. Boehlert, our colleague
    from New York. Mr. Goldston is the Director of Government
    Affairs at the Natural Resources Defense Council. As director,
    Mr. Goldston oversees the development and implementation of
    NRDC strategies for interacting with Congress and the Obama
    administration. Mr. Goldston is a former chief of staff of the
    U.S. House Committee on Science, where he served under Chairman
    Boehlert for 6 years. Mr. Goldston left Capitol Hill in 2006,
    and since then has taught at Princeton and Harvard. He also has
    written a monthly column, ``Party of One,'' on science policy
    for the journal Nature. Mr. Goldston graduated magna cum laude
    from Cornell University and was awarded his Ph.D. From the
    University of Pennsylvania.
        Gentlemen, it is good to have all three of you with us. I
    would ask you, if you could, we try to comply with the 5-minute
    rule. When the amber light appears, this will be your warning
    that the red light is imminent. And the red light usually calls
    for conclusion, if you will, shortly after that.
        Mr. Coble. Professor Schoenbrod, good to have you with us.
    If you will kick us off.

     TESTIMONY OF DAVID SCHOENBROD, TRUSTEE PROFESSOR OF LAW, NEW
                            YORK LAW SCHOOL

        Mr. Schoenbrod. Chairman Coble, Ranking Member Cohen,
    Members of the Subcommittee, thank you for the opportunity to
    testify. My experience at the Natural Resources Defense
    Council, heading the campaign to protect children from lead, is
    the reason I am here today to support the REINS Act.
        In the Clean Air Act of 1970, Congress took responsibility
    for a rule requiring cars made from 1975 on, to use unleaded
    gasoline. That was the easy choice. It was easy because lead
    would ruin the pollution control devices required on these
    cars. But this easy choice would do nothing to reduce lead in
    gasoline for 5 years; and even after that 5 years, there would
    be a hundred million cars on the road still burning lead. What
    to do about those cars, that lead, that was the hard choice.
    Voters wanted to ``GET THE LEAD OUT.'' That is what the bumper
    sticker said. But they also wanted cheap gasoline.
        Congress avoided this hard choice by ordering EPA to set a
    health goal for lead pollution and achieve it by 1976, thereby
    claiming credit for the benefit of protecting health and
    avoiding blame for any possible increase in gas prices. EPA,
    understandably, went into a stall. We sued EPA and won many
    victories in court. But EPA accomplished very little at the gas
    station.
        If Congress could not have avoided responsibility for the
    hard choices in 1970, it would have adopted a rule to eliminate
    at least half of the lead in gasoline in the early 1970's.
    After all, Congress told the auto manufacturers to reduce their
    pollution from their new cars over the same period by 90
    percent.
        The result of Congress avoiding responsibility is that many
    children died or suffered permanent brain injury, especially in
    inner cities. Using EPA data, I estimate that the deaths and
    injuries to be on the scale of American casualties in the war
    in Vietnam. And I set it all out in a book called ``Saving our
    Environment from Washington'' (Yale University Press, 2005).
        Lead is no aberration. The biggest successes on air
    pollution have come when Congress did take responsibility, and
    the biggest failures have come when Congress avoided it. This,
    too, is documented in another book coauthored with the former
    chairman of the Environmental Defense Fund. The book is called
    ``Breaking the Logjam'' (Yale University Press, 2010).
        This experience with the Clean Air Act led me when I became
    an academic to search for ways to help Congress to take
    responsibility. And I wrote another book (``Power Without
    Responsibility'' Yale University Press, 1993)). In it, I quote
    James Landis, the New Deal's sage of administrative law, who
    urged in 1938 that agency regulations be presented to Congress
    for approval: ``It is an act of political wisdom to put back
    upon the shoulders of Congress responsibility for controversial
    choices.'' REINS would do that,
        thereby making regulation more effective and efficient.
        Consider environmental regulations again. It suffers from
    polarized politics--the swinging pendulum in Congress left to
    right, right to left. REINS would help by inducing EPA to talk
    to centrist legislators. Both parties would find they must
    adopt a modulated position or voters will punish them at the
    polls, as voters have punished both parties at various times in
    the past. This is how we should get the sensible results in a
    democracy, not by elected lawmakers hiding behind unelected
    agency officials.
        REINS would also induce changes in how Congress delegates
    to agencies. Knowing that the big decisions would come back to
    it, Congress would order the agency to shape their rules to
    achieve compromise standards rather than telling agencies to
    achieve the best of everything for everyone.
        Finally, environmental regulation also suffers from
    obsolete statutes. Congress has not passed a major
    environmental statute for 20 years. Most of the statutes on the
    book owe their basic structures to the early 1970's or late
    1970's. The reason that Congress does not update the obsolete
    statutes is that the problems that they create for the
    environment and for the economy are not problems for
    legislators who, after all, can blame these problems on EPA.
    REINS, by bringing the rules back to Congress, would give
    legislators a reason to reexamine their handiwork from the
    1970's.
        Thank you again for the opportunity to testify today. I
    look forward to answering your questions.
        Mr. Coble. Professor, thank you as well.
        [The prepared statement of Mr. Schoenbrod follows:]

                                   __________

        Mr. Coble. Professor Claeys, you are recognized for 5
    minutes.

      TESTIMONY OF ERIC R. CLAEYS, PROFESSOR OF LAW, GEORGE MASON
                        UNIVERSITY SCHOOL OF LAW

        Mr. Claeys. Chairman Coble, Ranking Member Cohen, and
    Members of the Subcommittee, thank you very much for inviting
    me to testify. I would like to restate my written testimony as
    three points:
        First, Congress has constitutional authority to enact the
    REINS Act. The power to promulgate legislative rules becomes an
    executive power if, to the extent, and under whatever
    constitutionally proper conditions Congress establishes on the
    agency, using the necessary and proper clause.
        Even if the pros of legislative rulemaking sometimes
    outweigh the cons, legislative rulemaking does have cons.
    Executive-ordered rules can jeopardize the liberties of
    citizens, seem politically illegitimate, or undermine ordinary
    political accountability. This Congress may reasonably decide
    that these cons outweigh rulemaking's pros when $100 million or
    more is on the line. This Congress may reasonably decide that
    executive rulemaking is unnecessary and improper for executing
    Congress' constitutionally enumerated powers without a prior
    congressional approval.
        The testimony on January 24 raised two other issues that I
    would be happy to discuss in question and answer.
        Now, for my other two points, I am grateful to Mr. Goldston
    to offer his testimony because the difference between his
    testimony and my testimony illustrates and
        highlights some important issues of principles for this
    Committee to consider. I would like to restate my other two
    highlights in relation to that testimony.
        First, Mr. Goldston states that the REINS Act threatens to
    replace a process based on expertise, rationale, and openness
    with one based on political maneuvering, economic clout, and
    secrecy.
        My second point: That contrast states a false choice. In
    reality, in one process the federalist theory of government,
    the process is openly political and it makes legislators write
    laws and be accountable for bad laws at the voting booth. In
    the other, which my testimony calls the Progressive New Deal
    theory of government, the process is covertly political. Agency
    experts claim that all the political choices have been settled.
    They then use agency policymaking powers to impose their
    choices with less accountability to voters at the voting booth.
        For example, last Congress, cap-and-trade legislation
    failed. And last November, some cap-and-trade supporters were
    voted out of office. Right now, however, the EPA is going ahead
    with rulemakings on greenhouse gas standards for petroleum
    refineries and fossil fuel power plants. In response, this
    House's Commerce Committee is a considering a bill more drastic
    than the REINS Act to eliminate the EPA's jurisdiction to make
    rules on greenhouse gases.
        Some of the EPA supporters are criticizing that bill on the
    grounds the bill defies the scientific consensus. They are
    using rulemaking and the authority of science to cover over
    difficult tradeoffs between clean air and the technology that
    is available to make clean air, and the economics. If the EPA
    does this, then it avoids having--it undoes the settlement that
    happened by legislation, by elections last year.
        Separately, Mr. Goldston defends executive branch
        rulemaking on the grounds that some kind of decisions
    require deep technical expertise somewhat insulated from
    political horse trading and power plays. Progressive and New
    Deal political theorists believe this. By contrast, the
    federalists disagreed on the ground that the latent causes of
    faction are sown in the nature of man.
        Recent economic and political science scholarship has
    confirmed the federalist portrait as the product of extremely
    complicated coalitions between Baptists and bootleggers. And
    here I apologize to both Baptists in real life and to
    bootleggers in real life.
        An example from my testimony. For the last 16 years, the
    Consumer Product Safety Commission has been working on a
    rulemaking petition to order manufacturers to make a furniture
    that won't ignite if a cigarette that is lit is sitting on it.
    On both sides of the dispute,
        bootleggers--regulated industries--are coopting
        Baptists--agencies in seemingly idealistic advocacy
        groups--to fight one another.
        The rulemaking was petitioned by the National Association
    of Fire Marshals. The fire marshals had received considerable
    financial assistance from and were getting free lobbying from
    cigarette companies, which tried to head off proposals to have
    the CPSC order them to make self-extinguishing cigarettes.
        On the other side of the table, furniture companies slowed
    down the rulemaking by citing health and environmental
    concerns. They persuaded Congress to order the rulemaking
    delayed until the Federal Government could fund medical studies
    on the impact of the retardant chemicals.
        Mr. Goldston portrays regulation as all Baptist, all the
    time. With James Madison, I believe the bootleggers divert the
    right regulatory process fairly often.
        Members of the Subcommittee, I am sure you have more
    experience and familiarity than I do to decide which of the two
    of us is describing the regulatory process more accurately. If
    you agree that it is impossible to take all of the politics out
    of regulation, it would be better if we all admitted as much
    and forced agencies to seek permission from Congress. Deeply
    political choices will be made more transparently and your
    constituents will know who is accountable for the choices. And
    the REINS Act does this--and only for regulations where $100
    million or more are on the line.
        Thank you. I would be happy to answer questions.
        Mr. Coble. Thank you Mr. Claeys.
        [The prepared statement of Mr. Claeys follows:]

                                   __________
        Mr. Coble. Mr. Goldston, you are recognized for 5 minutes.

     TESTIMONY OF DAVID GOLDSTON, DIRECTOR OF GOVERNMENT AFFAIRS,
                   NATURAL RESOURCES DEFENSE COUNCIL

        Mr. Goldston. Thank you. Chairman Coble, Mr. Cohen, Members
    of the Subcommittee, thanks for having me here today, though it
    is a little odd to be sitting on this side of the dais.
        I am here today to testify in opposition to the REINS Act,
    a bill that I think itself cannot withstand scrutiny on either
    practical or theoretical grounds. And I look forward during the
    Q&A to engaging with Professor Claeys on some of the points
    that he referenced.
        Let me start with the practical problems. This bill would
    basically amend virtually every health and environmental law
    currently on the books, along with other laws, hampering their
    implementation. Its clear purpose is to place roadblocks in the
    way of protecting the public and to privilege the complaints of
    any industry.
        How would the bill work in practice? Congress would be put
    in a position of quickly second-guessing decisions that are
    often based on years of technical analysis and policy
    deliberation. In response, industry lobbyists would inundate
    Congress both with campaign contributions and to evaluate
    technical and economical claims. Congress would have little
    choice but to fall back on political calculations, logrolling,
    and dealmaking, that might have little to do with the merit of
    the arguments before them. Industry would no longer have an
    incentive to cooperate with agency rulemaking processes and the
    regulatory process would likely become more random and less
    predictable. The Executive's ability to carry out the laws as
    they are written would be curtailed and the courts would be
    limited in their ability to enforce them.
        All this is totally unnecessary. The rationale for
    delegating some decisions to agencies is as valid now as it was
    100 years ago. Congress is not the best venue for reaching
    detailed, technically based decisions regarding every issue.
    And I would add that the issue is whether the REINS Act would
    make the situation better or worse, not whether there are any
    problems at all with current rulemaking procedures.
        Congress does not lack the tools it needs to guide the
    regulatory process. It writes the laws which govern the
    regulations and it can intervene to change those laws or to
    block individual regulations anytime it chooses. It also has
    vast informal powers to influence the Executive. The concern
    the bill's sponsors have with the current system seems not to
    be that the current system doesn't work, but that it does. The
    public is protected, yet agencies are constrained by courts and
    the political context. The benefits of regulations outstrip the
    costs. The complaint is, rather, that those on the right end of
    the political spectrum don't always win under the current
    system. This bill is an effort to rewrite the rules of
    governance and reverse longstanding practices to make it easier
    for one ideological fashion to triumph.
        Mr. Coble. Mr. Goldston, if you would suspend. We were late
    starting your clock so the red light does not bar you right
    now. You have got a couple of minutes to go. That was our
    mistake here.
        Mr. Goldston. I think we would be well advised to stick to
    a system based on long experience and constitutional principles
    that has yielded public protections while allowing for economic
    growth. Thank you.
        [The prepared statement of Mr. Goldston follows:]

                                   __________
        Mr. Coble. Thank you all, gentlemen.
        Gentlemen, we try to apply the 5-minute rule to us as well.
    So if you all could respond tersely, that would be of benefit
    to us.
        Professor Schoenbrod, let me ask you this question. Does
    the REINS Act preclude congressional consideration of the
    expertise that agencies have brought to the development of a
    given regulation?
        Mr. Schoenbrod. No, it does not. The agencies would
    investigate. The agencies would analyze. Congress' job would be
    to render a judgment and to be accountable.
        Mr. Coble. Professor Claeys.
        Mr. Claeys. Yes, Mr. Chairman.
        Mr. Coble. Critics of the REINS Act allege that it has
    constitutional flaws in light of the Supreme Court's rulings in
    INS v. Chada and Morrison v. Olson. Summarize, if you will,
    your views of this criticism.
        Mr. Claeys. Mr. Chairman, neither of those criticisms has
    merit. As a background matter, agencies have no power to
    promulgate legislative rules unless it is given to them by
    Congress. So the Morrison argument runs off of the assumption
    that there is some core inherent prerogative of the President
    in relation to legislative rulemaking that is threatened by the
    REINS Act. However, if all of executive branch agencies'
    rulemakings powers must come from Congress, there can't be any
    such core Article 2 prerogative.
        Maybe the most helpful precedent here would be Youngstown
    Sheet and Tube v. Sawyer, a 1952 case. President Truman tried
    to order a seizure of the steel mills and he didn't have an act
    of Congress to support it. The Court held that in the absence
    of that statute--such a statute or other kind of authorization
    from Congress--that the President had no authority.
        So as for the Chada ruling, once it is accepted that--as it
    is under controlling practice and precedent--that agencies may
    receive delegations from Congress of Executive power to
    promulgate legislative rules, then trickier issues
        arise about whether and in what circumstances Congress may
    put strings or conditions on an executive branch agency's
    exercise of that Executive power.
        The Chada decision doesn't rule out the possibility that
    Congress may ever attach strings. It merely states if Congress
    does attach such a string, Congress must do so by a genuine
    bona fide legislative act that is passed by the House and the
    Senate and then either signed by the President or passed by
    two-thirds supermajority in both Houses.
        The REINS Act specifies that a major rule is promulgated
    pursuant to valid enabling statute and there is valid Executive
    authority, except that the rule may not take the force of law
    until this Congress passes a joint resolution of approval. If
    that joint resolution satisfies bicameralism at presentment, it
    satisfies Chada.
        Mr. Coble. Professor Claeys, let me come back to you. There
    has been some criticism directed against the REINS Act on the
    charge that it is biased against public interest and public
    protection. What say you to that?
        Mr. Claeys. Mr. Chairman, I taught food and drug law for 3
    years. I haven't taught it recently, but I have taught it. And
    one of the things that struck me was that some of the FDA's
    biggest successes and the legal mandates that it enforced the
    most successfully were ones acting in response to an
    implementing statute passed by Congress.
        When there was a thalidomide scare, there were other
    significant medical scares, the FDA staff recommended to
    Congress that a bill be passed. And Congress took the agency's
    expertise and implemented and enacted the law.
        I don't understand why, if a similar problem were to arise
    today, this Congress would not respect the agency's arguments,
    look at the factual record the agency put together, and look at
    all interpretive and other policy questions the agency needed
    to consider. And if Congress was satisfied, this Congress could
    then say, We approve of the Executive's proposed legislation
    and we are not going to stay in the way of its going forward.
        Mr. Coble. Thank you, sir.
        Mr. Goldston, none of us is perfect. So Federal agencies
    from time to time do get things wrong. If they do, then why
    shouldn't their biggest and most important decisions be placed
    before the Members of Congress for a vote?
        Mr. Goldston. Well, I think there certainly should be an
    ability for Members of Congress and the public to have recourse
    in terms of Federal regulations. Congress has that ability
    right now: The Congressional Review Act. The House just passed
    the continuing resolution the other day that had at least 19
    examples of places where Congress used its spending authority
    to block regulations. We didn't think that was a good idea, but
    it certainly was within their authority. Congress could rewrite
    the statutes.
        Congress, as Professor Claeys mentioned, the House is right
    now thinking of considering legislation to change EPA's
    authority regarding greenhouse gases. Congress has all the
    tools it needs to do exactly what you asked about. The question
    is, What would be the impact of reversing the entire system
    that has grown up; who would be likely to benefit; would the
    solution be worse than the disease? I would argue that it would
    be.
        Mr. Coble. I see the red light is illuminated, therefore
    barring me from further questioning. I recognize the
    distinguished gentleman from Tennessee, Mr. Cohen, for 5
    minutes.
        Mr. Cohen. Thank you, sir.
        Mr. Goldston, do you see constitutional problems with the
    separation of powers here?
        Mr. Goldston. I am really not an expert on the
    constitutional question. I would say that one concern, though,
    is that--there are two concerns with the bill that at least
    raise issues relating to the Constitution, whether they are
    constitutional or legal issues.
        One is, I agree with Professor Claeys that Congress is the
    one that has the authority to delegate to agencies and it has
    the choice whether to do that. What this bill does is it
    continues to delegate, but then doesn't allow the agency to
    carry out the delegated authority. This is sort of a halfway
    measure where Congress isn't taking the authority back but it
    is not leaving it with the agency either. I think that is a
    peculiar situation and can result in a situation where the law
    is not able to be carried out and there is no recourse for
    anybody in the courts or elsewhere. So that is one issue.
        The other is that regardless of whether it violates Chada
    or not, this bill does create a situation where the failure--
    where failure to act by one House will kill an Executive
    action, with again, no recourse to the other body or the
    President. Whether that is technically a constitutional issue
    in terms of the law, I leave to Constitution experts. But it
    certainly raises practical problems that the Constitution tried
    to avoid.
        Mr. Cohen. It does raise that issue. Bills have to be
    passed by both Houses. And that is something we have done for a
    long time. In this circumstance, the Senate would have to--
    could on its own not pass something--and it takes 60 folks to
    do anything over there. It really takes more than 60. Sixty. So
    41 people could stymie the entire United States Government.
    Pretty strange veto power they would then have over the
    Executive. It is something that I don't think is envisioned
    anywhere.
        Professor Schoenbrod, you are familiar with Morrison v.
    Olson, I guess.
        Mr. Schoenbrod. Yes.
        Mr. Cohen. How do you reconcile that case where Chief
    Justice Rehnquist said that the test for evaluating a statutory
    scheme under the separation of powers doctrine to see whether
    it can stand. It says the statute is suspect if it is an
    attempt by Congress to increase its own powers at the expense
    of the Executive branch. This indeed would be an attempt by
    Congress to increase its powers. How would you reconcile the
    REINS Act with Justice Rehnquist's ruling in Morrison v. Olson?
        Mr. Schoenbrod. There are cases going back to the framing
    of the Constitution which describe law as rules of conduct. The
    regulations that agencies promulgate are rules of Conduct. And
    in fact, courts talk about these regulations all the time as
    ``legislative rules.'' So we are not talking here about
    Executive power fundamentally; we are talking here about
    legislative power. So it is a question of Congress reclaiming
    some of its legislative powers. So, therefore, Morrison v.
    Olson is not implicated.
        Mr. Cohen. Well, the regulatory agencies, commissions, do
    you consider them executive or legislative?
        Mr. Schoenbrod. Well, they can't be legislative. They are
    not part of the legislative branch, but they are exercising
    legislative-type powers. And when courts talk about
    ``legislative rules'' as opposed to ``interpretive rules,''
    they are recognizing the fact that these agencies make law.
        Mr. Cohen. But the agencies are executive--under the
    Executive.
        Mr. Schoenbrod. That is right.
        Mr. Cohen. So it is taking away from the executive branch.
    That is the executive branch. They may be legislating, they may
    be rulemaking. Presidents make decisions, Vice Presidents.
    Secretary Clinton makes a decision. Her committees make a
    decision. But that doesn't make them part of the legislature.
    They are part of the executive.
        Mr. Schoenbrod. Pardon me, Congressman. Congress has
    delegated to the agencies the power to make these legislative
    rules. Congress could take that back or condition it.
        Mr. Cohen. Right. Congress could just make all the rules
    themselves. Why couldn't we just under this theory, which makes
    more sense to me, just make all the rules ourselves; have some
    Committees make the rules. Since they are not going to go into
    effect until we approve them, why shouldn't we have the
    Committees pass and approve all of the rules and then just let
    the agencies administer them? Would that make for sense to you?
        Mr. Schoenbrod. I think not. I mean, I think there are
    problems given the volumes of rules that our country has. It
    seems to me what the REINS Act attempts to do is to draw a line
    and to have the more important ones come back to Congress for
    consideration.
        Mr. Cohen. Well, what if we just did the more important
    ones? The fact is, we couldn't even amend the law. You have got
    an hour to talk about it. You talk about post offices. And we
    passed 70 post offices. That is a simple thing; voice vote,
    nobody cares. Fine and dandy. It is done. These are things that
    should be policy issues and people are going to want to debate
    them and have differences of opinion. From your testimony, and
    I appreciate your scholarly background, you don't have a real
    good impression of Congress, or attitude about it, do you?
        Mr. Schoenbrod. Well, it seems to me that I am here
    suggesting how it would make sense to move forward. And
    whatever my private opinions are, they are my private opinions.
    I think this bill is a good bill. And whatever my impressions
    are of any branch of government is really my private point of
    view.
        Mr. Cohen. Mr. Chairman, if I could just have 30 seconds to
    finish.
        Mr. Gowdy. [presiding.] Without objection.
        Mr. Cohen. Thank you.
        Mr. Schoenbrod. I am sorry. I worked in Congress for
    Senator and Vice President Hubert Humphrey, going back to the
    sixties, and I do have a lot of respect for the institution. I
    do think, however, that the system as a whole sometimes fails
    the people. It is not Congress as a whole.
        Mr. Cohen. Mr. Chairman, I will say, reading the testimony,
    it is obvious that your opinion of Congress is not particularly
    good. You think that we don't want to take decisions and make
    decisions that are difficult; that we take easy, easy things
    like naming post offices--and I forget; I am trying to find the
    page and how you refer to that--we don't like to take a stand.
        The fact is, with the passage of this you can't guarantee
    that Congress will do any more about lead poisoning that was
    the beginning of the basis of your discussion. That doesn't
    mean Congress is going to belly up to the bar and do the right
    thing or approve some regulation or not. You might have no lead
    regulation at all and more children die.
        So I submit to you, whether you are right or not, unless
    maybe you change the people, it is not the institution, and you
    are trying to change the institution.
        Mr. Schoenbrod. I think Congress has done many excellent
    things in regard to air pollution. It was Congress that passed
    the rule to reduce auto emissions 90 percent. It was Congress
    who decided to eliminate ozone-destroying chemicals. It was
    Congress that had the effective action on lead and gasoline. It
    was Congress that decided to reduce acid rain 50 percent. I
    think Congress is capable of doing many wonderful things. And I
    think Congress works best when it is most accountable.
        Mr. Cohen. Thank you, sir. Thank you Mr. Chairman.
        Mr. Gowdy. Mr. Goldston, I want you to assume
    hypothetically that Congress were contemplating a piece of
    legislation--and hypothetically let's assume it was called the
    PATRIOT Act. Would you agree or disagree that Congress could
    pass a broad piece of legislation called the PATRIOT Act and
    then let the FBI fill in the details?
        Mr. Goldston. Yes. I think, again, the courts have limited
    how much delegation authority Congress has, but it is very
    broad. So yes, creating broad policy I think is the role of
    Congress. And then it could leave to the agencies the
    particulars of how to implement it with, again, always the
    ability to come back under current procedures.
        Mr. Gowdy. So you would let the Bureau promulgate
    regulations that the Bureau would then interpret and enforce.
        Mr. Goldston. In this hypothetical, sure. I think it would
    behoove Congress--and I agree with Professor Schoenbrod on
    this--to give as much direction to the agency as possible. But
    if there were kinds of issues that raised either particular
    kinds of technical questions or that involve complicated
    deliberations that needed some
        quasi-judicial look, then yes; I would not be inherently
    opposed to the agency being able to figure out the specifics of
    that.
        Mr. Gowdy. Currently there are regulations which constitute
    evidence of negligence; in fact, in some instances, evidence of
    negligence per se in civil cases. Correct?
        Mr. Goldston. I am not an attorney, but yes.
        Mr. Gowdy. Don't go bragging. What about--well, let me ask
    you if--and if I am asking a question that is not fair, then I
    will withdraw it. Would you disagree with me that there are
    criminal sanctions for the violations of certain regulations?
        Mr. Goldston. Absolutely.
        Mr. Gowdy. And would you not agree with me further that it
    really is best for Congress to pass regulations or rules that
    carry with it criminal sanctions?
        Mr. Goldston. Yes. And I think that is generally what
    happens. Congress is the one that decides that if you are going
    to put an effluent into the water or a pollutant into the air,
    that that would constitute under certain circumstances a
    criminal violation. The specific level which involves, among
    others things, technical decisionmaking, figuring out which
    pollutant, and so forth, that is what was left to the agency.
    The agency on its own can't decide that something is a criminal
    violation.
        Mr. Gowdy. You mentioned expertise. Are you familiar or can
    you give me examples where the ``expertise'' failed?
        Mr. Goldston. Not offhand, but I have no doubt that there
    are many. I am not arguing--my argument is not that agencies
    are never wrong or should be beyond the law. My argument is
    that the solution of the REINS Act would make worse every
    situation that it aims to clear up.
        Mr. Gowdy. Do you challenge the constitutionality of the
    REINS Act?
        Mr. Goldston. I don't have a position on constitutionality.
    As I said, I think it does some things that are
    constitutionally suspect in sort of the way that it will leave,
    for example, a situation where the law could remain on the
    books but be unenforceable in court or elsewhere because the
    court couldn't get Congress to approve a regulation that would
    be required by the statute which would remain in effect.
    Whether that would be technically unconstitutional or not, I am
    not qualified to say.
        Mr. Gowdy. Professor Claeys, can you think of any examples
    where the expertise fails? Because it strikes me that that is
    the argument in favor of the status quo, is that there are
    experts at these executive agencies, whereas Congress is bereft
    of expertise. In some instances, that may be correct. Can you
    cite examples where the ``expertise'' failed?
        Mr. Claeys. I hope this is answering your question. It may
    be an answer to a different question. I can cite and did cite
    in my testimony examples where the claims made on behalf of
    expertise couldn't justify the regulation that was being put
    forward. So, for instance, back in 1980 the Supreme Court
    considered a challenge to a rule to impose bending standards to
    put in a one-part-per-million restriction on the amount of
    benzene in the workplace. And the Occupational Safety Health
    Administration had three or four pieces of data. Some was about
    studies done of workers in Turkey who made shoes and were
    exposed to benzene and some of them contracted leukemia. Some
    had to do with people who made glue in Italy and they
    contributed leukemia. Some had to do with general medical data
    and people who contracted blood deficiencies. But the exposures
    to which all those people were subjected were 150 parts per
    million up to 650 parts per million for leukemia or 25 parts
    per million for the people who suffered the blood deficiencies.
    There are laboratory tests on mice and rats that suggested that
    other chemicals caused health problems at one part per million,
    but not benzene.
        The point of my testimony is just to show in a situation
    like that, there is a tremendous amount of extrapolation that
    the agency needs to take from the three or four data points to
    say that there is a safety problem at one part per million.
        In a situation like that, there are two or three really
    political choices. First, how do you interpret three or four
    pieces of data? Second, assuming that you think it creates some
    possibilities of a health risk, does the agency think the
    technology exists to impose the standard? And, third, what are
    the cost-benefits economically?
        And if you put the three of those together, it is just
    simply not expertise that is justifying the extension of this
    data into a rule. There are three political choices being made,
    and it would be better, more accountable, if Congress took
    ownership of those choices by embracing a joint resolution of
    approval.
        Mr. Gowdy. All right. Thank you.
        I have run into a red light, and the Committee would
    recognize the gentleman from Michigan, Mr. Conyers.
        Mr. Conyers. Thank you, Mr. Chairman.
        This is an astounding hearing to me.
        Are you aware, Professor, that 66 law professors, plus a
    former California Supreme Court justice, have all sent in a
    letter to us giving 5 reasons why they express their opposition
    to the passage of the REINS Act?
        Mr. Schoenbrod. No, I am not. Put it this way: I have been
    a law professor a long time, and I never cease to be astounded
    by what law professors conclude.
        Mr. Conyers. Well, I noticed. I have been listening to you
    all afternoon, and I never--I am always astounded by some of
    your comments. So I accept your remark.
        Now, let me ask Professor Claeys, are you familiar with
    this letter dated February 8th, 2011, from--I am going to put
    it in the record, by the way--66 law professors, including a
    former Supreme Court justice, stating 5 reasons why they oppose
    the passage of the REINS Act?
        Mr. Claeys. No, Congressman Conyers, I am not.
        Mr. Conyers. All right.
        Let me ask you--you are not a professor, Mr. David
    Goldston?
        Mr. Goldston. Not currently. I have been.
        Mr. Conyers. Well, are you aware of the letter that I have
    been asking about?
        Mr. Goldston. Yes, I am.
        Mr. Conyers. So the two professors are not aware of the
    letter, and the one former professor is aware of the letter.
        Well, I ask unanimous consent to enter the letter from the
    66 law professors into the record, Mr. Chairman.
        Mr. Gowdy. Without objection.
        [The information referred to follows:]

                                   __________

        Mr. Conyers. Now, let me ask you, Mr. Goldston--you are on
    the Natural Resources Defense Council--do you believe that
    there is quite sufficient process that already exists for us to
    deal with this problem of how we get rulemaking agencies to
    determine their own rules?
        Number five in the letter I just introduced into the record
    follows this sentence: ``The regulatory process is accountable
    even though regulators are not elected,'' and that they have--
    that the agencies develop regulations to implement laws. They
    solicit comment from the affected parties and the public. The
    White House and the Regulatory Affairs goes through drafts of
    significant regulatory proposals. The agencies issue final
    regulations, but Congress has a fast-track opportunity to block
    them, and sometimes this happens.
        Can you comment on the lack of necessity for us to bring in
    this incredible notion that we are going to regulate executive
    decisions from the White House because we feel that they are
    questionable?
        Mr. Goldston. Yes. There are, I think, at least three ways
    in which the theory behind this, in terms of what is missing
    now, is misguided. Two of them are discussed in the part of the
    letter you just mentioned.
        So, first is that the agencies are constrained by law and
    by politics, actually, because they operate in a political
    context. So I think the agencies do not have carte blanche, or
    I think in Professor Claeys' testimony at one point he said a
    blank check. I don't think that is the case. And, in fact,
    Professor Schoenbrod mentioned NRDC lawsuits against agencies
    that he was involved in. Those are only possible because there
    is a statute that allows it. So that is one way in which there
    is accountability now, to some degree.
        The second is--and I think more relevant to this--is that
    Congress, itself, has a huge number of tools at its disposal,
    formal and informal, to intervene in the regulatory process,
    including the ability to block individual regulations, wisely
    or otherwise.
        But the third issue is, the matter seems to be whether
    there is any electoral accountability. We just went through an
    election, in fact, an election that gave new life to this
    proposal, where Members felt that they got elected because the
    public didn't like the regulatory regime that we have now. This
    seems----
        Mr. Gowdy. Mr. Goldston, I hate to interrupt you. Let me
    ask you if you could summarize it in just a couple more
    sentences. We have run into the stop sign.
        Mr. Goldston. Sure. Absolutely.
        So I think there is--the recent elections shows there is
    accountability. I think some of the most controversial
    regulations that have been brought up will feature in future
    elections. And so, the notion that there is no political
    accountability, in addition to the other kinds of
    accountability we are talking about, I think is hard to
    maintain.
        Thank you, Mr. Chairman.
        Mr. Conyers. Thank you very much.
        Mr. Gowdy. Thank you, Mr. Conyers.
        The Chair would now recognize the distinguished gentleman
    from Florida, Mr. Ross.
        Mr. Ross. Thank you, Mr. Chairman.
        Gentlemen, interesting, a couple of months ago, I was
    talking to an elementary class about American government and,
    of course, talked about the three branches of government. And
    since we have had, as the distinguished gentleman from Michigan
    pointed out, had several hearings here lately on the regulatory
    process, I think I now have to amend my talk about the fourth
    branch of government called the regulatory agencies.
        And I say that somewhat in jest, of course, because I think
    that the regulatory environment has been good. I think it has
    provided a good platform of a delegation of duties by the
    Congress to make sure that we have the proper health, safety,
    and welfare of the American citizens addressed. But I also
    think that we are here today on the REINS Act because of what I
    consider to be regulations gone wild.
        And my concern has to do with the appellate review process.
    And I would like to ask the two professors specifically. If you
    could just summarize briefly, if I have an adverse ruling, how
    long does it take to have that brought to resolution?
        Professor Schoenbrod?
        Mr. Schoenbrod. Well, at least the year in the court of
    appeals, often a couple of years. And then if the Supreme
    Court--then one could petition for certiorari to the Supreme
    Court. And if the Supreme Court takes jurisdiction, then it
    could be another couple--you know, a long time after that. So
    it is a very prolonged process. And even, you could add to that
    rehearings, that kind of thing. And the 70 days that--so that
    means that, really, by the time that the judicial review
    process is just getting under way, the whole REINS process is
    over.
        Mr. Ross. Exactly. I mean, this is an expedient way of
    appellate review, is it not, by the people or the body that
    empowers those to make the regulations?
        Mr. Schoenbrod. Yes.
        Mr. Ross. And, Professor Claeys, I mean, has it been your
    experience, in dealing with the Administrative Procedures Act
    and the regulatory environment, that the recourse out there is
    so prohibitive that those that are affected by it stand nothing
    to gain by challenging it?
        Mr. Claeys. Congressman, I wouldn't say that litigants have
    nothing to gain. It happens fairly often that people can win
    victories using an APA lawsuit. But an APA lawsuit is very
    costly. And, also, there is a tremendous amount of loss of
    stability or security to have one's affairs be suspended for 18
    months or longer while wading through a suit. And so those
    costs do deter people, yes.
        Mr. Ross. And so, Professor Claeys, would you say, under
    the REINS Act now, if the agency gets it wrong and Congress
    disapproves it, would it not be a way of sending a message back
    to that agency to go and get it right and come back with a
    different regulatory rule or action?
        Mr. Claeys. Congressman, I would want to be careful here
    because the REINS Act is very specific to reserve to parties
    all APA challenges that they would have, whether or not the
    rules were approved.
        So the REINS Act adds another check, and that check is to
    say that there was not the substantial consensus that you need
    in two branches of the House--or, sorry, the two parts to the
    Congress and the President to let the rule go forward
    politically, but then the litigant does reserve all rights to
    bring a suit afterwards.
        Mr. Ross. And let me clarify that a little bit. What I am
    suggesting to you is that, if the REINS Act were law, it would
    not foreclose agency action on a particular issue. It would
    merely mean that Congress has spoken and has now instructed
    that agency to go back and revisit it, and they could and
    address it in a different fashion.
        Mr. Claeys. That is right. If Congress does not act, it is
    a signal to the agency that the agency did not come forward
    with the justification that seemed legitimate enough to an
    encompassing majority, as proven by surviving bicameralism and
    presentment. And if it does do its homework, it will pass, and
    then things can go forward.
        Mr. Ross. Mr. Goldston, I know that you are with the
    Natural Resources Defense Council. Has that organization ever
    had any officials be appointed to any agency that might oversee
    or interpret regulatory rules?
        Mr. Goldston. Do you mean, have NRDC former staff become
    Federal officials? Yes.
        Mr. Ross. Right, right.
        And with regard to a blog that I think that you do and one
    that I think was just done yesterday, you indicate, ``As I
    mentioned last week on my blog, one of the most destructive
    aspects of the House spending bill for the rest of this year is
    that it contains 19 anti-environmental riders. The list of
    anti-environmental riders compiled by NRDC is here. Note these
    riders do not change the amount of Federal spending by 1 cent.
    They just block public protections that are otherwise required
    by law.''
        And you list as one of those a particular amendment offered
    by the gentleman from Florida, Representative Rooney, that
    would block a plan to clean up Florida waterways. Specifically,
    that was the Numeric Nutrient Water Criteria deal, wasn't it?
        Mr. Goldston. Right.
        Mr. Ross. Now, as a native of Florida and a member of the
    Florida--past member of the Florida legislature, I take to
    heart how we handle the waterways in Florida. It is how we make
    a living. It is what we rely on not only for our industry but
    also for our tourism.
        And, actually, that Numeric Nutrient Water Criteria
    standard has not yet--while it has been promulgated, it has not
    been implemented. Is that correct?
        Mr. Goldston. That is my understanding.
        Mr. Ross. So, in effect, what you have said there is not
    really true because it is not an existing law and it did not
    impact the environment because it has not been implemented yet.
        But be that as it may, that particular rule would require
    over a billion dollars in expense by industry just to
    implement. It would cost over 1,400 jobs.
        It seems to me that a cost-benefit analysis is absolutely
    necessary if we are going to determine the effectiveness of any
    particular regulatory rule. Wouldn't you agree?
        Mr. Goldston. Some laws allow for that, and some don't.
    But, under Executive order, there is usually a cost-benefit
    analysis done.
        Again, the point of that blog was to talk about whether it
    was the right decision for the House to use the spending bill
    to block implementation of these particular pending rules. But
    there is no question that Congress has the legal authority to
    do that, which is one of the tools that they have which seems
    to make the REINS Act seem both unwise and redundant.
        The other thing, if I might, Mr. Ross, you talked about
    Congress sending back a rule to an agency to be reworked, but
    the REINS Act actually prevents the agency from coming back for
    a year, no matter how simple the change would be.
        Mr. Ross. Thank you. I think my time is up.
        Mr. Gowdy. Thank you, Mr. Ross.
        The Chair would now recognize the distinguished gentleman
    from Georgia, Mr. Johnson.
        Mr. Johnson. Thank you, Mr. Chairman.
        Professors, I know a lot of professors pay attention to
    United States Supreme Court rulings as they come down. Are you
    two also students of the U.S. Supreme Court and the various
    rulings that come down?
        Mr. Schoenbrod. I concentrate more on environmental law,
    though I read some of the Supreme Court opinions.
        Mr. Johnson. Uh-huh. Okay.
        Mr. Claeys. I concentrate on political theory and on
    property law. I try to read the major court opinions as they
    come down----
        Mr. Johnson. Uh-huh.
        Mr. Claeys [continuing]. Especially constitutional
    opinions.
        Mr. Johnson. Yeah. Did you consider the constitutional
    opinion rendered by the Supreme Court in the case of Citizens
    United, which implicated the First Amendment? Did you,
    Professor Claeys, consider that to be a very important case and
    ruling?
        Mr. Claeys. No, Congressman, I didn't because----
        Mr. Johnson. All right, okay, all right.
        Well, how about you, Professor Schoenbrod?
        Mr. Schoenbrod. No, I have not studied that case.
        Mr. Johnson. Okay. So neither one of you would be prepared
    to venture an opinion as to how the ruling in Citizens United
    would impact, on the ground, as things work, the REINS Act, if
    it were passed? You would not be able to comment about the
    ruling in Citizens United, the effect that it would have the on
    rulemaking process if the REINS Act passed?
        Mr. Claeys. If I could clarify, I want to give you two
    different answers.
        Mr. Johnson. Okay. Well, I want you to keep it short.
        Mr. Claeys. As a lawyer, I don't think the opinion is
    applicable.
        The other part of your question asked of the political
    consequences, and on that I have not speculated. I don't have
    the expertise to speculate.
        Mr. Johnson. Okay. All right.
        And you either? You would be the same way?
        Mr. Schoenbrod. Well, I have not read the opinion. I think
    what may be behind your question, Congressman----
        Mr. Johnson. Well, let me just tell you. If a corporation
    is recognized as a person for the purpose of a First Amendment
    right, and if a corporation can invest huge sums of money to
    control an election and that money can elect the legislators
    whom business favors, and as Congress does its business and
    lobbyists come forward to the Congresspeople and start to tell
    them about the effects of various rules pursuant to legislation
    that has passed, the effect of these rules on the corporate
    bottom line, I believe that that could be influential in terms
    of the rulemaking process.
        And, certainly, politicians would be accountable for
    rulings so made. But is that what we really want to do, take
    our rulemaking away from one based on, as in your testimony,
    Dr. Goldston, is based on expertise, rationality, and openness
    and replace it with a process that is strictly political?
    Whoever has the most economic clout can cause whatever rules
    that benefit them to be the ones that are implemented? Is that
    what we really want here in America?
        And I find it, Professor Schoenbrod, instructive that your
    book, ``Saving Our Environment From Congress,'' deals with the
    impact of environmental regulations. And, also, you mention
    something about health regulations. These are the things that
    are under attack now by the interests that elected this new
    Congress. And so I find it interesting that you would be in
    support of the REINS Act.
        But what do you have to say, Professor Claeys?
        Mr. Claeys. Congressman Johnson, I want to bracket a few
    different issues. I am not competent to talk about the ways in
    which corporations lobby at a real specific level. What I tried
    to do, though, in my testimony was to restate and to provide to
    this Subcommittee some of the findings in economic and
    political-science scholarship about how businesses try to
    influence regulation. And there is a well-developed body of
    economic and political-science scholarship under the rubric of
    the theory of economic regulation.
        And maybe, to put it in a sentence, the main lesson from
    that scholarship is that corporations pressure both Congress
    and the regulators. And when trying to figure out the way in
    which a certain regulatory system is going to generate
    outcomes, you have to anticipate that possibility and their
    costs all around.
        Mr. Johnson. Thank you, sir.
        Thank you, Professor.
        And I am sorry I didn't get to you, Mr. Goldston.
        Thank you.
        Mr. Gowdy. Thank you, Mr. Johnson.
        The Chair would now recognize the distinguished gentleman
    from Arizona, Mr. Franks.
        Mr. Franks. Well, thank you, Mr. Chairman.
        Gentlemen, thank you for being here.
        My first question would be for you, Professor Claeys. You
    know, the obstensible purpose for the REINS Act here is to try
    to, obviously, reassert congressional authority so that we
    might make the final legislative calls in an effort to help our
    regulatory system better conform to the Constitution itself. At
    least, that is the goal.
        And would you take issue with that?
        Mr. Claeys. A little. There is a--let me put it this way.
    Current precedent in institutional practice allows Congress to
    delegate considerable discretion to agencies. This bill does
    not reclaim all of that discretion. It leaves executive branch
    agencies with that discretion. It adds for significant exercise
    of rulemaking power a check, a permission slip.
        So that formally does not reclaim the power, but it does
    have the effect politically of making agencies go back to
    Congress and making Congress take ownership of the hard, kind
    of, political conflicts I talked about, in terms of evidence
    and science and technology and economics.
        Mr. Franks. Well, I actually agree with you completely.
        Now, you would probably agree that critics who allege that
    the REINS Act is biassed against the public interest and public
    protection--I mean, that is essentially their argument, that
    somehow the REINS Act is antithetical to the public interest.
    And I am just wondering if you agree with that or place any
    credibility in that in any way.
        Mr. Claeys. Congressman Franks, one of the important points
    of my testimony was to provide a polite warning that there is
    some truth to that--there is--it is true that regulation can
    be--in the absence of regulation, the public interest can be
    heard. But it is equally true that the public interest can be
    heard if there is too much regulation.
        And one of the things I was trying to impress in my
    testimony is simply that you have to be--want us to be careful
    that regulations may be against the public interest. And in
    those cases in which the regulations might be in the public
    interest, quite often I think it likely that Members of
    Congress, if they don't see a compelling argument against the
    regulation, will endorse the joint resolution of approval.
        So, to me, the burden lies on people who oppose the REINS
    Act to explain precisely why Members of Congress won't endorse,
    embrace a joint resolution of approval for a bill that seems to
    be in the public interest.
        Mr. Franks. Well, I guess my point here is that it seems
    like the critics of the REINS Act suggest that giving
    constitutional or giving congressional signoff is biased
    against the public interest. That is, at least, their
    suggestion. And they would go further and suggest that--some of
    us would say that the regulatory agencies seem to be biased in
    exactly the opposite direction.
        What do you think is the reason for that understanding on
    the part of both sides? Do you think it is accurate? And why
    does that dynamic seem to--I mean, it seems to me there is
    something to that dynamic. It seems like a bureaucracy or a
    regulatory agency seems to have a tendency, a momentum to go
    overboard, sometimes antithetically, to the public interest,
    whereas, if you have people that are voted into office, it
    seems like the public interest is more carefully considered.
        Mr. Claeys. And here, Congressman, I go back to a
    fundamental choice as stated in my opening testimony, in my
    written testimony. There is a dispute in this country about the
    proper relationship between freedom and regulation. And one
    political tradition is most notably in Federalist 51. It says
    that government is needed for men because men are somewhere
    between angels and beasts.
        And if you take that view, you presume in favor of liberty.
    And there will be times when law is needed, but you want to
    have a system where people who want to co-opt and capture the
    law have to make a convincing argument to the lawgiver that it
    is a good law. And the Constitution can't institute that
    perfectly, but it can use the fact that a law has to pass
    through the House and the Senate and be signed by the President
    as indirect proof that it really is in the public interest.
        There is another theory about the relationship between
    freedom and government that says that people aren't
    meaningfully free unless government is very active. And the
    progressives and New Dealers laid this out. I think that, in
    contemporary life, some agencies act to empire-build, but many
    do not. But many of the regulators who do not, make assumptions
    about the relationship between freedom and regulations similar
    to those of the New Dealers. And they, however well-
    intentioned, think that government is better if the regulations
    are presumptively valid unless knocked out by an APA lawsuit.
        And it is perfectly legitimate for them to believe this,
    and there are many parts of contemporary practice that allow
    them to do so. But that choice is a political choice. And if
    this Congress wants to make a different choice and take things
    in a different direction, the Necessary and Proper Clause in
    this Congress' legislative power allow it to do so, as it is
    considering doing for major rules.
        Mr. Franks. Mr. Chairman, I think that is well-said, and
    the red light prevents me from asking Mr. Goldston my
    questions. Thank you.
        Mr. Gowdy. Thank you, Mr. Franks.
        On behalf of all of us, we would like to--the Chair would
    recognize the gentlelady from Texas, Ms. Jackson Lee, is
    present and has been present for the majority of the testimony
    and the questioning. And we thank you for your presence.
        Ms. Jackson Lee. And a Member of the full Committee.
        Mr. Gowdy. And a Member of the full Committee, yes, ma'am.
        With that, let me thank, on behalf of all of us, the panel
    for your professionalism, your collegiality toward one another
    and during the question-and-answer session. We have all
    benefitted from your testimony and the Q&A.
        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 to as promptly as they can so that their answers may be
    made part of the record.
        Without objection, all Members will have 5 legislative days
    to submit any additional materials for inclusion in the record.
        With that, again, on behalf of all of us, thank you for
    your testimony and your questions and answers. This meeting is
    adjourned.
        [Whereupon, at 5:23 p.m., the Subcommittee was adjourned.]