[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




                  U.S. GOVERNMENT PRINTING OFFICE
65-074                    WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001


                       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.]

                                 
