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





FORMAL RULEMAKING AND JUDICIAL REVIEW: PROTECTING JOBS AND THE ECONOMY 
        WITH GREATER REGULATORY TRANSPARENCY AND ACCOUNTABILITY

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

                                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

                               __________

                              MAY 31, 2011

                               __________

                           Serial No. 112-49

                               __________

         Printed for the use of the Committee on the Judiciary


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








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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]

      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.,
DENNIS ROSS, Florida                   Georgia
[Vacant]                             MELVIN L. WATT, North Carolina
                                     MIKE QUIGLEY, Illinois

                      Daniel Flores, Chief Counsel

                      James Park, Minority Counsel













                            C O N T E N T S

                              ----------                              

                              MAY 31, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trey Gowdy, a Representative in Congress from the 
  State of South Carolina, and Vice-Chairman, Subcommittee on 
  Courts, Commercial and Administrative Law......................     1
The Honorable Mike Quigley, a Representative in Congress from the 
  State of Illinois, and Member, Subcommittee on Courts, 
  Commercial and Administrative Law..............................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     5

                               WITNESSES

Edward W. Warren, P.C., Kirkland & Ellis, LLP
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31
Noel J. Francisco, Esq., Jones Day LLP
  Oral Testimony.................................................   172
  Prepared Statement.............................................   174
Matthew C. Stephenson, Professor, Harvard Law School
  Oral Testimony.................................................   185
  Prepared Statement.............................................   187

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Trey Gowdy, a Representative 
  in Congress from the State of South Carolina, and Vice-
  Chairman, Subcommittee on Courts, Commercial and Administrative 
  Law............................................................     2
Prepared Satement of the Honorable Mike Quigley, a Representative 
  in Congress from the State of Illinois, and Member, 
  Subcommittee on Courts, Commercial and Administrative Law......     6
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    18

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions from Edward W. Warren, P.C., 
  Kirkland & Ellis, LLP..........................................   216
Response to Post-Hearing Questions from Noel J. Francisco, Esq., 
  Jones Day LLP..................................................   222
Response to Post-Hearing Questions from Matthew C. Stephenson, 
  Professor, Harvard Law School..................................   227

 
FORMAL RULEMAKING AND JUDICIAL REVIEW: PROTECTING JOBS AND THE ECONOMY 
        WITH GREATER REGULATORY TRANSPARENCY AND ACCOUNTABILITY

                              ----------                              


                         TUESDAY, MAY 31, 2011

              House of Representatives,    
                    Subcommittee on Courts,
                 Commercial and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 4:05 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Trey 
Gowdy, (Vice-Chairman of the Subcommittee) presiding.
    Present: Representatives Gowdy, Franks, and Quigley.
    Also Present: Representative Conyers.
    Staff Present: (Majority) John Hilton, Counsel; Johnny 
Mautz, Counsel; Allison Rose, Professional Staff Member; Ashley 
Lewis, Clerk; (Minority) James Park, Subcommittee Chief 
Counsel; and Susan Jensen-Lachmann, Counsel.
    Mr. Gowdy. The Subcommittee will come to order. This is the 
Subcommittee on Courts, Commercial and Administrative Law. It 
is a hearing on formal rulemaking and judicial review, 
protecting jobs and the economy with greater regulatory 
transparency and accountability.
    I want to welcome our three witnesses. I will recognize 
myself for an opening statement and then recognize the 
gentleman from Illinois.
    Today the Subcommittee continues to examine whether 
Washington's regulatory scheme cycles job creation and impedes 
economic growth, and will look at practical, commonsense 
alternatives to the status quo which has placed a $1.75 
trillion regulatory burden on the back of our economy.
    Our specific focus today will be on whether increased use 
of formal rulemaking and more vigorous judicial review can help 
to take unnecessary and redundant deleterious regulations out 
of the equation.
    For the first 3 decades after the Administrative Procedure 
Act was adopted in 1946, agencies routinely made regulations by 
formal rulemaking. As a former prosecutor I am aware of the 
value of this process. Like a trial, formal rulemaking allows 
persons who are affected by a proposed regulation to introduce 
evidence, call witnesses to testify under oath, and, most 
critically, cross-examine other witnesses.
    Since the 1970's, however, agencies have avoided formal 
rulemaking whenever possible, and courts rarely require 
agencies to engage in it. Instead, agencies make regulations 
through informal notice and comment procedures. This offers the 
public and regulated entities less opportunity to challenge 
agency predispositions in the rulemaking process. It also 
shields burdensome rules from the most effective way to vet 
them for mistakes.
    Another factor that encourages excessive regulation is the 
deferential standards of judicial review courts apply when a 
regulation is challenged. When an agency makes a regulation 
through informal rulemaking, a court will uphold that 
regulation unless it is arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with law. A 
regulation made by formal rulemaking is upheld if it is based 
on substantial evidence, but courts often treat these standards 
as identical and lenient, which I am sure our witnesses can and 
hopefully will address.
    The Supreme Court has held that a court should be, quote, 
at its most deferential when an agency makes a scientific 
determination in the process of rulemaking. This principle has 
been called ``superdeference,'' although that term certainly 
cannot be found anywhere in the text of the Administrative 
Procedure Act. Courts defer to agencies' legal conclusion 
according to the well-established Chevron doctrine. If Congress 
has granted an agency the discretion to make a rule, then the 
rule will be upheld if it is reasonable. Less clear is how a 
court should treat an agency's own determination of whether 
Congress actually granted the agency the discretion to make the 
rule in the first instance.
    Relatedly, courts also defer to an agency's own 
interpretation of its own sometimes ambiguous regulations. How 
a court should approach these questions is up for discussion at 
today's hearing.
    Finally, at our hearing on February 28, 2011, we heard 
testimony that courts should be able to review agency 
compliance with the Information Quality Act and other statutes 
that are ancillary to the APA rulemaking process. This 
Subcommittee will also hopefully be able to explore that 
suggestion in more depth today.
    I look forward to our witnesses' testimony. And again I 
thank you for your presence.
    [The prepared statement of Mr. Gowdy follows:]
  Prepared Statement of the Honorable Trey Gowdy, a Representative in 
     Congress from the State of South Carolina, and Vice-Chairman, 
       Subcommittee on Courts, Commercial and Administrative Law
    Today the Subcommittee continues to examine why Washington's 
regulatory system stifles job creation and impedes economic growth, and 
will look at practical, common-sense alternatives to the over-
burdensome status quo that has placed a $1.75 trillion regulatory 
burden on the back of our economy.
    Our specific focus today will be on whether increased use of formal 
rulemaking and more vigorous judicial review can help to tame out-of-
control regulation.
    For the first three decades after the Administrative Procedure Act 
was adopted in 1946, agencies routinely made regulations by formal 
rulemaking. As a former prosecutor, I am aware of the value of this 
process. Like a trial, formal rulemaking allows persons who are 
affected by a proposed regulation to introduce evidence, call witnesses 
to testify under oath, and--critically--cross-examine other witnesses.
    Since the 1970s, however, agencies have avoided formal rulemaking 
whenever possible, and courts rarely require agencies to engage in it. 
Instead, agencies make regulations through informal, notice-and-comment 
procedures. This offers the public and regulated entities less 
opportunity to challenge agency predispositions in the rulemaking 
process. It also shields burdensome rules from the most effective way 
to vet them for mistakes.
    Another factor that encourages excessive and misguided regulation 
is the deferential standards of judicial review courts apply when a 
regulation is challenged. When an agency makes a regulation through 
informal rulemaking, a court will uphold that regulation unless it is 
``arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law.'' A regulation made by formal rulemaking is upheld 
if it is based on ``substantial evidence.'' But courts often treat 
these standards as identical and lenient, which I am sure our witnesses 
can address.
    The Supreme Court has held that a court should be ``at its most 
deferential'' when an agency makes a ``scientific determination'' in 
the course of rulemaking. This principle has been called ``super-
deference,'' although that term certainly is not found anywhere in the 
text of the Administrative Procedure Act.
    Courts defer to agencies' legal conclusions according to the well-
established Chevron doctrine: If Congress has granted an agency the 
discretion to make a rule, then the rule will be upheld if it is 
reasonable. But less clear is how a court should treat an agency's own 
determination of whether Congress actually granted the agency the 
discretion to make the rule. Relatedly, courts also defer to an 
agency's own interpretation of its own ambiguous regulation. How courts 
should approach these questions is up for discussion at today's 
hearing.
    Finally, at our hearing on February 28, 2011, we heard testimony 
that courts should be able to review agency compliance with the 
Information Quality Act and other statutes that are ancillary to the 
Administrative Procedure Act rulemaking process. The Subcommittee will 
be able to explore that suggestion in more depth today.
    I look forward to our witnesses' testimony and reserve the balance 
of my time.
                               __________

    Mr. Gowdy. At this point, I recognize the gentleman from 
Illinois, Mr. Quigley.
    Mr. Quigley. Thank you, Mr. Chairman. As the overarching 
procedural framework for the Federal administrative agencies, 
the Administrative Procedure Act, or APA, is largely 
responsible for creating a regulatory process that is best 
characterized as balanced. On one hand the APA provides 
procedural protections sufficient to guarantee all affected 
parties both due process and decisions based on accurate 
factual findings. On the other hand, it gives administrative 
agencies a great deal of rulemaking informality and 
flexibility. It is this informality and flexibility that allows 
agencies to confront the myriad of complex problems that 
American society must face to protect the public from harm.
    Congress has generally seen fit to permit this level of 
flexibility because of the agencies' expertise in specific 
areas of public policy. This allows the agencies to tailor 
their response to specific problems in a way that Congress, the 
courts, and the elected executive branch officials cannot.
    In light of the need to maintain this balance developed 
over decades of practice, agencies have largely abandoned 
formal rulemaking in favor of the still substantial procedural 
requirements of informal rulemaking. Likewise, the courts have 
adopted a stance that is mostly deferential to agency decision 
making, while still exercising real scrutiny through the, 
``Hard-Look Doctrine'' under which courts will carefully 
scrutinize an agency's informal rulemaking process while being 
careful to avoid the taint of ``rulemaking from the bench.''
    Both the expanded use of formal rulemaking and more 
stringent judicial review of agency rulemaking conflict with 
the longstanding balance between procedural protections and 
rulemaking flexibility, and they would hamper government's 
ability to respond promptly to pressing societal problems.
    Most scholars of administrative law, regardless of 
ideological persuasion, appear to agree that expanding the use 
of formal rulemaking is effectively the equivalent of simply 
stopping rulemaking in its tracks.
    Formal rulemaking is an adversarial process in which the 
agency and affected parties engage in a trial-type process to 
determine whether a proposed rule should go into effect. 
Moreover, formal rulemaking places the burden of proving that a 
proposed rule is supported by substantial evidence on the 
agency, which is a fairly high burden to meet.
    More than two generations of expertise with formal 
rulemaking has taught us that it adds little to the accuracy or 
fairness of the rulemaking process, while tremendously 
increasing costs and delay.
    Similar concerns exist with respect to imposing a more 
stringent judicial review standard. As with the expanded use of 
formal rulemaking procedures, Congress considered and rejected 
creating a more stringent judicial review standard for agency 
rulemaking back in the early 1980's. The concerns expressed 
then continue to exist today. Heightened judicial review would 
increase costs and delay in the process by opening the door to 
unending appeals in which parties opposed to a given rule will 
ask simply to second-guess the wisdom of that rule.
    Finally, we should be careful about extending judicial 
review requirements to other statutes that touch on 
administrative procedure, including the Information Quality 
Act, or IQA.
    While the discussion of how much regulation we should have 
in our society today is one we should embrace, it is also one 
we must get right. There is indeed a healthy tension between 
the tug on industry to be free of constraints to fuel 
innovation, growth in job creation, and the duty of regulators 
to shape policy that will thrive to the public's health, 
safety, and welfare.
    Effective regulation is a complex balancing act, the result 
of a vigorous process that weighs costs against benefits.
    While I look forward to hearing the testimony of our 
distinguished panel of witnesses today, I am inclined to think 
that the rulemaking procedures instituted by the APA and 
further clarified by the courts have properly struck this 
balance.
    Mr. Chairman, I close with an anecdotal reminder that we 
should be wary of returning to an APA of old. In the 1960's, of 
the 16 formal rulemakings under the Food, Drug, and Cosmetic 
Act, not one was completed in less than 2 years, and the 
average time that elapsed between first proposal and final 
order was 4 years. In one proceeding, the question concerned 
whether the FDA should require that peanut butter contain at 
least 90 percent peanuts as opposed to 87 percent peanuts. In 
the peanut butter case, a government witness was cross-examined 
for an entire day about a survey of cookbook and patented 
peanut butter formulas, missing recipes, and his personal 
preferences regarding peanut butter.
    I think that you and I can agree that while we may 
celebrate the fact that the personal peanut butter preferences 
in this room likely range from extra creamy to extra chunky, 
America has far too many challenges in front of it today to 
dedicate taxpayer resources to investigating such matters. 
Thank you, and I yield back.
    Mr. Gowdy. I thank the gentleman from Illinois.
    The Chair at this point would recognize the former Chairman 
of the full Committee, the gentleman from Michigan Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Trey Gowdy, Vice-Chairman of 
this Subcommittee, who in your first term has accomplished more 
than most Members of Congress. Your meteoric rise is sometimes 
frightening. But I am happy to be here with you and will try to 
remind you of some of the history that is involved in this 
notion of having agencies have trials in terms of their 
rulemaking. And as a former prosecutor, you have gotten into 
that mode pretty well across the years, and you have done quite 
brilliantly in that regard.
    Mr. Gowdy. Thank you.
    Mr. Conyers. But this is not a trial. The agency rules 
should not be subjected to a trial. The infamous peanut butter 
case with the FDA, in which it took 10 years under the process 
that you now recommend to determine whether 90 percent or 87 
percent of the peanut butter should have peanuts in it, that is 
almost Saturday Night Live material.
    But I want to also remind you that even another colleague 
of ours in the other body, Mark Warner, is sympathetic to some 
kind of change. But he has restrained himself--even though I 
might remind you that he too is a freshman in the other body--
about this whole idea.
    Now, I am going to study your comment that the more 
formalized rulemaking will help create jobs. This is the most 
astounding statement that I have heard this week in the House 
of Representatives. And as one who comes from a place that 
needs jobs desperately, if there is a scintilla of evidence 
that would support that premise, you and I are going to be on 
whatever legislation that you will attach to that theory. It is 
clearly another way of trying to stop the ObamaCare bill, as I 
like to call it, the new health care reform measure, by 
subjecting it to even more delay because there are so many 
requirements for agency regulations. And I want to give the 
conservative leadership credit in the House, that even after 
they lose the vote, they never give up. And I admire that kind 
of determination to even undermine a popular vote in the House 
of Representatives.
    It reminds me of what the dean of the House of 
Representatives, John Dingell of Michigan, talked about in 
1982. I don't know what you were doing then. I warrant you 
weren't even practicing law then. But nevertheless, Chairman 
Dingell talked about that they were opposing comprehensive 
regulatory reform legislation that follows to a ``T'' what is 
being proposed in the notion that is before us today. And 
Chairman Dingell charged opponents with the accusation that the 
legislation wouldn't improve Federal rulemaking but rather 
would harm it by creating further delays and giving a small 
group of people an unfair advantage in getting heard during the 
process.
    I have some other comments to make, but I think you get my 
drift. I will turn back my time and thank you for allowing me 
to speak.
    Mr. Gowdy. I thank the gentleman from Michigan.
    Without objection, other Members' opening statements will 
be made part of the record.
    [The prepared statement of Mr. Quigley follows:]

    

                               __________
    [The prepared statement of Mr. Conyers follows:]

    
    
                               __________

    Mr. Gowdy. We have a very distinguished panel of witnesses 
today. Each of the witnesses' written statements will be 
entered into the record in its entirety. I ask that each 
witness summarize his testimony in 5 minutes or less. To help 
you stay within that time frame, you will notice, hopefully, 
some lights illuminating red, yellow, and green. And they mean 
what they traditionally mean.
    So without further ado, I will introduce, starting from my 
left to right, your right to left, Mr. Edward W. Warren who is 
with the environmental practice group at Kirkland & Ellis, 
considered one of the first generation of environment 
attorneys. Mr. Warren has been practicing environmental law 
almost since the EPA was founded. Despite his youthful 
appearance, I assume that that is a correct statement. A 
renowned litigator, Mr. Warren is a leading practitioner in the 
environmental practice group at Kirkland & Ellis. He received 
his B.A. Degree from Yale. After graduating from the University 
of Chicago law school, he clerked for judge Luther Swygert on 
the U.S. Court of Appeals for the Seventh Circuit. He is an 
adjunct professor at the University of Chicago and has taught 
administrative law at Georgetown and appellate litigation at 
George Mason University. He is a member of the American Law 
Institute and chairman of the Federalist Society's 
administrative law practice group. Suffice it to say he is one 
of the foremost experts in the country.
    So at this point, we will recognize Mr. Warren for his 5 
Minutes.

             TESTIMONY OF EDWARD W. WARREN, P.C., 
                     KIRKLAND & ELLIS, LLP

    Mr. Warren. Thank you. Thank you very much. And thank you 
for the opportunity to testify before this Committee this 
afternoon.
    Mr. Conyers. Mic, please.
    Mr. Warren. I am sorry. Can you hear me now?
    Mr. Conyers. I can.
    Mr. Warren. I have taught administrative law for a number 
of years, since 1995. But equally important, as the Chairman 
suggested, I have been an administrative law practitioner and 
litigator since 1970.
    This afternoon I will share with you my perspective about 
how administrative law has changed since I began practicing in 
1970, and suggest that today's agency practice has moved too 
far in the direction of exclusively notice and comment 
rulemaking. Specifically, I recount my experience in various 
rulemaking cases where limited cross-examination of agency 
projections were key scientific and technical studies proved 
extremely helpful in facilitating effective judicial review and 
improving the agency's work product.
    My experience suggests that it would be wise to make 
carefully tailored amendments to the Administrative Procedure 
Act, which would permit slightly more formal proceedings in 
only major rules currently reviewed by the OIRA office. I am 
not suggesting formal rulemaking in every case, or that the 
procedures in 556 would apply to all of these rulemakings. I am 
suggesting something more limited, as you will see from my 
testimony. And I am suggesting also that this process that I am 
suggesting would improve not just for judicial review but the 
OIRA process at OMB whereby the executive branch reviews agency 
rules before they take effect.
    Now, I began by reminding us all that the Administrative 
Procedure Act was enacted in 1946 in response to perceived 
excesses by New Deal agencies. In reflecting that 
understanding, Justice Frankfurter, an administrative law 
professor at Harvard, concluded in Universal Camera that quote, 
Courts must now assume more responsibility for the 
reasonableness and fairness of agencies' decisions and, quote, 
that they not abdicate the conventional judicial function.
    Now at that time, the normal way that agencies proceeded 
was by adjudication. Rulemaking was a novel idea contained in 
the Administrative Procedure Act. But rulemaking became more 
popular in the 1950's as sort of a summary judgment device 
whereby issues that were recurring in licensing proceedings or 
in adjudication could be dealt with once and for all by 
rulemaking. And then rulemaking blossomed in 1970 with the 
enactment of various health safety and environmental statutes.
    Now at that time, many of the leading jurists and 
administrative law experts envisioned a limited role for oral 
hearings and cross-examination, again on the same things I am 
talking about, the issue of central importance, the key 
scientific and technical evidence underlying the agency's 
decision. And that was especially true, as it is today, because 
of the enormous impact that some of these major rules can have 
on our economy.
    The likelihood of that occurring was sort of snuffed out in 
the 1970's by two Supreme Court decisions, the Florida East 
Coast Railroad case and the Vermont Yankee case. And where does 
that leave us with judicial review; because the process is now 
gone and the ability to have even the limited kind of 
suggestion that I am making has gone.
    So what do we have? We have a process-oriented judicial 
review with massive records, records that I can tell you as a 
litigator, most of which is irrelevant. It always boils down to 
a few key pieces of evidence. And on those key pieces of 
evidence, the ability to get at the heart of them and to find 
out what the assumptions are and how viable those assumptions 
are, the projections of the agency, these are the heart and 
soul of judicial review. And yet without cross-examination, it 
doesn't work very well.
    Now I have given you, in my testimony, examples of three 
cases that are, in my own experience as a litigator--the 
International Harvester Case, the so-called benzene case, and a 
case called Corrosion Through Fitting, where for various 
reasons that are contained in my testimony, some kind of cross-
examination was permitted. And I think those cases illustrate 
how a limited function for cross-examination would facilitate 
judicial review and improve the work product.
    I also suggest--my last sentence--I suggest in the third 
part of my testimony how this could be done in a limited, 
carefully tailored way in amending section 553 of the APA. 
Thank you.
    Mr. Gowdy. Thank you Mr. Warren.
    [The prepared statement of Mr. Warren follows:]
    
    

                               __________

    Mr. Gowdy. Next we are pleased to welcome Mr. Noel 
Francisco. I hope I pronounced it somewhat close to being 
correct. Mr. Francisco leads the government regulation practice 
at Jones Day. Prior to joining Jones Day, Mr. Francisco served 
as the deputy assistant attorney general in the Department of 
Justice Office of Legal Counsel and as associate counsel to the 
President of the United States. Mr. Francisco earned a B.A. In 
economics from the University of Chicago. He also earned his 
J.D. From the University of Chicago with high honors. He 
clerked for Judge Luttig on the United States Court of Appeals 
for the fourth circuit in Richmond and for Justice Scalia on 
the Supreme Court of the United States. At Jones Day, Mr. 
Francisco regularly interacts with administrative agencies at 
every step of the regulatory process. He knows from personal 
experience how the Administrative Procedure Act works and how 
it does not work. And we look forward to his insights. With 
that, welcome, Mr. Francisco.

      TESTIMONY OF NOEL J. FRANCISCO, ESQ., JONES DAY LLP

    Mr. Francisco. Thank you, Mr. Chairman and Members of the 
Subcommittee. It is an honor to appear before you today to 
discuss the important issue of judicial review of agency 
action.
    In the modern administrative state, it is necessary for 
courts to defer to agencies' interpretation and implementation 
of laws passed by Congress. In complex regulatory regimes, 
Congress simply cannot anticipate every problem that may arise, 
nor can courts be expected to fill the policy gaps. That is the 
role of the agencies.
    Rigorous judicial oversight, however, is also required, for 
if judicial deference goes too far, we risk undermining the 
basic structure of our system of government. Take, for example, 
a common feature of the modern administrative state. At the 
front end, Congress passes a broad and open-ended law. Agencies 
then fill in the gaps through implementing regulations. This is 
no ministerial function. In these implementing regulations, the 
agencies are not just interpreting a broad law. In addition, 
they are making fundamental policy choices similar to those 
made by this body every day. Then at the back end, courts 
largely defer to the agencies' interpretation and 
implementation of broad law. As a result, we see the agencies 
not only executing the law, which is their primary function, 
but also both making and interpreting the law through their 
implementing regulations.
    The primary check on this agency discretion is judicial 
review. It is the judiciary's job to ensure that the agency's 
policy choices ultimately reflect those made by this body, the 
Congress, in the original legislation. The point here, of 
course, is not judicial power. Rather, the court's role in this 
process is to protect Congress' power by ensuring that at the 
end of the day, the agency's policy choices reflect Congress' 
policy choices. And if courts accord agencies too much 
discretion, then we remove this fundamental check and the 
result is an undue concentration in the executive branch of all 
three powers of our national government.
    This ultimately is the dilemma of modern administrative 
law: how to balance agency discretion against judicial 
oversight. And striking the right balance is vital to 
preserving the separation of powers on which our government was 
founded.
    In light of this, there are three basic areas where in my 
view we should consider whether legal doctrine is tilted too 
far in favor of agency discretion and away from judicial 
review.
    The first is the one that was just touched upon by my 
friend and former law professor, Ed Warren, and that is the 
issue of formal versus informal rulemaking. I agree that we 
should carefully ask ourselves whether or not we have struck 
the right balance here.
    It is true, it is true that in many contexts, it is 
important for agencies to act expeditiously. And that is 
primarily the benefit of the notice and comment rulemaking 
process. But I would submit that in the vast majority of 
contexts, it is much more important to get the right answer 
than it is to get the quick answer. And in light of that, it is 
eminently reasonable to ask whether we have struck the right 
balance by making the more formal procedures as embodied in 
formal rulemaking a virtual dinosaur in the area of 
administrative law.
    The other area where I think that reconsideration of 
whether we have struck the right balance is important is in the 
area of judicial deference to the agencies' interpretation and 
implementation of laws. Here, too, the law is tilted strongly 
in favor of agency discretion and against judicial oversight. 
To give more deference where courts defer to the agency's 
views, to the extent those views are persuasive, makes a lot of 
sense. So does Chevron deference, if not taken too far. 
Agencies, after all, have technical expertise that courts do 
not. And courts by and large should defer to that expertise.
    In addition to those decisions, however, the courts have 
adopted various other and even more deferential doctrines as 
embodied by cases like as Power and Baltimore Gas and Electric. 
This development raises an important and fundamental policy 
question. Have these doctrines tipped the balance too far in 
favor of agency discretion and away from judicial review? If 
so, then recalibration of that balance is eminently warranted.
    There are many ways to do that. The bottom line, however, 
is that in this context, judicial review is not about judicial 
power. It is about ensuring that the agencies are adhering to 
Congress' policy choices so that Congress is not effectively 
cut out of the policymaking process.
    The last area--and I will just defer to my written remarks 
on this, on which I think it warrants reconsideration of the 
right balance is in the area of specific statutes aimed at 
improving the regulatory process, primarily the Information 
Quality Act and the Regulatory Flexibility Act. Thank you, Mr. 
Chairman.
    Mr. Gowdy. Thank you, Mr. Francisco.
    [The prepared statement of Mr. Francisco follows:]
    
    
    
                               __________

    Mr. Gowdy. And third, we will have Professor Matthew 
Stephenson from Harvard Law School. Mr. Stephenson is a 
professor at Harvard where he teaches administrative law, 
legislation, and regulation, and political economy of public 
law. His research focuses on the application of positive 
political theory to public law, particularly in the areas of 
administrative procedure, judicial institutions, and separation 
of powers.
    Prior to joining the Harvard Law School faculty, Professor 
Stephenson clerked for senior Judge Steven Williams on the U.S. 
Court of Appeals for the District of Columbia circuit and for 
Justice Anthony Kennedy on the Supreme Court of the United 
States. He received his Ph.D. In political science and his J.D. 
from Harvard in 2003 and his B.A. From Harvard in 1997. We are 
glad to have you, Professor Stephenson, and we will recognize 
you for your 5 minutes.

  TESTIMONY OF MATTHEW C. STEPHENSON, PROFESSOR, HARVARD LAW 
                             SCHOOL

    Mr. Stephenson. Thank you Chairman Gowdy, Ranking Member 
Quigley, Members of the Subcommittee. I appreciate your 
inviting me here today to speak on these very important issues 
of administrative process.
    These procedural issues may seem arcane and technical, but 
as Members of the Subcommittee are well aware, they are 
critically important for the welfare of the American people. I 
think it is important to keep in mind when we have these 
discussions about regulatory process, that there is an 
important distinction between our views about desirable 
regulatory policy and desirable regulatory process. The same 
administrative procedures that might regulate and slow down the 
adoption by agencies of rules and regulations that impose new 
mandates on the private sector would likewise regulate and 
perhaps slow down deregulatory initiatives or the replacement 
of command-and-control style regulatory schemes with more 
market-based incentive schemes.
    The same practices of judicial review that might empower 
courts to strike down agency regulations that in the judge's 
views are not supported by sound science might also empower 
Federal judges to strike down agency efforts to deregulate or 
alter regulatory burdens and, in some circumstances, even leave 
Federal courts to require agencies to adopt new regulations.
    I think in light of this useful example to keep in mind is 
President Ronald Reagan's efforts shortly after he was elected 
to use the notice and comment rulemaking process to implement 
his vision of regulatory policy. At the time, it was 
progressive critics who charged that there was sometimes too 
little process and not enough judicial scrutiny.
    The more general point--and this is a point on which I 
believe my fellow witnesses would agree, even if we might 
disagree on some of the particulars---is that we should be 
willing to advocate the same procedural rules today that we 
would have advocated in 1980.
    In light of that, let me now turn to some of the more 
specific proposals that Members of the Committee have raised as 
worth exploring. One is the suggestion that more administrative 
rulemakings be governed by the APA's formal rulemaking 
procedures rather than its so-called informal or notice and 
comment rulemaking procedures. In my view, such a move would be 
likely both unnecessary and unwise; unnecessary, because the 
so-called informal rulemaking process is, in fact, heavily 
proceduralized. It is true that it does not typically involve 
adversarial oral cross-examination, but there is extensive 
opportunity for parties to provide their views to criticize 
agency science, to criticize agency policy choices, and to 
compel agencies to respond to all reasonable such comments, 
criticisms, and proposed alternatives, to the point where most 
people would refer to this process--this notice and comment 
process as somewhat akin to a paper hearing.
    What formal rulemaking would add principally--although 
there are other things as well--would be adversarial cross-
examination. There is to my knowledge very little evidence that 
adversarial cross-examination is especially well-suited for the 
sorts of issues that typically come up in major rulemakings, 
whatever its benefits in other contexts. And what limited 
systematic study of the issue that there is seems to 
corroborate this and suggest that the principal result of more 
formalized procedures, as Ranking Member Quigley mentioned in 
his opening remarks, is greater delay; delay that, as I 
mentioned earlier it is important to keep in mind, would not 
only delay or deter the imposition of new regulatory burdens 
but would also delay or deter the relaxation or modification of 
regulatory burdens. In other words, the principal effect of 
requiring formal rulemaking would be to freeze the regulatory 
status quo--whatever that happens to be at the moment--in place 
or at least make it very difficult and slow to change.
    With respect to judicial review, my comments would be 
somewhat similar. Here my views are less strongly held. I think 
there are important questions about judicial review as 
currently practiced, but it is important to recognize there 
does exist substantial judicial oversight of agency rulemaking 
right now. Imposing a more or heightened standard of judicial 
review would have the effect perhaps of shifting more power 
over regulatory policymaking from agency policy experts to 
agency lawyers, and more power over regulatory policymaking 
from administrative agencies and perhaps also this body to the 
Federal courts.
    Now, I certainly wouldn't advocate eliminating such 
meaningful judicial review as some of my colleagues in the 
academy might. But I do think the Committee should take into 
account those potential drawbacks before mandating a heightened 
standard of review this time. Thank you very much.
    Mr. Gowdy. Thank you, Professor.
    [The prepared statement of Mr. Stephenson follows:]
    
    

                               __________
    Mr. Gowdy. At this point I would recognize the gentleman 
from Illinois for his 5 minutes of questioning.
    Mr. Quigley. Thank you, Mr. Chairman.
    Professor Stephenson, I think it was in your written 
statement, or it might have been in your prepared statement, 
you indicate that there is, quote, disturbing evidence that 
judges' personal policy preferences play a greater role than 
they should in evaluating agency regulations. The first part of 
the question would be: What does that evidence consist of, and 
can you elaborate?
    Mr. Stephenson. Yes. Thank you very much, Mr. Quigley.
    The evidence to which I refer, which is--the relevant 
citations would appear in the portion of the book to which I 
cite. But there has been some evidence to look systematically 
at whether the composition of the typically three-judge 
judicial panels that evaluate major agency rulemakings affect 
the outcome. And when I say the ``composition,'' I mean simply 
crude measures of whether the judges on that panel were 
appointed by Republican Presidents or Democratic Presidents.
    If Republican appointees and Democratic appointees resolve 
administrative law cases in more or less the same way, then if 
you look at a sufficiently large number of cases, such that 
random errors wash out, the rates of affirming or reversing or 
remanding agency regulations ought to look about the same 
regardless of panel composition.
    However, there is evidence that they do not look the same; 
that panels, for example, composed of three Republican 
appointees seem to decide cases in a manner systematically 
differently than three Democratic appointees, or even that 
panels composed of all judges appointed by a President of the 
same party behave differently from panels that have at least 
one member appointed by a President of a different party.
    Now, we need to be careful not to exaggerate the 
significance of this evidence. Sometimes these academic studies 
are cited from the proposition that judges are purely political 
or ideological. The evidence doesn't support that conclusion. 
It does, however, suggest that like human beings, judges' 
strongly held views about policy might influence their 
judgments about, for example, whether an agency has offered 
enough evidence in support of a potentially debatable 
conclusion. Now that would be the nature of the evidence. It is 
certainly by no means conclusive. But there have now been 
numerous studies searching for these so-called ideological or 
panel effects, and although they are not uniform, they do seem 
to keep coming up over and over again in the data that exists.
    Mr. Quigley. Mr. Francisco you seem to have perked up when 
I asked that question. I just want to get your reaction, Mr. 
Warren, as well.
    Mr. Francisco. Well, Congressman Quigley, I make my living 
appearing before judges. I think every judge is eminently fair 
before I make my case. After I make my case, I think half of 
them are fair.
    That being said, I think to the extent that there is some 
kind of tilt based on a judge's political preferences, it may 
reflect the fact that the standards that govern their decision 
making are simply too ambiguous. Take standard Chevron 
deference, for example. If judges are to uphold an agency 
regulation to the extent it reflects a, quote, permissible 
reading of the statute, that is a quite vague and open-ended 
statute. And when you invite judges to engage in that kind of 
open-ended and discretionary review and you give that much 
leeway to the agencies, you invite a certain amount of other 
issues creeping into the judicial decision-making process.
    Mr. Quigley. Mr. Warren?
    Mr. Warren. Yeah. I think it is an interesting question. 
But I think it is more a product of how messed up the agency 
process is today in judicial review. As a lawyer, I want a 
judge who will probe and go in-depth into the record, whether 
he is a Democrat or a Republican. I really don't care. I just 
want to get to the heart of the matter.
    Let me try to explain to all of you who are lawyers exactly 
what the administrative process today is like. To think of it 
as simple and straightforward and quick is just not true. It 
takes years and years and years, comments by the millions of 
pages are filed. Agencies have an obligation under this 
process-oriented judicial review to give an answer to every 
case. This takes man-years of work by agencies to assemble a 
record which can withstand judicial review. And then judicial 
review takes place under this very amorphous process that has 
very little to do with the heart of the matter, what is really 
the critical evidence.
    What I am suggesting is a modification which would focus in 
on what is really important, and that would enhance I think 
judicial review and enhance the ability of the executive branch 
to focus in on what is really important.
    I think the problem with judicial review is that it is 
insufficiently substantive. It is not just the question of 
Chevron deference but it is the question of understanding what 
it is that is at issue.
    Let me give you another comparison. And that is, we have 
another form of regulation. It is called the tort system. It is 
civil litigation. In the tort system, the Supreme Court has now 
gone to great lengths to make sure that the evidence on which 
toxic torts or other major class-action litigation, for 
example, is conducted at the highest levels of scientific and 
technical expertise. That is one form of regulation. It seems 
crazy not to apply the same kinds of rigor to the evidence 
which is being utilized by the agencies to impose enormous 
costs on society.
    Mr. Quigley. Thank you, Mr. Chairman. My time is up.
    Mr. Gowdy. I thank the gentleman from Illinois.
    Mr. Warren, perhaps I was asleep during law school when the 
peanut butter case was taught, because my two colleagues to the 
left are both much more familiar with it than I. The peanut 
butter case, are you familiar with it? And is there another 
version?
    Mr. Warren. Yeah. I am aware of the peanut butter case. 
This has to do with aflatoxin, which is a carcinogen which 
naturally occurs in peanuts and in some other crops. Now I am 
not suggesting--and I agree with those who suggest that this 
kind of long, drawn-out process is inefficient and 
inappropriate. We have had formal proceedings, for example, 
under the old Federal Power Commission Act that went on for 
months and months and years and years. And I think that is not 
right and not what we want to do.
    I have suggested in my testimony that what we should be 
focusing on is not all rules. Most rules, I think, are going to 
be governed by section 553 of the APA. Instead, let's talk 
about the major rules, the major rules that pass that $100 
million hurdle that lead to scrutiny by the executive branch 
under the OIRA process. Then I think with respect to those 
rules, we should be asking the agency to say what is it really 
centrally that you are relying on. And I give examples in my 
testimony of three cases that I have litigated where it is 
pretty easy to see what is the central evidence.
    And that is what we should be focusing our attention on. 
That is the evidence that parties ought to be able--and I am 
not just talking about regulated parties, I am talking about 
public interest groups and environmental groups who have an 
equal interest in seeing--and this goes to the question of 
deregulation. They have an equal interest in seeing that the 
public interest is served. And so they have the same 
opportunity to seek to cross-examine, and that process has to 
be governed by some hearing officer who says yes or no and 
gives the reasons for saying yes or no to cross-examination, so 
that we don't have the excesses that occurred in the 1950's and 
into the 1960's which gave rise to Florida East Coast Railroad 
and Vermont Yankee.
    Mr. Gowdy. Professor Stephenson, where in the hierarchy of 
constitutional rights would you list the right to confront?
    Mr. Stephenson. The right to confront in the context of a 
criminal trial?
    Mr. Gowdy. Just the right to confront.
    Mr. Stephenson. I am not sure how I would answer the 
question where in the hierarchy I would list it. Clearly, in a 
criminal case, the defendant has a right to confront the 
witnesses against him. And that is clearly an constitutional 
right that I would view as absolutely important.
    Mr. Gowdy. And why is the right to confront so important?
    Mr. Stephenson. Not being a constitutional historian, 
especially not one who focuses on the history of criminal 
procedure, I would be reluctant to give an off-the-cuff----
    Mr. Gowdy. Oh, come on. You are a law professor. You know 
everything.
    Mr. Stephenson. Alas, no.
    Mr. Gowdy. Do you agree with Irving Younger that the single 
best way to elicit the truth is through the power of cross-
examination?
    Mr. Stephenson. No, I don't think I agree with that.
    Mr. Gowdy. Would you agree that we use it for things as 
simple as determining whether or not the light was red or 
green, and things as complex as whether or not there is a DNA 
match?
    Mr. Stephenson. We certainly do use it for those purposes, 
absolutely.
    Mr. Gowdy. And it is almost without limitation in the 
criminal context because it is so good at getting out the 
truth. We even make victims of domestic violence or child abuse 
come and testify in front of their punitive or alleged attacker 
because we believe in the power of confrontation, right?
    Mr. Stephenson. Yes. But with an important qualification, 
if I may. Many of the people who have engaged seriously these 
issues that you are raising about the value of cross-
examination have drawn a distinction between different contexts 
and have emphasized the importance of the procedures that we 
use for getting at the truth being appropriately tailored to 
the context. So there are certain contexts where cross-
examination, at least historically, has been thought to be 
extremely valuable for the reasons that you suggest, although I 
am not aware of systematic study that would corroborate that 
intuition. But in other contexts, we don't rely on that kind of 
adversarial cross-examination.
    For example, when scientists are engaged not in necessarily 
science for regulation, but the process of academic science, 
they don't necessarily use oral adversarial cross-examination 
to get to the root of those scientific issues. That doesn't 
mean that they don't debate, often rigorously or passionately. 
But they don't necessarily use the form and trappings of a 
civil or criminal trial. Now, whether that is right or not, I 
am not certain.
    But I guess what I would say is that whenever we need to 
find the right method to lead us to the truth, we need to be 
sensitive to the context. There are not very many systematic 
studies of the agency rulemaking process about what methods are 
best associated with that context.
    The one with which I am most familiar was a study that my 
former boss, then-professor, now-Judge Steven Williams 
conducted of hybrid rulemaking in the 1970's. It didn't have a 
lot of data. He looked at a handful of cases. But his analysis 
led him to conclude that it wasn't very well-suited for that 
process. But I can't say that I know for sure.
    Mr. Gowdy. Mr. Francisco, I wanted to ask you your thoughts 
on the power of cross-examination as a tool by which to get at 
the truth. But the red light prevents me from doing it. 
Hopefully you will have an opportunity to weigh in on that if 
you choose.
    And I would recognize the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Well I would ask unanimous consent the 
Chairman have an additional minute to pose that question--it is 
an important one--to Mr. Francisco.
    Mr. Gowdy. I thank you, Mr. Conyers and Mr. Quigley. Mr. 
Francisco, your thoughts on the power of cross-examination as 
the best means by which to elucidate the truth?
    Mr. Francisco. Thank you, Mr. Chairman. I think it is an 
extraordinarily powerful tool. As Professor Stephenson 
explained, often in the administrative process you do have 
extensive records. But that kind of extensive paper record 
provides a very useful way for masking the flaws often 
underlying the science that underpin regulations. It is very 
easy for the stakeholders to submit extensive comments and 
suggest enormous numbers of flaws in the regulatory process and 
then have an agency just, almost as it is handing down a ruling 
from on high, give it the back of the hand and say, We have 
considered it, we disagree, here is the rule.
    It is a lot different when you have got somebody sitting on 
the stand. And when somebody sitting on the stand knows that 
they are going to have to answer direct questions about the 
quality of their analysis, I can virtually guarantee you that 
the quality of that analysis on average is going to rise 
dramatically.
    You need only compare the type of expert report and expert 
witnesses that you see in high stakes litigation to the types 
of regulatory impact analyses and cost-benefit analyses that we 
see that the agencies issue in conjunction with regulations. 
And the difference is night and day. So I think that cross-
examination is very important in this context.
    Mr. Gowdy. Thank you, Mr. Francisco. At this point I would 
recognize the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Gowdy.
    Mr. Francisco, you have represented tobacco companies; 
isn't that correct?
    Mr. Francisco. Yes, Your Honor. Yes, Congressman.
    Mr. Conyers. And you have had an opportunity to challenge 
the rulemaking process yourself as a part of your job as 
counsel?
    Mr. Francisco. Yes, sir. One of my jobs is to advise 
companies in the rulemaking process.
    Mr. Conyers. So this is what Chairman Gowdy meant about 
``job creation.'' This is a great way to create jobs for 
lawyers, because I know Professor and Attorney Warren has been 
to court more than once on the rulemaking process because I am 
looking at the cases.
    Mr. Warren. Yes.
    Mr. Conyers. You said ``yes.'' Okay. It is kind of curious 
to me that the two witnesses for this event are distinguished 
lawyers, one almost two generations in the practice of law and 
teaching, maybe one of the highest Ranking Members of his law 
firm. Do you have a particular title inside Kirkland?
    Mr. Warren. No, I really don't anymore. But you are right; 
I have been around a long time.
    Mr. Conyers. What was your title?
    Mr. Warren. Well, at various points in time I was a 
partner. I have been a partner of the firm since 1975. I am now 
sort of semi-retired.
    Mr. Conyers. Sure.
    Mr. Warren. So I no longer have that title.
    Mr. Conyers. Well, what I am trying to demonstrate here is 
that it is sort of curious to me that--we want to make this a 
more effective and fair way to come up with rules, and yet you 
are the one that said that anyone that says this is a simple, 
straight-forward, and quick way to do it--the way we are doing 
it--is just not true. Now, will you name me one person that 
ever said that?
    Mr. Warren. I am not sure I quite understand the question.
    Mr. Conyers. Well, the question is that you said that--this 
is your quote.
    Mr. Warren. Right.
    Mr. Conyers. I have got the stenographer here to help us 
out. Anyone that thinks that this is a simple, straight-
forward, and quick way to deal with agency regulations, it is 
just not true, right?
    Mr. Warren. Yes.
    Mr. Conyers. Is that correct?
    Mr. Warren. Yes.
    Mr. Conyers. Okay. Now, will you tell me one person that 
ever made that allegation?
    Mr. Warren. Yeah. I think so. I mean----
    Mr. Conyers. Name him.
    Mr. Warren. Well, let me state the point.
    Mr. Conyers. No. No. Name who it is.
    Mr. Warren. Well, look at----
    Mr. Conyers. Name somebody.
    Mr. Warren. I am going to. Richard Pierce. And you look at 
the back end----
    Mr. Conyers. Richard Pierce said this?
    Mr. Warren. Yes. Let me read a quote that----
    Mr. Conyers. You don't have to read it. I just want his 
name. Okay. That is enough.
    How many people in your firm, even though you are semi-
retired--well, I will tell you, 1,500 people. Maybe it is more 
by now.
    Mr. Warren. That is about right.
    Mr. Conyers. Yeah. And you have offices all over the world?
    Mr. Warren. That is correct.
    Mr. Conyers. Right. How many people in your firm? Can I 
help you with that a little bit?
    Mr. Francisco. Yes, sir.
    Mr. Conyers. Two-and-a-half thousand lawyers working in 
Jones, right?
    Mr. Francisco. I think that is about right.
    Mr. Conyers. Yeah. And you have offices all over the world.
    Mr. Francisco. Yes, sir.
    Mr. Conyers. And you are here now telling us that because 
lawyers should have a chance, as the Chairman said, the right 
to confront, to cross-examine like they do in child abuse and 
molestation cases, they should have the same right in trying to 
determine agency rules. Do you agree with that?
    Mr. Francisco. I agree that the----
    Mr. Conyers. Do you agree with that?
    Mr. Francisco. I agree that the right to cross-examine 
witnesses----
    Mr. Conyers. Do you agree with that? Do you agree with 
that?
    Mr. Francisco. Obviously, yes.
    Mr. Conyers. You said yes?
    Mr. Francisco. The right to cross-examine witnesses----
    Mr. Conyers. Do you agree with it?
    Mr. Warren. I think my testimony suggests that the right to 
confront evidence should be limited to those things that are 
central to the rulemaking, and I give examples of what I think 
that means, and I give examples within my experience where that 
has worked, worked well, and made the agency process more 
efficient.
    Mr. Conyers. Thank you. Mr. Chairman, can I have 1 
additional minute?
    Mr. Gowdy. Without objection.
    Mr. Conyers. Thank you, sir. Will you name me any agency 
of--creation of rulemaking for any agency that you think that 
the process that has been suggested by our distinguished 
Chairman would have been superior to the one that was used?
    Mr. Warren. Can I speak to that?
    Mr. Conyers. Yes.
    Mr. Warren. Yes.
    Mr. Conyers. Name it, then.
    Mr. Warren. Yes. I would say the Occupational Safety and 
Health Administration, the procedure employed in the benzene 
case which I argued----
    Mr. Conyers. The benzene case?
    Mr. Warren. The benzene case which is contained as an 
attachment to my testimony. The very fact that I was able to 
cross-examine, not everybody, not--and just the central 
scientific evidence enabled Justice Stevens in his opinion, 
which I invite you to read, to deal with the substance of what 
was at issue in a very thorough and thoughtful way. Without 
cross-examination, without my opportunity----
    Mr. Conyers. All right. So what you are saying is that this 
is a great way for lawyers to get into the act. Do you have any 
cases that--do you have one case you can name, not a list of 
them which I normally ask for, name me one case.
    Mr. Francisco. That would?
    Mr. Conyers. That this method would have been superior to 
the one that is being used now.
    Mr. Gowdy. If you want to answer the question briefly, you 
can.
    Mr. Conyers. Well, just one sentence.
    Mr. Francisco. There is not a specific case that----
    Mr. Conyers. You don't have a case.
    Mr. Francisco. In general, I think that it is something 
that improves the decision-making process, which is why we use 
it----
    Mr. Conyers. I get your drift. Thank you very much, Mr. 
Chairman.
    Mr. Gowdy. Thank you, Mr. Conyers.
    I want to thank, again, the panel. For someone who had 
never looked at the Administrative Procedures Act until 5 
months ago, I can't think of three better people to help on 
that. And I applaud your knowledge, your collegiality, and 
politeness toward one another and toward us, and thank you for 
your time and your expertise. It is a treasure to be able to 
have folks with this kind of acumen come and testify before the 
various Subcommittees of Congress.
    So, 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 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, I thank the witnesses. The hearing is 
going to be adjourned in just a moment. I would personally like 
to come shake your hands and thank y'all for your testimony at 
the conclusion. I won't keep you too long. Hearing is 
adjourned.
    [Whereupon, at 5:02 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

    Response to Post-Hearing Questions from Edward W. Warren, P.C., 
                         Kirkland & Ellis, LLP




Response to Post-Hearing Questions from Noel J. Francisco, Esq., Jones 
                                Day LLP




    Response to Post-Hearing Questions from Matthew C. Stephenson, 
                     Professor, Harvard Law School




                                 
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