[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
     ``REINS ACT OF 2013'': PROMOTING JOBS, GROWTH AND AMERICAN 

                            COMPETITIVENESS
=======================================================================


                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

                           REGULATORY REFORM,

                      COMMERCIAL AND ANTITRUST LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                                   ON

                                H.R. 367

                               __________

                             MARCH 5, 2013

                               __________

                           Serial No. 113-26

                               __________

         Printed for the use of the Committee on the Judiciary


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




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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, FLORIDA
KEITH ROTHFUS, Pennsylvania

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                   SPENCER BACHUS, Alabama, Chairman

                 BLAKE FARENTHOLD, Texas, Vice-Chairman

DARRELL E. ISSA, California          STEVE COHEN, Tennessee
TOM MARINO, Pennsylvania             HENRY C. ``HANK'' JOHNSON, Jr.,
GEORGE HOLDING, North Carolina         Georgia
DOUG COLLINS, Georgia                SUZAN DelBENE, Washington
KEITH ROTHFUS, Pennsylvania          JOE GARCIA, Florida
                                     HAKEEM JEFFRIES, New York

                      Daniel Flores, Chief Counsel

                      James Park, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 5, 2013

                                                                   Page

                                THE BILL

H.R. 367, the ``Regulations From the Executive in Need of 
  Scrutiny (REINS) Act of 2013''.................................     6

                           OPENING STATEMENTS

The Honorable Spencer Bachus, a Representative in Congress from 
  the State of Alabama, and Chairman, Subcommittee on Regulatory 
  Reform, Commercial and Antitrust Law...........................     1
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law................    27

                               WITNESSES

James L. Gattuso, Senior Research Fellow in Regulatory Policy, 
  Thomas A. Roe Institute for Economic Policy Studies, The 
  Heritage Foundation
  Oral Testimony.................................................    33
  Prepared Statement.............................................    35
Eric R. Claeys, Professor of Law, George Mason University
  Oral Testimony.................................................    44
  Prepared Statement.............................................    47
Ronald M. Levin, William R. Orthwein Distinguished Professor of 
  Law, Washington University School of Law
  Oral Testimony.................................................    63
  Prepared Statement.............................................    65

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Spencer Bachus, a 
  Representative in Congress from the State of Alabama, and 
  Chairman, Subcommittee on Regulatory Reform, Commercial and 
  Antitrust Law..................................................     3
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Ranking 
  Member, Committee on the Judiciary, and Member, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law................    28
Prepared Statement of the Honorable Henry C. (Hank) Johnson, Jr., 
  a Representative in Congress from the State of Georgia, and 
  Member, Subcommittee on Regulatory Reform, Commercial and 
  Antitrust Law..................................................    31
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    77

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust Law   100
Letter from the Honorable Kevin Cramer, a Representative in 
  Congress from the State of North Dakota........................   116
Prepared Statement of the Honorable Andy Barr, a Representative 
  in Congress from the State of Kentucky.........................   118
Letter submitted by Kristina Butts, Executive Director, 
  Legislative Affairs, National Cattlemen's Beef Association.....   119
Response to Questions for the Record from James L. Gattuso, 
  Senior Research Fellow in Regulatory Policy, Thomas A. Roe 
  Institute for Economic Policy Studies, The Heritage Foundation.   120
Response to Questions for the Record from Eric R. Claeys, 
  Professor of Law, George Mason University......................   122
Response to Questions for the Record from Ronald M. Levin, 
  William R. Orthwein Distinguished Professor of Law, Washington 
  University School of Law.................................127
                       deg.OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Congressional Research Service Report titled REINS Act: Number and 
    Types of ``Major Rules'' in Recent Years, submitted by the 
    Honorable Steve Cohen, a Representative in Congress from the State 
    of Tennessee, and Ranking Member, Subcommittee on Regulatory 
    Reform, Commercial and Antitrust Law. This report is available at 
    the Subcommittee and can also be accessed at:

        http://www.speaker.gov/sites/speaker.house.gov/files/
        UploadedFiles/
        110830_crs_majorrules.pdf


      ``REINS ACT OF 2013'': PROMOTING JOBS, GROWTH AND AMERICAN 
                            COMPETITIVENESS

                              ----------                              


                         TUESDAY, MARCH 5, 2013

                       House of Representatives,

                  Subcommittee on Regulatory Reform, 
                      Commercial and Antitrust Law

                      Committee on the Judiciary,

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 11:32 a.m., in 
room 2237, Rayburn Office Building, the Honorable Spencer 
Bachus, (Chairman of the Subcommittee) presiding.
    Present: Representatives Bachus, Goodlatte, Farenthold, 
Marino, Collins, Rothfus, Cohen, Johnson, DelBene, Garcia and 
Jeffries.
    Staff present: (Majority) Daniel Flores, Chief Counsel; 
Ashley Lewis, Clerk; Dave Lazar, Clerk; (Minority) James Park, 
Minority Counsel; Susan Jensen, Counsel.
    Mr. Bachus. The Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law hearing will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    We welcome all of our witnesses today.
    The Chair recognizes himself for the purposes of an opening 
statement.
    Regulations help to implement policies Congress has 
established by statute. When issued, they should be reasonable, 
provide clear rules of the road for businesses, and benefit the 
public more than it hurts them. Today's regulatory system fails 
the test. The cost it imposes and the uncertainty it creates 
are choking America's economy and preventing the recovery of 
American jobs, growth, and global competitiveness.
    In its first term, the Administration imposed far more 
major regulations at a far greater cost than the preceding 
Administration. Just this December, the Obama administration 
revealed that it has 2,387 regulatory actions in its current 
agenda, and the White House admits that at least 128 of these 
regulations will have an impact on the economy of $100 million 
or more. According to the American Action Forum, the cost of 
this current agenda includes $123 billion in planned 
regulations. These regulations would add another 13 million 
man-hours in just paperwork alone.
    The Small Business Administration has confirmed that small 
businesses pay a disproportionate share of this regulatory 
burden. Indeed, the cost of regulatory compliance has been 
translated to about $11,000 per worker. Small businesses 
generate most of the new jobs in our economy; in fact, 
somewhere between two-thirds and 70 percent normally. However, 
in the past recession or the recession we are in, small 
businesses are lagging behind in job creation. In some 
estimates, they are creating less than half the new jobs, and I 
believe that that is almost entirely due to regulations, many 
of those in the financial sector.
    Imagine how much better off we would be if we could put 
that $11,000 back into the businesses to grow and hire workers. 
Federal Reserve Chairman Ben Bernanke himself expressed concern 
about the impact and cost of regulations on small businesses 
during his Humphrey Hawkins testimony last week before the 
Financial Services Committee. Chairman Bernanke said, quoting 
now, ``We all agree that the burden of regulation falls 
particularly heavily on small community banks which don't have 
the resources to manage those regulations very effectively.''
    It is time for action. Just as it cannot bear the ever-
mounting weight of the Federal debt, the economy cannot bear 
the non-stop increase of high-cost Federal regulation. The 
REINS Act, passed by the House last year and reintroduced this 
term by Representative Todd Young of Indiana, provides a 
critical, simple, and long overdue course correction. It says 
one thing: when it comes to the most costly new regulations 
that Federal regulators propose, those regulations will not go 
into effect unless they can pass an up or down vote by the 
people's elected representatives.
    As an original cosponsor, I believe the REINS Act will help 
to restore accountability to the Federal regulatory process. It 
will help ensure that regulations are issued consistent with 
congressional intent and provide a needed check of the 
overreach that we have frequently seen from the unelected 
Federal bureaucracy. It will allow the American people to have 
a say in approving the most costly decisions that affect their 
lives and livelihoods.
    This reform could not be timelier. American workers and 
businesses are facing an historic regulatory tsunami from the 
Administration, not the least of which includes the impact of 
Dodd-Frank, Obamacare, and the Administration's climate change 
agenda. In that regard, I would like unanimous consent to 
introduce Carbon Power Politics from the Wall Street Journal on 
March 4, 2013.
    Mr. Cohen. Despite such an ominous title, I will be part of 
the unanimous consent.
    Mr. Bachus. Thank you. I can strike the title off. Thank 
you, Mr. Cohen.
    [The information referred to follows:]
    
    
    
    
                               __________

    Mr. Bachus. The Administration has made plain that if it 
cannot persuade the people's representatives to adopt its 
legislative agenda, it intends to force that agenda on the 
people through regulation, and that is actually the subject 
matter of that article. Unless Congress intervenes and passes 
the REINS Act and other important regulatory reforms, the 
increasing tide of major Federal regulations will continue to 
destroy jobs, harm communities, and weaken opportunities and 
the ability of American workers to provide for their families.
    Enterprising small business owners like our witness from 
Baltimore last week will continue to face huge fines for 
failure to sign every copy of a triplicate regulatory form. 
Communities will continue to worry about their cement plants 
shutting down, as is the case in my district, just to clear the 
way for cement imports from dirtier plants in Mexico or China. 
Community banks will continue to be snuffed out as Dodd-Frank 
regulations make business possible only for banks that are big 
and can afford to hire an army of compliance officers.
    Our forefathers designed our Federal system of government 
to include an important system of checks and balances. The 
REINS Act is commonsense legislation that does that, and I 
invite all of my colleagues to work together to ensure it 
becomes law during the Congress and restore the sense of 
balance established in the Constitution.
    [The bill, H.R. 367, follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________
    Mr. Bachus. At this time, I recognize the Ranking Member of 
the Subcommittee, Mr. Steve Cohen, for his opening argument. 
The gentleman from Tennessee is recognized.
    Mr. Cohen. Thank you, Mr. Chairman. I appreciate the 
opportunity.
    I do, though, have this weird feeling that I am somebody 
else today. I am Bill Murray, and it is February 2 again and 
again and again and again. This is the 18th time that this 
Subcommittee will have had hearings on this type of issue. It 
is the third time in the last 2 years that this Subcommittee 
has heard testimony on the REINS Act. It will be the 18th time 
that we have had hearings on the regulatory system.
    Last week I asked that the Subcommittee have limited, 
substantive, and nuanced discussions about ways that we can 
help with regulations, and I look forward to working with the 
Chairman on that. He mentioned small community banks. I am a 
big fan of small community banks. I bank at a small community 
bank. I was, I think, the first person in the House and one of 
the leaders in the House to suggest that FDIC insurance limits 
should be raised to $250,000 to keep small community banks' 
depositors from coming and taking the deposits out for fear of 
the catastrophes that we were experiencing at that time, and 
that happened.
    So I am a big supporter of small community banks, but I am 
not a big supporter of the REINS Act, which just makes no sense 
to me. Indeed, the bureaucrats are unelected, but they are 
knowledgeable, and they have expertise. And to take away from 
them and to put in the Congress on the second and fourth 
Thursdays only, if and when we are here, which is becoming less 
and less frequent, and give us a very limited time to have to 
approve or have a one-house veto, which is constitutionally 
suspect, regulations without expertise of the 435 of us, and we 
would have to approve, and the Senate would have to approve, 
and the president would have to approve, or there would be no 
regulation.
    That is an impossible task, and it means the end of 
regulations. And while I understand that bureaucrats are 
unelected, they do have expertise and knowledge, which we do 
not have.
    So this is a repeat of previous scripts, and I would love 
to have a hearing just on community banks and what we can do to 
help them. I have opposed the REINS Act. I will continue to 
oppose it because it just doesn't make sense, just like the 
sequestration is pretty much considered dumb by both sides. I 
think even Speaker Boehner said it is not a good way to do it. 
This is not a good way to do it. If there are regulations that 
are a problem, you deal with those regulations, but you don't 
give the Congress a massive ability to interrupt the regulatory 
process.
    This is mostly aimed at Affordable Care and Dodd-Frank. We 
had passed a ``jobs bill'' last time, last Congress, and it 
will result, if the rules and regulations are done in an 
appropriate way, in a lot of consumers being bilked of their 
finances from unscrupulous people trying to finance their 
companies, and we have a history of trying to look out for 
consumers, and should, and that is what the SEC has done in the 
past and what we will continue to do, hopefully, with rules and 
regulations.
    I am not going to go into all the nuts and bolts of what 
this would require--both houses, the president, joint 
resolution within 70 days, legislative days. It just makes no 
sense. I think Speaker Boehner used the word ``silly'' several 
times last week. When you go to the dictionary and you look up 
``silly,'' it says ``see REINS Act.'' This is silly.
    This is also the type of legislation that I believe gives 
Congress a bad name. It is more political than it is 
substantive. It is not going to pass the Senate. And yet we 
could pass something to help community banks if we refined our 
subject matter, and I would like to see that happen. I hope we 
can.
    In calendar year 2010 alone, there were 94 major rules. 
This affects major rules, those over $100 million or so. There 
weren't enough legislative days to consider all of this, and 
Congress has trouble getting it together. We did approve Neil 
Armstrong's name on a space center last week, but to think we 
could go into these regulations and approve all of these with 
any sense of knowledge and certainty is dubious at best.
    So we will continue on with the hearing. It is unnecessary. 
Congress has many other ways to make the executive contour to 
what we would hope they would through the budget process, 
through oversight, and we have control and influence, and that 
is what we need. There needs to be a check and balance, and 
there needs to be a manageable system of implementing rules and 
regulations.
    Professor Levin, I am looking forward to his testimony, not 
that I am not looking forward to Mr. Gattuso's and Professor 
Claeys', but I know that Professor Levin is going to bring up 
the possible unconstitutionality of a one-house legislative 
veto. The Supreme Court held that to be unconstitutional. And 
Chief Justice Roberts, in discussing a law somewhat similar to 
this in 1983, said in a memorandum, ``Such legislation would 
hobble agency rulemaking by requiring affirmative congressional 
assent to all major rules and would seem to impose excessive 
burdens on the regulatory agencies.'' Chief Justice Roberts, 
who upheld the Affordable Care Act, is once again right.
    I yield back the balance of my time.
    Mr. Bachus. Thank you, Mr. Cohen.
    Mr. Cohen. If I can, Mr. Chairman, introduce Mr. Conyers' 
statement without the need to cite the outstanding arguments 
made therein but only introduce it into the record.
    Mr. Bachus. Absolutely.
    Mr. Cohen. Thank you, sir.
    Mr. Bachus. The full Committee Ranking Member, Mr. John 
Conyers' opening statement will be introduced into the record 
at this time.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, Ranking Member, Committee on 
     the Judiciary, and Member, Subcommittee on Regulatory Reform, 
                      Commercial and Antitrust Law
    H.R. 367, the so-called REINS Act, is a thoroughly problematic 
bill. This measure is not only unnecessary and unworkable, but it could 
seriously jeopardize the health and safety of millions of Americans who 
rely on an effective regulatory system. And, it represents yet another 
partisan, shortsighted attack against regulations.
    To begin with, H.R. 367 creates an unworkable process that will 
make it nearly impossible for new regulations to be enacted. The 
measure imposes unrealistic deadlines by which Congress must consider 
and pass exceedingly complex and technical regulations.
    Under H.R. 367, Congress would have only 70 legislative days within 
which to act after it receives a major rule.
    Now, let's put this in some perspective. Over the past few years, 
the average number of major rules promulgated each year is about 80. In 
2010, for instance, 94 major rules were issued.
    But keep in mind the following fact: there were just 116 
legislative days in the House that year.
    Worse yet, the bill restricts the days on which these major rules 
may be considered in the House, which, for 2012, was only 10 eligible 
days.
    Assuming there is just an average number of major rules, Congress 
would have to consider an average of 8 separate major rules on each of 
those days.
    Under H.R. 367, there is just no feasible way that Congress would 
have the time to consider all the major rules issued during the year.
    And, let's not forget that Congress already has the tools to review 
both major and non-major rules on an individual under the Congressional 
Review Act of 1996.
    Under this Republican-driven initiative, Congress can disapprove a 
rule, a power that it has exercised previously.
    Another concern that I have with the bill is that it would at a 
minimum significantly delay rulemaking and even worse bring it to a 
halt.
    Major rules are often the product of an intensive, multi-year 
process, based on extensive input received from the public and affected 
entities through a notice and comment period.
    Agencies often spend many months, if not years, to perfect theses 
rules based on feedback from these sources and their own expertise.
    Under the bill's short-circuited process, however, Congress will 
not realistically be able to second-guess the merits of these rules.
    When in doubt and in response to aggressive lobbying, Congress 
would likely decide not to approve rules. As a result, the health and 
safety of Americans would be jeopardized if needed regulations are 
stalled.
    Not surprisingly, more than 70 consumer groups, environmental 
organizations and labor unions, among other organizations, strenuously 
opposed a nearly identical version of this measure that was considered 
in the last Congress.
    In support of a veto threat, this is one of the reasons cited in 
the Statement of Administration Policy issued in the last Congress 
against the bill's predecessor.
    Specifically, the White House expressed concern that bill would 
``throw all major regulations into a months-long limbo, fostering 
uncertainty'' which interferes with the effectiveness of the federal 
government's ability to protect ``public health, welfare, safety, and 
our environment.''
    Finally, H.R. 367 is yet another installment on the Majority's 
anti-regulatory agenda.
    Let's be honest. This bill is clearly intended to take regulatory 
power away from the agencies that have the requisite expertise, and 
give that power to Congress which is ill-equipped to make highly 
technical decisions.
    Just last week, the Subcommittee, in what was the 17th hearing on 
this subject matter, heard the well-worn, yet thoroughly false 
accusation that regulations kill jobs.
    As I noted at last week's hearing, if we were really serious about 
creating jobs, then we should be focusing on those measures that will 
actually result in creating jobs.
    During the last Congress, President Obama, in his address to a 
joint session of Congress, presented his American Jobs Act, a 
comprehensive bill that would have:

          cut payroll taxes for qualifying employers,

          fund a work program to provide employment 
        opportunities for low-income youths and adults;

          fund various infrastructure construction projects, 
        including the modernization of public schools; and

          start a program to rehabilitate and refurbish 
        hundreds of thousands of foreclosed homes and businesses.

    Unfortunately, Congress chose to ignore this worthy initiative.
    As many of you know, I have a measure--H.R. 4277, the ``Humphrey-
Hawkins 21st Century Full Employment and Training Act''--which aims to 
provide a job to any American who seeks work.
    My bill would create a funding mechanism to pay for job creation 
and training programs.
    These jobs would be located in the public sector, community not-
for-profit organizations, and small businesses that provide community 
benefits.
    But, like the President's proposal, my legislation did not receive 
any consideration during the last Congress.
    This is very unfortunate because both of these measures would have, 
in fact, created jobs and helped our Nation's economic recovery.
    The American people deserve better.
                               __________

    Mr. Bachus. If you want to introduce your full opening 
statement, I know you didn't take all your time, either.
    Mr. Cohen. I took enough time. Thank you.
    Mr. Bachus. All right.
    At this time, if there are no further opening statements, 
without objection, other Members' opening statements will be 
made a part of the record.
    [The prepared statement of Mr. Johnson follows:]
    
    


                               __________
    We have a very distinguished panel today, and I will first 
begin by introducing our witnesses. Each of our witness' 
written statements will be entered into the record in its 
entirety. I ask that each witness summarize his or her 
testimony in 5 or 6 minutes. I am not going to be that 
stringent with the time, so don't think you have to read fast. 
Particularly to a Southerner, if you will read a little slower, 
I can follow it better. To help you stay within or just to know 
what the time is, we will have lights in front of you.
    Now, if I can have the bios of the members? I think we have 
had twice when we hadn't had those.
    Mr. James Gattuso is a research fellow in regulatory policy 
for the Roe Institute for Economic Policy Studies at the 
Heritage Foundation. Prior to joining Heritage, he was vice 
president for policy at the Competitive Enterprise Institute. 
In that position, he oversaw CEI's policy work and supervised 
the overall management of the organization. Before joining CEI 
in 1997, Mr. Gattuso had served since 1993 as vice president 
for policy development with Citizens for a Sound Economy, where 
he directed the research activities of that fine organization. 
From 1990 to 1993, he was deputy chief of the Office of Plans 
and Policy at the Federal Communications Commission.
    We welcome you, Mr. Gattuso.
    Professor Eric Claeys is a professor at the George Mason 
University School of Law. The professor has taught at the 
University of Chicago School of Law and St. Louis University 
School of Law. Prior to teaching, Professor Claeys practiced 
appellate and tort litigation at the law firm of Kirkland and 
Ellis. Professor Claeys clerked for the Honorable Chief Justice 
William Rehnquist and the Honorable Melvin Brunetti. Professor 
Claeys' scholarship focuses on American property in 
constitutional law, and particularly on the influence of 
American natural law and natural rights theory on the law. He 
graduated from Princeton University and received his J.D. from 
the University of Southern California.
    Our third witness is Professor Ronald Levin, who is a legal 
scholar at the Washington University School of Law in St. 
Louis, who specializes in administrative law and regulation law 
issues. He is co-author of a casebook on administrative law and 
has published numerous articles and book chapters on 
administrative law topics. Mr. Levin previously served as 
Washington University Law School's associate dean and is 
currently a public member of the Administrative Conference of 
the United States. Prior to joining the faculty at Washington 
University in 1979, Mr. Levin worked as an associate in the 
Washington, D.C. office of Sutherland Ashbill and Brennan. He 
clerked for Judge John C. Godbold of the U.S. Court of Appeals 
for the Fifth Circuit in Montgomery. He earned his J.D. degree 
from the University of Chicago and his B.A. magna cum laude 
from Yale University.
    This is an excellent panel that we have assembled. We will 
now proceed under the 5-minute rule with opening statements.
    So, Mr. Gattuso, you are recognized first. Then I am going 
to go to Professor Claeys, and then Professor Levin.

   TESTIMONY OF JAMES L. GATTUSO, SENIOR RESEARCH FELLOW IN 
REGULATORY POLICY, THOMAS A. ROE INSTITUTE FOR ECONOMIC POLICY 
                STUDIES, THE HERITAGE FOUNDATION

    Mr. Gattuso. Thank you. Mr. Chairman and Ranking Member 
Cohen, Members of the Subcommittee, thank you for having me 
here today. Over the past few weeks, all eyes have been focused 
on Federal spending in efforts to limit an out-of-control 
budget. Obscure policy terms like ``sequestration'' have become 
household words across the country. However, Federal spending 
is only part of the burden imposed on Americans by the Federal 
Government. Regulations impose hundreds of billions, or even 
trillions, of dollars in additional costs. These burdens not 
only increase consumer prices but keep enterprises from growing 
and jobs from being created.
    During the past 4 years, the regulatory burdens placed on 
the American people and the economy have grown at a 
breathtaking rate. During President Obama's first 4 years in 
office, over 130 major rules increasing regulatory burdens were 
issued, imposing some $70 billion in new annual costs according 
to preliminary estimates we have done at the Heritage 
Foundation, based on agency calculations of their own costs.
    I will note that these numbers exclude budgetary transfer 
costs. It excludes other rules that do not have a regulatory 
effect. This is a subset of just those rules that constrain 
private activity. So this is the core amount of regulation.
    By comparison, about 50 such rules worth $15 billion in new 
costs were imposed during George W. Bush's term, and more 
regulation is on the way. According to the latest Unified 
Agenda of Federal Regulations, 131 new major regulations are 
already in the pipeline. That compares to 90 in process when 
President Obama took office, and only 56 in the spring of 2001.
    However, while regulatory growth has accelerated under 
President Obama, it did not start with his Administration. Each 
year for the past 30 years, according to the Office of 
Management and Budget, the burden of regulation imposed on 
Americans has increased. Not since 1982 have regulatory costs 
decreased.
    Not all regulations are unwarranted. No one is talking 
about eliminating airline safety rules or allowing contaminated 
meat to be freely distributed and sold. But there are volumes 
of rules not so well justified, ranging from the trivial--do we 
really need to paint an ``F'' at the front of the locomotive to 
tell which side is which--to the potentially catastrophic--
should the Federal Communications Commission regulate the 
Internet.
    The constant increase in regulatory burdens is taking its 
toll on the economy at a time when the Nation can ill afford 
it. Firm action by Congress to rein in this growing red tape is 
needed. This should include requiring explicit approval of all 
new major rules by Congress as provided by the REINS Act, 
ensuring that burdens are not placed on Americans without the 
approval of their elected representatives.
    This would be a significant change in the way rules are 
issued. The effect, however, is to reinforce, not to upset, the 
constitutional balance. As a first matter, the change merely 
restores Congress' constitutional role of legislating, much of 
which has been delegated to regulators in the past. As 
important, the change constrains Congress as much as it 
empowers it by making legislators more accountable for their 
actions.
    Now, despite claims by opponents and some supporters of 
REINS, this legislation is not inherently anti-regulatory. 
Instead, it simply ensures scrutiny by Congress of all proposed 
rules, all proposed major rules. It would apply just as much to 
agency decisions that reduce regulatory burdens as it would to 
those that increase such burdens.
    Some critics say that the task of reviewing so many rules 
would be too burdensome for Congress. But while costly, the 
number of major regulations issued each year is in the low 
dozens typically, hardly an unmanageable number. Of these, 
about half are budgetary in nature, such as those setting 
Medicare reimbursement rates, and perhaps could be exempted 
from the REINS Act.
    In any case, it hardly makes sense to excuse Congress from 
the task of reviewing new rules because there are so many being 
imposed on the private sector. If anything, that would indicate 
a greater need to monitor the regulatory activity.
    Some also argue that the REINS Act would displace 
regulators' expert judgment with political decision-making. For 
example, one critic wrote that Congressional action under the 
REINS Act is ``likely to be nakedly political, reflecting the 
raw political power of public interests,'' while ``agency 
actions are backed up with reasonable policy determinations.''
    Outside of political science textbooks, that is not how 
government works. Regulators have their own interests and 
agendas, and political considerations, shockingly, do influence 
the process. Spend an hour in front of almost any agency in 
Washington and watch the lobbyists flow in and out if you doubt 
that.
    Most regulatory decision-making requires more than 
scientific expertise. It involves value judgments as to what 
burdens will be placed on the American people, what those 
burdens are, what size they are, and for what benefit. Such 
decisions properly involve Congress.
    Now, while the REINS Act would provide an important start 
toward taming excessive regulations, other steps are needed as 
well; among these, imposing sunset dates for Federal 
regulations. The REINS Act is a forward-looking reform, 
ensuring scrutiny of newly proposed rules. To ensure that the 
existing rules are justified and effective, they should 
automatically expire after a period of, say, 10 years if not 
explicitly reaffirmed by regulators through a notice of comment 
rulemaking.
    Secondly, we need to develop a congressional regulatory 
analysis capability. In order to exercise its duties under the 
REINS Act, Congress needs the capability to analyze proposed 
and existing rules independently, without reliance on the OMB 
or other regulatory agencies. This can be done through a new 
congressional Office of Regulatory Analysis, modeled on the 
Congressional Budget Office, or alternatively through existing 
congressional institutions such as the CBO or the Government 
Accountability Office.
    Congressional approval of proposed new rules as provided in 
the REINS Act would be an important step toward holding 
regulators in Congress accountable for regulations imposed in 
the private sector. While it is no panacea for the increasing 
flood of regulations, it would be a powerful first step toward 
reform. Thank you.
    [The prepared statement of Mr. Gattuso follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Bachus. Thank you, Mr. Gattuso.
    Professor Claeys?

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

    Mr. Claeys. Chairman Bachus, Ranking Member Cohen, Vice 
Chairman Farenthold, and Members of the Subcommittee, thank you 
very much for inviting me to testify. I am honored by the 
opportunity. With special respect to Ranking Member Cohen, I 
testified on this issue 2 years ago. So I, too, feel like it is 
Groundhog Day and sympathize with you.
    If I may, I would like to state orally four main points 
from my written testimony. First, Congress has constitutional 
authority to enact the REINS Act. Usually, Congress has 
extremely broad discretion to decide how to structure the 
executive administration of law. It may, and often does, write 
primary rules of conduct without the help of agencies and 
statutes. Congress can strip all executive agencies that 
currently promulgate rules of their rulemaking powers and 
convert those agencies into advisory committees for this Senate 
and this House's authorizing committees.
    The power to promulgate legislative rules becomes an 
executive power if, to the extent that, and under whatever 
constitutionally proper conditions Congress establishes using 
the necessary and proper clause. Under that clause, Congress 
may reasonably find it necessary and proper to recalibrate 
agency rulemaking powers to make agencies seek pre-approval 
from Congress for major rules before they take on the force of 
law.
    Second, the REINS Act is consistent with the holding of INS 
v. Chadha. Under Chadha, when a congress charges executive 
agencies to administer acts of Congress, it may not reserve the 
power to second-guess agencies' administrations of the law 
using so-called legislative vetoes. In response to such a 
legislative veto, Chadha holds, ``To accomplish what has been 
attempted by one house of Congress in this case,'' that means a 
legislative veto, ``requires conformity with the express 
procedures of the Constitution's prescription for legislative 
action, passage by a majority of both houses, and presentment 
to the president,'' 462 U.S. at 958.
    This holding doesn't say the Congress may never inject 
itself into the executive's administration of the law. Rather, 
it says if Congress chooses to inject itself into the 
executive's administration of the law, it may only do so by a 
legislative process respecting Article 1, Section 7's 
requirements of bicameralism and presentment. Under the REINS 
Act, joint resolutions of approval must be passed in both 
houses. By long-standing practice, it is assumed that such 
resolutions will be presented to the president. In Chadha's 
words, that process is ``in conformity with the express 
procedures'' of Article 1, Section 7.
    I would like to move from my testimony about the 
constitutional issues to my testimony about the merits. So, 
third, Congress may reasonably conclude that the REINS Act is a 
necessary and proper means to protect the rights of U.S. 
citizens more effectively than current Federal administrative 
law does. Congress is expected to use its constitutional powers 
to, in the preamble of the Constitution, secure the blessings 
of liberty to ourselves and our posterity; and, in the 
Declaration of Independence, to secure certain unalienable 
rights, among which are life, liberty, and the pursuit of 
happiness.
    Like statutes, if well crafted, legislative rules can 
secure rights--health, safety, the capacity to buy goods and 
services free from deception or misinformation, and so on. Also 
like statutes, however, when poorly crafted, legislative rules 
can threaten rights. More than 20 years ago now, I was honored 
to work for Congressman Ron Packard, Oceanside, California. 
Back then, the U.S. Army Corps of Engineers was promulgating 
wetlands regulations that, in his opinion and mine, unduly 
threatened property rights. Poorly crafted airport inspection 
regulations can threaten the privacy of U.S. citizens to be 
free from unreasonable searches and seizures. Poorly crafted 
health insurance regulations can coerce American citizens and 
American businesses to use their own salary or company accounts 
to cross-subsidize conduct that violates their religious 
consciences.
    At least for rules being scored as major rules, Members of 
Congress owe it to their constituents to consider carefully 
whether those rules advance their intended goals, with due 
respect for those constituents' unalienable rights.
    Last, some critics of the REINS Act believe that if the 
REINS Act is enacted, the REINS Act's joint resolution process 
will inject politics and special-interest groups into 
policymaking by apolitical regulatory agencies. With respect, 
in many cases I believe this view has things backwards. Now 
more than ever, the president closely supervises agency 
policymaking and injects a great deal of politics into it.
    At least as important, over the last 20 to 40 years 
legislators and policymakers have learned the theory of 
capture, and scholars have learned of the theory of public 
choice, and these capture and public choice theories teach us 
that special interests quite often exert much more influence in 
a regime where there is legislation and administration than in 
a regime where Congress were to do most of the legislating 
itself.
    I cite examples in my testimony involving flame retardant 
furniture regulation, benzene regulation, and a few others 
cases. There are many causes and mechanisms for special-
interest group influence, and the REINS Act barely scratches 
the surface. But if you are concerned about special-interest 
influence, the REINS Act performs a crucial function. The joint 
resolution process forces public policy and special-interest 
politics back into the floors of Congress, and Congress must 
take accountability for the hard trade-offs between the two.
    And since the Chairman gave a little bit of grace, I am 
just going to use one case example. So there is an ongoing 
rulemaking right now in the Consumer Product Safety Commission 
about flame retardant furniture. In this, fire marshals 
petition for a rule, but the fire marshals were funded by 
tobacco companies. The furniture companies used health and 
safety studies to suggest that the chemicals to be used to 
protect the furniture to make them inflammable might be 
carcinogenic or threatening to the environment.
    I humbly submit that, first, it would be good for Congress 
to debate and to consider the scientific issues because the 
science here is so tentative that it becomes inescapably 
political.
    Second, there is a huge moral hazard issue that needs to be 
considered here, and I don't think the science is capable of 
considering it. In the backdrop, what drives the fires that are 
set by furniture when people fall asleep while holding 
cigarettes, and Members of Congress I think are at least as 
competent as scientists to decide whether the law would promote 
irresponsibility by letting people have a couch that protected 
them from the fact that they fell asleep with a cigarette in 
their bedroom or on their couch.
    Last, if there is special-interest politics, it would be 
healthy for the political process and the administrative 
process for debates about whether the safety arguments here are 
motivated by tobacco companies, and whether the health and 
environment arguments here are motivated by furniture 
manufacturers.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Claeys follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Bachus. Thank you, Professor Claeys.
    Professor Levin, you are recognized.

TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN DISTINGUISHED 
     PROFESSOR OF LAW, WASHINGTON UNIVERSITY SCHOOL OF LAW

    Mr. Levin. Thank you, Mr. Chairman and Members of the 
Subcommittee. This hearing is being held in the shadow of the 
sequester. Indiscriminate budget cuts are going into effect 
because the two houses of Congress and the president don't 
agree on what to do about the budget. The sequester is a vivid 
symbol of much more because these days the House and Senate 
agree on very little. It is well known that the 112th Congress 
was the least productive Congress in at least 60 years by a 
wide margin of about 100 laws, and the 113th has good prospects 
of being similar.
    And yet the bill that is before you today in this hearing 
would provide that no major rule prepared by an agency could go 
into effect unless both houses of Congress and the president do 
agree with it. That suggests to me that if the REINS Act were 
enacted, major rulemaking on any controversial subject would be 
virtually impossible.
    In view of the extraordinary levels of ideological 
polarization and lack of compromise that we are seeing today, 
now is hardly a propitious time to consider a substantial 
increase in the responsibilities of the legislative branch. The 
upshot of the REINS Act could be that the dysfunction we now 
see in the enactment of laws would spread to the implementation 
of the laws, and I do not think that is an attractive prospect.
    If the act were enacted this year, the interference with 
the rulemaking process would affect a Democratic 
administration, but in the long run we will have both 
Democratic and Republican presidents, and this act would pose a 
major barrier to any president's ability to pursue the policies 
that he or she was elected to promote. In my view, gridlock in 
the rulemaking process is a poor idea no matter whether a 
Democrat or a Republican is in the White House. As Justice 
Scalia said about the legislative veto right after Ronald 
Reagan was elected, the legislative veto isn't biased against 
regulation. It is biased against change. The REINS Act, I 
think, operates very similarly and would have a similar effect.
    Now, it is true that some major rules are much less 
controversial, and it is not implausible that they could get 
through Congress in a reasonable period of time. But let's face 
it, these are matters that Congress delegated in the first 
place because it did not want to decide them on its own. Many 
of these matters are dry, technical, and complex, and Congress 
could very reasonably have thought that they should be left to 
specialized agencies because resolution of those questions 
within the legislature is not a wise or efficient use of 
congressional time.
    I see no reason why Congress should now retrospectively 
overturn all those judgments. It is much too late in the day to 
turn back the clock and question the legitimacy of delegation 
itself. We have a functioning system that has been evolving for 
generations and should not be lightly overthrown. That system 
allows the business of government to go on, but it also 
includes a good deal of accountability.
    Congress can be held accountable for its decision to set up 
new programs and empower agencies to implement them with 
rulemaking, and the executive branch is politically accountable 
for the rules themselves. I don't find anything illegitimate 
about this system. On the contrary, it is the REINS Act that 
threatens to overthrow long-established norms and may not even 
survive constitutional review.
    On the surface, the procedures of the act seem to comply 
with the law-making requirements of Article 1 of the 
Constitution. But when you look at it closely, you can see that 
it would enable a single house of Congress to nullify an agency 
rule without obtaining the concurrence of the other house or 
the president.
    In the legislative veto case in 1983, INS v. Chadha, the 
Supreme Court spent several pages emphasizing that the framers 
of the Constitution regarded the safeguards of bicameralism and 
presentment as fundamental precisely because they feared that 
action by a single chamber could often prove arbitrary.
    I think the sponsors of the REINS Act are being too 
optimistic when they assume that the Court would overlook the 
fact that the REINS Act would revive those very same dangers 
that Chadha and subsequent cases have sought to prevent.
    In my prepared statement I show that not only the U.S. 
Supreme Court but also appellate courts in more than a dozen 
states have strongly and almost unanimously resisted attempts 
by Congress and other legislatures to expand their control over 
agency action beyond traditional boundaries. The REINS Act 
might suffer a similar fate if it were enacted.
    In closing, Mr. Chairman, the REINS Act does have a clever 
name, suggesting reins that guide the horse along the path, but 
I believe the American people should not be saddled with it.
    That concludes my presentation, and I will be happy to 
respond to your questions.
    [The prepared statement of Mr. Levin follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Bachus. Thank you, Professor Levin.
    At this time, I will recognize the Chairman of the full 
Committee, the Judiciary Committee, Mr. Bob Goodlatte from 
Virginia, for questions.
    Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for 
holding this important hearing. I want to commend you, and I 
want to commend Congressman Young of Indiana for his efforts in 
introducing this legislation here, the second Congress that he 
has done so. I think it is an important piece of legislation. 
And I apologize for not getting here when opening statements 
were given, so I will submit mine for the record and go right 
to the questions.
    [The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary
    Economic growth is the key to recovery of job creation, the success 
of Main Street businesses and the hope of America's global 
competitiveness. With robust economic growth, America can solve a host 
of the problems that confront us--from high unemployment to fading 
American competitiveness.
    America's current growth rate, however, is anemic. In 2010, real 
GDP increased only 2.4 percent. In 2011, the rate of growth shrank to 
1.8 percent. Although final figures for 2012 are not yet in, growth in 
the fourth quarter of 2012 was an abysmal 0.1 percent.
    Employment figures are no better. In January 2013, real 
unemployment remained mired at 14.4 percent. Nominal unemployment rose 
to 7.9 percent. Behind these figures are millions upon millions of 
struggling American faces, many who have been living without work for 
many, many months. Economic experts have said that this represents, not 
just a lingering economic downturn, but a jobs depression.
    Other figures paint the picture still bleaker. The number of small 
businesses being created--the primary source of new jobs--has declined. 
America's national debt is skyrocketing. Record levels of Americans are 
on food stamps. The number of Americans on Social Security disability 
is at record levels, too. Many say this is because millions are turning 
to disability claims to substitute for unemployment insurance.
    Poverty is knocking hard on millions of Americans' doors. National 
bankruptcy, meanwhile, is knocking hard on America's door.
    Everyone knows it has been this way for far too long. But the Obama 
Administration, instead of fixing the problem, knows only one 
response--increase taxes, increase spending and increase regulation.
    As a result, the Obama Administration has proven one thing better 
than any other administration in history. America cannot tax, spend and 
regulate its way to economic recovery, economic growth and durable 
prosperity for the American people.
    The Judiciary Committee has broad jurisdiction over one of the 
three major strands of this economic knot that the Obama Administration 
has tied, and America must untie. That strand is the federal regulatory 
system--a system that every day places more and more obstacles in the 
path of economic growth. It is my intention as Chairman to do 
everything that the Judiciary Committee can to achieve real regulatory 
reform and help provide the growth and recovery America needs.
    The REINS Act is one of the simplest, clearest and most powerful 
measures we can adopt to further that purpose. The level of new major 
regulation the Obama Administration has issued and plans to issue is 
without modern precedent. Testimony before the Judiciary Committee this 
term and during the 112th Congress has plainly shown the connection 
between skyrocketing levels of regulation and declining levels of jobs 
and growth.
    The REINS Act responds by requiring an up-or-down vote by the 
people's representatives in Congress before any new major regulation 
can be imposed on our economy. It does not prohibit new major 
regulation. It simply establishes the principle, ``No major regulation 
without representation.''
    By restoring to Members of Congress, who are accountable to the 
American people, the responsibility for America's costliest regulatory 
decisions, the REINS Act provides Congress, and ultimately the people, 
with a desperately needed tool to check the one-way cost ratchet that 
Washington's regulatory bureaucrats incessantly turn.
    During the 112th Congress, the Judiciary Committee originated a 
number of regulatory reform bills that the House passed on a bipartisan 
basis. The REINS Act was one of them. I encourage all of the Members of 
the Committee to assure that the REINS Act is reported out of this 
Committee once more and is passed on an even greater bipartisan basis 
in the 113th Congress. The REINS Act is not a partisan issue. It is a 
paramount institutional and national issue. All Members of Congress 
should step forward to rein in the federal government's costliest 
decisions.
                               __________

    Mr. Goodlatte. Professor Levin, I was interested in what 
you had to say, your observations about the intrusion of the 
legislative branch into the authority of the executive branch. 
Let me just say, and I will get to a specific question in a 
moment, but I quite frankly think that whether by deliberate 
act of the Congress writing legislation that is giving 
tremendous authority to the executive branch or, as many people 
think, the executive branch overstepping their authority and 
taking and reinterpreting legislation passed by the Congress 
and twisting it into new ways to do new things, either way, 
there has been a dramatic shift in power here in Washington 
between the legislative branch and the executive branch, and it 
very much concerns me. So I am all for putting the reins to 
that with legislation like this.
    I hear you say you think this may be unconstitutional. Both 
Justice Stephen Breyer and Professor Laurence Tribe have 
written articles opining that congressional pre-approval 
mechanisms would be consistent with Chadha. Can you summarize 
why they think pre-approval would be constitutional and explain 
why you disagree with them?
    Mr. Levin. Yes, sir. I do know Justice Breyer's article, or 
Judge Breyer's article, as he was then. I believe he did not 
endorse the system that he was outlining. He was explaining a 
method by which you might set up such a system. At that time, I 
don't think you had the same problem of intense polarization 
that you have now. Justice Breyer himself got his seat on the 
Court with strong Republican support because he had worked 
cooperatively with them. He was a Democrat who had worked on 
deregulation, and I don't think he would necessarily take the 
same view today, because Justice Breyer in his scholarship is 
very interested in things that work out well. He is a 
pragmatist, and under current circumstances I am not sure he 
would think it is a good idea.
    Mr. Goodlatte. But he did opine at that time that a pre-
approval process would be constitutional.
    I want to ask Professor Claeys if he would like to offer 
his observations on the same question. First of all, do you 
think a pre-approval process is constitutional, and do you 
think that Justice Breyer's and Professor Tribe's articles are 
consistent with your point of view?
    Mr. Claeys. Yes, Mr. Chairman, I do. I think that then 
Judge Breyer and Professor Tribe's articles are persuasive on 
their own, and they are also useful to the Committee. If the 
Committee is trying to do a litigation assessment, how likely 
it is that there is going to be a constitutional challenge, I 
think that then Judge Breyer's and Professor Tribe's articles 
give you a sense of what the conventional wisdom is about how 
the Chadha case is interpreted.
    So the Chadha case has some loose language, and any good 
appellate lawyer can cherry-pick out a few pieces of language 
from one case and another case and another case and string 
those together to say that these cases all together suggest a 
certain result. But case reasoning also requires that you take 
some language from the cases more seriously than others.
    In my opening statement I gave you one of what I consider 
two or three money passages of the Chadha case, and I think 
those money passages suggest that Congress gets into trouble if 
Congress tries to institute some kind of chokepoint using a 
Committee veto, a one-house veto, or a two-house veto without 
presenting the two-house veto to the president. Anything beyond 
that is kind of the looser language of the dicta of the case.
    It is telling that Judge Breyer and Professor Tribe said, 
then, that it would be--Congress could accord it with a 
respect, the Chadha holding, if it enacted a system that used 
what Judge Breyer called confirmatory acts.
    Mr. Goodlatte. Thank you very much. My time is running out. 
I do want to get one more question in to Mr. Gattuso.
    In your view, what current regulatory efforts by the Obama 
administration most highlight the need for reforms like those 
in the REINS Act, and why, and how do these regulations 
threaten jobs and growth? With the 30 seconds or so that is 
left in my time.
    Mr. Gattuso. I think the Obama administration has been 
moving forward at a rapid clip on a large number of fronts, and 
I don't think we have seen any Administration move forward on 
so many at the same time. If I had to name one, I would point 
to the Dodd-Frank implementation, where there are still 
hundreds of regulations yet to be made, and we have no idea 
what they are going to say. The language has been incredibly 
vague for some aspects, such as the Volcker rule. The agencies 
themselves don't see any way of implementing it in a way that 
makes sense. And we have new institutions such as the Consumer 
Financial Protection Bureau, which is completely insulated from 
any sort of oversight from other sources.
    So I think that is perhaps the single biggest danger out 
there right now, although there are plenty to choose from.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Bachus. Thank you.
    At this time I will recognize the Ranking Member of the 
Subcommittee, Mr. Steve Cohen of Tennessee, for his round of 
questioning.
    Mr. Cohen. Thank you, sir.
    Mr. Gattuso, you just said to the Chairman of the full 
Committee that there were hundreds of regulations that you 
would be concerned about?
    Mr. Gattuso. What I said was that under the Dodd-Frank law, 
there are still hundreds of regulations yet to be promulgated.
    Mr. Cohen. Right, and in your testimony you said that while 
costly, the number of major regulations each year is in the low 
dozens. And yet the data that the Government Accountability 
Office puts out says there were 237 major rules during 
President Bush's first term, 268 plus the 11 that happened 
during the first months of the Obama administration, no more 
than that.
    How do you reconcile those differences in numbers?
    Mr. Gattuso. Well, the hundreds of rules that I cite for 
Dodd-Frank include all rules. There are over 3,000, typically, 
in a year.
    Mr. Cohen. So how many major rules do you submit are 
approved each year?
    Mr. Gattuso. It varies, but it is typically in the 60's or 
70's. It goes up. Sometimes it can be over 100. Sometimes it 
will be less.
    Mr. Cohen. Yes, that's right. It was 70, 51, 50, 66, 56, 
56, 61, 95, 84, and 100. In your testimony it says it is in the 
low dozens. Well, I guess low is low compared to 1,000 dozens, 
but low dozens is generally what you think of as one or two or 
three, and we are talking about--six may be low dozens, but 
that is a lot.
    Do you keep up with Congress? Are you a C-SPAN guy?
    Mr. Gattuso. I try and watch it when going to sleep, yes.
    Mr. Cohen. It is not addictive, so that is good. You 
realize we are having problems getting things done right now. 
How many of these rules do you think that the Senate and the 
House and the president would agree on? In the low dozens, how 
many of those low dozens do you think would have a chance of 
getting through?
    Mr. Gattuso. I can't estimate that, but most are not 
controversial. Also, and I point this out in my testimony, 
close to half--I don't have the exact number, but a large 
number of those are budgetary transfer rules, which are really 
outside the scope of what we are trying to get at with the 
REINS Act.
    Mr. Cohen. So if most of them are not controversial, why 
should we be burdening ourselves with this?
    Mr. Gattuso. To find out which ones are controversial and 
which ones are objectionable.
    Mr. Cohen. And the Committee has to do this within 15 days 
of submission. Do you think the Committee, within 15 days of 
submission--and sometimes we aren't even here for 15 days. But 
when we are here, we are here for maybe 1 day each of 
Subcommittee, 1 day a week. How many of these rules can we go 
through to find out which ones are substantive, and then debate 
those substantive ones in an intelligent manner?
    Mr. Gattuso. Well, I do know that the Congress spends a lot 
of time on other issues that are not quite so important. I 
think there were over 100 post offices that were named by the 
Congress in the last session.
    Mr. Cohen. We quit doing post offices. In fact, we are 
going to quit the postal authority, probably.
    Mr. Gattuso. I think that it is difficult to go to a small 
business, for instance, with a straight face and say that we 
are sorry about these billions of costs that we are imposing on 
you, but we don't have time to look at them to decide whether 
they are worthwhile or not.
    Mr. Cohen. Let me ask you this question. What is your 
opinion of Congress' work product? You mentioned that we passed 
all these post offices and we don't do much, and you watch C-
SPAN to go to bed. You don't have a very high opinion of 
Congress, do you?
    Mr. Gattuso. I do have a high opinion of Congress. I think 
that Congress has the responsibility to decide what rules 
should be applied to all Americans and has the moral authority 
based upon their election by the people to decide that. I think 
they should be limited, but they also should do their job.
    Mr. Cohen. You mentioned lobbyists, and you say that the 
lobbyists are involved somewhat with the regulatory agencies. 
Can you imagine the field day lobbyists would have if all they 
had to do was take one Subcommittee and one portion of the 
House or one Committee to defeat a rule, that one Committee 
could defeat a rule? Do you think there would be lobbyists up 
here trying to influence a Committee to not pass a rule?
    Mr. Gattuso. I think there are lobbyists up here, and there 
are also lobbyists that have one agency. It certainly is a lot 
easier to influence one agency at that chokepoint.
    Mr. Cohen. Do lobbyists make contributions to the people on 
the agencies? They don't. And do lobbyists help endorse people 
that run for the agency? No. But they endorse, and they give 
contributions, and they could be up here trying to have their 
influence, and that is where they have their influence. That is 
where they do that voodoo that they do so well. So it just 
creates a real problem.
    Professor Levin, do you have any comments you would like to 
make in the last minute here on what has been testified to by 
the other parties?
    Mr. Levin. Yes. With respect to the influence of lobbyists, 
there are political science studies that show that in the 
legislative veto days, special-interest influences were 
substantial and had an impact on the way those operated in the 
states.
    Secondly, with regard to the post office bills and the 
like, first of all, the total product of this last Congress 
would be even lower if you didn't have the post office bills 
building up their total. But more fundamentally, I think 
Congress could make time for major rules or other things if 
they cut out fundraisers, constituent service, district visits, 
and ceremonial bills, but I don't think those are the things 
that would be eliminated, because those are matters that serve 
the political interests of Members directly.
    Mr. Cohen. Mr. Chairman, can I ask for 20 seconds?
    Mr. Bachus. Yes, sure.
    Mr. Cohen. I am just curious, and I don't know that a 
lawyer is supposed to ask a question he knows the answer to, 
but when the Chairman was asking you about Breyer's and Tribe's 
opinion, was that on a similar system to where there was a veto 
by either house, or was it the pre-approval?
    Mr. Levin. It wasn't anything specific. It was just a 
thought experiment, I would say, and it wasn't the same as the 
REINS Act because it would not have provided that, once a 
matter is approved, it would nevertheless be subject to APA 
review on all grounds, which this bill contemplates.
    Mr. Cohen. All Judge Breyer and Mr. Tribe were saying is 
that they thought whatever that was, it was constitutional. 
They did not come to a value judgment, like Justice Roberts 
did, to say that it was bad policy.
    Mr. Levin. Justice Breyer, Judge Breyer said he was quite 
skeptical of its merit. He was putting forth an idea, but he 
indicated that he would be doubtful about it.
    Mr. Cohen. So he concurred with Justice Roberts. Thank you.
    Mr. Bachus. Thank you.
    Now I would recognize the gentleman from Pennsylvania, Mr. 
Tom Marino, for questions.
    Mr. Marino. Thank you, Chairman.
    Good afternoon, gentlemen. Thank you for being here. I love 
constitutional law. I was a prosecutor, but I thoroughly enjoy 
constitutional law. Maybe perhaps someday, each of us together, 
one-on-one, can have lunch and I can bore you with my 
positions, and you can educate me as to what is going on. I 
think in my second life I want to study more constitutional law 
and teach it, if possible. But I respect all of your opinions. 
You are very bright men.
    Professor Levin, am I pronouncing that right? I will start 
with you for a moment. Why not let the process work? 
Legislation, and the courts refer to it--Chadha was an opinion 
handed down by the Burger Court, and I read the case, but it 
was a cursory reading, again, not the detail that I would read 
it for in law school. But that was in 1983.
    The mood of the people has changed. Big government, 
invasion by agencies with ridiculous legislation, with 
administrative laws, for an example, the EPA trying to get 
control over the waterways by saying a rain puddle, they would 
have control over that because it is water and it is in a 
puddle, and they want control over it. Spilled milk on a farm, 
they wanted control over that as well. I could go on and on.
    But Rehnquist and White handed down a rather, I think, 
excellent dissenting opinion on the one-house legislative veto 
in violation of the separation of powers, and Rehnquist went 
into detail on specifically and very narrowly saying it is the 
intent of Congress. Can you show me where Congress did not have 
this intent that you are referring to as to why you think it is 
unconstitutional?
    Mr. Levin. Well, first, with regard to the antiquity of the 
Chadha decision, I think the Supreme Court's subsequent 
decisions have relied on it directly. They have never 
questioned it. A dozen state supreme courts have reached very 
similar positions under their respective state constitutions. 
The case law is overwhelming in suggesting that the 
bicameralism and presentment restraints should be effective in 
circumstances like this. I don't think Chadha is out of date at 
all.
    Mr. Marino. I am not saying Chadha is out of date. I am 
just saying the mood has changed since that opinion has been 
handed down. Now, I am not one to determine or to take a guess 
on where the Supreme Court is going on any decision. But let's 
get back to the issue of intent.
    Mr. Levin. I am not sure what you mean by intent, though. 
Obviously, Congress intends to do things, but it is sometimes 
not constitutional to do them.
    Mr. Marino. Well, isn't that the way the process works, 
then? And then the courts, when they are brought in, make that 
determination? And don't you think that in the Affordable 
Health Care Act, at least I inferred from Chief Justice 
Roberts' opinion that, Congress, you legislate, and when it is 
necessary, then we will come in and make a ruling on that 
legislation?
    Mr. Levin. Well, so you could pass the REINS Act and see if 
it is constitutional or not. But I think you should, in 
prudence, spend your time on things that have a good chance of 
surviving review, as opposed to things where the prospects are 
poor. It is your choice.
    Mr. Marino. I was never one to back down from a fight, 
whether the prospects are poor or not, or whether the Senate is 
going to vote on it. You certainly made it clear that Congress 
hasn't done much, but I think the 40 pieces of legislation on 
Harry Reid's desk in the Senate that we sent over there that 
haven't been accounted for says a little bit that the Congress 
has been trying to work hard on both sides of the aisle here in 
the House.
    Professor Claeys, could you respond to the intent issue 
concerning Chadha and where we are going with the REINS Act?
    Mr. Claeys. I will do my best, Congressman. I will make a 
few points.
    First, I think this Congress, forgetting about the 
assessment of the constitutional merit, should be prudent and 
ask itself how likely is it that the act is going to be 
declared unconstitutional or not, just because it is a 
significant investment of time to enact the law. But I think 
that the chances that this law would be afoul of Chadha are 
slim. I am not sure Professor Levin disagrees that much, 
because he says he is not convinced in his testimony that 
Chadha will be read narrowly, and he says courts might be 
disinclined to read REINS as a violation of Chadha.
    Second, this Congress, though, is an independent co-equal 
actor, and it has a responsibility to run down constitutional 
questions. So, as I said in my written testimony in my opening 
statement, I think there is no Chadha problem here.
    So last, I don't think Chadha has to be overruled. All that 
needs to happen is for courts to say this law satisfies the 
expectations that Chadha laid down.
    Mr. Marino. Mr. Gattuso, just briefly. My time, if not out, 
is running out.
    Mr. Gattuso. On Chadha?
    Mr. Marino. Yes.
    Mr. Gattuso. I think it is an odd argument to say that 
REINS would be tantamount to a one-house veto. Frankly, that 
argument proves way too much, in my view. That would seem to 
cover every legislative action by Congress where if the House 
or the Senate refused to pass a bill, it is blocked, or the 
REINS Act itself was passed by the House and not the Senate, 
was that a one-house veto? I think for that argument to work, 
there has to be something in the nature of the regulations that 
are being reviewed that is particular to the executive branch 
where the Congress does not have the power to revoke that 
authority.
    In every one of the regulations that would be covered by 
REINS, every one of the 130 regulations that we have identified 
coming from the Obama administration are legislative. They are 
not executive. Congress can withdraw them completely. So I see 
nothing special about them that would make that different than 
other legislation.
    Mr. Marino. Gentlemen, I leave here today learning 
something from each of you. I appreciate the discussion, and 
thank you for being here. I yield back.
    Mr. Bachus. Thank you.
    The gentleman from Georgia, Mr. Hank Johnson, is now 
recognized for his questions.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Gattuso from the Heritage Foundation, do you have any 
idea how much money the Koch brothers have invested in the 
Heritage Foundation since its inception?
    Mr. Gattuso. No, I don't. I can tell you that our total 
corporate donations are in the neighborhood of 5 percent of our 
income.
    Mr. Johnson. But that doesn't include the Koch brothers' 
money, though.
    Mr. Gattuso. That would include the Koch brothers' 
corporate money. It is not a large part of our basis.
    Mr. Johnson. Come on. That sounds like horse poop to me.
    Mr. Gattuso. Our donor lists are open. I can get you that 
information.
    Mr. Johnson. Mr. Claeys, how much has George Mason 
University Law School received from the Koch brothers? Do you 
have any idea?
    Mr. Claeys. No, Congressman, I don't have any idea.
    Mr. Johnson. But you do know that it has been--it has taken 
money from the Koch brothers; correct?
    Mr. Claeys. I don't know that it has. I would not be 
surprised if it had.
    Mr. Johnson. Okay. All right.
    How about your institution, Professor Levin?
    Mr. Levin. I have no idea.
    Mr. Johnson. Okay. All right. Well, I haven't heard any 
reports about Koch brothers' money into your institution.
    Mr. Levin. But if they know what I stand for, they would 
probably not contribute it, at least to me.
    Mr. Johnson. Well, I would think not, based on what I have 
heard today. I will say that your analogy or your observation 
about the gridlock that is the most prominent feature of 
congressional activity these days, as evidenced by the 
sequester situation, which I think most folks would say is just 
this meat ax, meat cleaver approach to cutting the Federal 
Government, is not wise. I am sure that most would agree. I am 
sure that Mr. Gattuso and Mr. Claeys would agree with that 
also.
    Oh, you do not? Okay. All right. Mr. Claeys does not agree 
that the meat ax is not a good way, or the meat ax is 
preferable to the surgeon's scalpel in terms of cutting the 
Federal budget.
    But I will say your analogy about the gridlock, with that 
being Exhibit A, is a good reason why, from a practical 
standpoint, passage of the REINS Act would be a bad idea.
    Mr. Gattuso, you would disagree with that?
    Mr. Gattuso. Well, you said this is a meat ax approach. I 
don't see it that way.
    Mr. Johnson. No, I am off of that issue. The issue I want 
you to address is the current gridlock in Congress and whether 
or not, in light of that gridlock, what would passage of the 
REINS Act add positively to the ability of Congress to get 
things done?
    Mr. Gattuso. Well, to start, I don't think that the measure 
of success for government should be the number of laws that are 
passed or the number of regulations that are enacted. That is 
not success. The success should be the value to society, the 
consideration and deliberation of each rule, of each action 
that is taken. So the REINS Act would add to that by requiring 
consideration, more thorough consideration of every action.
    Mr. Johnson. So your goal is to just cut down on the number 
of laws and the number of regulations so as to free up the free 
market system to work its will for the benefit of all.
    Let me ask you this, though. Let me ask you this. China, 
the pollution in Beijing, due largely to unregulated burning of 
fossil fuels, and the health impact that that has on the blood 
and on the lungs of the people in China, and also the people in 
Japan and across the water, is that a regulatable situation? Is 
there any economic value in protecting people's health?
    Mr. Gattuso. The last I checked, Congressman, China was 
still a communist country, and a large portion, the predominant 
portion of its industry and businesses are still state owned or 
state controlled. It is not an example of a free market 
economy.
    Mr. Johnson. The problem we are talking about is 
regulations, though.
    Mr. Gattuso. It is not a free market economy.
    Mr. Johnson. Isn't regulation good when it comes to 
protecting people's health?
    Mr. Gattuso. I think you can point to China as an example 
of where the government has taken a firm hand in controlling 
industry, in directing industry.
    Mr. Johnson. They don't have any regulations over in China, 
though.
    Mr. Gattuso. They have government ownership. They have 
direct government control over these factories and these 
industries, and it is the government that has been the major 
polluter, not any independent private sector.
    Mr. Johnson. Well, you can look at a horse pile of poop on 
the trail as you ride up on a summer afternoon, and you can 
smell it, and then you tell yourself that I am not smelling 
horse poop. You can do that all day, but the bottom line is it 
is horse poop in the road. You need to step over it and move 
forward.
    I will yield back.
    Mr. Bachus. Thank you, Mr. Johnson.
    Mr. Rothfus, the gentleman from Pennsylvania, is recognized 
for questions.
    Mr. Rothfus. Thank you, Mr. Chairman.
    Thank you, panel, for being here today. I have enjoyed this 
conversation. Like Congressman Marino, it is like I am back in 
law school.
    I appreciate the comments I have heard about yet another 
hearing on regulatory issues. I suggest that the reason that we 
are here again is because the more people learn about how we 
have empowered unelected elites to micromanage us, the more 
they want a check on that power. The actions of these elites 
are resulting in lost coalminer jobs and power plant worker 
jobs in Western Pennsylvania. The actions of these elites are 
also threatening the health insurance plans of people in 
Western Pennsylvania, and therefore their access to healthcare.
    Criticism of rule by elites is not of recent vintage. In 
1981, President Reagan in his inaugural said that from time to 
time we have been tempted to believe that society has become 
too complex to be managed by self-rule, that government by any 
elite group is superior to government for, by, and of the 
people. But if no one among us is capable of governing himself, 
then who among us has the capacity to govern someone else?
    I have long had a concern over the abdication by Congress 
of its constitutional duty to legislate. There is a belief 
among some that society is just too complex for 535 
individuals, 435 here in the House and 100 across the Capitol 
in the Senate, to come up with the legislation necessary for a 
properly functioning society. I reject that premise.
    Mr. Gattuso, I would like to just go over some of the 
recent regulations that we are seeing coming out and just get 
your opinion. Do you believe that 535 Members of Congress might 
be able to conclude whether carbon dioxide is an air pollutant 
under the Clean Air Act?
    Mr. Gattuso. I think that they are capable of making that 
decision.
    Mr. Rothfus. Would Congress be able to take hearings on 
that issue and make a deliberative decision on that?
    Mr. Gattuso. I think you can.
    Mr. Rothfus. Do you believe that 535 Members of Congress 
might be able to review the Secretary of Health and Human 
Service's dicta of what must be in every person's health care 
plan and make a reasoned judgment on whether that is a good 
idea or not?
    Mr. Gattuso. Absolutely.
    Mr. Rothfus. And do you believe that 535 Members of 
Congress have the capacity to determine what a qualified 
mortgage should be, whether we should require a 10 percent down 
payment, a 15 percent down payment, a 20 percent down payment?
    Mr. Gattuso. Not only that, but they are able to decide 
whether the government can decide that for consumers.
    Mr. Rothfus. I would like to ask the professors a little 
bit about the constitutionality issues. Isn't this really yet a 
further condition precedent to a regulation becoming effective? 
It is inchoate in the sense that we have requirements that a 
regulation should go through, and yet we have established one 
more requirement in the REINS Act where it will not even become 
effective until it has been approved by Congress. Can you 
comment on that, professors?
    Mr. Levin. That is exactly the argument that was made on 
behalf of the legislative veto in its day, that it was just a 
device that Congress attached to the Immigration and 
Nationality Act to be a condition precedent for deportation 
decisions, and the Supreme Court gave that no weight because it 
undermined the heart of the bicameralism and presentment 
requirements. I think the same would be true in this instance.
    Mr. Rothfus. But when we have legislation that we know is 
going to be subject to this, can't the Congress be considerate 
of that? When we delegate to a regulatory agency to come up 
with a regulation, under REINS we would know that that is going 
to come back to the Congress for review.
    Mr. Levin. Well, if I may comment on your previous 
characterization of this as rule by elites, I think that the 
process that 535 Members established is actually a pretty sound 
one. They make some decisions themselves. They leave others to 
the executive branch through a delegation, and the executive 
branch's decisions are subject to political accountability 
because presidents make decisions and they run on their record, 
and in this instance President Obama ran on his record of 
regulation. It was squarely an issue in the last campaign. It 
was hotly debated on all sides. He was reelected, and I think 
the people spoke, although not everybody seems to have heeded 
that message.
    Mr. Rothfus. Professor Claeys?
    Mr. Claeys. So with respect to Professor Levin, I disagree 
on several points. First, there is a huge difference between 
Congress being able to--there is a huge difference between the 
legislative veto and the REINS Act. In the legislative veto, 
Congress is saying we want the administrative process always to 
go forward, and then we want discretion for one house, both 
houses or a Committee to interject and stop one particular 
action.
    There is a huge difference between that set of affairs and 
another set of affairs where Congress says even though most of 
the time rulemaking has advantages, we don't want those 
advantages to be here because we are so worried about the 
impact on the economy or the threat to rights. So we want to 
slow things down, and we want to take ownership of the basic 
policy choices. I don't think that any judge who is at all 
practical or is a functionalist, in the way that Professor 
Levin talks about in his testimony, would ignore that 
difference.
    And--well, I will just stop there.
    Mr. Rothfus. Thank you.
    Thank you, Mr. Chairman. I yield back.
    Mr. Bachus. Thank you.
    At this time, I would like to recognize the gentlelady from 
California--from the state of Washington. I am sorry.
    Ms. DelBene. I am proud to be from the state of Washington.
    Mr. Bachus. Ms. Susan DelBene.
    Ms. DelBene. Thank you, Mr. Chair.
    Mr. Bachus. I want to express my appreciation to you, 
before your 5 minutes starts, for being a part of the civil 
rights pilgrimage this weekend to Alabama, where we remembered 
the 50th-year anniversary of the integration of the University 
of Alabama, but also some sad events, the bombing of the 16th 
Street Baptist Church, Martin Luther King's imprisonment in the 
Birmingham jail. It was a very meaningful weekend for all of 
us. I know Mr. Cohen has participated in that pilgrimage on 
many occasions, and I want to express my appreciation to both 
of you for investing that time. I think you both gained 
valuable insight.
    Ms. DelBene. Thank you, Mr. Chair. I was born in Alabama, 
as you know, so it was also incredibly important for me to have 
the opportunity to participate. So, thank you.
    Mr. Bachus. Thank you.
    Ms. DelBene. And thank you to all of you for being here 
today and taking your time and speaking with us. I really 
appreciate it.
    Mr. Gattuso, you talk in your testimony about the cost and 
burden of regulations, and you cite this in your submitted 
testimony, and we talked about this a bunch today. But if we 
really look at a cost-benefit analysis, do you ever think that 
there are benefits to regulations? And is it important that we 
take that into account?
    Mr. Gattuso. Certainly. There are many benefits, and many 
regulations are well justified, as I said in my testimony.
    I think we have to look at some of the benefit estimates 
that have been made with maybe a grain of salt. For instance, 
there are quite a few recent regulations where the benefits 
that are claimed have little to do with the advertised purpose 
of the regulation. For instance, if you look at CAFE standards, 
the gains for the environment and reduced pollution constitute 
only about one-third of the total benefits that are claimed for 
that rule. The other two-thirds of the benefits are so-called 
private benefits, savings to consumers from using less fuel.
    Now, that would be a good thing for consumers if they chose 
it, but there is no market failure that has been identified 
and, frankly, consumers should be able to make the trade-off 
between paying another $1,800 for a car and savings for 
themselves. So the benefits don't really match the 
justification for the rule.
    Ms. DelBene. But you think costs are always appropriately 
calculated and it is only benefits that are not?
    Mr. Gattuso. No, although we do have to recognize that the 
agencies that do the cost-benefit analyses tend to support the 
rules that they are proposing. So I think an estimate of cost 
by an agency is going to be what you might call a statement 
against interest, but the benefits may be jacked up a little 
bit. But I think benefits and costs have to be compared, and 
also costs by themselves is a relevant standard to look at. The 
cumulative cost of regulations is by itself a factor to 
consider.
    Ms. DelBene. Professor Claeys, in its most recent report to 
Congress, the Office of Management and Budget estimates that 
the total benefits of significant regulations for the past 10 
years exceeded the cost by a ratio as high as 16 to 1. So how 
do you reconcile that with the notion that the regulatory costs 
are overburdening the economy if we don't also look at the 
benefits involved?
    Mr. Claeys. Should this Congress defer to determinations by 
OMB about what the benefits or the costs are? Why shouldn't 
this Congress decide for itself what the costs and benefits 
are? Because this Congress is responsible to the voters and 
answers to them in elections.
    Ms. DelBene. This is a data point. So if there is data that 
says that we have benefits, shouldn't that be taken into 
account?
    Mr. Claeys. In the House and in the Senate, yes.
    Ms. DelBene. Mr. Levin, or Professor Levin--I'm sorry--what 
is your view? Mr. Gattuso talked about proposals to impose 
sunset dates for regulations, and I wanted to hear your 
feedback on that.
    Mr. Levin. Yes. I testified to the Subcommittee last year 
about proposals just to re-examine rules every 10 years, and I 
testified that that is too inflexible and would take up too 
much time of the agencies re-examining things, as opposed to 
getting on with the people's business, which Congress has 
assigned it.
    So I would say, going even further, a sunset provision 
would be a very bad idea because it takes about 2 years to 
issue a major rule, and if you have to redo it every 10 years, 
you are essentially taking enormous amounts of time away from 
the agency's ability to perform the functions that Congress has 
told it to do. It would be a very bad idea.
    Ms. DelBene. So what would your proposal be if we look at 
the challenges that we face in terms of the rulemaking process? 
Do you have a proposal besides the REINS Act that we might look 
at to make it a more streamlined process?
    Mr. Levin. Well, with respect to--I mean, I would abandon 
this particular line of inquiry and get onto making more 
effective substantive decisions. But on the specific question 
of in what ways should Congress oversee agencies, I would 
encourage you to look at some ABA recommendations for reform of 
the Congressional Review Act, which are cited in my prepared 
statement for today.
    Ms. DelBene. Thank you.
    Thank you, Mr. Chair.
    Mr. Bachus. Thank you.
    Mr. Gattuso, with respect to the Dodd-Frank financial rules 
I am familiar with, but even just moving beyond that into just 
the general condition, many prominent experts have noted that 
small businesses lack rent-seeking capabilities. They lack 
regulatory compliance staff to comply, and accordingly are at a 
competitive disadvantage. They also lack--many, many bigger 
corporations have lobbying shops that lobby both the agencies 
and the Congress.
    I think, just to give you two examples, in the Durbin 
Amendment, which applied to debit cards but not credit cards, 
because the larger banks lobbied and got credit cards exempted, 
so you have a situation where you have the large banks, the 
seven large banks, the largest banks have almost all the credit 
card business, where the community and smaller banks and 
regional banks have the debit cards, and it is much more 
important to their business. And yet, they were not successful. 
So the Durbin Amendment only applies to debit cards.
    I think we have many other examples. For instance, the 
regulators first put caps on the large banks eight or 9 months 
before they did on the smaller banks. They engineered a bailout 
of AIG, which turned around, and that money within 24 hours 
went into some of the largest banks in this country. You didn't 
see the smaller banks bailed out.
    Is there a danger that large corporations can manipulate 
the process of writing new major regulations to drive their 
smaller competitors out of business?
    Mr. Gattuso. Not only is there a danger, but it is a 
reality. It happens all the time. By the way, AIG is not just 
money going into the banks in our country, but it is going into 
banks in France and Germany and the rest of the world as well.
    But I think that small businesses do bear a heavier burden 
of regulation because of the reasons that you cite and are not 
as well represented in the rent-seeking festival in Washington.
    But even outside of small businesses, a lot of these 
regulations are less driven by the public interest, I believe, 
than driven by conflicts between industries. The Durbin 
Amendment was a conflict between the financial institutions and 
big retailers and I think was driven by the representations of 
each side. You can go down the list. Not every regulation, but 
a large number of them are just battles between different 
industry segments rather than something the public interest is 
behind.
    Mr. Bachus. Thank you.
    Professor Claeys, since you last testified before the 
Committee, the threat that the executive branch will use the 
regulatory process to legislate unilaterally and thwart the 
will of Congress has increased. I just introduced an article 
from the Wall Street Journal that was published yesterday and 
again today where the EPA is going to take some pretty drastic 
steps, according to that article.
    But how serious a threat is this kind of what I 
characterized as an end run around Congress to our 
constitutional system?
    Mr. Claeys. I am not going to presume to speak for all 
Americans. For myself, as a citizen and as a scholar, I am very 
concerned.
    Mr. Bachus. What now?
    Mr. Claeys. In my own capacity as a citizen and in my own 
capacity as a scholar, I am concerned. But I don't want to make 
it sound as if my concern is only about the Obama 
administration. I think this has been a trend for 30 and 40 
years going across both parties and presidents of both parties.
    Mr. Bachus. Oh. And listen, I think that the general public 
and most Members of Congress would agree with you that this is 
not something that originated with the Obama administration. I 
do think that it has accelerated under this Administration. Do 
you agree?
    Mr. Claeys. Yes, sir.
    Mr. Bachus. Okay. Does this threat increase the need for 
the REINS Act as a check on unilateral executive branch 
lawmaking?
    Mr. Claeys. Yes, Mr. Chairman.
    Mr. Bachus. Thank you.
    Mr. Gattuso, past congresses have delegated to the 
executive branch authority to legislate regulations that are 
now estimated to consume 14 percent of the national income. 
Does that even remotely resemble the framers' constitutional 
design?
    Mr. Gattuso. The framers established three branches of 
government. Today we have four, and arguably perhaps the 
largest one is the regulatory branch, which is not in the 
Constitution. I am not saying that we don't need some 
regulations. Certainly, we live in a more complex society than 
we once did. But the framers established a system of 
accountability and separation of powers where the Congress is 
ultimately responsible for setting the rules. I think the REINS 
Act would reinforce that original conception.
    Mr. Bachus. Do you think that the number and the cost of 
regulations is inhibiting the creation of jobs, particularly in 
small businesses?
    Mr. Gattuso. Definitely. We have heard from any number of 
small businessmen, from entrepreneurs, saying that either they 
were not able to hire more people or, in effect, hired fewer 
because of regulation. Only last week, the founder of Subway 
sandwiches stated that if he had been starting his restaurant 
chain in the current environment, it would not have succeeded. 
It would not exist.
    Mr. Bachus. Thank you.
    Mr. Claeys, do you believe that the number and extent of 
regulations, the cost, if it does in fact consume 14 percent of 
the national income, is that inhibiting jobs, particularly in 
small businesses?
    Mr. Claeys. With respect, Mr. Chairman, I am a professor of 
law and an educated consumer of scholarship about the 
relationship between administrative agencies and courts and 
Congress. I don't consider myself an economist. So in my 
testimony, I cited studies that seem to me reasonable. If they 
are true, they lay out that predicate. But I do not want to 
take a hard stand. It is not within my expertise.
    Mr. Bachus. Let me close with Mr. Levin, or Professor 
Levin. Are you familiar with the financial regulations which 
require a credit rating or creditworthiness by the three 
largest credit rating agencies where the government required a 
credit rating or a creditworthiness score, say, on securities, 
on securitizations from just the three largest? Or is that 
getting out of your field?
    Mr. Levin. I am not familiar with that specific regulation. 
No, sir.
    Mr. Bachus. Do you believe Dodd-Frank has disadvantaged 
community banks and your regional bank?
    Mr. Levin. I am not sure. If I were talking about Dodd-
Frank as a whole, I would say that I am not convinced that it 
has disadvantaged the country because I think there are strong 
arguments for doing something to repair the damage that was 
created without regulation. I can't speak to this community 
banks area in particular.
    Mr. Bachus. Are you familiar with the length of Dodd-Frank? 
Have you ever read any of it? Have you read some of the 
provisions?
    Mr. Levin. I have read much of it, not all of it.
    Mr. Bachus. Is it somewhat confusing to you?
    Mr. Levin. In places. Yes, Sir.
    Mr. Bachus. I know the regulators are struggling to try to 
figure out what Congress intended on the Volcker rule, and 
really, they are having a tremendous amount of trouble just 
trying to figure out what Congress intended.
    Mr. Levin. But I think that is because the area of 
financial regulation is complex because the phenomenon they are 
trying to deal with is complex.
    Mr. Bachus. I would agree.
    Mr. Levin. So it requires specialized work more than 
Congress itself can manage in order to come to grips with it.
    Mr. Bachus. When it gets to the point where the regulators 
can't even figure out what Congress intended, I think it is 
indeed complex.
    Mr. Jeffries, the gentleman from Florida, is now recognized 
for his questions.
    Mr. Jeffries. Thank you, Mr. Chairman. From Brooklyn, New 
York. I just want to make sure we correct the record on that. 
[Laughter.]
    I always have to make sure that Brooklyn is in the house.
    Mr. Bachus. Oh, I thought that it was Mr. Garcia. I have 
confused you, Mr. Jeffries. You are from New York, right?
    Mr. Jeffries. Thank you, Mr. Chairman.
    Mr. Bachus. Where did Mr. Garcia go?
    Mr. Cohen. Back to Miami. [Laughter.]
    Mr. Jeffries. Seeking warmer weather.
    Mr. Gattuso, you testified that in your view, four branches 
of government have emerged, presumably the fourth branch of 
government being this amorphous administrative dynamic. Now, 
let's go through the three branches of government that were 
created by the founders of this great country. The first branch 
in Article 1, of course, is this great Congress, given certain 
enumerated, specific powers.
    The second branch created by Article 2 is the executive.
    The third branch is the judiciary. Is that correct?
    Mr. Gattuso. Yes.
    Mr. Jeffries. Now, the premise of the judiciary branch, or 
at least part of its role, is to rein in unconstitutional 
overreach by the executive branch created in Article 2. Isn't 
that right?
    Mr. Gattuso. That is part of it, yes.
    Mr. Jeffries. So the courts have already been set up in the 
framework of the Constitution. If there is regulatory 
overreach, as is claimed by some of those here today, to rein 
in that administrative overreach if it violates the 
Constitution. Isn't that the role of the Article 3 judicial 
system that we have in this country?
    Mr. Gattuso. If it violates the Constitution or a statute. 
But the courts do not make the substantive judgment about 
whether the overreach is in itself a good idea, a bad idea, 
economically sensible are not sensible.
    Mr. Jeffries. Right. Well, we can agree that if there is 
administrative overreach that violates the Constitution of the 
United States, that the framers of this great Republic have 
already established a mechanism to rein in that overreach, and 
that is the Article 3 court system, correct?
    Mr. Gattuso. That would be the original purpose.
    Mr. Jeffries. Okay. Now, we have sort of an argument to be 
made, then, about the reasonableness of regulations. Some 
regulations are reasonable. I think you have conceded that, 
correct?
    Mr. Gattuso. Yes.
    Mr. Jeffries. And then you have concluded that others are 
out of control, costly to the economy, correct?
    Mr. Gattuso. Yes.
    Mr. Jeffries. Now, you have said that there are costs that 
are billions, if not trillions, of dollars in regulatory 
overreach. That is in your testimony, correct? Can you cite to 
me an example of a trillion-dollar regulatory overreach?
    Mr. Gattuso. Well, the trillion would be the cumulative 
figure. But certainly in the last year, there were two 
regulations adopted by the Obama administration with costs over 
$9 billion, the boiler MAC regulation and the CAFE rules.
    Mr. Jeffries. That is in your estimation, correct?
    Mr. Gattuso. That is the estimate of the agencies enacting 
the rule, the EPA or the National Highway Traffic Safety 
Administration. That is not my number, that is their number.
    Mr. Jeffries. Okay. But there is a cost-benefit analysis 
that should be put into play. You have acknowledged you have 
the cumulative effect. Let's put that aside. Then you have 
individual regulatory actions, each of which presumably has a 
cost and a benefit. Is that right?
    Mr. Gattuso. That is right.
    Mr. Jeffries. Now, AIG was cited as an example where their 
outsized influence impacted perhaps the ability of them to get 
an accelerated bailout that perhaps other small banks and 
community institutions, small businesses weren't able to get, 
at least in a timely fashion. Is that correct?
    Mr. Gattuso. Well, I think that there was a lot going on in 
2008 that was more than just standard lobbying. So I won't say 
the AIG bailout was due just to lobbying by AIG. But I think 
the point was that--the point I think the Chairman was making 
was that there was disparate treatment, disparate effects 
between the AIGs of the world and the small community banks.
    Mr. Jeffries. Right. Now, if you invest more regulatory 
authority in the Congress, which is subject to this lobbying 
behemoth, doesn't it then give more power to the AIGs of the 
world, who don't have the same ability to influence the 
regulators?
    Mr. Gattuso. I think the fact remains that the Congress is 
the representative of the people, and if the Congress is not 
the legitimate body to make the decisions, prudential decisions 
as to how much we want to regulate, who we want to control, who 
should not be regulated, then there is really nothing the 
Congress does that can be justified.
    Mr. Jeffries. Do you recall the size of the AIG bailout?
    Mr. Gattuso. I don't have a number.
    Mr. Jeffries. One hundred and eighty billion dollars. Why 
did we have to bail AIG out to the tune of $180 billion? Is it 
because of the absence of regulation that led to some of the 
activities such as the issuance of credit default swaps, a 
totally unregulated vehicle that was out of control, that AIG 
didn't have the capacity to fund once the market fell out and 
the bottom dropped out of the economy? Isn't that $180 billion 
bailout, which is somehow cited as an example of the evils of 
regulation, in reality a prime example of why, in many 
instances, particularly in terms of what Dodd-Frank was 
attempting to accomplish, regulation is necessary?
    Mr. Gattuso. I think the financial crisis of 2008 was the 
effect of--certainly there was a private role, but a large 
portion of it was the government policies in terms of 
interference in the housing market, supporting the bubble in 
housing, and encouraging the creation of loans that were not 
appropriate.
    Mr. Jeffries. Mr. Chairman, I know my time has run out. If 
I could just allow Mr. Levin to respond?
    Mr. Levin. I don't agree with that story of why we had a 
financial crisis, but I think the point I would make is that it 
does take a while to work through the regulatory response, and 
the long bill that the Chairman mentioned is long and 
confusing. That is why you need an extended process by which 
regulators can sort out some of the details that weren't fully 
resolved at the beginning. It is an open process, and is 
participatory, and it is subject to judicial review not just 
for constitutionality but also for the reasoning of the 
decision.
    So a salient difference between the administrative process 
and the legislative is that although there is politics at the 
administrative level, the courts will insist that the matter be 
rational and defensible. They are a check. You don't have that 
check on decisions that the legislature makes. So although 
there is politics on both sides, there is a restraint on the 
administrative side that doesn't exist on the legislative side.
    Mr. Jeffries. Thank you, professor.
    Mr. Bachus. Thank you.
    Would either of you gentlemen are all three of you 
gentlemen want to comment further on anything, any questions or 
any thoughts you have had that you think would be helpful?
    Mr. Gattuso. If I can make just one comment?
    Mr. Bachus. I am going to let Mr. Collins have a round of 
questions. But be thinking--and this will give you five or 6 
minutes to think about maybe if you want to have a 2-minute 
rebuttal or wrap-up or just some other thoughts.
    Mr. Collins is now recognized, the gentleman from Georgia, 
for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate the 
patience today. It has been sort of a crazy day. I think this 
is a needed proposal. I think it is something that we can look 
at.
    I do have a couple of questions. Professor Claeys, what are 
some other ways, in addition to REINS, that we can ensure that 
the Obama administration weeds through existing regulations and 
eliminates unnecessary burdens on job creators, something they 
said they wanted to do but obviously have not?
    Mr. Claeys. I will give you some thoughts off the top of my 
head. I am not sure that the question hits at my core scholarly 
expertise.
    Mr. Collins. Well, if anybody else wants to jump in after 
Professor Claeys, go right ahead.
    Mr. Claeys. I would say the appropriations process and the 
attempts to link things like the increase of the debt ceiling 
to negotiate policies that will lead to economic growth and 
lead to deregulation. Those are a couple of examples.
    Mr. Collins. Increasing the debt ceiling? Did I hear you 
correctly?
    Mr. Claeys. If the debt ceiling is going to be increased, 
then this Congress can use the leverage it has to do some 
other----
    Mr. Collins. You are saying to use the debt ceiling, okay.
    Mr. Claeys. As leverage for other things that you think 
will have salutary effects on the economy.
    Mr. Collins. Okay. Does anybody else have anything that 
they would like to add to that?
    Mr. Gattuso. I think, and this might sound surprising, but 
I think the Obama administration's power to control and limit 
and review regulations should be preserved and expanded, 
specifically the fact that independent agencies are not 
reviewed or are not subject to regulatory requirements. So I 
think extending the Administration's authority over independent 
agencies actually would be a plus.
    Mr. Collins. Well, I think extending it or not extending 
it, they are not doing anything to eliminate, is irrelevant.
    Mr. Gattuso. I am not defending the Obama administration.
    Mr. Collins. But, I mean, in defending your own answer, we 
can give them all the power in the world, which we are not, 
give them all the power in the world, but if they don't do 
anything, just do their stated claim of unnecessary in 
relieving these burdens, what is the purpose?
    Mr. Gattuso. It is certainly not the complete answer, but I 
think putting some limits on independent agencies is 
appropriate.
    Mr. Collins. I would not disagree with that. I think maybe 
we are going about it two different ways.
    Mr. Levin.
    Mr. Levin. As a matter of fact, I was at a hearing of this 
Subcommittee last year on the subject of retrospective review 
of rules, and I would refer you to the statement I submitted 
then which reviewed the Obama administration's efforts, which I 
think have been substantial. But I also commented on ways in 
which Congress could, if it chose, set up a structure to 
promote retrospective review of rules on its own. So I would 
refer you to that.
    Mr. Collins. Okay. I think one of the issues that is coming 
up, and I just came from another hearing this morning, and it 
goes back to sort of your answer to your question a little bit, 
but there is approximately $67 billion, I think, give or take--
and I don't remember the number; I am going back and forth--the 
IGs have reported to their different departments on savings 
that could be had, okay? $67 billion has been left on the table 
and not implemented by the departments. There was much ado and 
gnashing of teeth, and you would think that truly a lot of 
things had come to an end this morning because of the sequester 
that everybody wanted to bring in.
    My question sort of tags on here. If we are not 
implementing--and let's dig a little deeper here. If we are not 
implementing cost-cutting measures, which have been implemented 
by the inspector generals in these various agencies, if 
Congress does not, through the power of the purse, which it is 
supposed to have, through regular order of appropriations 
process to control how money is spent, where it goes, and how 
those operate, isn't it not within the purview of Congress to 
continue this process given the fact that right now this 
Administration, and I'm going to say from the perspective the 
IG presented, previous Administrations as well have chosen to 
ignore those kind of issues.
    What is the difference here in the money issue and the 
regulatory issues if Congress sort of sits back and lets the 
Administration do it? Are we not, in essence, giving away our 
constitutional authority, but also putting a hands-off approach 
and then complaining about it in the long run?
    Mr. Gattuso. I think that is entirely correct. Congress 
both has the responsibility and the power to review and 
scrutinize and ensure that regulations are sensible and 
justified.
    Mr. Claeys. I agree with Mr. Gattuso on the regulation. As 
a scholar, I don't have any opinion on the spending issues. As 
a taxpayer and a citizen, I support what you say.
    Mr. Levin. Well, I think the power of oversight is 
longstanding and traditional, and I think Congress has a 
legitimate role over time to examine expenditures and decide 
whether it thinks they are being made wisely. I think it would 
be well for Congress to pursue these traditional areas of 
oversight, as opposed to exploring these rather novel 
alternatives such as the ones that are before us today.
    Mr. Collins. I take great exception to saying ``novel'' 
when you actually look at the constitutional authority of 
Congress is to watch over and pass the laws and regulations, 
and it also then, from purse strings to other things, to make 
sure that the American people and small businesses are 
protected and taken care of. To say it is a novel approach to 
simply look at regulations in a way that we can actually rein 
that in to me is not framing this question very much.
    Mr. Levin. Excuse me. I was unclear. I met the REINS Act is 
novel, but regular oversight of rules is not.
    Mr. Collins. It may be novel in its approach, but at this 
point, with lack of it going on, I think there is an issue here 
to where Congress does need to look at this and find the proper 
way to make sure that we are in an environment in which we are 
not cutting out our own businesses and others from regulation 
that are either being done with political agendas or other 
things.
    Mr. Chairman, I see my time is over. I apologize. I yield 
back.
    Mr. Bachus. I appreciate that, Mr. Collins.
    Gentlemen, each of you are recognized for one or 2 minutes, 
if you wish.
    Mr. Gattuso. Well, I will start. I just want to make two 
points. Through most of this hearing, there may be an 
impression left that there is a dichotomy, a choice that needs 
to be made between relying on experts and Congress taking 
direct control over regulatory policy. I think that is a false 
choice. I know nothing about electrical systems, but if I 
needed an electrician, I can hire one. But if I disagree with 
what he recommends, I get to have the final say.
    So I think Congress can review regulations, but that does 
not mean that they do it without knowledge, without expert 
advice and a knowledge of the facts on the ground.
    Also, a question was asked about the respect for Congress, 
and I have been very critical of Congress. I don't agree with 
everything Congress does. I doubt whether any of you agree with 
everything Congress does. But it is the only representative 
national body that we have, and it is imbued by the 
Constitution with the responsibility to oversee these policy 
matters, and I think the proper respect for the Constitution 
and for Congress would demand that that be accommodated.
    Mr. Claeys. Mr. Chairman, I have three points. One has to 
do with this argument about gridlock. I think that the argument 
for gridlock cuts in the direction opposite to the one it has 
been suggested to cut throughout this hearing. To me, the 
analogy that comes to mind is imagine that there is a group of 
people who are partners, and they have irretrievable or 
irreconcilable differences. There are circumstances in which it 
is okay to appoint a receiver, but a receiver is really an 
option of last resort because if the partners have really deep 
differences, they won't trust a receiver any more than they 
will trust each other, because they don't trust each other.
    In our polarized climate, the worst thing to do is for 
people in the minority right now to try to watch the agencies 
make Democratic policy, and then if the Administrations were to 
switch, the Democrats watch the Republicans make policy. It is 
better to have these kinds of deep, visceral disputes in 
Congress.
    My second point is very similar to Mr. Gattuso's. I don't 
think we have heard enough today about the way in which the 
REINS Act improves regulatory processes by making the agencies 
more accountable to Congress, and by making the agencies 
educate Members of Congress the way the electrical engineer 
would educate Mr. Gattuso.
    On this, I recommend that Members of the Committee consult 
David Schoenbrod's testimony last Congress on this point. He 
was a former NRDC lawyer, and he thought that environmental 
laws were made best when Congress got actively involved with 
the EPA regulation.
    And last point that Mr. Jeffries made about the courts, 
this Congress has an independent duty to consult the 
Constitution, and a lot of the statutes that courts enforce in 
administrative law are written by Congress. Well, they all are 
written by Congress, but courts don't look at them very 
closely. This Congress owes a duty to make sure that it thinks 
that these statutes are constitutional. There are other 
situations where courts were not the best arbiters or 
protectors of individual rights, and the best example I can 
think of is Dred Scott. It was a Republican Congress and a 
Republican president that went to the people and said that the 
court system has messed up our individual rights.
    Mr. Bachus. Thank you.
    Professor Levin?
    Mr. Levin. Yes. I would like to use the example of 
greenhouse gas regulation, which has been mentioned during this 
hearing, to try to draw some points together. One, of course, 
is that the Supreme Court itself told the EPA to get moving in 
dealing with climate change issues.
    But beyond that, the greenhouse gas situation is one in 
which EPA is now proceeding to come up with regulations to 
address this matter. The Clean Air Act is probably not the 
ideal way in which to do it, but the Administration is taking 
the initiative because Congress has been unable to take any 
action to further action on climate change. Because of the 
inaction at that level, the EPA has gone forward on its own.
    Now, if you have a system like REINS in which you have not 
only the ability--Congress is not only gridlocked on its own, 
but also is able to block the Administration, the upshot is 
nothing gets done on climate change. The climate is going to 
just keep getting worse. The climate is not a regulated entity 
such that if you remove the yoke of burdensome regulations, the 
climate can breathe free and produce jobs. The climate just 
keeps getting worse, so something should be done.
    If the EPA proceeds with rules, those will be subject to 
judicial review, and have been to some extent already, and 
there is some hope of something getting done. But I think the 
REINS Act would simply generate policy paralysis with no action 
taken. I think that is not in the interest of the country, and 
it is an example of the problems that this legislation would 
bring about.
    Mr. Bachus. I thank all the gentlemen. I think you have all 
three given thoughtful testimony.
    Mr. Cohen, if you have a final word, you are welcome.
    Mr. Cohen. I just thank the Chairman for his courtesies in 
extending time and for his other activities, engaging in the 
retreat this past weekend in Alabama. His heart is obviously in 
the right place. Thank you.
    Mr. Bachus. Thank you.
    Mr. Cohen and I are in agreement that the gridlock here 
is--we are making a bunch of cuts in discretionary spending 
when some of our mandatory spending programs are driving our 
debt and deficit, and I think we are both disappointed that we 
have come to what I think we all agree is a dreadful situation.
    At this time, our hearing is concluded. Each of the 
witness' written statements will be entered into the record in 
its entirety, and I ask that each witness--well, we have 
already done that.
    This concludes the hearing. Thanks to all of our witnesses 
for attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This hearing is adjourned.
    [Whereupon, at 1:17 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Material submitted by the Honorable Steve Cohen, a Representative in 
Congress from the State of Tennessee, and Ranking Member, Subcommittee 
           on Regulatory Reform, Commercial and Antitrust Law






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 Letter from the Honorable Kevin Cramer, a Representative in Congress 
                     from the State of North Dakota






                                

  Prepared Statement of the Honorable Andy Barr, a Representative in 
                  Congress from the State of Kentucky




                                

  Letter submitted by Kristina Butts, Executive Director, Legislative 
             Affairs, National Cattlemen's Beef Association



                                

  Response to Questions for the Record from James L. Gattuso, Senior 
   Research Fellow in Regulatory Policy, Thomas A. Roe Institute for 
            Economic Policy Studies, The Heritage Foundation






                                

       Response to Questions for the Record from Eric R. Claeys, 
               Professor of Law, George Mason University












                                

 Response to Questions for the Record from Ronald M. Levin, William R. 
 Orthwein Distinguished Professor of Law, Washington University School 
                                 of Law























                                 
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