    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

       ARTICLE I: CONSTITUTIONAL PERSPECTIVES ON THE RESPONSIBILITY AND
                      AUTHORITY OF THE LEGISLATIVE BRANCH

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

                                    MEETING

                                     of the

                               COMMITTEE ON RULES
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                             TUESDAY, MARCH 3, 2020

                                   __________

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                        Available via http://govinfo.gov
                 Printed for the use of the Committee on Rules

                                ______

                  U.S. GOVERNMENT PUBLISHING OFFICE
     40-628               WASHINGTON : 2020

                               COMMITTEE ON RULES

                   JAMES P. McGOVERN, Massachusetts, Chairman
    ALCEE L. HASTINGS, Florida           TOM COLE, Oklahoma
      Vice Chair                           Ranking Republican
    NORMA J. TORRES, California          ROB WOODALL, Georgia
    ED PERLMUTTER, Colorado              MICHAEL C. BURGESS, Texas
    JAMIE RASKIN, Maryland               DEBBIE LESKO, Arizona
    MARY GAY SCANLON, Pennsylvania
    JOSEPH D. MORELLE, New York
    DONNA E. SHALALA, Florida
    DORIS O. MATSUI, California
                           DON SISSON, Staff Director
                      KELLY DIXON, Minority Staff Director

                                     ------

                 Subcommittee on Legislative and Budget Process

                      ALCEE L. HASTINGS, Florida, Chairman
    JOSEPH D. MORELLE, New York          ROB WOODALL, Georgia
      Vice Chair                           Ranking Republican
    MARY GAY SCANLON, Pennsylvania       MICHAEL C. BURGESS, Texas
    DONNA E. SHALALA, Florida
    JAMES P. McGOVERN, Massachusetts

                                     ------

              Subcommittee on Rules and Organization of the House

                       NORMA J. TORRES, California, Chair
    ED PERLMUTTER, Colorado              DEBBIE LESKO, Arizona
      Vice Chair                           Ranking Republican
    MARY GAY SCANLON, Pennsylvania       ROB WOODALL, Georgia
    JOSEPH D. MORELLE, New York
    JAMES P. McGOVERN, Massachusetts
                                     ------

                      Subcommittee on Expedited Procedures

                         JAMIE RASKIN, Maryland, Chair
    DONNA E. SHALALA, Florida            MICHAEL C. BURGESS, Texas
      Vice Chair                           Ranking Republican
    NORMA J. TORRES, California          DEBBIE LESKO, Arizona
    JAMES P. McGOVERN, Massachusetts

                                C O N T E N T S

                                  ----------

                                 March 3, 2020

    Opening Statements:
                                                                       Page
        Hon. James P. McGovern, a Representative in Congress from the
          State of Massachusetts and Chair of the Committee on Rules.     1
        Hon. Tom Cole, a Representative in Congress from the State of
          Oklahoma and Ranking Member of the Committee on Rules......     3
    Witness Testimony:
        Laura Belmonte, Dean, Virginia Tech College of Liberal Arts
          And Human Sciences, Professor of History, Virginia Tech
          University.................................................     5
            Prepared Statement.......................................     6
        Matthew Spalding, Dean, Van Andel Graduate School of
          Government, Kirby Professor in Constitutional Government,
          Vice President, Washington Operations, Hillsdale College...    21
            Prepared Statement.......................................    23
        Deborah Pearlstein, Professor of Law and Co Director,
          Floersheimer Center for Constitutional Democracy, Cardozo
          Law School.................................................    44
            Prepared Statement.......................................    47
        Saikrishna Prakash, James Monroe Distinguished Professor of
          Law and Paul G. Mahoney Research Professor of Law, Senior
          Fellow, Miller Center of Public Affairs, University of
          Virginia...................................................    60
            Prepared Statement.......................................    63
    Questions and Additional Testimony:
        Hon. James P. McGovern, a Representative in Congress from the
          State of Massachusetts and Chair of the Committee on Rules.    77
        Hon. Tom Cole, a Representative in Congress from the State of
          Oklahoma and Ranking Member of the Committee on Rules......    82
        Hon. Alcee L. Hastings, a Representative in Congress from the
          State of Florida and Vice Chair of the Committee on Rules..    92
        Hon. Michael C. Burgess, a Representative in Congress from
          the State of Texas.........................................    93
        Hon. Ed Perlmutter, a Representative in Congress from the
          State of Colorado..........................................    98
        Hon. Rob Woodall, a Representative in Congress from the State
          of Georgia.................................................   101
        Hon. Jamie Raskin, a Representative in Congress from the
          State of Maryland..........................................   112
        Hon. Debbie Lesko, a Representative in Congress from the
          State of Arizona...........................................   118
        Hon. Mary Gay Scanlon, a Representative in Congress from the
          State of Pennsylvania......................................   122
        Hon. Joseph D. Morelle, a Representative in Congress from the
          State of New York..........................................   124
        Hon. Donna E. Shalala, a Representative in Congress from the
          State of Florida...........................................   129
    Additional Material Submitted for the Record:
        Republican Study Committee Government, Efficiency,
          Accountability and Reform Task Force Report Policy
          Recommendations List.......................................   119
        Republican Study Committee Government, Efficiency,
          Accountability and Reform Task Force Report Executive
          Summary....................................................   120
        Curriculum Vitae and Truth in Testimony Forms for Witnesses
          Testifying Before the Committee............................   135

       ARTICLE I: CONSTITUTIONAL PERSPECTIVES ON THE RESPONSIBILITY AND
                      AUTHORITY OF THE LEGISLATIVE BRANCH

                                  ----------

                             TUESDAY, MARCH 3, 2020

                              House of Representatives,
                                            Committee on Rules,
                                                       Washington, D.C.
        The committee met, pursuant to call, at 10:02 a.m., in Room
    H-313, The Capitol, Hon. James P. McGovern [chairman of the
    committee] presiding.
        Present: Representatives McGovern, Hastings, Perlmutter,
    Raskin, Scanlon, Morelle, Shalala, DeSaulnier, Cole, Woodall,
    Burgess, and Lesko.
        The Chairman. The Rules Committee will come to order. I
    want to welcome our witnesses invited jointly by myself and Mr.
    Cole, and I want to thank them for being here.
        I will begin with an opening statement from me and Mr.
    Cole, and then we will go to our distinguished witnesses.
        Today the Rules Committee will hold a hearing to discuss
    how the Constitution separated powers between the legislative
    and executive branches and how the balance of power between
    these branches has shifted over time. We are doing this in the
    hopes of finding concrete, bipartisan solutions to better
    ensure Congress is playing the role our Nation's founders
    envisioned.
        That is a lot, I know. And while a constitutional debate
    may be fun for law students and legal scholars, and Mr.
    Raskin----
        Mr. Hastings. It wasn't fun when I was----
        The Chairman [continuing]. For the rest of us, it could
    feel a little in the weeds. So for the rest of us, let me
    simplify.
        You know, we throw around the phrase, ``The People's
    House,'' a lot around here. But this really is about whether we
    remain the institution that our Nation's founders created to be
    the voice of the people.
        The Constitution entrusts Congress with deciding how to
    spend Federal resources and to develop policy for the entire
    Nation on everything from healthcare and energy policy to trade
    and our Nation's farm policy. It also entrusts Congress with
    the very important job of determining when to commit the Nation
    to war and to put our servicemembers in harm's way.
        These important tasks were put in Congress' hands because
    we are the closest to the people. Each Senator represents an
    entire State, but each of us in the House represents roughly
    700,000 constituents. We are on the ballot every 2 years. This
    puts us closer to the people, their worries, their needs, their
    frustrations, their hopes, and their fears, and makes us more
    responsive to them. Because our founders determined that some
    important tasks demand direct input from the people.
        The President, the head of the executive branch, has
    important powers too. Among them is implementing and enforcing
    the laws that Congress enacts. They face regular elections as
    well, since there are no kings or queens in America. But
    sometimes Presidents of both parties have overstepped, and gone
    from enforcing policy to creating it in ways that our founders
    never imagined. And every time that happens, the power of
    Congress, the people's power, is diminished.
        That is what we have seen for the past 20 or 30 years now.
    President after President has taken more and more of the power
    traditionally vested in the Congress. So the question is
    whether we are going to implement reforms and take our power
    back. Across our history, we have seen Congresses do just that,
    like in the 1970s when the War Powers Resolution, the National
    Emergencies Act, and the Arms Export Control Act, among other
    reforms, were enacted to reign in Presidential power.
        And in the 1990s when Congress passed the Congressional
    Review Act to provide better oversight over regulations. I
    think the time has come for Congress to push back once more,
    not to reign in a particular President, but to reign in all
    Presidents. And that is with an S at the end.
        Some people may wonder why we are doing this now. Well, I
    think this is the perfect time to do it. We are in an election
    year. We don't know who the next President will be. But what we
    do know, if history is any indicator, is that the next
    President is not going to have an epiphany and just hand
    Congress its power back. We need to seize it.
        If the next President is a Republican, I know I will want
    to assert my full constitutional authority. And I guarantee
    that if he or she is a Democrat, my Republican friends will
    too.
        So this is bigger than who will win the next election
    because when the executive doesn't consult with Congress,
    doesn't notify Congress, doesn't submit to oversight by
    Congress, sends our troops into harm's way without Congress
    being part of that discussion, it is not just this institution
    that is on the losing side of the tug-of-war with the
    executive; it is our constituents, the people we represent.
    Those people are the ones who lose.
        So before we introduce the witnesses, I would like to
    discuss our format today. Our panel does not consist of
    majority or minority witnesses. The witnesses have been called
    by our ranking member and me jointly, and we relied on the
    Congressional Research Service to help us with background
    materials because we wanted just the facts.
        Next, while we will ask our experts to keep their opening
    to 5 minutes, our Members are free to ask questions for as long
    as they would like. Now brevity is always rewarded, but we want
    to make sure that our members and our witnesses have ample time
    to discuss the issues. For the sake of this hearing, I would
    like to think that there are no Democrats or Republicans.
        Finally, the only reason why we have been able to maintain
    a bipartisan approach--and I want to note this for the record--
    is because of our ranking member, Mr. Cole, and his very
    talented staff. You continue to be a collaborative and helpful
    partner, and I so appreciate you and your commitment to this
    House, as well as, my staff and the Members on both sides here.
        Our hope is that this process will help us find
    opportunities to reassert congressional authority that both
    sides can agree on. Having said that, I am happy now to yield
    to our Ranking Member, Mr. Cole, for any remarks that he wishes
    to make.
        Mr. Cole. Thank you very much, Mr. Chairman. I have a
    couple of off-the-cuff remarks before I get to my prepared
    remarks. You know, normally when I come into this committee, I
    always walk in thinking it is 9 to 4. Today I think it is 13 to
    zero, because frankly whether you are a liberal Democrat or a
    conservative Republican, whichever side of the philosophical or
    partisan divide you are on, I think there is probably a
    commonsense, throughout Congress honestly, not just on this
    committee, that there has been a many decades' long erosion of
    congressional authority and that it is time to do something
    about it.
        We are also 13 and 0 today because we are all students and
    you are the instructors. As a matter of fact, some of us did
    our homework this weekend. I noticed Mr. Perlmutter cramming
    right to the last minute when he was reading the testimony, and
    all of us probably are in a little bit of awe of you, except
    again Mr. Raskin, as the chairman pointed out, since he is
    academically on a par with all of you. But we are very grateful
    for your participation.
        And, Mr. Chairman, let me add again, I am very grateful for
    your leadership. Once again, you have established the Rules
    Committee as the model for civility in Congress, a new and
    unaccustomed role for us but one that we proudly claim under
    your leadership.
        Today's original jurisdiction hearing covers what in my
    view is one of the most important issues facing Congress, the
    scope of Congress' power under Article I of the Constitution
    and the impact of separation of powers on governance.
        I want to thank Chairman McGovern for arranging today's
    hearing. Though the chairman and I disagree on a lot of things,
    the constitutional authority entrusted to Congress is not one
    of them. Indeed, we are both equally concerned about protecting
    Congress' power under Article I of the Constitution, and we are
    both equally concerned about the erosion of that authority over
    the past several decades.
        Though the shift has been gradual, Congress has not only
    ceded its authority at times, but Presidents of both parties
    have also claimed powers that belonged to the legislative
    branch.
        The Constitution very clearly vests all legislative power
    in the Congress of the United States and all executive power in
    the President of the United States. This was carefully crafted
    to create a system of checks and balances that prevents any one
    branch from becoming too powerful and allows our republic to
    thrive.
        So why then does Congress over the years consistently allow
    the reduction of its own authority? I am hopeful that our
    witnesses today will shed some light on this and discuss where
    practices of the past went wrong. And I think probably all of
    us as practicing politicians and legislators have some pretty
    interesting thoughts on, again, where we see we have fallen
    short in many cases, of living up to our own responsibilities.
        With today's hearing, we will hear from four experts who
    allow us to put all of this into perspective. We will hear
    about the constitutional provisions affecting both the
    legislative and executive powers, and we will hear testimony on
    the history of how this has all unfolded, and we will hopefully
    hear recommendations on what Congress can do to reclaim its
    authority.
        At the end of this process, we may learn that there really
    is nothing specific Congress needs to do to reclaim and
    reauthort its constitutional authority, other than act
    decisively to do so, and utilize the tools currently available
    to us. Or we may discover that substantive changes do need to
    be made. Either way, I am hopeful that Congress can act in a
    bipartisan manner to effectively use the legislative power,
    should it choose to do so. Today's hearing at the Rules
    Committee is an important first step in making that goal a
    reality.
        Finally, I want to invite us all to remember and ponder
    this. When our founders envisioned the grand American
    experiment and put pen to paper on the distribution and
    separation of government powers in the U.S. Constitution, they
    first described the powers entrusted to Congress on behalf of
    the American people. Indeed, perhaps, the greatest power of the
    legislative branch, established in Article I, is how closely
    connected it remains to the views of the Nation citizens as my
    good friend, the chairman, pointed out.
        With that, Mr. Chairman, I want to thank you again for
    calling today's hearing.
        I want to thank our witnesses for being here today and for
    sharing their insights and expertise with us.
        I want to thank the staff on both sides of the dais for
    their hard work in putting this hearing together.
        Thank you, Mr. Chairman, and I yield back.
        The Chairman. Well, thank you very much. And I am now
    delighted to introduce our panel of witnesses.
        Matt Spalding is the Kirby professor in constitutional
    government and dean of the Van Andel Graduate School of
    Government, as well as the vice president of Washington
    operations at Hillsdale College. He is the best selling author
    of ``We Still Hold These Truths: Rediscovering Our Principles,
    Reclaiming Our Future,'' and is also executive editor of the
    ``Heritage Guide to the Constitution.''
        Deborah Pearlstein is a professor of law and co-director of
    the Floersheimer Center for Constitutional Democracy at Cardozo
    Law School. Prior to this, she served as an associate research
    scholar in the law and public affairs program at Princeton
    University.
        Laura Belmonte is a professor of history and dean of the
    Virginia Tech College of Liberal Arts and Human Sciences. She
    is co-author of ``Global Americans: A Transnational U.S.
    History,'' author of ``Selling the American Way: U.S.
    Propaganda in the Cold War.'' She served on the U.S. Department
    of State's Advisory Committee on Historical Diplomatic
    Documentation from 2009 to 2019.
        And Sai Prakash is a James Monroe distinguished professor
    of law and Paul G. Mahoney research professor of law and senior
    fellow at the Miller Center of Public Affairs at the University
    of Virginia. He has also taught at Princeton and the University
    of San Diego School of Law. He clerked for Justice Antonin
    Scalia.
        Thank you again all for joining us, and I am going to begin
    with Ms. Belmonte. You are recognized for your testimony.

      STATEMENT OF LAURA BELMONTE, DEAN, VIRGINIA TECH COLLEGE OF
    LIBERAL ARTS AND HUMAN SCIENCES, PROFESSOR OF HISTORY, VIRGINIA
                            TECH UNIVERSITY

        Ms. Belmonte. Good morning, Chairman McGovern, Ranking
    Member Cole, and members of the Rules Committee. Thank you for
    the opportunity to participate in this hearing on how Congress
    might reassert its constitutional authority and redress the
    current imbalance between the executive and legislative
    branches.
        I appear before you as a scholar who has studied the
    history of the United States for over 30 years, particularly
    the history of U.S. foreign relations. I have spent my career
    explaining how and why the role of the U.S. Government has
    shifted over time. In my academic work and public facing
    scholarly activities, I have tried to present dispassionate
    explanations of the machinery of government, the actors who
    effect public policy change, and the reasons why certain events
    and individuals arise.
        My key aims today are to place the current state of affairs
    into historic context and to stress that the present imbalance
    between the executive and legislative branches is a result of a
    decades' long shift, not a recent turn of events.
        The United States has one of the most brilliantly conceived
    and enduring frameworks of government in the history of the
    world. The Constitution's articulation of separate powers for
    the three branches of government is the very essence of that
    system, a reflection of the Framers' fears of concentrated
    power.
        In preparing this testimony, I have reflected upon the
    final day of the Constitutional Convention in 1787. Eager for
    news about what type of government the Framers had created, a
    crowd waited on the steps of Independence Hall. When Benjamin
    Franklin appeared, Elizabeth Willing Powell, the hostess of one
    of Philadelphia's best-known political salons, and wife of the
    city's mayor, asked Franklin, ``What do we have, a republic or
    a monarchy?'' He famously replied, ``a republic, if you can
    keep it.''
        We, as a Nation, are at a critical juncture where
    substantive action is needed if we are to keep the Democratic
    Republic the Framers envisioned. The fact that you are
    convening this hearing is proof that you also recognize that.
        I am honored to be part of the discussion.
        [The statement of Ms. Belmonte follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         The Chairman. Dr. Spalding.

    STATEMENT OF MATTHEW SPALDING, DEAN, VAN ANDEL GRADUATE SCHOOL
     OF GOVERNMENT, KIRBY PROFESSOR IN CONSTITUTIONAL GOVERNMENT,
        VICE PRESIDENT, WASHINGTON OPERATIONS, HILLSDALE COLLEGE

        Mr. Spalding. Chairman McGovern, Ranking Member Cole,
    members of the committee, thank you for inviting me to testify
    to the Committee on Rules.
        Like many of you, I am concerned about the decline of
    congressional power relative to the modern executive, and I
    hasten to also add that this is not a recent development.
    During this administration, the previous administration, or
    many before that.
        The sustained expansion of the executive and the prolonged
    narrowing of the legislative branch, in my opinion, are
    symptoms largely of a decades' long change in American
    government towards administrative rule. The result is a
    structurally unbalanced relationship between an increasingly
    powerful executive and a weakening legislative branch seemingly
    unwilling to exercise its institutional muscles.
        My testimony makes three general points. First, the old
    ways that a constitutional government have been replaced for
    the most part by a new form of bureaucratic rule. By ``the old
    ways,'' I mean the rule of law based on consent, government of
    delegated, enumerated powers, three separate branches, each
    with distinct powers, duties, and responsibilities, separation
    of powers to prevent the concentration of power, encourage
    cooperation for the common good.
        The basic power of government is in the legislature because
    the essence of governing is centered on the legitimate
    authority to make laws. Congress' most important power is
    control of the government's purse as a check on the executive
    and the authority by which the legislature shapes national
    affairs.
        The President is vested with unique constitutional powers
    that do not stem from congressional authority. This is
    especially the case when it comes to war and national security.
    The executive power is not unlimited, however, as the grant of
    power is mitigated by the fact that many traditionally
    executive powers were given to Congress. This system was
    further divided between the national and State governments in a
    system of Federalism, leaving ample room for self-government.
        The practical result was the United States was centrally
    governed under the Constitution but administratively
    decentralized at the State and local level. This began to
    change after the Civil War when progressives advocated more
    administration in a new form of governing, they called the
    administrative state, to remove or circumvent structural
    barriers and make government more unified and streamlined.
        Presidents of both political parties, Theodore Roosevelt
    and Woodrow Wilson in particular, advocated expanding the
    administrative role of government, which meant expanding the
    executive branch.
        The most significant shift in this balance of power has
    occurred more recently, in my opinion, under the great society
    and its progeny in both parties. Agree with the policies or
    not, this expansion of regulatory activities on a society-wide
    scale led to a vast new centralizing authority in the Federal
    Government and a vast expansion of regulatory authority in
    particular.
        Both Congress and the Presidency have adapted to these new
    ways, but in the legislative executive battle to control the
    bureaucratic state, the executive has a distinct advantage.
    Congress was the first to adapt itself to this process but
    increasingly turned to back-end checks, such as the legislative
    veto that the Supreme Court declared unconstitutional, and has
    come largely to focus on post budgetary oversight and after-
    the-fact regulatory relief.
        The rise of what I like to call the ``neo-imperial
    Presidency'' should not be that surprising, given the
    overwhelming amount of authority that has been delegated to
    decision-making actors and bodies largely under executive
    control.
        As Congress expanded the bureaucracy, creating agencies,
    delegating lawmaking authority, losing control of the details
    of budgeting, focusing on post hoc checks, the executive has
    grown. Add to this the general breadth of legislative branch at
    executive discretion, as well as sometimes poorly written and
    conflicting laws, the modern executive can, more than ever,
    lead the bureaucracy to the President's policy ends with or
    without the cooperation of Congress.
        And in this competition to assert legislative or executive
    branch control over the fourth branch of government, the
    executive has a distinct advantage because administration, as
    Hamilton reminds us in the Federalist Papers, is inherently
    executive in nature.
        My last point, the proper remedy to this imbalance is for
    Congress to reassert its core legislative powers. First,
    Congress must reassert its legislative muscles, not to paralyze
    the government but to command it. The courts are not going to
    solve the larger problem. And I think Congress is on stronger
    ground when it asserts its core legislative powers where the
    executive plays a secondary role. So, for instance, using the
    budget to control executive war powers.
        Second, Congress, as much as possible, should cease
    delegating the lawmaking power and should not flinch from using
    its legislative powers to reclaim it. Congress should insert
    itself more in the regulatory process, perhaps through a
    regulatory budget or vehicles like the REINS Act in order to
    restrain the executive's ability to make laws without
    legislation.
        Third, regular legislative order, especially the day-to-day
    back-and-forth of budgeting and overseeing the operations
    government will do more than anything to restore Article I. If
    Congress objects to the extent of executive discretion, for
    instance, Congress needs to narrow that discretion through
    statutes that are clear, precise, and unambiguous.
        And fourth and last, Congress is at its strongest, I
    believe, when it exercises the power of the purse.
    Strategically controlling and using the budget process will
    turn the advantage back to Congress, forcing the executive to
    engage with the legislative branch and get back into the habit
    of executing the laws enacted by Congress.
        Thank you.
        [The statement of Mr. Spalding follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you.
        Professor Pearlstein.

       STATEMENT OF DEBORAH PEARLSTEIN, PROFESSOR OF LAW AND CO-
      DIRECTOR, FLOERSHEIMER CENTER FOR CONSTITUTIONAL DEMOCRACY,
                           CARDOZO LAW SCHOOL

        Ms. Pearlstein. Thank you.
        The Chairman. Just make sure your mike is on.
        Ms. Pearlstein. Oh, thank you.
        Thank you. Chairman McGovern and Ranking Member Cole,
    members of the committee, thank you for your leadership in
    convening this bipartisan hearing and for the opportunity to
    take part as you consider ways Congress might reassert its
    authority under Article I.
        While my written testimony offers some explanations for and
    some recommendations for correcting our current skewed balance
    of powers among the Federal branches, in these brief remarks, I
    would like to just share several of the broader understandings
    that inform the testimony I have provided.
        First, while members of this committee well know that the
    Constitution's basic architecture allocates particular limited
    powers to Congress in Article I, and to the President in
    Article II, and to the courts in Article III, teaching
    Constitutional law to first-year law students has reminded me
    repeatedly that the lessons of high school civics don't always
    stick as well as we might hope they do.
        Among other things, without fail, each semester, at least
    some students express surprise when I put up on PowerPoint
    slides right next to each other, a list of Congress' powers on
    the one hand and a list of the executive's powers as printed in
    the Constitution on the other, that Congress' list is so very
    much longer than the list of powers granted to the executive.
    This is, of course, true not only in matters of fiscal and
    economic responsibility but also national security and foreign
    affairs.
        But while, for example, the President has the power to
    negotiate treaties and receive ambassadors, and as our armed
    forces' Commander in Chief, the Constitution gives to Congress
    a far lengthier list, not only to declare war but also to
    regulate commerce with foreign nations, define and punish
    offenses against the law of Nations, make rules for the
    government in regulation of the armed forces, appropriate funds
    to provide for the common defense, indeed, defense spending
    every 2 years in public the Constitution requires, and, indeed,
    should the Framers have left anything out in any of those
    powers, Congress is given the catch-all authority to make all
    laws which shall be necessary and proper for carrying into
    execution any of those.
        But it is not hard to see where the students' surprise came
    from. Popular accounts have long described an imperial
    Presidency that regularly deploys military force with no regard
    for congressional preferences. Executive branch lawyers and
    others regularly invoke memorable, if not judicially
    meaningful, rhetoric about the President's signal role in
    Foreign Affairs. Even Members of Congress and the courts talk
    frequently about the President's unique expertise in this
    realm, and this rhetoric and this popular story matter.
        So by now, we shouldn't be surprised to find, as one recent
    poll did, that only a third of American college students can
    correctly identify Congress as the branch of government with
    the power to declare war.
        In short, we have some work to do in the first instance, to
    remind others in Congress and the American people, that the
    Constitution assumed Congress would have access to its own
    expertise, and Congress, not the executive, would be the
    primary agent of change in setting U.S. national policy,
    foreign and domestic.
        Second, the scope of congressional delegations of authority
    to the executive is undoubtedly among the reasons why Congress
    feels frustrated in its ability to constrain executive power
    today. Yet, while some are understandably focused on the role
    of administrative agencies writ large, among the most
    significant delegations of power to the executive are found in
    statutes that give authority to the President alone triggered
    by factual or policy determinations made solely by the
    President himself.
        These delegations aren't to the administrative state. They
    are to the President. A few such statutes relate to war powers
    directly, most famously the 2001 AUMF, but the vast majority of
    statutes of this type address other Federal policies, from
    trade sanctions and domestic emergencies to economic regulation
    and even immigration. These delegations are particularly
    worrisome, in my view, but they are also particularly likely,
    or should be particularly likely, to generate bipartisan
    interest in correcting.
        Particularly worrisome, because unlike broad delegations of
    power to administrative agencies, the President is not bound in
    exercising these powers by the Administrative Procedures Act,
    the statute that requires agency decisionmaking to involve
    input from experts and other members of the public, and
    subjects them to judicial review to ensure they are reasoned
    and supported by facts.
        Presidents may decide to consult their expert advisers.
    They may decide to follow an internal process, but the APA
    itself doesn't require them to do so. It is for this reason
    that both parties should be interested in making reforms at
    this level. While it may be essential in some circumstances to
    afford the Presidents flexibility to respond to particular
    national emergencies, it is difficult to understand why any
    such response is not informed, or not required to be informed,
    by our Nation's best possible expertise.
        Finally, I want to caution against any temptation to treat
    delegation as such, or administrative agencies as such, as a
    bad or uniform thing. As recent events make clear, we need an
    effective CDC. We need an effective NIH. We need effective
    Departments of State and Defense and others. And delegation of
    powers to these and other agencies are an indispensable tool of
    good governance.
        But delegation is not an on-off switch. What makes it good
    or bad, more or less effective, depends in significant part on
    how well Congress chooses from its broad suite of tools to
    channel and monitor administrative discretion--from providing
    concrete statutory guidance about what and when Congress
    believes action is needed, to imposing restrictions on the
    exercise of that action, like requiring the President to
    consult with Congress or with relevant experts, document
    findings, or imposing automatic termination or sunset
    restrictions that prevent delegations from lasting in
    perpetuity.
        With meaningful, tailored reforms, Congress can succeed
    both in reclaiming its power and improving the effective
    functioning of government for all Americans.
        Again, I am grateful for the committee's efforts and for
    the opportunity to share my views.
        [The statement of Ms. Pearlstein follows:]

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        The Chairman. Thank you.
        Professor Prakash.

      STATEMENT OF SAIKRISHNA PRAKASH, JAMES MONROE DISTINGUISHED
    PROFESSOR OF LAW AND PAUL G. MAHONEY RESEARCH PROFESSOR OF LAW,
     SENIOR FELLOW, MILLER CENTER OF PUBLIC AFFAIRS, UNIVERSITY OF
                                VIRGINIA

        Mr. Prakash. Dear Chairman McGovern, Ranking Member Cole,
    and other distinguished members of the committee, it is an
    honor and a pleasure to be here today.
        In my view, the first branch risks becoming the second
    branch. What was formerly a branch with great power and great
    responsibilities has gradually ceded its authority to the
    executive or sat idly by while the executive seized authority.
        Where we are today: I think we find ourselves at a point in
    time where the executive branch continually adds to its own
    authority. If a previous President or Presidents have taken
    some acts, those acts form the building blocks of subsequent
    acts of future Presidents, and this is a bipartisan problem.
    And so transgressive acts become the material, if you will, of
    a new constitutional conception. And this happens over and over
    again, in both statutory and constitutional contexts.
        My colleagues here have mentioned the war powers of
    Congress being usurped by the Presidency, and that is certainly
    an instance where the Presidency over time has claimed
    authority to wage war, basically in the constitution's terms,
    to declare war. In the process, they have decided that you have
    lost your monopoly on the power to declare war.
        I think similarly, Presidents have acquired various
    lawmaking authorities from you. Sometimes it is delegated by
    you. Sometimes it is seized from you by the President. And
    these are revolutionary changes in our constitutional
    structure, because now the Presidency, the executive branch,
    understands that it too is a lawmaker in various ways, either
    through lawmaking authority you delegated or through rather
    creative forms of interpretation.
        How did we get here: I think four factors help explain how
    we got here. Presidents today conceive themselves as policy
    reformers. They don't view themselves as principally executive
    officers. And, in fact, when Presidents talk about their law
    execution role, people are a bit confused by it. Many people
    think the Attorney General is the chief law enforcement
    officer. I think by the Constitution, the President is.
        This mind-set makes it more likely that presidents will
    usurp power because they run on a policy platform and feel as
    if they must implement it.
        As you are well aware, Presidents are also party
    chieftains, and they expect and receive support for their
    initiatives from their co-partisans almost without regard to
    whether the initiatives are legal or constitutional. And this,
    of course, gives them tremendous weight in the public mind and,
    of course, within the halls of Congress.
        Presidents have a mighty bureaucracy at their backs,
    supplied by you--the lawyers in the White House Counsel's
    Office and in the Office of Legal Counsel, and all the
    executive officers are supplied and funded by you.
        And then the final factor, I think, is a more general
    factor, and relates to the idea of a living Constitution. If
    Congress can acquire new authorities by a practice, if the
    courts can reform our conceptions of constitutional rights, it
    is little wonder that Presidents believe that they too can
    reform the office of the Presidency.
        And I would submit to you that the Presidents are most able
    to change our Constitution because they are most able to act
    with speed and decision and repetitively in a way that creates
    new facts on the ground.
        I did not put my timer on, unfortunately.
        The Chairman. No, you are fine. You are fine. You are fine.
        Mr. Prakash. ``So whither we are tending'' to quote Abraham
    Lincoln, I think the continued concentration in the hands of
    the executive is what we can see in the future if reforms
    aren't made.
        If the war powers and the legislative powers of Congress
    can be seized by a President, what can't be seized by our chief
    executives? You risk becoming a college debating society or a
    potted plant, in the words of Brendan Sullivan, a famous
    lawyer.
        I have a chapter of a book that is going to come out very
    soon that I want to share with the Members. This copy is for
    the chairman, but I would like all of you to take a look at it.
    The last chapter, chapter 9, describes 13 reforms that Congress
    can enact, either with the President's consent or over his
    veto.
        For instance, I think Congress ought to bulk up its staff.
    I think it is very hard to fight a behemoth when you are David.
    You need more staff, and they need to be paid more. I know that
    the staff would like to hear that. But I also think that there
    shouldn't be a situation where the minority staff turns over,
    you know, when the majority becomes the minority that the staff
    are immediately fired. It doesn't make sense to me that you are
    running yourself on the cheap in a fight with an executive
    behemoth.
        I would perhaps disagree with Professor Pearlstein. I think
    that delegating legislative power to the executive branch,
    either the President or otherwise, feeds the sense that the
    President is a lawmaker. And I don't think you can make vast
    and important rules without that lawmaking mind-set seeping
    into the executive branch.
        And so I think you should certainly curb back all the
    delegations that go to the executive branch and the
    administrative agencies. It is your job, not theirs, to come up
    with rules. If you are going to delegate, make those
    delegations sunset, and if these agencies are going to create
    rules, make those rules sunset, and make them or you reenact
    them.
        I think, I would try to get Members of Congress to think
    more about executive privilege. I think in the modern era, it
    is basically a means of stymieing your investigations. I don't
    doubt that Presidents need confidential conversations, but when
    we see those conversations spill out daily in the Washington
    Post, The New York Times, in books, it is sort of odd to think
    that whatever doesn't make those pages has to be kept from you
    as you go about investigating the Presidency and the executive
    branch and thinking about whom to impeach.
        Two other final reforms. I think that you can incentivize
    bounty hunters to police the executive branch's compliance with
    the law. As you know, there are qui tam and informer actions
    that go back to the first Congress. They basically authorized
    individuals to inform on executive officers who were absconding
    with federal funds, and I think that sort of system can be used
    to police the appropriations power that you folks should enjoy,
    and, for that matter, also police the war powers.
        And that brings me to my last suggestion. The War Powers
    Resolution should be strengthened. I think the way to
    strengthen it is just to have an automatic cut in
    appropriations if the President chooses to take us to war. And
    maybe, you know, an automatic cut to weapons programs in
    particular because the military is not going to want to see its
    weapons budget cut in order to wage war against some nation
    overseas.
        I agree with Chairman McGovern. The best time is now. No
    one knows who the next President is going to be. No one knows
    who is going to control the House or the Senate. And it is
    precisely in this climate of uncertainty that people can put
    partisanship aside and act in the best interest of the Nation.
        Thank you so much.
        [The statement of Mr. Prakash follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you very much. I want to thank you all.
    We have a distinguished panel here. Thank you all for your
    excellent testimony.
        Before I go to my questions, I just want to acknowledge in
    the audience a former colleague, Congressman John Hostettler
    from Indiana, who is here. Great to see you back, and thanks
    for coming.
        You know, the Constitution puts the power to declare war in
    the hands of Congress and the power to wage war in the hands of
    the executive. And in some ways, this seems pretty simple,
    particularly when you think about how things were at the
    founding. Congress controlled the funds. There was no standing
    Army. The President barely had staff. And the President had to
    come to Congress for funds to do just about everything. I am
    sure I have oversimplified all of that, but bear with me.
        As the Nation grew, things got more complicated. Today, we
    have a large standing Army. The President has, let's just say,
    a lot of staff. Congress still controls the funds, but
    Presidents seem more and more willing to move money around to
    suit them. Starting in the 1950s, and then coming to a head in
    the 1970s, we saw Presidents of both parties engage in military
    actions, sometimes without Congress' knowledge, let alone
    consultation or approval.
        To stop unauthorized, protracted wars like Vietnam,
    Congress passed, over a Presidential veto, the War Powers Act
    in the mid-1970s. Key to that Congress' reform effort was
    inclusion of a legislative veto where, through a concurrent
    resolution by both Houses, Congress would be able to stop a
    President's unauthorized military action.
        With the War Powers Act, Congress did not delegate any new
    authorities to the executive. Instead, Congress was merely
    setting up a mechanism to ensure consultation, notification,
    and communication with the executive on questions of war and
    peace, a communication that could be enforced with a
    legislative veto of a President's action.
        Then INS versus Chadha rolls around, an immigration case in
    1983 that invalidated legislative vetoes across the board. One
    of the consequences of the Chadha decision is that we went from
    needing a majority of Congress to make a war and to also make
    peace, to needing a majority to make war, but a likely a
    supermajority to make peace. This is an absurd outcome and has
    been an absurd reality here in the Congress.
        So my first question is this: In the wake of the Chadha
    decision, is it time to update, reform, merely do some
    housekeeping around the War Powers Act to ensure that the aims
    of the act--again, consultation, notification, and
    communication--are achieved? I open this to anybody. Professor
    Pearlstein.
        Ms. Pearlstein. Sure. The short answer is yes.
        Ms. Pearlstein. I think there are--in fact, there have been
    a number of efforts. There was a wonderful bipartisan
    commission that included Senator McCain some years back. There
    have been a number of efforts to propose changes to the War
    Powers Act. I think many of these recommended changes that are
    out there are very good. I think there are a couple in
    particular that warrant consideration.
        One, you mentioned secret wars. And the way the current War
    Powers Act is framed, it attaches the notification requirement,
    the reporting requirement to the trigger that starts the 60-day
    clock after which, right, the President is supposed to seek
    congressional authorization. You can readily detach that
    reporting requirement from the notification trigger.
        I support funding cutoff, automatic funding cutoff
    mechanisms. The traditional story is indeed with multiple
    conflicts, including Venezuela which I testified about last
    year. Before force is used, Congress' view, in a bipartisan
    way, is, we don't want to constrain the President's
    flexibility. And after force is used, bipartisan Members of
    Congress say, well, we don't want to interfere or compromise or
    undermine troops on the ground. Those are the before and after
    arguments invariably in every use of force, which is why a war
    powers, a framework statute, and a funding cutoff mechanism, I
    think, is necessary.
        I guess I will here just mention one other thing which I
    think is really important, and that is the definition of
    hostilities. The current War Powers Act sets up as a trigger
    the requirement that either the funding must be--in my amended
    version, the funding would be cut off, or in the current
    version, the President would seek congressional authorization
    any time forces are introduced into hostilities or a
    substantial risk of hostilities.
        Over the years, Presidents have interpreted--Democratic and
    Republican Presidents have interpreted that word
    ``hostilities''' more and more narrowly such that even vast
    uses of force, sustained air campaigns in foreign countries and
    so forth, Presidents have argued, don't count as hostilities
    triggering the requirements of the act.
        We need a much meatier or more specific definition of what
    kinds of hostilities we are talking about, one that is not
    specific to domain, meaning Army, Air Force, Navy, Marines,
    cyber, right, but that encompasses the range of ways in which
    the U.S. Government is now capable of waging hostilities.
        The Chairman. Professor Prakash.
        Mr. Prakash. I agree with much of what Professor Pearlstein
    said. I guess I would be wary of trying to amend the act
    because the act, as originally understood, did not authorize
    the President to use force for 60 or 90 days. But in practice,
    the executive branch believes that the act either authorizes
    the use of force for 60 or 90 days or is written in such a way
    as to assume that the President has constitutional authority to
    use force for 60 or 90 days.
        And so if you just tinker with it, those preexisting
    understandings will continue on. I think you are better off
    starting from scratch, importing whatever you think is useful
    from the act.
        I think the fundamental question is, do you want to
    essentially authorize the President to engage in war or use of
    military force for some small period of time and then have that
    authority automatically expire, or do you want him to always
    come to you first? And I think once you decide that, then you
    can construct a new War Powers framework that is consistent
    with the Constitution and consistent with your desires.
        The Chairman. No, and I personally, wherever it is
    possible, would like the President to come to us first to get
    authorization. I guess if we had former Presidents here, they
    would say, well, you know, there are national emergencies, here
    might be something we have to act immediately, and Congress may
    be in recess, or we can't get you all here. I think that is
    some of the pushback you get.
        Dr. Spalding.
        Mr. Spalding. Yeah. That really goes to the heart of the
    problem. To put it in very broad terms, the more you want to
    legislate it, the more problematic it gets and the stronger
    grounds the President is on to not abide by it. I mean, it is
    no coincidence every President, both parties, has considered
    the War Powers Resolution to be unconstitutional as a
    restriction.
        Now, that doesn't mean there is not a ground somewhere to
    find a way for Congress to influence that discussion, but it
    goes to the inherent problem of, look, how do you have a
    republican form of government--the founders debated this
    specific discussion--in which the legislature is the dominant
    power, especially when it comes to the general operation of
    government, but you created in a republican, small R, form an
    executive who is capable of energy, action, immediate things
    that Hamilton talked in Federalist 70.
        That balance is extremely hard to establish. And the
    things,--the more things Congress does that puts timelines and
    hampers the executive, they are naturally going to pull back
    from that. And I think that courts increasingly, in general,
    will side with the executive, because of the sheer necessity of
    having that ability to occur with and keep government safe.
        That is one of the reasons why, in thinking this through,
    in many ways, for a lot of the same reasons, I am inclined to,
    as was generally the case, I think Congress is on stronger
    grounds when it is shifting to its primary powers, such as the
    purse, as I have emphasized in my testimony, as a way to
    control that.
        If you wish to control the President's activities in this
    expanded notion of what they can do in international affairs,
    then don't fund them. You have the power not to fund, which
    means if you don't do it, they can't actually do it. It doesn't
    require a super majority to overcome something. You can pull
    that power back.
        I think those powers that Congress has are very strong, and
    you should go to your strength first. When you start going out
    and trying to put timelines on the executive's powers, I think
    Congress should exert that, they should push, they should
    disagree, but I think you are just naturally on weaker ground.
        The Chairman. Dean Belmonte.
        Ms. Belmonte. I think that one of the things you need to be
    very careful about is what constitutes an emergency even prior
    to the era when the War Powers Act existed. You have two pretty
    salient examples. In June 1950, when North Korea invaded South
    Korea, Harry Truman took advantage of the fact that the Soviet
    Union was temporarily boycotting the U.N. Security Council for
    its refusal to seat communist China, and therefore, was not
    there to veto a resolution to put a multinational force in
    Korea. This became the first, but certainly not the last,
    unilateral Presidential action that committed the United States
    to a long-term conflict in which over 33,000 Americans
    eventually died.
        Then the second example, of course, occurred in August 1964
    in the Gulf of Tonkin when the Johnson administration used two
    episodes, the second of which was determined not even to have
    occurred, but that was long after Congress quickly and without
    hearings of any kind, spirited the resolution to passage. Only
    two Senators, Ernest Gruening and Wayne Morse, voted opposed to
    that resolution, which basically granted the President
    unlimited authority to wage war in much of southeast Asia.
        So the context matters, and taking the time to determine
    the veracity of the justification is critically important.
        The Chairman. Professor Pearlstein, you wanted to----
        Ms. Pearlstein. I mean, if I may, I wanted to just maybe
    clarify or emphasize a couple of points. First, I quite agree,
    and the Framers quite agreed as well, that the President has,
    within his own Article II powers, the power to--the language is
    from the convention--repel sudden attacks. Right? So there has
    never been an argument that the President lacks the power to,
    for example, defend the United States, or Americans from attack
    in immediate circumstance or where that threat is imminent.
        The good thing that the War Powers Act does is not--or an
    amended War Powers Act could do, or a new statute that
    accomplishes something similar, is not disable the President
    from continuing the use of force. Right? So if you had a
    funding cutoff after 60 days, for example, that automatically
    takes effect. It is not that the United States can't fight the
    war any longer. It is that it requires Congress to vote to
    fight the war if it continues. This is a straight-up political
    accountability mechanism that is designed to make the American
    people and their representatives feel and bear the costs of
    war.
        The Chairman. Dr. Spalding.
        Mr. Spalding. I think that despite the fact that everybody
    else, you know, discriminates when you get into particulars, I
    think in the broad sense, there is probably great agreement
    which is that, at one extreme, the President clearly needs to
    have the ability to respond to immediate threats, which could
    be somewhat broadly defined, but on the other hand, the actual
    taking the United States into a situation of war, in which the
    whole country is at war with another country, or a broadly
    determined sense of what war is, I don't think there is much
    discriminate there.
        The harder cases are all those things in the middle that I
    think are somewhat unanswered. I mean, the Congress, they did--
    the Convention did specifically use the word declare war, which
    I think they meant a formality of taking us into a situation of
    warfare.
        The other thing I think you should think about is on this
    notion of--if the President has done something, there should be
    automatic cuts. And within--Congress can do that at any moment
    if they choose to. They don't need a--a certain amount of time
    for it to occur automatically. I think it is--Congress should
    make those decisions and push back at any moment they choose to
    do so.
        The Chairman. But with respect, I mean, Congress won't, and
    that has been one of the problems. I mean, that is one of the
    reasons why I think having this hearing and trying to look at
    some of these issues is so incredibly important. I am focused
    on war powers right now, and you know, we have--we back in 2001
    and 2002 we passed an AUMF. I think like 17 percent of the
    Members of Congress who were present when we voted for that are
    still here.
        And yet, when Republicans were in charge, now Democrats are
    in charge, we just don't have the political will to readjust it
    or to sunset it or to have these debates. I mean, we should,
    and there is nothing that prevents us, other than sometimes
    partisanship gets in the way. Sometimes when the President is
    somebody of our party, we don't want to put that person in a
    bad light.
        But the fact of the matter is, I don't think any of us who
    were here, 18, 19 years ago, thought that we would still be
    using that same AUMF to justify the military actions that we
    are taking today. And if you think about it, if we don't do
    anything, a hundred years from now, you could have a President
    go back to the 2001, 2002 AUMF to justify some action.
        Part of the challenge here is that, yeah, we can
    affirmatively do some stuff, but I think we are going to have
    to put some checks and balances in place that force us to do
    some stuff. And people can vote whatever way they want.
        I am going to yield to Professor Prakash in just 1 second,
    but my view--and I have said this because I have been very,
    very frustrated about this--and my friend, Mr. Cole, and I, we
    share this concern over these AUMFs that were passed a long,
    long time ago. I think we do such a disservice to the men and
    women who are in harm's way that we don't even discuss these
    things.
        Our mission in Afghanistan, for example, has changed so
    many times and then the AUMF is interpreted to justify a number
    of military operations around the world. And it just doesn't
    seem right.
        I think a lot of times, we don't want to take on some of
    these things because they are controversial. Look, when you
    cast a vote on war, it is a tough, tough vote. It is probably
    the toughest vote anybody takes. We have had members who have
    voted for some conflicts that were popular at the time that
    then became unpopular, and they have to deal with the political
    repercussions, and I am sure the reverse is true.
        But that is our job, and I think sometimes we are guilty of
    moral cowardice when we don't take on some of these things.
    What we are trying to figure out is, are there ways, no matter
    who is in charge, no matter who the President is, that when we
    are dealing with some of these issues, where clearly our
    authority is being usurped, that if we don't have the moral
    courage to act, should there be some sort of a procedure or
    process in place that forces us to deal with it?
        I will yield to Professor Prakash, and then I am going to
    go to Mr. Cole.
        Mr. Prakash. Well, Chairman, I completely agree with you.
    Political scientists describe a rally-around effect once a war
    has begun and the war is very popular. It will be very hard at
    that point for Members of Congress to pass a statute that cuts
    off funding over the President's expected veto. I think
    expiration dates serve useful purposes. Right? Library books
    come with a date that you have to return. If you don't have it,
    you will just keep the book for months or years, right, because
    you might eventually get around to reading it.
        I think Professor Spalding and I have a difference of
    opinion on the scope of the war power. The power to declare war
    is the power to go to war, to use military force. And in the
    18th century, most wars were declared from the mouths of
    cannons in attacks. They weren't actually started with a formal
    piece of paper. This power was given to Congress so that
    Congress would decide whether to wage war. Full stop.
        No early President ever thought that they could just use
    force against a foreign nation. All right? All the uses of
    force in the early years were authorized by Congress in the
    Washington administration and the Adams administration, et
    cetera.
        So I think the Constitution has a belt, rope, and
    suspenders approach to war powers. You decide whether to wage
    war, you can decide how to wage it, and you can decide to cut
    off the funds. But relying upon the last thing as the only
    means of curbing wars is a mistake.
        And finally, the emergency point. If you gave the President
    emergency authority to use military force until 10 days after
    Congress next met, that would be sufficient for him to deal or
    her to deal with the emergency, and then you would decide
    whether to continue.
        The Chairman. Right.
        Mr. Prakash. And I don't think there is anything wrong with
    that.
        The Chairman. No. I appreciate that. The situation we are
    in right now is that if Congress were to vote to cut off wars,
    they could have cut off funds for a war that a particular
    President doesn't want to admit was failing or was wrong, we
    would need a supermajority because we would have to override
    his or her veto.
        And so it might make sense, or at least be worth
    considering, that Congress put in a provision where after a
    period of time if Congress didn't vote, that Congress would
    automatically cut off the funds or something like that.
        I studied history in college, and you read the books on the
    war in Vietnam, for example, and one of the frustrating things
    is, you read now, after all these years, all these accounts of
    how Presidents knew that it wasn't working, but the issue of
    credibility and saving face took precedence over making a
    sound, rational decision as to whether we should continue it.
        And again I think that is why we need to figure out other
    processes or procedures we can put in place to serve as better
    checks and balances.
        I thank you. I want to yield to my friend, Mr. Cole.
        Mr. Cole. Just to add onto that just quickly to make a
    point, I mean, it is awfully hard to cut off funding when there
    is American forces in the field. I mean, just to tell you, I
    don't care which side of the debate that you are on, it is just
    extremely difficult. And I think about the Vietnam era. You
    have to remember, most American forces really weren't in the
    field by the time that decision was made. They were out of
    Vietnam. We had training missions and we mostly were fighting
    an air war in the country.
        So really the executive branch had extracted most of the
    American ground troops. So it became easier. And that is not to
    take anything away from what those folks did. I think they got
    us out of an unpopular and unwinnable war, but it is hard.
        First of all, I want to thank all four of you. I really did
    diligently read my homework assignment this weekend, and I
    thought there were a lot of really excellent suggestions in
    there, things that we can literally pick up and do
    legislatively. Your suggestion, Doctor, about bulking up staff
    is certainly one of them, or having a legal arm that is
    commensurate with the legal resources that we, ourselves, have
    placed at the----
        And I would nominate Mr. Raskin to head that up for us, but
    at the--have an executive branch, that makes a lot of sense.
    Putting determinative time limits on emergency powers so that
    within a few weeks, the next Congress has to act to move--those
    things make a lot of sense to me, and I actually think those
    are things, when we get done with our hearings, maybe we could
    sit down and work on together.
        I am going to pull your attention, though, to two larger
    trends and get your comments on them. Because when I see
    behavior change inside a political institution over time, it
    usually tells me something outside the political institution
    that impacts how the actors perceive themselves and what they
    are doing is going on.
        I think about my own congressional district. I live in a
    district that voted for Dwight Eisenhower twice, that voted for
    Richard Nixon in 1960, 1968, and 1972, by ever greater margins,
    that voted for Ronald Reagan overwhelmingly twice, and voted
    for George H.W. Bush twice. And in all that time, there was a
    Democratic Congressman there, two different figures, and only
    one time did their party achieve their objective.
        I look at it now. I will promise you this, if I didn't vote
    the way my constituents vote Presidentially, I would not be
    there the next time. And in the upcoming elections, the guy
    that used to run politics--and this has changed dramatically in
    my time in political life which began in the late 1970s to
    now--you know, about 95 percent of the people that vote for
    Donald Trump are going to vote Republican for Congress, and
    about 95 percent of the people who vote against the President
    or for the Democratic nominee are probably going to vote
    Democrat. That is not like any other--you know, so this
    polarization inside the population really affects what happens
    inside the institution.
        And to think that politicians will ignore that for the sake
    of defending institutional prerogatives, I think, is to be
    naive. They didn't have to do that in the past. Literally, the
    Congressman and sometimes--sometimes it was more important
    locally than the President of the United States. We don't live
    in a culture where that exists any longer.
        My last election--or in 2016, I happened to mention to a
    friend of mine that Donald Trump got 66 percent of the vote in
    my district, I got 70. And he goes, I guess that means you are
    independent. And I said no, if we get into a fight, I will keep
    my four, and he will keep his 66. So that is kind of the way it
    works. And I see my Democratic colleagues in much the same
    position in their respective districts.
        So I am just curious how you think these larger forces,
    because they are not easily correctible by tweaking
    institutional changes--as important and useful as I think the
    things you have suggested would be--how did those things get
    let loose to where we have them? And I will tell you, we live--
    effectively, politically, we live in a constitutional republic
    full of checks and balances, but we operate in a parliamentary
    system politically, where there is a prime minister--we call
    him the President--and where it is very difficult for anybody
    of that prime minister, that President's party, to consistently
    vote against him.
        It has to be a really dramatic moment, and it is a high-
    risk moment politically for--any time you do it on a major
    issue. It is not very often you consistently--well, forget
    consistently--if it is a big issue, you can do a lot of
    independence, but it is very difficult. So, one, how did we get
    there? Two, how to get out of there. And I will start--since
    you are diligently putting your notes down, Ms. Belmonte, I
    will start with you and just kind of work across.
        The Chairman. Just make sure your mike is on.
        Ms. Belmonte. Well, I think one of the things that has
    happened in the last 15 or so years is a lot of Americans just
    have lost faith in the electoral process in general. You add
    the cumulative effect of gerrymandering on behalf of both
    parties, the Shelby decision, Citizens United, two elections in
    the last 20 years where the winner of the popular vote didn't
    prevail in the electoral college, and the impact of that is
    that a lot of Americans have just checked out, who have lost
    their faith in this body in looking after their interests.
    Forty-one percent of eligible voters in the last Presidential
    election didn't vote at all.
        And I think that what you guys could do, perhaps, is change
    the tone. A lot of people feel that it is just white hot
    meeting white hot at all times, and, in the face of that, it is
    exhausting and really makes people lose faith that the
    institutions we have can work.
        Mr. Cole. Dr. Spalding.
        Mr. Spalding. I guess the one thing I would put out here
    is, I think there are large numbers of people in both parties
    but especially in the kind of movement that elected the current
    President--and this is no comment on him or what he is up to--
    who are increasingly of the opinion that it is not clear who
    now makes the laws anymore.
        When you have a situation where agencies, departments,
    unknown people somewhere down in the bowels somewhere are
    writing what, for all intents and purposes, are laws at, you
    know, numbers of many thousands versus hundred-and-some, and
    oftentimes that then gets enforced and adjudicated within the
    same body. And that----
        Mr. Cole. Could I----
        Mr. Spalding. I think that pushes a lot of people to
    wonder, what is really going on here? And so there is a lot of
    frustration about that.
        Mr. Cole. I want to agree very much with that. And it is
    actually--and one of you mentioned discussion about the REINS
    Act. But this idea of forcing Congress, at some level, in some
    way, to either legitimize or knock out rules and regulations I
    think is a really good idea. I mean, we need to put our
    fingerprints on the murder weapon, so to speak, one way or the
    other and go from there.
        But, you know, a lot of times--and our leaders do this--and
    I don't say this critically; it is one of their jobs. You know,
    you will see leaders protect Members from tough votes because
    they don't want to risk their majorities. And I have seen it on
    both sides, where they might not want to vote on a war powers
    thing because I don't want to put my people out there and risk
    not just them but also the majority itself.
        So, I mean, that is, again, building in institutionally
    things where we are forced to do exactly what you suggest. And,
    you know, I have a lot of colleagues on both sides that like to
    rail against the administrative state, but they certainly
    wouldn't want to have to vote on all those rules and
    regulations, because they are high-risk votes.
        Mr. Spalding. So just----
        Mr. Cole. If you represent a rural district, just try
    voting for waters of the U.S.----
        Mr. Spalding. Right.
        Mr. Cole [continuing]. And go home and explain that to any
    farmer in your district. You are going to be in big trouble.
        Mr. Spalding. So just to finish my point. People will like
    or dislike the policies. That is not my point here. The
    principle of the American Constitution is consent, which means
    responsibility. And it is not clear who is responsible anymore.
        Mr. Cole. Uh-huh.
        Mr. Spalding. And I asserted a Republican Congress to check
    a Democratic President and, now, vice versa. There has to be
    accountability.
        I am not against all delegation. Some delegation is
    necessary, given the scope of government. I am open to being
    persuaded about this question about how to deal with
    authorization of use of force--that is a problem and sunsetting
    may be a good solution.
        I think it is important to kind of take a step back and
    recognize the reality for what it is. A lot of what goes on for
    governing this country, it is not clear who is responsible for
    it. And that has given the Executive a lot of running room
    that, in my opinion, they ought not to have, can be misused,
    and, electorally, they can take a lot of credit for things that
    they had nothing to do with.
        But, a lot of times, you guys don't have a lot to do with
    that either, because, you know, a lot of the big laws that
    Congress passes say you shall do this, you shall do that, but
    the details are left to other people to determine. And the
    Executive then can step in, through their political powers and
    appointees, and direct those actions.
        Laws are meant to be general laws. This is your problem,
    right? Laws have to be general laws. But the actual
    administering of government requires more and more and more
    detail. That is where the Executive has an advantage. Because
    if your reaction is, well, we need to get more detailed in our
    lawmaking to control all this, you actually have to think about
    the extent to which you actually are granting more power to the
    Executive, because the executive branch is the one who is going
    to administer it and execute those things.
        So I think that stepping back and looking at it in those
    broad terms are important. And I would say that the changes
    over time--again, agree or disagree with what the policies or
    the objectives were, just the changes over the course of the
    20th century in terms of how we govern, regulations and laws
    and all of that--has changed the extent of how our system
    works. And that is the situation in which we are now operating.
        Like the policies or not--and you, as an institution, are
    trying to get back in control of your authority, which is
    lawmaking. And you have a lot of the, kind of, basic, hard work
    of legislating in committees and whatnot. That is why, although
    it is not the exclusive answer, I think getting control of the
    budget is really important. Historically, Presidents would sit
    in fear when Congress decided to get control of an agency and
    get rid of somebody. Your budget power is a strong power you
    can employ to get control of the actions of the government.
        Mr. Cole. I would tell you, before we move on, we actually
    have control of the discretionary budget. You know, we are in a
    debate right now over coronavirus. If you looked at the Trump
    budget, you will see cuts for NIH, CDC, whatever. If you look
    at the budget the Republican Congress passed and a Democratic
    Congress now passed, CDC funding in 5 years is up 24 percent;
    NIH funding is up 39 percent; strategic stockpile is up almost,
    you know, again, 34, 35 percent; Infectious Disease Rapid
    Response Fund, a Republican idea, put in now more money in
    there.
        So, actually, the budget, it works. The problem tends to be
    Medicare, Medicaid, Social Security, the entitlement stuff. We
    actually control that budget in ways--again, just look at any
    President's budget--President Obama, President Trump, anybody
    else--and then look what is there at the end and see if they
    look remotely alike. They really don't.
        I mean, appropriators really are--I say this as one--pretty
    much give-and-take kind of politicians that find the middle or
    become experts in areas where they really--you know, I think of
    our friends Chairman Upton, when he was chairman, and--gosh,
    who was his counterpart? Think of 21st Century Cures, a great,
    bipartisan, overwhelming vote that probably had more to do with
    medical innovation and streamlining and research than anything
    else. So, actually, that kind of stuff we do pretty well.
        Mr. Spalding. I don't disagree with that. My only point is,
    if you don't like something the administration is doing in
    terms of executing one of your policies, one of the most
    powerful things you can use is the phrase, ``no money shall be
    spent on . . .''
        Mr. Cole. Yeah. Couldn't agree more.
        Dr. Pearlstein.
        Ms. Pearlstein. Thank you.
        Backing up for a second to your question about the causes
    of the intense polarization, I included in my testimony--and
    there has been some wonderful political science done that
    documented exactly the sense that you were describing about the
    polarization of your district and others across the country.
    That is real.
        And its causes are, I think, many, most of which are beyond
    my pay grade in the sense that, right, I am a constitutional
    law professor. But I do want to flag a couple because they are,
    potentially at least, within Congress's ability to engage or
    change.
        I think one that may not fall into this category is the
    extent to which the existing primary system favors non-moderate
    members of both parties. So the most motivated voters come out
    for primaries, and that tends to favor less moderate
    candidates. And that is a significant problem. For this, you
    need an election law scholar and an election law hearing, but
    that is something I think we can't underestimate.
        Equally, money in politics is a growing problem. It has
    been a problem for a while, but the ability of outside groups,
    of both sides, to spend effectively on limited amounts of money
    has also tended to increase polarization. It favors the
    extremes. That is where, often, the money comes from, and that
    is a problem as well.
        Social media requires some attention that has been not just
    because of outside interference but internally becomes a, sort
    of, source of growing polarization. It makes it easier. And
    that is something that requires, I think, congressional
    attention, ultimately, as well.
        And then, finally--and this gets back to more in my neck of
    the woods--the response in the executive branch to the reforms
    of the 1970s, which we talked about some--the War Powers Act,
    the National Emergencies Act. There was a, sort of, suite of
    legislative efforts to, in response to perceived excesses of
    the decades before, constrain executive power. The response
    within the executive branch, and in particular among executive
    branch legal counsel, has been to very effectively, over
    decades, explain, develop interpretations of both the
    Constitution and those pieces of legislation that effectively
    make them toothless constraints.
        Now, it is not the only reason that they are toothless or
    less toothful constraints, but the role of the Office of Legal
    Counsel within the executive branch--some of my best friends
    are veterans of the Office of Legal Counsel, but they are
    executive-minded lawyers, and they are good lawyers, and
    Congress has no mechanism for--we favor competition in every
    other way--no mechanism for competing regularly with respect to
    voicing the constitutional understanding that this is not, in
    fact, the power of the Executive. We are not acquiescing to
    this assertion of authority. OLC might say it; that doesn't
    make it the law.
        Mr. Cole. Yeah. I thought that was a great point that a
    number of you made.
        Dr. Prakash.
        Mr. Prakash. Representative Cole, I am not a doctor, but my
    parents will be happy that I became one today.
        Mr. Cole. I have just promoted you.
        Mr. Prakash. I think your question is very perceptive. And
    I, too, feel I am little--I am not quite situated to answer it,
    because it is not really a legal question; it is a culture
    question.
        I think the fact that there is this hearing today and that
    people on the committee are genuinely interested in working
    together and not trying to score points against one or some
    other President, I think, is a good thing.
        I think when Members of Congress model good behavior,
    people are perhaps likely to take lessons. I think of Senator
    McCain talking to some group where he was running for President
    and someone said something about Senator Obama and he chastised
    or kind of corrected that person. I think that is good
    behavior. So I think tone, you know, is important for you folks
    to maintain.
        I think this would be bad for some of you, but, you know, I
    think the gerrymandering problem is something you can fix. You
    have authority to regulate Federal elections. You can set
    districts for the States, and you can set them randomly. What
    happens now, as you know, the State legislatures sort of cram a
    bunch of Republicans or Democrats in a particular district, and
    that tends to make the Representatives from those districts
    more either right or left. And that is----
        Mr. Cole. Let me--not to contest, but as a guy that used to
    do this stuff for a living, I will tell you, that is a lot less
    of a factor than most people think. My district hasn't been
    gerrymandered, and it has changed dramatically. And, in my
    State, every district was drawn by Democrats for 100 years. We
    reached a point under that system where every seat was a
    Republican seat, in terms of the congressional delegation.
        So, again, look, I used to practice the dark arts, so I
    understand, you know, trying to tilt the table around the
    edges. But I also know that that is not really what has driven
    this. I mean, I think those kind of technical solutions miss
    the bigger point.
        You know, when I first got here, all of Arkansas, except
    one seat, was Democratic--three out of four House Members, both
    Senators--right next door to my State. They are all Republicans
    today. And it wouldn't matter how you drew those lines; they
    are very red.
        When I first got here, Connecticut, three out of the five
    Members from Connecticut were Republicans in 2002. They are all
    Democrats today. And you can draw the line however you want,
    they are going to stay Democrats.
        So there is something much deeper than politicians tilting
    the table here going on in our country broadly through the
    political culture. And all I am suggesting is that manifests
    itself inside the institution in terms of the kind of behavior
    individual Members follow or feel the need to follow.
        And I say that with no judgment on either side. I am just
    telling you, anybody that is up here is pretty politically
    pragmatic if you are here for any length of time, whether you
    are on the left or right. So that means they are usually making
    pretty pragmatic political decisions, at least in terms of
    their individual interests. And that doesn't mean they are not
    capable of rising above that and thinking of the greater good.
    I have seen a lot of instances of that on both sides of the
    aisle since I have been here. But practicalities will drive
    decisions 95 percent of the time.
        Anyway, I have one other question. And if I interrupted
    you, I am sorry.
        Mr. Prakash. No.
        Mr. Cole. And it is the reverse of this problem. And this
    is, again, just to get your thoughts on, because you study--and
    this is almost an inside-the-institution question.
        I will tell you, I sat for a while in Republican leadership
    and, during that period of time as an elected Republican
    leader, basically not going to any of my committees. And I am
    talking to other Republicans, and almost every meeting is about
    how we can beat the other guys, how we can beat them
    legislatively and how we can win electorally. It doesn't mean
    policy doesn't come into it, and you are formed by your
    previous policy.
        And I suspect that is true--as a matter of fact, I know
    that is true, when I talk to my Democratic friends that occupy
    similar kinds of positions. The minute you become a leader at
    the higher levels, you are not going to committee meetings
    anymore.
        I bet you I talk to more Democrats in a day than any member
    of Democratic leadership talked to Republicans in a day. And
    vice versa, I bet my colleagues at the committee levels talk to
    more Republicans by going to their committees, interchanging,
    interacting, maybe working on legislation. My friend Mr.
    Perlmutter just, you know, brought a marijuana thing that
    brought, my God, Christian conservatives and, you know, liberal
    California people together on the same side. I don't know how
    he did it, but he did it.
        The Chairman. It might help fix the tone.
        Mr. Cole. It might help fix the tone, yeah. I already think
    you guys are entirely too mellow.
        But, seriously, you know, the bigger acts of bipartisanship
    that I see tend to be from individual Members, you know,
    actually operating in the milieu because they are building the
    relationship back.
        The way we operate, leadership around here, they don't do
    that. I mean, I guarantee you the leadership of the two parties
    very seldom, if ever, sits down, short of a national crisis
    like, you know, TARP or something like that, and says, ``Okay,
    I wonder, this year--we all know our entitlement programs are
    out of control. Are there two or three things we could do
    together that we could--or any things like that?''
        They are not having the kind of discussion we are having
    right now, thanks to my friend Chairman McGovern, where they
    are talking--we know we all agree the institutional powers of
    Congress have weakened. I guarantee you every member of
    Democratic and Republican leadership probably agree with that,
    just like every Member, I think, in the body would agree with
    that. You think any of them are talking about how to reassert
    that? I will guarantee you they are not.
        They are not sitting down, having read the papers you were
    nice enough to prepare for us, and saying, well, here are two
    or three things that are not particularly partisan, you know,
    that are institutional, if we are going to talk about bulking
    up our legal--I think that is not a partisan thing; that is an
    institutional argument--if we are going to talk about, you
    know, declaring national emergencies end within 6 weeks of the
    next Congress unless Congress reaffirms, or if we are going to
    talk about we are going to have some congressional say over
    this rulemaking authority that the bureaucratic state is
    churning out, whether it is a Democratic or Republican
    administration. Those discussions just simply aren't happening
    at the highest level.
        So I say that both to highlight it and maybe to flag that
    for your consideration going forward, because we have to think
    of some ways that the great acts of bipartisanship don't just
    start in a committee, like Fred Upton on 21st Century Cures. I
    guarantee you, my friend Rosa DeLauro and I worked very well
    together on funding for NIH and CDC and all that. We have a
    shared consensus about: This is a national priority, we don't
    care what Presidents say much, we are going to put more money
    here. And we have. And we did it under Republicans, and we have
    done it under Democrats. We have done it with Democratic
    administrations and Republican administrations.
        So there are places where I see this occurring. I see it on
    the Armed Services Committee very regularly, a very
    historically bipartisan committee. Yeah, they have their
    fights, but, most of the time, the bills roll out of there,
    like, 62-to-2 after they have gotten everything worked out.
        So, you know, I don't know how mechanized--well, I would
    just shoot up this flare, because we have to get our leaders
    sitting down, thinking about institutional kinds of concerns as
    well. It can't just be the Rules Committee. We have set up--we
    have a very good bipartisan committee on the modernization of
    Congress, but you have to get Speakers and leaders and whips
    around the table talking about this stuff and say, ``Well, I
    guess I will just set this up. And you guys go over here and
    kind of think about that. We are going to try and play the real
    game,'' which is getting our side back in power or keeping our
    side in power and executing the President's agenda of the party
    to which we belong.
        Anyway, if you have any thoughts on that, fine. Otherwise,
    I will just turn it back to my friend, the chairman. And I have
    been doing a lot of thinking out loud, but your papers were
    very provocative and helpful in that way.
        Ms. Belmonte. It is unquestionable that the whole culture
    of Washington has changed dramatically in the last 50 years.
        It used to be common for Representatives to live in
    Washington. Not many of them do that anymore. The dictates of
    having to continually raise money not only for your own
    campaign but for the party itself create a lot of necessity for
    travel, for being in the home district.
        I think of Lyndon Johnson, who was very good friends with
    Senator Everett Dirksen, who would come to the White House all
    the time and talk about that. I don't imagine those kind of
    bilateral relationships, bipartisan relationships exist
    anymore. And I think that has just really undercut not only the
    willingness but the opportunities to build the social capital
    that can lead to the places where compromise can be struck.
        I think the dramatically changed media landscape has played
    a huge difference as well. It would have been really difficult
    for a first-term Representative prior to the age of cable news
    and the internet to just catapult to the national stage and
    develop a reputation of being a rebel to the party leadership.
    That would have been really difficult in the age of someone
    like Tip O'Neill.
        And all of that collectively, I think, has created the
    opportunity where you are not governing as much as you used to
    because of the other dictates on your time and the travel.
        Mr. Spalding. I agree with that. But I think, to put it in
    the context of what we are talking about here, what you have
    described is, itself, a symptom of the general problem we have
    already kind of laid out. I think we to think more about
    politics, which I don't necessarily mean in a partisan sense
    but in a grander sense. Congress has shifted authority to the
    executive branch, and you have to think about the political
    implications of that.
        You know, the stories of the past, right, people would come
    to Congress, because that is where the power is, to get
    something done or prevent something. That is not as true
    anymore. And, largely, what do they do? They want to go lobby
    the administration, because that is where the real decisions
    are made. The political balance of power has shifted. And, as a
    result, I think that has changed how a lot of people think
    about their own political interests.
        Remember, in ``The Federalist Papers,'' Madison tells us,
    the key is to make the interests of the man, meaning you
    folks--connect that with the place. You have an interest in
    your institution. And that is key to making this work.
        Your example, I think, is exactly right, which is that a
    lot of the bipartisanship is kind of personal bipartisanship.
    You know this person; you work out something. Rarely is there
    that type of bipartisanship in which the individuals, even
    though they disagree, think institutionally.
        Congress very rarely thinks as an institution. It either
    thinks individually as Members, my own reelection, or how do I
    get to be President of the United States because that is where
    the political power is, or, increasingly, because of that shift
    of power, leadership in both political parties thinks the more
    important thing is to have partisan control in order to support
    the Executive in their party because that is where the real
    authority is, as opposed to, whether it is a Republican or
    Democrat, having some institutional separation and sometimes
    pushing back, because that is necessary to defend your
    institution.
        And Congress doesn't think that way as much anymore
    because--part of it is that the political landscape,
    intentionally and unintentionally, has shifted the focus of
    politics. Morris Fiorina wrote a famous book, ``Congress:
    Keystone of the Washington establishment.'' That was back in
    the late 1980s. Now, I think that is no longer true. I think
    the President, by which I mean the bureaucratic presidency is
    now the keystone of the Washington establishment.
        Mr. Cole. Thank you, Mr. Chairman.
        The Chairman. Thank you very much.
        And let me just say, I agree with everything Mr. Cole just
    said. The thing is, though, is the tone, right? That is very
    difficult to change, given the attitudes in the country and the
    media and the polarization on a lot of issues. Maybe we all
    need to be in intensive therapy up here to try to work some of
    our issues out.
        But short of that, I mean, the question is, how do we do
    our job, and not avoid doing our job because it is politically
    inconvenient or it is uncomfortable for us? And are there
    processes and procedures that we need to put in place? We
    talked about war powers, but we have national emergencies that
    were declared when Jimmy Carter was President of the United
    States that are still in place. I mean, that doesn't make any
    sense, right?
        And maybe, going back to what Mr. Cole said in his opening
    statement, we are not going to be able to fix everything, but
    maybe there are some areas where we can actually, you know,
    make some tweaks and legislative fixes that will actually
    eliminate some of the stuff that I think we all can look at
    right now and say, this doesn't make any sense.
        Mr. Hastings.
        Mr. Hastings. Thank you very much, Mr. Chairman.
        And toward that end, one thing that we can do is use the
    subcommittees of the Rules Committee to perhaps dig into the
    weeds a bit more and come up with a handful of solutions.
        Like Mr. Cole, I read a lot of this material, and you all
    have done us proud with your presentations.
        Regrettably, everything around here is top-down. We have
    been here an hour and a half, and we have heard from the two
    top members. And that would be virtually the same thing if you
    were in committee. You hear them bragging about how he and Rosa
    DeLauro got along. Well, there is something called a manager's
    amendment at the end of that. And if you are a backbencher, you
    have hell to pay to try to get some understanding inside of
    that particular sphere.
        I think what happens here and what has happened--and I am
    the longest-serving Member on this--not this committee, but in
    this committee now, I am the longest-serving Member. I have
    been here 27 years. And when I came here, it was a pleasurable
    place. It is no longer. And I fear that it will never be again.
        I served on two little committees that existed then, the
    Post Office Committee and the Merchant Marine Committee.
    Amazingly, I got more legislation done in 1993 than I have in
    2019 and 2020. And that was because of relationships.
        And, yes, they did stay here, but more than stay here, they
    got to know each other. And what happens today is we don't get
    to know each other. After I was here maybe 6 years, you could
    just point to me somebody on the floor, on either side, and I
    could pretty much tell you where they were from, what their
    committees were. And that is because we got to know each other.
    And that is not happening.
        And we are driven largely by our constituents that also
    call us to have this immense polarization that is going on in
    this country.
        Mr. Spalding, you said something that distressed me. And I
    promise you I am not going to use 30 minutes. But a part of
    what you suggested in your original commentary was that the
    courts are not going to solve our problems. While I tend to
    agree, it is distressing.
        You went further, in a second portion, to say that the
    courts generally are going to side with the administration. And
    that doesn't mean this administration; that means any
    administration. And I have seen evidence of that, as have you.
        But I think those Article III judges have a specific role
    to play. And just in those two little committees that I served,
    I could write a letter, and in less than a month I would hear
    from the bureaucracy. I can get 100 Members to write a letter
    now, and I will be damned if we will hear from the bureaucracy.
        Not this administration; let me criticize every one before
    this administration, including--we have spent a lot of time
    here on the War Powers Act. I criticize Barack Obama actively
    about Libya and the War Powers Act. And push back real quick
    and I will stop.
        All this business about ``Congress doesn't have the time to
    declare war.'' How did Franklin Roosevelt get those Members to
    declare war in the Second World War? They didn't have no damn
    internet. You understand? They didn't have no airplanes that
    flew fast. But they managed to get back here and to declare
    war. And that is our responsibility.
        And I don't care--I don't want to take away the President's
    powers to go forward and to do whatever he or she feels is
    necessary to defend the United States of America. I want to
    collaborate with that President. I want to have a clear
    understanding about why we are doing what we are doing.
        I will leave it at that, because there are so many members.
    And if you all don't mind, I will go offline and write a few
    questions to you. But, remember, we would be well-advised,
    those of us here, not only to hear your words but to remember
    that, although we may be of a particular philosophy, ideology,
    persuasion, and parties, we are also stewards of this
    institution. And we owe it to those who come after us to leave
    it as strong as it can be so it may best serve the American
    people.
        And, Dr. Pearlstein, I had originally wanted to talk with
    you about something Mr. Woodall and others and I have spent a
    lot of time on. One more vignette from my history. I went to
    very segregated schools--very. And by that, I mean I rode 30
    miles each way to go to high school, past three white high
    schools.
        I got to a high school that did not have a library, did not
    teach foreign languages, did not teach geometry. And somehow or
    another, the elementary school I went to was four grades.
        But you know what? I knew who the Governor was. I knew who
    the Congressperson was. I knew who the superintendent of
    schools were. I damn sure knew who the sheriff was. And, all
    things considered, they were doing a better job of teaching
    civics, even though they didn't deliver newspapers to our area
    of the town. The teachers would somehow or another cut out old
    newspaper articles and bring them in and we would have civics
    lessons.
        I maintain that something has gone awry in this country
    when it is that one-third, as you said, of high school or
    college students--college students don't understand the
    dynamics of separation of powers.
        Thank you very much, Mr. Chairman.
        The Chairman. Dr. Burgess.
        Dr. Burgess. Thank you.
        And thanks to our witness panel for being here today.
        A rare moment, I find myself in agreement with Mr. Hastings
    about the teaching of civics. And----
        Mr. Hastings. You ought to try it. It doesn't hurt.
        Dr. Burgess. Yeah, it does. Yeah, it does. Let me correct
    you on that.
        And I also agree with Mr. Cole about the fingerprints being
    on the weapon. I just disagree that it is--maybe a weapon to
    inflict a self-inflicted injury, not an injury on someone else.
        As--and I have not spent nearly the amount of time here in
    Congress that other people have, but just my observation is the
    erosion of Article I powers is something that happens
    gradually. Sometimes we see rather pronounced demonstrations.
        Chairman McGovern and I, last night, had a little
    discussion and disagreement about this supplemental bill that
    is going to go to the floor under suspension. Yes, coronavirus
    is an emergency. An emergency was declared in January. The
    Secretary of Health and Human Services enacted a travel ban at
    the end of January. We spent the entire month of February in
    one of the committees of jurisdiction that I also sit on, the
    Energy and Commerce Committee, and did not have really a single
    hearing. We added about an hour onto a budgetary hearing right
    at the end of February.
        But we are the committee that is supposed to get the data.
    We are the subject-matter experts. We are supposed to interview
    the people from the administration and come up with the
    information to help our friends on the appropriations side come
    up with the correct answers and the correct funding for those
    answers.
        But, you know, real-time, real-world, we have given that up
    in this crisis. And this generally does happen at the time of a
    crisis. It is not the first time it has happened. I probably
    predict it will not be the last time it is going to happen. But
    every time we allow that, as the United States House of
    Representatives, we lose something in the translation.
        And there was a lot of criticism when Secretary Azar came
    to our committee last week. And, again, he was there for a
    budget hearing, which I was grateful for. We need to speak to
    our agency heads about their budget. And then, right at the end
    of it, he had the hour of coronavirus discussion. There was a
    lot of criticism for the administration's budget that was
    produced. Mr. Cole has already referenced, there were some cuts
    in CDC, some cuts in NIH.
        Well, that was the President's budget. And, yes, it was
    prepared in December before we knew what was happening in
    January, so, yeah, you do have to make adjustments as the world
    changes. And it can change quickly, as we all know. But we
    can't complain about the President's budget when we don't do a
    budget.
        And we are not doing a budget this year. I take some
    exception with what my friend from Oklahoma said. It is not a
    budget. It is an appropriations agreement that we are coming
    to. It is a spending agreement. But it is not based upon a
    budget. I actually believe we should do a budget and we should
    budget for emergencies, because we always seem to have an
    emergency every damn year.
        But we are not doing a budget. I don't see that we have the
    bandwidth to criticize the administration for getting their
    budget wrong in December before they knew that this crisis was
    going to happen. They propose; we dispose. We are the ones who
    are supposed to control those budgetary pens and write that
    budgetary agreement.
        So I realize that is more of a statement than a question. I
    will be interested to hear if anyone has any comment on that.
        Also, just on the subject of the budget--I am sure Mr.
    Woodall will do a much better job, if he has not already done
    so. Mr. Cole already alluded to the two-thirds of the budget
    that we no longer control in the appropriations process. And,
    again, that didn't happen overnight. It has happened little bit
    by little bit. I think that needs to be reversed.
        I agree with Mr. Cole, those would be very, very hard
    votes. They would probably be career-ending votes for some
    Members. But, honestly, that is what we are supposed to do:
    make those tough votes and be held accountable. And if we are
    not representing the folks back home, they will get a better
    idea about who can.
        I recognize how hard it would be to reclaim all two-thirds
    of that budget, but I would welcome anyone's advice or
    suggestion to begin to bend that curve back a little bit and
    bring that power back into the legislative branch where it
    belongs.
        All kinds of mandatory spending out there. Yes, there are
    places, I think, where we should perhaps think about bringing
    some of those programs back on budget. And I realize the reason
    they have gone off budget is because no one wants to touch
    that. That is like the third rail of politics; you touch it,
    you die. But we need to do it for the sake of the generations
    who are yet to follow us.
        And, again, I realize this has all been more of a rant than
    a question, but I will be happy to get your input on any of
    those observations. I guess we will start at this end this time
    and go that way, since Mr. Cole went the other direction.
        Mr. Prakash. Well, thank you, Congressman.
        I, too, share the concern that two-thirds of the budget is
    on autopilot and never voted upon by Congress, because that
    obviously leads to a situation where some things are never
    reconsidered or relooked at because they are seen as
    sacrosanct.
        I wasn't prepared to talk about the budget process or the
    lack of a budget process for the entitlements, but, my
    recollection is that Ronald Reagan got together with Democrats
    in the House and passed the Social Security Reform Act. And I
    think it is possible--I was hopeful that President Obama--he
    had a commission that was headed by Bowles and Simpson, and I
    was hopeful something would come of that. I think that is what
    needs to happen in order for people to have cover to do
    something that would otherwise be super-politically-
    unpalatable.
        I think you are right that a lot of people would try to
    exploit the situation, saying you voted to cut this or that.
    But it is sort of irresponsible to just spend money without
    thought for decades upon decades.
        Ms. Pearlstein. Thank you.
        I guess I would like to respond generally to the concerns
    that I think both you and Mr. Cole expressed, because I think
    they are related. How do you carve out, in a highly polarized
    political environment, space for serious conversations that are
    politically difficult and in many respects politically
    impossible in different ways?
        Congress used to do a better job at creating bipartisan
    spaces. And you can call these, if you were in any other
    organization, institution-building spaces. But Congress did
    this through, for example, creating bipartisan commissions. It
    has done that in the past on immigration and after 9/11 and in
    many other circumstances. And these commissions, for some
    reason, have gotten a bad reputation as never quite producing
    the results that they want, but they sometimes do produce
    results. And they certainly produce results more often than not
    having them produces results. So those kinds of commissions.
        Congress having its own agreed-upon source--CRS is a great
    example. GAO, historically, has been a great example. As our
    world becomes technically increasingly complicated, a
    congressional agency, like OTA--it doesn't have to be the
    Office of Technology Assessment; it can be a new and better
    version of the Office of Technology Assessment, but something
    that enables Congress to have at its own bipartisan disposal
    its own agreed-upon set of facts and understandings about how
    social media might be effectively regulated, why the problem of
    emerging infectious diseases gets worse, what we can anticipate
    for growing healthcare costs as the population ages over years.
        These are all problems that require not only the ability to
    meet together across bipartisan spaces and times but also
    having an agreed-upon set of information. And we are, as a
    society, at a point where even that is becoming difficult.
        Congress is in a wonderful position to recreate some of
    those spaces. And while one might be limited to one-third of
    the Federal budget, that is an enormous amount of money. OTA,
    when it was zeroed out, had an annual budget of, what, $20
    million, $30 million a year, right? That is a lot of money to
    me, but I don't think it is all that much money to you guys.
        So I guess I would--I talked about some of this in my
    written testimony. I think those organizations are important
    and useful, not only because they serve an educational and
    information-generating function but because they also make it
    possible for you to begin to remember or regenerate those
    muscles of working together institutionally that have atrophied
    over recent decades.
        Mr. Spalding. No, I agree with the concern you have raised.
    And I guess I would premise it by saying, it is often the case,
    among others who have suggested reforms in the past, we are
    always looking for technical fixes. People always want to find
    the silver bullet. And I guess if there is a theme here, my
    theme is, no, it is actually the hard work of governing that
    needs to be reestablished.
        And the fact that two-thirds of spending is automatic,
    there is still a third. But, you know, it really is the
    principle of the matter. You guys are the legislative branch,
    and that is your responsibility.
        I don't disagree with Congressman Hastings' point. My point
    was not to neglect using the courts. The courts are there for a
    purpose. It is just that, I am more interested in seeing
    Congress assert itself as an institution as opposed to running
    to the courts. It's the same thing I told the Republican
    Congress when they wanted to do that when they had the
    majority. You want to be institutionally stronger, it seems to
    me, and relying on the courts makes you weaker.
        And the other general point I would make is that I am
    struck by how important commissions are, but the question is,
    how do you structure them? I think one of the most successful
    ones that solved a difficult problem was the BRAC Commission.
    Congress needed to shut down a bunch of bases, and no one
    wanted to do this because it was in their District. So you ask
    the commission to do it, and Congress, as a whole, does it
    together. Maybe there is something like this here.
        I am not sure it is a particular piece of legislation. You
    are going into an election where it is not clear who is going
    to win, but you are also in an election cycle. You need to do
    something where you figure out what the pieces are. There are
    going to be tradeoffs. We are going to reduce this power--that
    might be what the Republicans want--and, in exchange, we are
    going to reduce this power that the Democrats want to reduce.
    There will have to be some sort of compromise. But then you
    could have it not go in to effect until after, not this
    election, but maybe the one after that. It would be put farther
    in the future.
        It has to be a bipartisan reform. I think it has to start
    by reestablishing the premise of the general matter as we have
    been discussing it. I don't believe you can't bite it all off
    at once because it would be politically suicidal, in most
    cases.
        But, I mean, take the two-thirds of the budget that are
    automatic. Well, you might keep that going, but at least if you
    take a vote on it in a regular budget you get into the habit of
    voting for budgets. And those kinds of things, I think, are
    actually quite useful.
        Ms. Belmonte. I think that, in addition to the tone, the
    context all of this is happening in really matters a lot as
    well. You know, for millions of people in the United States,
    the promises of globalization just haven't worked out--you
    know, the decline of American manufacturing, the winnowing out
    of many communities that had a local employer on which many
    people depended that is no longer there, the opioid crisis. And
    we are watching our country shift dramatically--an aging
    population, the decline of a college-age portion of our
    population. There are so many things converging, and it just
    amplifies that sense of helplessness and hoping that you will
    make those hard decisions on that 70 percent of the budget that
    is mandatory spending.
        As we watch income inequality just continue to exacerbate,
    we have a distressingly large number of Americans who can't
    handle an unexpected $400 expense. And so a sense of
    desperation rises in diseases of despair.
        I just hope that we can make those hard decisions, because
    the fate of our country is hinging on what 535 people in this
    body do.
        Dr. Burgess. I just have one further observation, Chairman.
        I am fortunate to serve on the Committee on Energy and
    Commerce. We, over the past 5, 7 years, have passed several
    landmark bills: the track-and-trace bill to secure the safety
    of our pharmaceuticals in this country. Certainly 21st Century
    Cures was one of those big bills. A year ago, we passed
    something dealing with opiates called the SUPPORT Act. Several
    years before that, we repealed the sustainable growth rate
    formula and the follow-on from that.
        The one thing I have learned from passing those large,
    landmark pieces of legislation is it doesn't end at the signing
    ceremony. You have to watch it like a hawk over at the agency.
    If you don't do--I would even hesitate to call them ``oversight
    hearings''; they are implementation hearings. Has it been
    implemented according to congressional direction, or has there
    been some interpretation?
        And I could cite you numerous examples, but I won't. But it
    is a constant feature of our--at least our job when we write
    those authorization bills in the other committee that I am
    fortunate enough to be on.
        When we write those legislative treatises, we need to have
    the courage to follow them through. We all have busy schedules.
    There is never enough time in the calendar. There are never
    enough hearing rooms. But we need to make it a priority and
    make sure that we do it.
        With that, I will yield back.
        The Chairman. Thank you.
        Mr. Perlmutter.
        Mr. Perlmutter. Thank you.
        Just a lot of thoughts, starting with ambition. And I think
    each of you mentioned Madison and ambition and that that would
    be sort of a limiting factor to the loss of power. The other,
    sort of, contrary philosophy out there is the path of least
    resistance. And of those two, path of least resistance has been
    winning. And, honestly, I want to thank Mr. McGovern and Mr.
    Cole, because I think today is going to be the last day that
    the path of least resistance wins automatically.
        I will give a quick story. There are a lot of people that
    have questions.
        But my backyard--I have two backyard neighbors, one a very
    conservative family, another pretty liberal. And a few years
    ago, I am cleaning up in the backyard, and the gal, pretty
    conservative gal, comes up to me, and she goes, ``I can't
    believe Obama has 212 emergency actions.'' I went, ``What? What
    are you talking about?'' ``He has brought forward 212 rules or
    something based on emergencies.'' I said, ``Well, that can't be
    true.'' So I kind of, like, stepped back and--you know, he had
    done a lot of emergency things, starting with DACA and a bunch
    of other stuff.
        Well, about 3 months ago, I am in the backyard. The other
    side, the liberal guy, he says, ``That Trump, everything he
    does is based on an emergency. There aren't that many
    emergencies.'' And, you know, that is sort of what has been
    going on here. We have allowed the power to move to the
    executive branch.
        And, Dr. Spalding, you know, I couldn't agree with you
    more. The administrative branch just keeps growing. And your
    comments about policy reformers--I went back, I was looking at
    everybody's slogan, you know, ``Make America Great Again'' or
    ``Obama for Change'' or, you know, whatever it might be. I
    mean, back long ago, it was ``The buck stops here'' or ``I like
    Ike.'' But now it is about some sort of change in policy, and
    people look at it that way.
        So I think--and Mr. Cole kind of let his hair down. I mean,
    part of the problem here is we have to be intentional in
    resisting this, you know, ``Let's let them do it.'' You know,
    we will give them really broad discretion and just let it go.
    You know, we will move on. We have to be intentional. And we
    have to have some intestinal fortitude, because there will be
    some prices to pay.
        So I guess I would just like to ask the panel: We are
    dealing with coronavirus right now. Emergency setting. And I
    think that is one we could all agree is an emergency setting,
    how far it spreads and how quickly it continues to spread.
    Obviously, we need to address it.
        So, as our appropriators, Mr. Cole and Ms. DeLauro and
    others, are putting this piece of legislation together, how, as
    historians and constitutional experts, should we limit this so
    that we don't, again, just give something away like we gave
    away earmarks or we gave away the emergency powers?
        How in that context would you help us--as quick as you can,
    because I want to turn it over to everybody else--you know,
    kind of limit this legislation we have before us as a turning
    point where, okay, we recognize the emergency, but we are not
    going to just give you the keys to the car for the rest of
    time?
        Professor.
        Mr. Prakash. Well, Congressman, that is a very tough
    question. I don't really know anything about coronavirus other
    than what I have read----
        Mr. Perlmutter. But from just a legal drafting standpoint,
    I guess, is what I am asking you.
        Mr. Prakash. Let me just throw out some ideas.
        I mean, it is possible that you pass an appropriation but
    you don't make it large enough--or you make it small enough
    that they have to come back in a month and update you with what
    is going on. And maybe that is how you keep the keys to the
    kingdom.
        You know, my sense of appropriations is there are lump sums
    and then the authorizers are supposed to tell them what to do
    with it. I don't know if that is happening here or what is
    going on. But if you have a sense that they are giving away the
    keys to the kingdom, there is clearly something wrong with the
    bill that is before you.
        Mr. Perlmutter. Okay.
        Ms. Pearlstein. I am, you know, like any good lawyer,
    really reluctant to comment on legislation I haven't seen.
        Mr. Perlmutter. Just from a legal writing standpoint.
        Ms. Pearlstein. So let me say three things, very broadly,
    about how Congress should think about its role as legislators,
    right? Every bill, you have three moments of asserting your
    views and regulating effectively. One is in directing the
    Executive or whoever it is--HHS, CDC, whoever, right--directing
    them specifically what you want to do. You want to, say,
    regulate in emergencies? Fine. What do you mean, ``emergency''?
    Do you mean something that happens every day or that is likely
    to recur repeatedly, or do you mean something, for example,
    that is time-limited, right, something that a reasonable
    scientist or officer of the CDC would expect would not recur or
    would last for a limit period of time, right?
        So there is a lot to be done with drafting. You can
    condition funding. If condition X doesn't occur, right, then
    these funds aren't available. If condition X occurs, then these
    funds become available.
        So that is just at the direction stage. Then you have
    options, when legislating in the first place, for imposing
    monitoring. And that can be, come and testify, but it can also
    be, you shall every 15 days or 30 days----
        Mr. Perlmutter. Report.
        Ms. Pearlstein [continuing]. Or whatever it is report, and
    that report shall be detailed, and that report shall include
    the guidance of whichever relevant experts you want to hear
    from, and that report shall, for example, be certified by Dr.
    Fauci or whoever else you want to make sure is engaged in that
    process.
        And you can have, you know, requirements of consultation
    with Congress, requirements of consultation--you can build in
    monitoring in lots of different ways, right?
        And the third kind of thing you should look at every piece
    of legislation to make sure it has is some sort of termination
    or calendar, by which I don't mean, ``These funds run out on
    May 1,'' necessarily, right, but which leaves Congress holding
    the key to say, this runs out after--pick your date, right--90
    days, after which time Congress must reauthorize, or after
    which time whatever.
        Mr. Perlmutter. Okay.
        Ms. Pearlstein. So all three of those things are options
    for ways that Congress can keep holding the keys.
        Mr. Perlmutter. Perfect.
        Dr. Spalding.
        Mr. Spalding. Yeah. I----
        Mr. Perlmutter. And I wanted to say one thing to you. I
    mean, I think you are absolutely right. The power of the purse
    is the ultimate----
        Mr. Spalding. Right.
        Mr. Perlmutter [continuing]. Power. This committee, last
    year, when we were in shutdown, we would meet about every 2
    days, hoping that there would be some compromise that would
    allow us to open the government again. I mean, that is a
    blunderbuss, big-time hammer to use, and not one that we want
    to use very often.
        But to my question.
        Mr. Spalding. So I don't at all disagree with the points
    that were made. Those were well-said. And I will actually make
    a nonbudgetary answer, partially----
        Mr. Perlmutter. Okay.
        Mr. Spalding [continuing]. Which is, look, the authority
    here is you are going to use your power of the purse. And the
    President is in a position where he needs you to use the power
    of the purse, which means you have what we call leverage.
        Congress should declare a national emergency. Who says only
    the Executive can declare a national emergency?
        Mr. Perlmutter. You hear that, Mr. Cole?
        Mr. Spalding. And you----
        Mr. Perlmutter. You might put that in the bill as you guys
    draft it today.
        Mr. Spalding. So if you object to the Executive having that
    power, why don't you do it and preempt him?
        Mr. Perlmutter. I mean, he is drafting this bill today, so
    that is why I am----
        Mr. Spalding. And then all of a sudden you have both
    branches defining what national emergencies are----
        Mr. Perlmutter. Thank you.
        Mr. Spalding [continuing]. And then you have a conversation
    and you have leverage because it is a must-sign piece of
    legislation because it has budgetary authority behind it.
        Mr. Perlmutter. Thank you.
        Mr. Spalding. That is an example of exerting the spending
    power.
        Mr. Perlmutter. Thank you very much.
        Ms. Belmonte. I have nothing to add.
        Mr. Perlmutter. All right. Thank you.
        And I yield back.
        The Chairman. Thank you.
        Mr. Woodall.
        Mr. Woodall. Thank you, Mr. Chairman, and thank you for
    holding the hearing.
        Thank you all for being here.
        I am trying to think about that pathway back from here. We
    talk a lot about small ball versus big ball here. And I think a
    lot of our challenge is just bad habits.
        I am thinking about the list of things that you just gave
    Mr. Perlmutter, for example, those oversight-related items.
    Well, I put all sorts of conditions in bills, but very rarely
    do I come back and enforce those conditions as Congress. If
    anything, I am going to go file suit and I am going to ask
    Article III to enforce those conditions.
        And so there are many things that we could do that will not
    only accentuate the feckless Congress of today but will further
    weaken us tomorrow. So what do you see as the pathway back,
    those incremental steps?
        You mentioned it, Professor Prakash, that we should play to
    our strengths, right? There are those things that are not
    naturally divisive but we have just gotten into bad habits.
    Appropriations bills, right? It used to be unthinkable that you
    could get to September 30 and have not worked on the
    appropriations bills. Now it is probably more unthinkable that
    you are really going to make time to work on the appropriations
    bills at all. You will just pass an omnibus on September 30.
    And that just took two decades to take hold.
        So help me with those beginning steps back. I know you are
    not behavioral specialists; you are constitutional specialists.
    But because you have seen the pendulum swing over the decades,
    help me with that.
        Mr. Prakash. Congressman, I think that is a wonderful
    question, and as you said, we are not the--I am certainly not a
    behavioralist. I wonder if Members of Congress are conscious of
    the time they spent doing various activities, and then thinking
    about how they ought to reallocate it in a way that makes it
    more possible for them to conduct legislative business as
    opposed to the myriad of other things they have to do.
        And I think, you don't do that, you don't have a sense of
    what you are doing with your day. I think--and speaking for
    myself, I sometimes get a message on my phone: You were on the
    phone, you know, an extra 5 hours this week or something, or
    you played this game for an hour, and those things add up.
        And so maybe that is the small-ball reform that would
    conserve your time to do things that you think are more
    important like legislation.
        Mr. Woodall. I serve on the Modernization Committee that is
    looking at some of those items, and what we found is the best
    way to do that is to get folks to focus on things. I just had
    to come from another hearing to be in this hearing. But guess
    what, that was transportation, and I don't want to give up the
    Transportation Committee, and I don't want to give up the
    Budget Committee. And I don't want to give up the Modernization
    Committee or the Rules Committee either. And so here we are. My
    bosses back home encouraged me to do more things less well
    instead of a single thing well, but I appreciate that the
    targeting is absolutely something that we are trying to sort
    through.
        Does anybody else have any wisdom on the steps back?
        Mr. Spalding. Thank you. No, I think you are right in terms
    of thinking that, through broad state, it is probably
    impossible to identify them in particular ways. But I would say
    there are at least three phases--again, putting it in broad
    terms. The first phase is having the will to do it. You know,
    Congress speaks as an institution through its legislative
    function, and I believe it is actually the most powerful of the
    three branches. But it needs to talk that way and act that way.
    So I think part of it is just establishing the will. So that is
    my psychological answer, I suppose.
        Second, Congress should play to its strength. The place to
    start is where you are strong, which is why I have emphasized
    the budget power. And then, once you reestablish that strength,
    third, you want to use that strength to exert yourself in other
    areas.
        Now, that is not to say you don't fight those other fights
    if they come along, as you may choose, but you should have that
    in mind, which means you are really taking the steps to rebuild
    your core strength, and there I think you are right to do so.
    Budgeting is the key power. I have always wondered, for
    instance, why there are a certain number of appropriations
    committees, or why you have to do appropriations in a
    particular order. These are all political questions. And the
    number of committees is based on the number of divisions within
    the budget that comes from the President.
        You could do your ordering of your appropriations
    differently. You could get the easy things off the table or
    save the things you want to have your most leverage over until
    later. I mean, just think strategically about where your
    strength is and how to use that as powerfully as you possibly
    can. And I would start there, and then engage the other
    questions as they come up.
        If you need to have a fight over a particular
    authorization, I am not opposed to that. But I think this is a
    long-term problem, and part of the long-term solution is
    rebuilding your core budgetary strength.
        Mr. Woodall. Dean.
        Ms. Belmonte. Yeah. I would echo a lot of that. I thought a
    few times this morning about the famous warning in Dwight
    Eisenhower's farewell address in 1960 about the military-
    industrial complex, and that has happened to decreased your
    power as well. There are a lot of special interests that are
    continually bombarding the government, and maybe considering
    how some of that might be reined in would be really beneficial
    here.
        Others have mentioned increasing your staff. They, they are
    facing a whole host of actors that are trying to make
    government work on their behalf and as well as the
    administrative state; empowering and growing the Congressional
    Research Service, which used to really provide an excellent
    source of impartial information. And we are in an age where we
    have more information at our disposal than ever and probably
    know less than ever as a result of it because it has gotten so
    difficult to discern what is or is not credible.
        There are some proposals about increasing the size of the
    House itself so people can be more responsive to their
    constituents. The ratio of representatives to constuients has
    changed dramatically.
        Thinking through inefficiencies in government, the cert
    process, the length of time people wait for clearance,
    inefficiencies in procurement that leave government behind
    private industry and the type of technology it can use, the
    purchasing process.
        And then I would repeat the suggestion of an Office of
    Legal Counsel within the legislative branch.
        Mr. Woodall. Well, we certainly did that with the Budget
    Act and CBO, right? We were tired of getting pushed around by
    OMB. So we created CBO and did a pretty good job. Now I would
    say the American people don't rely on OMB for their budget
    information. They trust CBO instead, and we achieved exactly
    the goal that we desired.
        Mr. Spalding.
        Mr. Spalding. I actually agree with the notion that
    Congress needs to beef up its ability to do things. One of the
    mistakes of the Contract with America--and if you ask Newt
    Gingrich, he probably would agree with you--is he took steps--
    since he was in favor of cutting government--to cut
    congressional staff and reduce our size. And that was a big
    mistake if Congress wants to compete with executive. So I would
    agree with the sentiment.
        Mr. Woodall. Well, and of course that hammered the House
    even more than it hammered the Senate because we were driving
    that train. Whether it was 1994 or 2010, when I was elected,
    those were our two big Article I budget cutting years and
    particularly House budget-cutting that year.
        So let me ask that question pointedly to you, since it is
    not a partisan panel. We all want to serve our bosses well, and
    generally serving the Constitution trumps every other concern
    that my constituency has. If I was to paraphrase you, Dr.
    Spalding, I would say that you are telling me that I am
    betraying, rather than serving, my constitutional
    responsibilities by shrinking Article I spending relative to
    Article II spending. Is it that simplistic, that you believe
    that our constitutional obligations are being subjugated to our
    budget concerns?
        Mr. Spalding. I think your obligations--first of all, your
    first obligation is to the Constitution to which you swear
    allegiance. But you are a Congressman and your obligation is to
    this institution and its powers in Article I. You think that
    you have powers. You have no specific constitutional powers
    individually. You only have powers as a body.
        You have those obligations to not only exercise those
    powers but also to keep an eye on and monitor the powers you
    have been given responsibility over. So let me answer it this
    way. One of the tendencies that has happened over time--again,
    like the policies or not--is that Congress has given more and
    more responsibility to experts or bureaucrats or
    administrators--use positive or negative connotative language--
    but this transference of responsibility to the fact of the
    matter.
        In an odd way, I am actually advocating more politics, not
    less. That is the Madisonian solution. The Madisonian solution
    is that the branches need to compete with each other and be
    strong enough to engage each other. The problem is that a lot
    of the expertise that makes the kinds of decisions Congress
    ought to have responsibility over has been sent elsewhere. And
    having done that, you have weakened yourself institutionally in
    the separation of powers back-and-forth. That is the mistake.
        And so what is your answer? Well, sometimes you do have to
    delegate, and modern lawmaking is complicated, and you want
    people that know particulars, and so you sets up check, mostly
    meaning here congressional oversight. You need to recognize
    what that means constitutionally and politically in terms of
    Congress carrying out its constitutional duties and
    responsibilities. And I think that, over time, the
    administrative state has become a real problem from the point
    of view of both political parties.
        And you have also fueled the ability of the executive, who
    has nominal control over almost all of that, to figure out ways
    to creatively use all these regulatory authorities, sometimes
    poorly written laws, sometimes laws that contradict each other,
    in ways that allow them to essentially govern. And so, yes, I
    think that institutionally Congress is not upholding what I
    think is its primary constitutional obligations.
        Mr. Woodall. Professor Pearlstein.
        Ms. Pearlstein. Thank you. We agree on quite a bit and,
    indeed, exactly what I was thinking as you were asking your
    question was about Congress disabling its ability to compete
    effectively among the branches. Right? So, if the idea is
    ambition will counteract ambition, part of the ambition has to
    come from individual incentives, and that is a big problem. And
    we talked about politics and polarization a little bit earlier,
    but the other part of that is simply resources and capacity.
    And you are now completely beholden to and dependent on your
    supply chain for information, which comes almost entirely from
    the executive branch. So that is a--putting yourself in a place
    where you can effectively, institutionally compete is
    essential.
        There was one other piece of this I wanted to point to, and
    that is, as you think about the separation of powers and your
    ability to compete across three branches--there are three
    branches, right? So it is not a two-way game, it is a three-way
    game. And one of the large problems that is contributing to the
    overwhelming effectiveness of the executive in winning this
    contest, so to speak, is that both of the other two branches
    are in one way or another, shirking. And that sounds like a bad
    word. I don't necessarily mean it that way, but right, Congress
    delegates its power to the executive, the executive acts, and
    the courts say: You know, we need to defer to the executive as
    well because that is the source of expertise or because, well,
    the executive knows more about foreign policy than we do, or
    because as a decision in this past week says, oh, I am not sure
    Members of Congress have standing to sue in courts to enforce,
    right, the powers that they are trying to enforce.
        Now, obviously, you don't want to interfere with the
    exercise of Article III courts and their ability to exercise
    independent judicial judgment, but when Congress does things
    like legislate to create a cause of action, right, pass a
    statute that includes a right to sue. This sends to courts a
    message that says, in fact, we don't want you to shirk; we want
    you to be as engaged as we are. Right? And the notion is, by
    adding powers, not just saying, ``Well, you take the ball,''
    right; by adding powers, you better empower both branches to
    fight the executive.
        Mr. Woodall. Let me follow up on something you were saying
    to Mr. Perlmutter of, again, some of those things we could do
    to hold folks accountable. I think our work here is a little
    like parenting. It is important to set boundaries, but the
    worst thing you can do is set boundaries that you are not going
    to pay any attention to. So, back when we used to do
    appropriations bills regularly, you would get to the end of the
    appropriations bill because we are reading it line by line, we
    start going through all the reports that are going to be
    required, and they are going to be--you are going to do a
    7,000-page report on how to solve world peace and it will be
    due by next Thursday. Right? And there is no expectation that
    we are going to get that done. And they are going to ignore it,
    and we are not going to enforce it.
        Thinking about that give-and-take, maybe it is hard for us
    to reclaim some of that power. It should be easier for us to
    stop giving away any more power. Tell me about the interplay
    between your encouragement to hold folks accountable versus the
    parliamentary system we have fallen into where folks don't want
    to embarrass their President, and in fact, my bosses back home
    don't want me to embarrass their President, depending on where
    those political winds are blowing.
        Ms. Pearlstein. Sure. So a lot of different things to say
    there, but let me maybe highlight one--or two. On the question
    of what do you do when the executive doesn't do what you told
    the executive to do, right, whether it is filing reports--the
    statement of legal theories as changed under the existing
    authorization for the use of AUMF, as required under the
    National Defense Authorization Act that was just passed, was
    due over the weekend or at latest, I suppose Monday, it has not
    been received. Right? So that is a big report. We haven't seen
    it yet, unless something has happened while we have been
    sitting here.
        So there are a couple of ways to deal with situations like
    that. One is you create incentives in the individuals who serve
    in the executive branch. Now, the extreme way of doing that is
    by imposing particular kinds of liability. But Congress has
    done that before with its assertions, the Antideficiency Act
    and the Impoundment Control Act, right, trying to make sure
    that individuals within the executive branch have personal,
    professional incentives to do what Congress has said the law is
    and not to follow an executive who says otherwise, or write an
    order to follow Congress' priorities and not someone else's.
        But I don't think you have to do--necessarily start with
    the nuclear option, that is, necessarily start with the
    individual liability for members of the executive branch
    option. I think that there are other steps that you can take
    short of that, including, you know, using the budgetary power,
    which I entirely support. The funding simply stops if this is
    not forthcoming. Congress has to exercise some judgment. Which
    are the reports that are really important? Which are the
    reports that aren't important? Right? Because, even within the
    executive, there are only so many hours in a day.
        But there are, as with these other kinds of ways of
    drafting legislation, a menu of options. And rather than
    thinking about enforcement as an on-off switch, think about it
    as a continuum. The sort of heavy guns of enforcement are
    individual liabilities or fines, for example, if this doesn't
    happen. Less than that are simply a right to sue. Right? Less
    than that is something like a funding cutoff or a warning. Less
    than that is sort of the basic oversight functions: When this
    report is due, this official is required to come testify. So
    the official who is responsible for the report, the Secretary
    of Defense or whoever it is, right, has to show up and
    personally take responsibility to Congress if the report is not
    brought with him on the day of the testimony, right? So there
    is a menu of options, and Congress has all of those powers to
    sort of design them as it wishes.
        It depends, you know, in emergency powers and emergency
    situations, you want to design that menu somewhat differently,
    but all of those tools are available and I think should be used
    more liberally than they have been--liberal with a little L.
        Mr. Woodall. Dr. Spalding.
        Mr. Spalding. One thing I would add to that is, look, one
    of the dilemmas I think both party faces is what you alluded to
    at the end: How do you carry out your responsibility when the
    person in the executive office is of your same party and you
    don't want to embarrass them and your constituents don't want
    to either? That is a problem.
        Part of the answer is--I don't mean this in the simple
    sense but in the powerful sense--a rhetorical answer. As I said
    earlier about establishing the will to act as an institution
    and asserting your powers: Congress needs to talk that way
    more. So, for instance, you could say ``I am sorry, Mr.
    President, but it is not that I am against you or what you are
    doing. But it is my obligation to make sure this is done
    correctly and responsibly and through the proper constitutional
    process.
        Congress is timid when it comes to those things because we
    have gotten to a point where everyone assumes that, as soon as
    you draw a line, it means the nuclear option, or it is a red
    line. One of the reasons why I think we want to, from a
    constitutional point of view, push more and more authority back
    into the legislature is precisely because the legislature is
    the place where you can have deliberation and consensus and
    accommodation.
        I am not opposed to going to the courts, but you generally
    don't like the courts in political questions because their
    decisions are binary. The reason it is a problem with the
    executive oftentimes is because it is a unitary decision.
    Congress is the body, the branch, in which you have to figure
    out how to come to some sort of accommodation on these
    questions.
        But you need to explain that to the other branches in a way
    that defends this, despite your partisan affiliations, with or
    without the executive. Not every challenge of a President is
    partisan. They shouldn't be at a certain level. I am not naive
    and say that we are not going to have partisan challenges, but
    there are institutional challenges, and you want to be at the
    point where you can do that with either a Republican or a
    Democrat president, given the control of Congress being the
    other way around.
        And today everything you do, every motion, every little
    gesture, is seen in partisan terms. Part of that, I think, is
    also learning how to better explain and argue those things in
    public terms, through legislation but also in terms of how you
    talk about these things.
        Mr. Woodall. Professor Prakash.
        Mr. Prakash. I mean, I think the way I would try to explain
    it to a constituent is: It is not about this President. What we
    are doing is constraining the Presidency writ large, and it
    applies to this President or President Sanders or President
    Warren, or whoever might come down the line.
        And so I think putting it that way makes it clear to people
    that, since their party doesn't have a monopoly on the
    Presidency, they can see the wisdom of the institutional
    constraint without regard to who is President. And you can even
    tell the President: It is not about you, right? Maybe this
    takes effect next year, right, or 3 or 4 years from now. And it
    is not as good as it taking effect now, but it certainly is
    better than no reform at all. Because people don't know who is
    going to be the next President or even the next President after
    that, I think it is easy to say it is not about any particular
    person.
        Mr. Woodall. Please.
        Mr.Spalding. Well, I mean, correct me if I am wrong, but I
    believe if Congress votes a pay raise, it doesn't take place
    until after the next election. So maybe that ought to be your
    model to make it very clear it has nothing to do with the
    current occupant of the White House.
        Mr. Woodall. Though to be--to the point of what we are
    talking about, that is exactly what the 27th Amendment says,
    and yet in the middle of every congressional session, we go to
    the law and we change the law that provides for that across-
    the-board cost-of-living increase for Federal employees and say
    this shall not apply to Congress. There is a constitutional
    amendment that says you can't change pay in the middle of a
    term, and yet we do it every single term. Strangely, there is
    no special interest group litigating that or trying to get that
    fixed.
        Two quick questions, Mr. Chairman, with your indulgence.
    Sunset language doesn't exist. Very often when things do
    sunset, often times we don't go back and reauthorize anyway.
    From an institutional perspective, creating more sunset
    language strengthens us as Article I, or because of our habit
    of ignoring unauthorized programs and their expiration
    continues to weaken us as Article I? Is it obvious to you?
        Mr. Spalding. I think you hit on a possible dilemma. On the
    one hand, for a lot of things we are talking about, I actually
    like sunsets. Right? I mean, you have authorized a certain
    period of time, there is going to be an authorization for a
    military act. Having that sunset or defining it is a great
    idea. But like you said, this is an exercise in parenting. If
    you sunset laws, you have to enforce the sunsets. And there are
    plenty of programs that have long sunsetted, but you still
    appropriate money for, and there is all sorts of contradictions
    out there. So whatever you choose to do, I think one of the
    things that will play to your strength is being consistent.
        Mr. Woodall. Professor Prakash.
        Mr. Prakash. Go ahead, Prof. Pearlstein.
        Ms. Pearlstein. So, with respect to sunsets, I think they
    are essential for use-of-force measures in particular and
    emergency authorities in particular because the way the
    legislation and authorities are currently designed, it requires
    a supermajority. It is a simple majority of Congress to flip
    the switch on to war or emergency authorities, but it requires
    a supermajority of Congress to turn it off. And that is because
    of Chadha, and you can't have a concurrent resolution. We
    talked about this a little bit earlier. It is in my testimony
    as well.
        So there a sunset is, I think, indispensable. Beyond that,
    and beyond that context, I think the way to think about sunsets
    is not necessarily as does it increase or decrease power, but
    about what kind of incentives it gives you to vote or not.
    Sunsets are what I would call a democracy-forcing device,
    right? They don't empower or disempower. They just make you
    vote again if you want to take action.
        So, if it is something that you think is essential for
    there to be repeated democratic consultation on, a sunset is a
    good thing because it will make you vote. If it is the kind of
    issue that you think nobody is going to want to vote on this
    ever again, then you want to be maybe more cautious about
    sunsets because you will come to the requirement of voting, and
    if your members, you think, are incapable of acting, for
    political reasons or whatever else, and it is something that is
    important, like CDC funding or whatever else, then you want to
    be more cautious.
        Mr. Woodall. Let me ask when the golden age of Article I
    empowerment was? You don't have time today to tell me
    everything that we need to do to get right, but I can go and
    read the history books and see what folks were doing right. One
    of my favorite quotes is that Jefferson letter to Rutledge in
    1797, and he says to Mr. Rutledge: You and I have seen warm
    debate and high political passions, but gentlemen of different
    politics would speak to each other. It is not so now. Men who
    have been intimate all their lives cross the street to avoid
    meeting and turn their heads the other way, lest they should be
    obliged to touch their hat.
        Right? This was 10 years in, and we had already gone to
    pot.
        And presumptively those political passions in the Senate
    bled over into Article I, exercising oversight of Article II.
    So, if we had already come unglued 10 years in, when--what are
    you going to point me to as that era? Right? We have got more
    vetoes, I think in the few years of the Ford administration
    than any other Presidential administration, as America was
    reacting to executive power and a pretty high supermajority in
    the legislature.
        But where is the--it is so easy to say today is bad. I want
    to know when it was good, and that will help me to plot a
    course.
        Mr. Spalding. Congressman, it was never good.
        Mr. Woodall. Okay.
        Mr. Spalding. I think the point of it is that, yeah, there
    was never intended to be a golden age, right? The whole point
    of the Constitution, the beauty of the Constitution, as seen in
    the Convention, the Federalist Papers, and other contemporary
    writings is a recognition that the nature of man is full of
    political passions and interests, but a lot of good too. But
    government's job is not to figure a lot of that out, but to
    create a structure by which we can exercise the powers that
    need to be exercised, be able to have an executive that can do
    what we need for crises and necessity, and introduce the idea
    of an independent court system. They were never so naive to
    think that somehow this is a perfect system or that the actors
    in it would be perfect. What they recognized, which is why I
    think our obligation is to the Constitution, is precisely that
    all the actors in the government are going to have some
    political instincts. It is human nature. So, instead of
    forgetting that and ignoring that, which is one of the reasons
    why I am a little bit more nervous about political power being
    exercised by people not clearly under the legislative or the
    executive power is because they are political too. So instead
    let's give them a political interest in their institutions and
    then set the institutions against each other, through the
    separation of powers and checks and balances, that then give
    rise to a higher obligation to uphold the constitutional
    system.
        The break, in my opinion, occurs once that system starts
    getting mucked around with. Over the course of time, it is hard
    to identify a particular point that defines the shifts towards
    this different way of thinking. But the progressive movement
    introduced arguments and policies about more administration,
    which fed the executive branch, and then once you centralize in
    the 1960s and 1970s--again, like it or not--that created the
    sheer amount of activity that I think makes it virtually
    impossible for Congress to exercise its true legislative
    powers. And they have, you know, gone to the method of least
    resistance, and the executive now can exercise more power
    because if you guys have not as much ambition, I can tell you,
    executives tend to have more and more ambition. And that is the
    root of our problem, I suppose.
        Mr. Woodall. Dr. Spalding tells me it has never been good.
    Surely someone can lift me up more than----
        Mr. Spalding. It has been better, though. It has been
    better, though.
        Ms. Belmonte. I am afraid I would agree with that. I mean,
    let's not forget that it was at this very building where
    Preston Brooks beat Charles Sumner with a gutta-percha cane
    senseless----
        Mr. Woodall. But that hasn't happened in a number of years.
    We are on the----
        Ms. Belmonte. They did ban weapons in the building shortly
    thereafter, so. But, no, I mean, in terms of discourse, I don't
    know if we have ever had any sort of honeymoon period. It
    certainly was very vicious in the 1790s as you mentioned. I do,
    though, think that in the mid-1970s you had a period where
    Congress was actively trying to reassert its power through
    things like the creation of the Federal Election Commission,
    the Freedom of Information Act. 1978 was really the last major
    reform of the Civil Service, creation of the inspector general
    office, and that is within a lot of us in this room's lifetime.
    It seems like it is far away but really isn't.
        Mr. Woodall. Professor Prakash.
        Mr. Prakash. I mean, I guess there are two dimensions. One
    is partisanship, and one is congressional power. And in ages
    past, of course, Congress had more power than it does now, even
    if those were rather partisan times. And so I think if you
    can't have both bipartisanship and power, at least have the
    power. And so I think it is a mistake to say that Congress has
    always been irrelevant or been a plaything of, you know, just a
    tagalong for the executive. That is just not true. There were
    very powerful committee chairs and Speakers that basically
    decided Federal policy in any number of ways. I believe this
    was true for most of our Nation's history, in fact. So there
    was golden age, where power was was centered in this building
    for centuries.
        Mr. Woodall. Well, that being the case, and we are pointing
    to the mid-1970s as a resurgence in congressional power, when
    is the failure? Are you coming to the Carter years? Because
    that is going to hurt me as a Georgian if that is where the
    blame lies. If we can point to the 1970s as a resurgence and it
    used to be strong, when does the weakness begin in your view?
        Mr. Prakash. I mean, I think it is gradual. I don't think
    it is any one decision? I think if you keep on delegating
    authority to the executive, it will naturally feel like it is
    the one who is tasked with making the laws. And then when you
    pass particular restrictions, it will then think it has
    discretion to reinterpret them. Right? So, even when you pass
    specific laws, it finds discretion where none was meant to be
    conveyed. And so I don't think--I wouldn't blame any particular
    President. I think they are all doing this, and they have
    incentives to do it. I don't think they are evil. I think they
    are running on a platform, and I think they want to implement
    it, and we can disagree with the platform or not, but I think
    they are just responding to the incentives they face. And I
    just don't think it is any one person. I think it is a mistake
    to personalize and say this or that President was the cause of
    all our problems.
        Mr. Woodall. Professor Pearlstein.
        Ms. Pearlstein. Yeah. So I guess pivoting off of that
    slightly, the partisanship and the power are really closely
    related. They are directly tied. What happened in the 1970s was
    a major effort in Congress to reassert power, coming off the
    Watergate years and Vietnam and so forth. But the 1970s is
    where the partisanship line, where the polarization line
    switches. So, if you look at the political science and they
    graph the sort of number of effectively party-line votes in
    Congress, what happens is, beginning in the 1970s, the line
    starts going like this. Right? Polarization starts going like
    this in the 1970s. And why is it that that happened? Beyond our
    pay grade here probably to describe those trends in society,
    but it is not that the scope of delegations changed in the
    1970s. We were well into the administrative state by then.
        What changed in the 1970s is the partisanship, and the
    partisanship affects the power because it makes it harder for
    you to legislate. It makes it harder for you to act. And as
    Congress has become increasing divided, it makes it--you know,
    along party lines, closely divided, it makes it harder and
    harder for you to act. So it is not possible to divorce the
    partisanship from the power.
        What is possible, at best, right, is for Congress to act in
    ways that try to diffuse rather than exacerbate the
    partisanship that exists.
        Now, some of those are outside things, and they might have
    to do with campaign financing, and they might have to do with,
    say, amending the Communications Decency Act or sort of start
    to think more strategically about social media in a way that
    respects the First Amendment but that still tries to minimize
    the polarizing effect of that. And part of that is, as we were
    talking about earlier, creating spaces within Congress. Once a
    week have a bipartisan lunch and bring in an outside speaker to
    give a little history lesson or a little instruction on how
    Facebook works or--take your pick. But right--the second Member
    of Congress--I have heard two Members of Congress in the last 6
    days, say: Gosh, you know, I never see Members of the other
    party. We don't meet for lunch. We don't--you know, I've got to
    be back in my district, raising money. I have got to be at
    committee meetings. I have got to be whatever else.
        That is an extraordinary state of affairs as a workspace
    for you, and it seems to me like that is a modest initial step
    that might begin to help Congress at least not exacerbate the
    partisanship that exists.
        Mr. Woodall. Mr. Chairman, I want to accept Professor
    Prakash's invitation that if we can't defeat the partisanship,
    let's at least take back the power. I hope that we are able to
    work on that. I trust you with that power. I yield back.
        The Chairman. No, and I appreciate that, and I think that
    is--go ahead.
        Mr. Spalding. I just want to----
        The Chairman. Yeah.
        Mr. Spalding. It is interesting that the partisanship came
    in the 1970s. I would agree with Sai's point about how there
    was--even though I don't think there was a golden age--there
    was this point at which Congress' powers were stronger relative
    to the way they are today, absolutely. There is an intellectual
    shift that begins in the early 20th century, and there is a new
    theory of governing about administration.
        There are things that occur along the way, but the fact
    that a big shift occurs in the 1960s and especially in the
    1970s, I think, is significant, and it is not merely a random
    rise in partisanship. It is, for the first time, you now have
    in place a fuller administrative state,--and for the first
    time, in the Nixon administration, there is a recognition that
    control of the administrative state is a dispute between the
    executive branch and the legislative branch.
        And so from the 1970s forward, we have a situation where
    this administrative state mostly has been centralized in
    Washington; and, lo and behold, the partisanship is actually
    when you have an executive trying to assert their control over
    it and the other party in Congress not liking that, and trying
    to fight back. So now we have a partisan divide. I mean, in
    certain instances, that is what is happening today. We fought a
    similar battle in the 1980s. There are these back-and-forths
    that underscore the point that a lot of politics today actually
    turns on the administrative state. We have created this
    situation where it is in the interest of the executive to fight
    for the control of the bureaucratic system Congress has
    created. Congress needs to pull that back in order to restore
    institutional balance.
        It has been partisanized to some extent, and that is
    unfortunate, but it is a serious battle with serious
    constitutional implications that is not mere partisanship. It
    is a serious constitutional argument going on as to, where do
    these aspects of the modern state rely? Who has the property
    authority over them? How are they going to exercise that
    authority, consistent with the broad parameters of
    constitutional government?
        Mr. Woodall. Thank you, Mr. Chairman.
        The Chairman. I yield to our constitutional expert, Mr.
    Raskin.
        Mr. Raskin. Mr. Chairman, thank you, and I want to thank
    Mr. Cole as well for your vision in bringing us together in
    this hearing, and it is indeed refreshing and exciting for us
    not to be here in the unusual partisan camps of 9-4 but 13 to
    zero on the side of the constitutional order and Congress and
    the people that we represent.
        When I read through everybody's testimony, I find that
    there is at least one overarching value and principle that has
    been vindicated by the presentations today. And I think about
    it sometimes when--whenever the President, any President,
    violates constitutional boundaries or rights, and a Member of
    Congress will get up and say, ``Mr. President, please stop
    treating us like this; we are a coequal branch of government,''
    beseeching the President to be good to us. And what I take from
    everything you are saying is that we are not a coequal branch
    of government.
        First of all, ``coequal'' is not even a word. Okay. That is
    like ``extremely unique'' or something like that. We are not an
    equal branch of government. We are the people's branch of
    government. We are the representative branch of government. We
    are the lawmaking branch of government, under a constitutional
    Republican framework.
        And the Preamble of the Constitution, it is that one
    action-packed sentence that gives us all of the purposes of
    government: We, the people, in order to form a more perfect
    union, establish justice, ensure domestic tranquility, provide
    for the common defense, promote the general welfare, and
    preserve to ourselves and our posterity the blessings of
    liberty, do hereby ordain and establish the Constitution of the
    United States.
        And then--that is all in one sentence--and the very next
    sentence is Article I, stating that all legislative power is
    vested in the Congress of the United States, the Senate and the
    House, meaning that the sovereign power of the people to create
    the Constitution, to launch the Nation, to design the
    government, flows immediately to Congress.
        And then you get 37 or 38 paragraphs spelling out all the
    powers of Congress as you have discussed them: the power to
    regulate commerce internationally and domestically, the power
    to declare war, the power to set up a post office, the power to
    exercise exclusive legislation over the seat of government, the
    power over piracy, and on and on and on, and in Article I,
    section 8, clause 18, and all other powers necessary and proper
    to the execution of the foregoing powers.
        And then, after all of that, you get to Article II, which
    reposes the executive power in the President. And there are
    just four short sections, and the fourth section is all about
    impeachment and how you can impeach a President for committing
    treason, bribery, or other high crimes and misdemeanors.
        And then the rest of it is essentially saying that the
    President is the Commander in Chief of the Army and the Navy
    and the State militias when called up in times of actual
    insurrection and conflict. And what is the President's core
    job? To take care that the laws are faithfully executed, to
    implement and execute the laws that have been adopted by the
    people's Representatives.
        So I want to thank you for restoring that essential
    constitutional vision, which has been so lost over the decades.
    Whether you trace it to the rise of an administrative state, as
    Professor Spalding does--and I definitely want to ask him about
    that thesis--or I think another rival and perhaps, to my mind,
    a more compelling proposition, which is the rise of a national
    security state in the wake of World War II and the development
    of a massive military apparatus underneath Presidential power
    and control.
        But I wanted to say a word about something that Mr. Cole
    said, because I think that he is right, and I think he was
    picking up on one of Dr. Spalding's points about Madison
    Federalist 10, about how the design of competing and
    counteracting ambitions requires those of us who aspire and
    attain a public office to identify our own political ambitions
    with those of our institutions and to fight for our
    institutions and the institutional interests and principles
    that emerge. And when that happens, that really is kind of a
    beautiful thing to behold.
        I remember when I was reading Robert Caro's book about
    Lyndon Johnson, of course, who was a famously great and
    effective Senate majority leader, but when he got elected Vice
    President, he had the idea that he would be not only Vice
    President, but he would stay on as Senate majority leader
    because he said: Hey, I am the President of the Senate under
    the Constitution, and I should just stay the head of the
    Democratic Caucus.
        And he expected that these Senators, who usually yielded to
    his will, would just go along with it, but when he went into
    the room to announce that this was his intention, there was an
    absolute insurrection because all of the Democratic Senators
    said: You now belong to the other branch of government, and we
    have to stand up for the legislative branch and for the Senate.
    That is who we identify with.
        I think, more recently, we have seen it a couple of times.
    We saw bipartisan majorities in both the House and the Senate
    stand up during the Obama administration for the legislation
    that would make Saudi Arabia liable for lawsuits by our
    constituents relating to 9/11 over the President's veto. And we
    were not distracted by the partisanship of the matter.
        Just like, more recently, under the leadership of, you
    know, our chair and the ranking member, I think we have also
    stood up for the war powers of Congress with respect to Iran.
    We also did it with respect to Yemen. And so there are times
    when we exercise that political, institutional muscle memory,
    and we are willing to stand up for the powers that have been
    reposed to us by the Founders of the Constitution.
        But I want to ask a couple questions, and one is about the
    courts. Is there anybody here--I mean, this could even be yes
    or no--is there anybody who thinks that the courts can save us
    here, or has any interest in saving us here? You know, I see a
    Supreme Court that has been increasingly filled with people who
    have made their careers as executive branch lawyers advancing a
    strong executive view of the Constitution, and that view has
    come to sway a lot of the Supreme Court decisions. And I am not
    seeing that the Supreme Court has been in any mood to rein in
    executive power. So I just want to know, is there anybody out
    there who thinks the courts can save us? And you can answer
    with your silence or--Professor Prakash.
        Mr. Prakash. I mean, I think your general sense is right. I
    don't think the courts can be counted upon to save you or, put
    another way, sort of do the work that you should be doing for
    yourselves. I think the only Justice who has had any
    legislative branch experience, off the top of my head, is
    Breyer. I think he worked for Senator Kennedy for a while; I
    don't know how long. But I think you are right, that if
    Senators paid attention to this, we could have more Justices
    who actually have served in legislatures or served in Congress,
    which wasn't uncommon in the past.
        And so, you know, I think that is certainly possible that
    you could ask Presidents to think more about appointing Members
    of Congress or former Members to the courts.
        Mr. Raskin. Great.
        Yes.
        Ms. Pearlstein. My own view is, the courts should be more
    aggressive in checking executive power, but not even Justice
    Jackson thought the courts could preserve for Congress power
    that Congress didn't assert for itself. So----
        Mr. Raskin. So the bottom line is we have got to do it
    ourselves.
        Ms. Pearlstein. Yes.
        Mr. Raskin. In other words, we have to exercise the powers
    of legislative self-help in order to defend the proper powers
    and prerogatives of Congress.
        So, let's see, Dr. Spalding, I wanted to come to you. I
    agreed with almost everything you said, but I detected a
    sneaking attack on the administrative state, and I certainly
    heard the same thing from Steve Bannon when he came into
    office. I think he declared his overarching purpose was to
    deconstruct, I think was the word, the administrative state.
    And forgive me or my parochialism here, but I represent
    Maryland's Eighth District, which is right near Washington,
    D.C., and I represent tens of thousands of people who work in
    what people are slurring today as the so-called administrative
    state. They work at the Department of Agriculture. They work at
    NOAA, which is in my district. They work at the NIH, trying to
    fight and research the killer diseases. They work at the Center
    for Disease Control, trying to prevent the viruses and bacteria
    that are coming to get us. I am sorry, but I don't think that
    the 435 or the 535 Members of Congress can do all of that stuff
    ourselves. I think that it is completely within the legislative
    prerogative to set up these agencies, which will be under the
    executive branch of government, to go out and to implement of
    will of the people in a very complicated, modern society. And
    that doesn't mean that we have to give away our overarching
    legislative power and legislative supremacy within the system.
        Now, I am totally with you, if we write our laws in such a
    way that there is a very broad and overly vague or standardless
    delegation to the executive branch, that should be struck down
    under the nondelegation doctrine. We should make sure that we
    are delegating laws with specific enough direction that rules
    can be developed. But is the administrative state itself really
    a problem? And I thought I would give you at least a second to
    say something, and then maybe I could ask one of your
    colleagues to answer. Is the administrative state the heart of
    the problem, or is the problem that we do have executive
    usurpation and legislative surrender of powers that properly
    belong with the representatives of the people?
        Mr. Spalding. Well, just, you know on your last point,
    those two things aren't necessarily incompatible. And so I
    agree with your last point. But in general, I think the
    administrative state is a problem, but let me clarify what I
    mean by that. I know it has become a popular term and
    politicized in a certain way, which I don't completely agree
    with, the notions of--whether it is deep state or whatever
    these terms are. I mean it in a more straightforward and simple
    sense, and I am just raising the general observation that, by
    its original plans, Woodrow Wilson and Teddy Roosevelt and
    people in both political parties were figuring out how to do
    more and more things through a kind of bureaucratic expertise
    outside of the political control of Congress. That was their
    very intention to a large extent.
        And here we have gotten to a point where a lot of the
    things that your constituents normally think of as laws are not
    responsive to consent in the way they assumed for a long time,
    either through regular congressional elections or somehow
    through the executive. I think that is, at the level of
    principle, quite problematic.
        Having said that, Congress actually does a lot of things
    and regulates a lot of things, and it has to, by the necessity
    of government. So I am not denying that it is extremes one way
    or the other. If we are thinking about the discussion here, it
    is problematic because there is now this huge array of
    government that Congress is trying to figure out how to,
    through its lawmaking power and oversight, how to keep an eye
    on. There is a lot of it. It is very complicated. It is a hard
    thing to do. And by virtue of that fact, you have a lot of it
    that now is occurring under the executive, who has more and
    more authority to shape a lot of those decisions through
    political appointees and other processes. I think if we are
    thinking about how to revive a robust separation of powers in a
    way that is ultimately politically responsible through consent,
    which is really the objective I think we all share in common,
    it is something I am comfortable with, but I am not saying that
    we want to go back 200 years and have that government--that is
    not going to happen, and that is not the objective. It would be
    imprudent to do that. But I think that we are beyond the point
    where Congress needs to really think hard about how to, when
    you create something, maintain control of it. It should be
    responsible. It should be responsible back to you. And if there
    are things going on in the bureaucratic state that you don't
    like or you want to check, you should be able to call those
    things back and to check them.
        And I think that the less you do that, the more the
    executive will. Hence we have the situation which we find
    ourselves. And that is not to say there are other factors here
    as well. It is just--looking at it from my historical point of
    view, that seems to be a major factor here that tracks very
    nicely historically with the rise of the problem we are looking
    at.
        Mr. Raskin. All right. Good. And Let me----
        The Chairman. Mr. Raskin, will you just yield to me 1
    second?
        Mr. Raskin. Yeah.
        The Chairman. Yeah, I just want to, I have to excuse myself
    to go to the floor. I have a bill on the floor, but I am going
    to turn the gavel over to Mr. Cole. I didn't want anyone to
    have a breakdown on our side, but I mean, this hearing again is
    a----
        Mr. Cole. It is like you are dad giving the keys to the
    car----
        The Chairman. Yeah.
        Mr. Morelle. Should we appeal the ruling of the chair?
        Mr. Cole. I think you got the votes.
        Mr. Raskin. All right. As I said, two final questions.
    Professor Prakash, let me ask you, one of the other themes that
    has emerged strongly here is that Congress has the power to
    declare war, but it also has a duty to declare war, that is, we
    can't abdicate that or surrender that just because it is a
    politically difficult position for us. And I wonder if you
    would just generalize that proposition in terms of all
    legislative action here.
        Mr. Prakash. I think so, Congressman Raskin. I think this
    goes back to what Congressman Woodall was saying. I think the
    Constitution gives you authority, and you are supposed to
    exercise it. And that is true for war powers. I would say it is
    equally true for the other things that are granted to Congress,
    the regular legislative powers. And I--you are quite right that
    you don't have the expertise that agencies have, but--I mean, I
    think you can harness their expertise without fully delegating
    your legislative powers to them, as has happened.
        And I think it is sort of interesting and emblematic that
    the President last year or the year before, said: We are going
    to dismantle ObamaCare administratively.
        And I think that is an incredible statement to make. But it
    is actually possible that the statute does give him so much
    discretion that he can do that. And I think that is a
    consequence of a habit of just saying: Look, we in Congress do
    the broad outlines; you, the executive, do the details.
        But that has consequences for how the executive branch
    perceives itself. And, of course, it is then impossible--it is
    virtually impossible for you to change that statute.
        Mr. Raskin. Okay. And my final question--and perhaps
    Professor Pearlstein and Dean Belmonte, you would address
    this--one of the reasons why the executive branch, I think, has
    grown in power, vis-a-vis Congress, is the executive branch has
    one person at the top of it, and that person can speak for the
    entire executive branch, and it communicates a sense of
    authority and command that you don't get from 535.
        I mean, when I read the Founders, I think one of the things
    they loved about Congress was that people would come and they
    would debate and fight and talk, and yet it is very easy to run
    against an institution that just talks, that is just debating
    and deliberating. And all of those trends have been pronounced
    and exacerbated by the rise of modern technology, TV, internet,
    Twitter, and so on and so forth.
        So I just wonder if you would reflect on, symbolically, and
    in terms of communication, how to rectify the imbalance between
    the branches that has grown.
        Ms. Pearlstein. You want to?
        Ms. Belmonte. You can go.
        Ms. Pearlstein. Okay. That is a great and interesting
    question to which I am not sure I have a very good answer.
    Theodore Lowi, a former professor of mine at Cornell, wrote
    about the personal Presidency, right, decades ago. And you can
    date it back to Teddy Roosevelt, right? So this is a radical
    change. One of the things that has been most interesting to
    see--and forgive me for mentioning the current Presidency for a
    moment, right--this is the first tweeting President. And I
    think that is factually accurate. And that of itself, right,
    empowers the executive dramatically as compared to any Member
    of Congress or even more.
        There is--Congress has to be enormously cautious when it
    begins to think about regulating those privately owned
    platforms, but those privately owned platforms--Twitter and
    Facebook and Instagram and the whole pile of them--exercise an
    enormously concentrated degree of power that historically the
    United States has been uncomfortable in allowing to be held by
    any one body. Right? We don't--we separated powers in the
    Federal Government. We separated powers between the Federal
    Government and the States. We have antitrust laws that prevent
    the accumulation of powers in private industries, and we are at
    a moment when, in part because we don't understand this
    industry very well and we are still trying to follow it, where
    it is effectively further changing the balance of power even
    among the branches of government.
        It is something that Congress has a duty to at least begin
    to get a grip on or understand and then to think creatively
    with members of private industry and academia and so forth, how
    we might begin to more effectively incorporate those kinds of
    institutions into our political life?
        Ms. Belmonte. I think that we have had a real evolution of
    how Presidents communicate with the public. You know, one could
    make the case that Twitter is the fireside chat of 2020. Some
    of the things that I think Congress could do--Professor
    Pearlstein mentioned the antitrust laws. I think there
    certainly is a case to be made that some of these companies now
    wield a tremendous amount of power. I think there are, like,
    six major companies that control most of the newspapers in the
    United States now. Possibly consideration of the reinstitution
    of the fairness doctrine might help right this picture a bit.
        I also think that there are some things we can do to
    empower the people in the National Archives system who are
    working for records retention and openness, bolstering the
    staff of the people who implement the Freedom of Information
    Act. The National Archives in particular has really had its
    budget gutted, and with the flood of FOIA requests, people who
    could be doing things that are more productive than fielding
    these requests.
        Mr. Raskin. Yield back.
        Mr. Cole [presiding]. Will the gentleman yield to me for
    just a moment?
        Mr. Raskin. By all means.
        Mr. Cole. Thank you very much.
        I just want to follow up on a point that you made,
    Professor Pearlstein.
        We recently were at a Republican retreat, and somebody
    said: If you want to see who has got the louder voice, let's
    add up all of what you guys have on Twitter, literally every
    single Republican Member, and what the President has. It was a
    10-to-1 differential. So, in terms of megaphone, really makes
    your point.
        With that, the gentleman----
        Mr. Raskin. And I yield back to you, Mr. Chair.
        Mr. Cole. Thank you very much.
        I yield to my good friend, the gentlelady from Arizona,
    Mrs. Lesko.
        Mrs. Lesko. Thank you, Mr. Chairman. First, before I
    forget, I would like to ask unanimous consent to insert into
    the record a report for a practical vision on government
    efficiency, accountability, and reform that the Republican
    Study Committee, of which I am a member, produced. It offers
    over a hundred solutions, many of which include reasserting
    Congress' proper role in regulatory reform.
        Mr. Cole. Without objection.
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mrs. Lesko. Thank you. I think this has been an interesting
    discussion. We will see if anything comes of it. One of the
    things--I have a question for Mr. Spalding. I think one of the
    things that I heard going in and out between different
    committee hearings that I am in is that there is a suggestion
    to beef up the staff, and so have kind of a nonpartisan
    alternative to the Office of Legal Counsel in the Congress. And
    what are your thoughts on that, Mr. Spalding?
        Mr. Spalding. Well, I was speaking in general terms, first,
    which is that I think that Congress shouldn't unilaterally
    disarm in the kind of back-and-forth with the executive branch
    or the judiciary for that matter. It should have the strength
    it needs to do its work. Beyond that, it is a prudential
    question as to what exactly you need. You created the
    Congressional Budget Office. You will know what is it that
    would help you best fight those battles. I think that is just a
    practical question.
        In terms of having some sort of Office of Legal Counsel, I
    don't see that necessarily as a problem. Why wouldn't you? I
    was going to tell Mr. Raskin I am going to blatantly use his
    wonderful phrase ``legislative self-help''--I like that by the
    way; that is great--but I am not in agreement overall. Congress
    is the first branch, first among equals, but each branch has a
    separate vesting and must take that vesting seriously, and so
    it needs to have the tools to carry out its responsibility. If
    Congress deems that it has need of these things for that
    purpose, I think that is a perfectly legitimate reason to do
    so.
        Mrs. Lesko. And I would like you to expand--I know the
    power of the purse is probably our biggest leverage that we
    have, dealing with the executive branch. And this was a case--I
    was in the Arizona State legislature for 9 years. This same
    struggle happens between Governor and legislative branch. You
    know, the Governor wants to take all the power. The legislative
    branch, you know, usually gives it to him.
        And so you had brought up something about--could you expand
    more on the budget subcommittees and maybe, if I heard it
    right, changing them up so they are not really in line with the
    Presidential budget but some kind of strategic----
        Mr. Spalding. I was just making a general point. And my
    guess is you guys know all the stuff better than I do. I am not
    a budget expert. But I am looking at it from a political point
    of view. And I think it is the case that the control of the
    budget in the modern era determines the control of government.
    And that power has shifted a lot to the executive branch. This
    is one reason why you might need more people to help you do
    that.
        But, also, then you start thinking practically about, how
    should Congress exert its power? And I have told this to
    previous Congresses as well. You know, the Congress waits and
    waits and waits, and you get into these omnibus situations.
    And, lo and behold, those almost inevitably get won by the
    Executive, right?
        Your power is actually doing the old-fashioned work of
    committee work and budgeting and authorizations and the back-
    and-forth. Because if you do that, number one, it is more
    likely you are going to have a pretty strong agreement about
    where you are in the budget and the particulars. And there is
    no reason why you can't pass them in--why do you have to pass
    them in a particular order? You could break them up into
    different pieces. You could pass 100 little budgets, as far as
    I can tell, right?
        My point is, you should think strategically about what is
    the best way to do budgeting not merely as a budgeting exercise
    but as a political exercise, in terms of how do you best exert
    your constitutional powers as an institution vis-a-vis the
    Executive. And I think it is your strongest power, on the one
    hand, and you should go to your strength.
        But, number two, you should think creatively about how to
    use that power. And I think there are a lot of ways. That was
    just an example, and I could be wrong about it, but that is an
    example. You should think strategically about how to exert that
    power that gives you more leverage so, when it does come down
    later in the budget process, you are not caught in a position
    where they are going to win. You have already done the things
    and you have under your belt the things you want to get, right?
        Just think strategically. That is my point.
        Mrs. Lesko. Well, thank you.
        And I yield back.
        Mr. Cole. Before we go to the gentlelady from Pennsylvania,
    just quickly, as a reminder to everybody, we are supposed to
    vote around 1:30, so just wanted you to be aware of that.
        The gentlelady from Pennsylvania, Ms. Scanlon.
        Ms. Scanlon. Okay. Thank you.
        I want to thank the chair and ranking member for arranging
    this. It is a really interesting, as you have noted, bipartisan
    hearing to address something that Congress appears to have
    allowed to happen on a bipartisan basis over many, many years.
        I wanted to focus a little bit on the National Emergencies
    Act. We actually had a similar hearing in Judiciary about a
    year ago which also involved high-level constitutional
    discussions on a very bipartisan basis.
        The Congressional Research Service tells us that, since
    that act was passed in the 1970s, 56 national emergencies have
    been declared by 7 different Presidents and that 60 percent of
    them are still in effect.
        So a couple of you mentioned some possible fixes there, and
    I wanted to look at them.
        Professor Pearlstein, I think you talked in your remarks a
    little bit about maybe narrowing the delegation of power. Can
    you speak to that a bit?
        Ms. Pearlstein. Sure. And thank you. And, in fact, I think
    there are a number of bills that are in the drafting stage that
    might effectively amend the National Emergencies Act. Let me
    mention three ways. First, the way--or three potential
    approaches you might take.
        The first is narrowing or, indeed, defining at all what an
    emergency is, which the current tact doesn't do. And you can
    come up with some definition of ``emergency'' that doesn't
    unduly constrain the Executive, right? The point of emergencies
    is to have some more flexibility than the Executive might
    otherwise have to respond to contingencies that are
    unanticipated.
        But, at the same time, countries around the world have
    adopted, either in their constitutions or as statutory
    authorities, emergency provisions that say things like, this
    has to be something that, for example, threatens the life or
    the economy of the nation, or this has to be something that is
    reasonably anticipated to be a limited duration, right? This is
    not an ordinary tool of, say, economic sanctions or the way we
    conduct foreign policy every day, right?
        So actually defining ``emergency'' I think might be a
    useful first step.
        I think it is critical to flip the switch of authorization,
    by which I mean: Currently it takes, in effect, a supermajority
    of Congress to terminate any emergency, because it has to be a
    joint resolution, right? I think emergencies should terminate
    automatically after a certain period of time unless Congress
    acts affirmatively by a simple majority vote to reauthorize
    them, and, again, for a certain limited period of time, I
    think, is essential.
        One other point I will just mention here--and I think I
    might have mentioned others in my testimony, but I am happy to
    talk about it further. There is no current provision in the
    National Emergencies Act legislation that requires--so, once
    the President declares an emergency, it triggers access to 130-
    something different statutory authorities that might be used.
    There is no current provision in the National Emergencies Act
    authority that says, you may only use those statutory
    authorities that are relevant to solving the emergency that you
    have identified, right?
        So we could, under the existing statutory scheme, be in a
    situation in which the President declares--or, actually, the
    health emergencies work differently, but just to use the
    coronavirus example--in which an emergency, a public health
    emergency, is declared, and for that reason we take additional
    funds to do military construction on the border, right?
        So I don't mean to be partisan; I am choosing these
    examples from current history. But the point is the President
    doesn't need every emergency authority in every emergency. And
    it is entirely possible to draft the statute through minor
    amendment that would make the President only able to use those
    statutory authorities that the President determines are
    necessary to address the emergency as identified.
        Ms. Scanlon. Okay.
        Professor Prakash, I think in your comments you talked
    about maybe a 6-week sunset provision. Can you speak to that a
    little bit?
        Mr. Prakash. Well, I mean, I agree with much of what
    Professor Pearlstein has said. I think a definition of
    ``emergency'' would be good in statutes. But I think the
    timeframe is crucial, right? Because it is sort of embarrassing
    that Presidents are basically saying we have been in a state of
    emergency for 60 years, because it just sort of drains the word
    of any meaning.
        So I think saying that sometimes when Congress is not in
    session, the executive needs to act to handle crises. Fine. The
    emergency the executive has declared and the authorities it is
    exercising will expire 6 weeks after Congress returns or 3
    weeks after Congress returns.
        The Constitution itself has such a provision. It deals with
    recess appointments. It is supposed to end at the end of the
    next session of the Senate.
        I don't think you need to give the President a yearlong
    emergency. I think a couple of weeks should be sufficient. And
    then Members of Congress can just decide, is this really an
    emergency? Or even if it is not, do we agree with the policy
    such that we want to implement it statutorily?
        Ms. Scanlon. Okay.
        I was struck by, both in your conversations and in the
    comments you submitted, the number of recommendations that
    overlap with the other committee that I serve on with
    Representative Woodall, the Select Committee to Modernize
    Congress, where we have talked quite a bit about ways in which
    we can develop more room for discussion, for legislating, for
    bipartisan discussions. And these include calendar adjustments
    to increase the time in D.C., longer workweeks, restoration of
    earmarks, and staff resources.
        I think, Dr. Prakash, you had talked about Congress needing
    to bulk up on its staffing.
        Would any of you care to address that?
        Ms. Pearlstein. I completely share the recommendation that
    Congress is understaffed, significantly understaffed. And so,
    both within individual offices and as an institution, Congress
    has the capacity to create--Congress has the power to create
    all kinds of additional capacity that it needs.
        What happens sometimes now is that Members of Congress and
    offices that are short-staffed or require expertise pull from
    different agencies of the executive branch, who have wonderful
    experts in them, but it should be possible for Congress to
    maintain and pay the kind of expert staff that it needs right
    here in-house.
        Ms. Scanlon. Yeah. I think that has been, kind of, one of
    the frustrations as a new Member. I think I disagree a little
    bit--and maybe it is because two out of the three committees I
    serve on are aggressively bipartisan--about not having the
    opportunity to speak with or break bread with other Members
    that frequently. But the pace of our time in D.C., with kind of
    a very compressed 4-day schedule where Members have to step in
    and out just to get to the hearings and such, I think is
    problematic, and I am hoping that we can make some movement in
    terms of the calendar system here.
        And, with that, I would yield back.
        The Chairman [presiding]. Thank you.
        Mr. Morelle.
        Mr. Morelle. Thank you.
        First of all, I just want to comment on how much I
    appreciate this forum. I appreciate all of you being here and
    your thoughtful testimony, which I had the chance to, like Mr.
    Cole, spend time over the weekend reviewing.
        I also want to thank the chair and ranking member, who I
    think have done just a great service not only to us on the
    committee but to the country by having this discussion.
        I, like my colleagues Ms. Scanlon and Secretary Shalala,
    are new to the Congress. I served in the State legislature in
    New York for more than two decades. So trying to get acclimated
    to the Congress and how we work.
        But as I was thinking about this over the weekend, I had,
    sort of, three things, I think, generally that came to mind.
        The first was how to restore the balance that the Founders
    intended, which is what all of your testimony was about and the
    background material.
        And I want to also thank the staff, because I think they
    did just a terrific job in pulling materials together, and the
    Congressional Research Service. So thank you for that.
        But how to restore that balance. And spent a fair amount of
    time reading through the material and sort of thinking about
    it, recalling times we all read through ``The Federalist
    Papers'' in college.
        The second was if--the question of restoring the balance is
    obviously a critical one, the point here. But then, also,
    secondarily, does what the Framers intended, does that still
    work in the modern world? So is that balance possible to
    restore, and then is that the right form of government in a
    modern world?
        And I think about it under, sort of, two, sort of, general
    ideas. One is feasibility, with the issues that we have to deal
    with now, you know, how quickly things develop, and you compare
    that to the 18th century, where things moved at a relatively
    modest pace compared to today.
        So, today, within just a few weeks, we are talking about a
    virus that a month ago few Americans had paid any attention to,
    and now it is dominating just about every news cycle, and
    obviously there is concern about how quickly we react to it.
        We talked at length today about military action and, again,
    just the ability to be able to engage in military action
    compared to just two centuries ago and the complete difference
    in the ability to reach enemies, and now with air power and
    missiles, et cetera, it is momentary rather than taking weeks,
    if not months, to sort of engage.
        And I think about even feasibility. Our appropriations
    process, which I had the privilege of, now, I guess, working
    through two, but the last one, we finished our appropriations
    process in December for a fiscal year that starts October 1.
    So, I mean, our ability to, sort of, come together and deal
    with it. So that is one thing.
        The second was--and I think Mr. Cole and Mr. Raskin touched
    on this, in particular--sort of, the practicality. Given where
    the media is--and I don't mean just the traditional media--
    social media, just the ability now for people to share
    information and to hold us accountable in ways that, frankly,
    we never have been held accountable.
        I go into meetings in my office in the Federal building, a
    meeting with constituents, and they will say, why aren't you a
    cosponsor of this bill, which I have never even heard of. And
    it is almost as though it is weaponized now if you don't know
    every--I don't know how many thousands of bills are introduced.
    But it is amazing, the degree to which people not just hold you
    accountable in, sort of, broad-brush, you know, themes about
    your philosophy of government but in very pointed ways about
    the issues that they care about. And if you haven't sponsored
    or cosponsored a bill, if you haven't signed on to a letter,
    honestly the volume that comes at us--and I don't know that I
    am any different--I am sure the senior Members get much more
    attention, but it makes it nearly impossible to manage all of
    that.
        So I wonder about the practicality of some of the things
    that we have talked about.
        And then I think the final thought that occurred to me
    was--I was reminded of, I think it was Walt Kelly, who was an
    old cartoonist, who modified an old phrase, that ``we have met
    the enemy, and he is us,'' which is, Congress can act. I mean,
    we talk about a lot of ways of, sort of, forcing us to do what
    is our job under Article I.
        And so I do think about that. I mean, it is almost like we
    are creating a Rube Goldberg sort of machine to get us to do
    what is our constitutional authority and which we have the
    ability to do.
        I did note, in looking at this--I was trying to remember an
    old Thomas Jefferson letter, which my staff put their hands
    on--thankful to them--that he wrote to James Madison. He was in
    Paris at the time--wrote in September of 1789.
        He said, ``On similar ground, it may be proved that no
    society can make a perpetual constitution or even a perpetual
    law.'' And he sort of gets into the conversation, with himself,
    of the question of repeal versus what we would call today a
    sunset provision.
        He said, ``Every constitution, then, and every law
    naturally expires at the end of 19 years.'' Don't ask me where
    he came up with 19 years. It is sort of an interesting--I guess
    that is a generation in that era.
        And then he sort of concludes with, ``A law of limited
    duration is much more manageable than one which needs repeal.''
    And his argument being you would have to have a majority and
    you would have to have a President to sign a repeal or to agree
    to a change. Better to have a sunset.
        And so I think some of what we talk about sort of falls
    along the lines that many people have opined on here, that
    sunsets may be the best way to sort of address this, because it
    is so much more, I think--it is just so much easier for us to
    periodically--and I don't know whether, depending on the bill
    and depending on what we are dealing with, whether that is
    every 5 years, every 10 years, or even lesser timeframes.
        I did want to ask you a question that I don't know that
    anybody has asked. And I had to step out, so it may have gotten
    covered. Since I am not burdened by a legal education, I don't
    know the answer to all the questions I ask. I know lawyers are
    supposed to know the answer, but I don't know the answer to
    this.
        But I am just sort of curious about Executive orders and
    whether or not in any--if any of the panelists wanted to just
    make any observations about the proper role of the Executive
    order and whether in the modern era they have now begun to
    expand into what are sort of legislative prerogatives and
    whether or not we ought to be doing anything from a statutory
    point of view in terms of putting limitations on Executive
    orders.
        Any thoughts on that?
        Mr. Prakash. I think it is a wonderful question,
    Congressman.
        I tell my class that it is not the vehicle that matters, it
    is what is said in the order. Because you can call it something
    else and, you know, do the same thing. An Executive order is
    legal or not depending on whether the President has
    constitutional or statutory authority. And so those are the
    underlying questions that really matter.
        I think Presidents have issued directives, they have a
    bunch of documents, and they used to issue proclamations. They
    don't have them as much anymore. But I don't think focusing on
    the form matters. I think it is more helpful to think about
    whether they have authority to lay down whatever rules are
    found in the order, directive, etc?
        And whether they do it or the agency does it, that is not
    the ultimate question. Because sometimes Presidents tell the
    agencies what to do, and then the agency does it, but it is
    really a Presidential initiative. It is not coming from the
    agency.
        Mr. Morelle. So--yeah. Go ahead. Thank you. I am sorry.
        Ms. Pearlstein. So the most important thing that Congress
    can do with respect to Executive orders that it doesn't like or
    doesn't agree with is override them by legislation, right? It
    is the simplest fix in the world, the simplest----
        Mr. Morelle. Well----
        Ms. Pearlstein [continuing]. Constitutional fix in the
    world.
        Mr. Morelle. Well, I guess what I was curious is whether
    you observed that there has been an expansion not only with the
    use of Executive orders but whether Executive orders are
    becoming bulkier and starting to really press into us.
        And I acknowledge that the Congress could always repeal,
    but I assume you would have to do it by statute and you would
    have to require the signature of the President who had signed
    the Executive order in the first place.
        Ms. Pearlstein. That is true, right, so it becomes
    difficult. And there are also ways--and the way it usually
    works these days is that they are challenged in court, right?
    And the courts move faster than Congress tends to move on these
    things. But----
        Mr. Morelle. Potentially.
        Ms. Pearlstein. Yeah. Right. So, in many circumstances with
    respect to, sort of, long-term Executive orders.
        But I don't know--and I am sure there is political science
    on this, and I don't know--Executive orders have been with us
    for a long time. We may get them more frequently now than we
    used to, but we have had very broad Executive orders, and they
    were indispensably important in the mid- and early 20th century
    as well, certainly surrounding the wars that we fought. So
    Executive orders have been around for a long time. It is that
    Congress acts----
        Mr. Morelle. Yeah. I think President Washington----
        Ms. Pearlstein. It is not necessarily that the Executive is
    acting so much more through Executive order or something. It is
    that Congress is acting less.
        Mr. Morelle. Any other observations?
        Ms. Belmonte. I would echo that. I think that the sheer
    volume of them has vacillated over time, but I think in the
    current legislative landscape they are being used in the
    absence of legislation to address some very contentious issues.
    Probably the best example of late would be immigration. We
    haven't had substantive national immigration legislation since
    1986. And LGBT rights is another area.
        And by doing a lot of this through Executive order, it is
    putting the courts in the place of trying to interpret how to
    implement these orders and trying to guess what Congress'
    intent might have been had it acted, but not having the
    legislation to have a clear affirmation of that.
        Mr. Morelle. Yeah.
        Mr. Spalding. I actually find myself--I agree with
    everything that has been said here. I think you are going to
    get the increase in the amount of Executive orders when the
    Executive has more things over which they are responsible. And
    they use this mechanism, whether it is an order or some other
    declaration, to give instruction to those who are going to
    execute the law. That is, they are actually carrying out their
    obligations to do so.
        But to the extent that there are discrepancies or things
    that need to be interpreted or areas where there is some
    discretion, right, they can use those mechanisms as ways to
    shape the meaning of the law, at the very least, if not do
    something contrary to what Congress wants if Congress fails to
    act.
        So I don't think they are necessarily a new and different
    problem in and of themselves. I think they are really part and
    parcel of everything we have been discussing here.
        Mr. Morelle. Yeah.
        And I won't go on much longer. I just want to--I do think
    the points made about specificity in legislation are important.
    When I was in the State legislature, I chaired the insurance
    committee for a while. And I noted, every bill that would be
    proposed by the Governor would give all these basically
    unlimited powers to our superintendent of insurance, which I
    would immediately take out before we would enact anything.
    Because I do think it is important for legislators, if you are
    writing laws, not to simply delegate the details. Now, some of
    it, you are going to have to, obviously, by rule. But I think
    we would be better served to have much more specificity in what
    the Congress' will is and give less latitude to the executive
    branch to do that.
        And, again, I looked at the--something like 25 percent of
    the American public follows President Trump's tweets. Roughly a
    little bit higher percentage follows President Obama's tweets.
    And I forget who made the point here, but individual Members of
    Congress don't have the ability--the nature of what we do now
    has dramatically shifted, and the nature of communications,
    where a President, you know, probably up until relatively
    recent history, would have to go through what was traditional
    media. I mean, when I was a kid growing up, you watched Walter
    Cronkite every night, and whatever you saw on CBS News or the
    other networks was really the way that was communicated from
    the Executive of the White House and, by the way, from Congress
    to the American public.
        But now it is so much different, that the President's
    ability--and I don't think--I mean, the Founders really thought
    Congress would be the voice of the people, right? One of these
    talked about how each branch, from Article I to Article III,
    each branch was less, sort of, of the people. We were the
    branch that was to be chosen by the people; the executive by
    the electoral college, which would be the will of the people in
    the individual States; and then the Supreme Court, obviously,
    through the President's nomination and ratification by the
    Senate.
        But now it has really changed, in that the ability to go
    directly to the people is much more enhanced by the White House
    and by the President, any President, than it is by individual
    Members of the House and even of the Senate. And that has had a
    dramatic impact on the way that we do our work. And I am not
    sure we can ever put that genie back. I doubt we can.
        Ms. Belmonte. But it has also injected a whole new level of
    ambiguity. Is a tweet a policy statement? And that has created
    endemic confusion on more than one occasion, both within our
    country and among foreign countries. And it may be an area that
    Congress asserting itself could add some clarity as to what
    constitutes an official action of the U.S. Government.
        Mr. Morelle. Well, I think that is a great question. And,
    obviously, I don't think this President is going to be the last
    one to use Twitter or other ways of communicating directly with
    the American public. I mean, I think that is just the way it is
    going to be, and I think you raise an important point.
        So, anyway, I will conclude. I have many more questions,
    but I am not sure they would in any way add to the debate here.
    But I do want to again thank the chair and the ranking member
    for, I think, a really, really important conversation.
        The Chairman. Thank you.
        Ms. Shalala.
        Ms. Shalala. Thank you. I share my colleague's view in
    thanking both of you for a really important discussion.
        I have been on the other side, on the executive side, and
    now on the legislative side. I have not been on the judicial
    side, but I understand, and I want to point out to my colleague
    from New York, that the Supreme Court does not require a law
    degree----
        Mr. Morelle. That is true.
        Ms. Shalala [continuing]. For appointments.
        Mr. Morelle. I don't think I will be a candidate, though,
    anytime soon.
        Ms. Shalala. So one way the Congress delegates authority to
    the executive branch is also by badly drafted legislation--and
    as someone that sat on the other side, we would somehow
    celebrate a badly drafted piece of legislation because we could
    drive a car through it and do whatever we thought was best--or
    by delegating your responsibility directly to the executive
    branch when they didn't want to make the decision.
        And my example there is, when Congress did not want to
    decide whether individuals should be able to import drugs from
    another country, they said to the Secretary of HHS, okay, you
    can do it as long as you are willing to say it is safe and that
    it is cost-effective to do those two, which put the Secretary
    in the bind as opposed to Congress in the bind.
        And I could go through numerous examples, including HIPAA,
    where the Congress could not agree on Kennedy-Kassebaum. They
    agreed on the legislation but not on how it should be drafted
    and what the guidelines ought to be. So it was sent over to the
    Secretary of HHS to do those kinds of things.
        The only point I want to make on that is about staffing. We
    are totally dependent in the legislature on the Executive
    telling us whether something actually can be implemented or on
    special interest groups. Because we don't have the level of
    staffing to talk about what the implications are or what the
    impact of various policies would do.
        Now, that suggests not only do we need additional staffing
    but we need a certain kind of staffing. It does me no good to
    have a conversation with young staff people who have some
    policy chops, they think, but not necessarily can think through
    what the implementation challenges are and who ought to
    implement it and what their level of expertise needs to be
    done.
        I was once taught by a very smart secretary early in my
    career that we should stop writing regulations for people that
    have graduated with honors from Harvard as opposed to smart
    people who didn't that needed to be able to implement those
    kinds of regulations. And I just wanted to make that point.
        And my final point before I ask a question is about the
    coronavirus. With all due respect to my distinguished colleague
    from Colorado, I actually don't think it should be an emergency
    anymore. I think we are going to see these viruses all along,
    and what we have to talk about is readiness and whether the
    government is permanently funded for readiness to be able to
    have the flexibility to be able to deal with each of these
    viruses as they come along.
        Now, we do have some experience in that, and I want to ask
    Professor Pearlstein about that.
        The Stafford Act, which was written actually for the
    creation of FEMA, actually has real limitations when an
    emergency is declared by the President. So it is possible to
    release flexible funding, both resources as well as personnel,
    in a limited emergency act, which we could use as a backup to
    permanently funding on something like the coronavirus. And I
    wanted to ask your comments on that possibility as opposed to
    just these never-ending emergency situations.
        Ms. Pearlstein. Thank you.
        So I mentioned that other countries had drafted emergency
    legislation and in other constitutions as well. Congress has
    drafted other emergency legislation that remains on the books
    that is vastly more specific and, I think, effective in
    constraining the exercise of executive power than the National
    Emergencies Act as such.
        You mentioned the Stafford Act, for example; the Public
    Health Emergencies Act--I forget the acronym exactly. But some
    of these are vastly more specific in delegating power to
    particular officials, requiring the exercise of particular
    expertise, defining terms like ``emergency'' or ``necessity,''
    and limiting the kinds of power that are going to be exercised.
    So we have models that are at our fingertips, literally, and I
    think we would be foolish not to rely on them.
        The trick with the National Emergencies Act and IEEPA, the
    International Economic Emergency--whatever it stands for--is
    that these have become, instead of tools for dealing with
    actual emergencies, dealing with chronic, longstanding,
    ordinary exercises of government power. When and under what
    circumstances are we going to impose economic sanctions or
    trade sanctions or travel restrictions on countries that are
    doing things that we disagree with?
        And it is entirely possible and, indeed, I quite agree with
    you, necessary to do both at the same time, to have emergency
    powers that exist for certain limited periods of time as we
    deal with a particular crisis and at the same time make sure
    that we are funding and maintaining not only the institutes
    that enable us to deal with emerging infectious diseases, which
    happen all the time and have always happened and are likely to
    get worse, but it enables us to deal with global public health
    surveillance and other things that we might want to be able to
    do all the time, not just in emergencies. Both are necessary,
    but, at the moment, we do a lot of our ordinary policymaking
    through these emergency authorities.
        Ms. Shalala. Now that I have admitted that one way Congress
    delegates authority to the Executive is by badly drafted
    legislation--also by making legislation more complex.
        And I wanted to ask you all about Chevron, because it gives
    the Executive tremendous powers, it seems to me. And now that I
    am on the other side, I would like to find a way in which we
    could reverse that and at least get more balance in the system.
    But that also means that we have to stop drafting bad--not bad
    legislation, but badly drafted legislation and making
    legislation more complex, like the Medicare Act, by adding
    layers to it that actually gives the Executive more control.
        So could you comment on that, any of you?
        Mr. Prakash. I agree with you, Representative Shalala. I
    think if Congress wants to delegate, it can do so. Chevron is
    basically a presumption of delegation to the Executive. And I
    think Congress can easily change that by just saying, ``We only
    mean to delegate when we say the following words--`we delegate'
    or when we say we are delegating. Chevron is just a rule of
    construction that the courts came up with, and we hereby
    repudiate it.'' And I don't think any court would continue
    applying it.
        The effect would be that the courts themselves would decide
    the best interpretation of the good and messy statutes, and not
    the Executive, which would yield more stability and prevent
    this sort of attempt to try to make a mess of a statute.
        I think executive branch lawyers now strive to find
    ambiguity in a statute so they can then say, ``Look, there is a
    mess here, and we are basically trying to fix it through
    interpretation.''
        Ms. Pearlstein. I don't disagree with any of that.
        My former boss, Justice Stevens, who I had the honor of
    clerking for, is the author of Chevron and often said during
    his life that he never imagined or intended that it would
    become this new rule of construction and deference to the
    Executive. Rather, he thought he was restating the rule that
    preexisted Chevron, which was, look, if the interpretation is
    reasonable, then courts are in a position to endorse that
    interpretation, but where interpretations are unreasonable, we
    won't endorse them.
        And what makes reasonableness in executive branch
    interpretation is, for example, reference to record evidence
    and deference to expertise. And where those things are lacking,
    then the interpretation is much less persuasive.
        This is an unusual time to begin reversing major decisions
    of the Supreme Court. I am a believer in stare decisis. But I
    am equally a believer that deference is warranted where
    deference is deserved. And where you lack an internal executive
    branch process that came up with the interpretation or where
    you lack an internal executive branch reference to expertise or
    basis in expertise that actually supports that interpretation,
    then it makes much less sense.
        Ms. Shalala. I yield back.
        The Chairman. Thank you.
        I think that is it with the questions, but I want to yield
    to Mr. Cole if he has any closing remarks.
        Mr. Cole. Yeah. Just quickly--and I want to pick up on
    something my good friend from Florida said, just so you are
    aware of this, and for the panel. I mean, sometimes Congress
    actually does what it is supposed to do. For 5 years in a row,
    NIH funding is up almost 40 percent; CDC, 24 percent; strategic
    stockpile, 35 percent; new infectious disease--and I say that
    simply because that was a conscious congressional policy that,
    no matter what President Obama asked for or President Trump
    asked for, we were going to be prepared in these areas for
    exactly what is happening today.
        Now, we can debate execution, but you really can't debate
    resources. And that is Congress deciding. As a matter of fact,
    I can just tell you, I had this discussion when now-Chief of
    Staff Mulvaney was at OMB, and I said, this is going to--I was
    chairman at the time--this is going to happen. Now, your budget
    can reflect it, in which case you can take credit for it, or
    you can be really stupid and propose a cut, in which case you
    are going to get beat up for it--I will leave you to decide
    which one he did--but it is going to happen.
        And for those of you that worry about how the budget wars
    go--and, with all due respect, the appropriations wars, to be
    more accurate--we win a lot more than we lose. Just go look at
    the Presidential budget at the beginning of the year, which I
    will tell you, having helped draft executive budgets before, is
    never a real budget. It is a statement, a political gimmick
    anyway. But nothing like that emerges at the other end. And it
    doesn't matter if it is President Obama or if it is--you know,
    we make them submit a budget so we can change it and, sort of,
    we get the last word on that.
        So there is a lot of assertion of congressional power that
    actually goes on here, and so it is not quite as atrophied as
    you think. Our biggest problem is when we abdicate and we don't
    do things like immigration or when we don't do things like
    entitlement reform that we all know need to get done and we
    don't arrive at a compromise. So we can do that.
        But I want to get more to the point. Just, number one,
    thank all of you. You clearly put in a lot of work, thinking
    through the papers. The testimony has just been excellent. We
    really appreciate the commitment of your time and your
    expertise and your thoughts. It is incredibly valuable.
        I think you have noticed just from the participation of
    members how much they have enjoyed thinking about being
    Members, thinking about the institutions, wondering, again, how
    we could do our job better in a bipartisan sense even when we
    have disagreements, wondering how we could restore the
    appropriate constitutional balance.
        I think a lot of you have tremendous suggestions in that,
    which I hope, Mr. Chairman, we sit down seriously. You know,
    everything from, you know, actually putting time limits on
    emergencies to some of these other things, I don't see that
    those should be partisan things that we can't do together.
        And, finally, Mr. Chairman, I just want to thank you. I
    mean, this discussion doesn't happen if you don't convene it.
        This is, for the panel, way outside what we normally do on
    the Rules Committee. I mean, this is the Speaker's committee
    for a reason. Everybody up here is either appointed by the
    Speaker or the minority leader. We don't go through the normal
    confirmation process. Our job is really to shape the
    legislation for the majority so it can move it and for the
    minority just to offer the first line of defense and the first
    argument back.
        So for us to undertake something like this is a very, very
    unusual thing. And it would not have happened were it not for
    our chairman and his concern, long-term concern, about the
    institution, the appropriate balance, and be willing to use
    this as one of the appropriate instruments to bring it up.
        So, Jim, I am very proud of you, very proud to be on this
    committee as your colleague, and very much thank you for what
    you have done here. I think it is a real contribution.
        The Chairman. Well, I want to thank the gentleman from
    Oklahoma, my friend, for his comments.
        And I want to thank everybody on this committee, because,
    as you can see--I mean, maybe because we are on the Rules
    Committee and we meet more than any other committee and we see
    every piece of legislation that comes to the floor--good, bad,
    and ugly--that I think we are especially committed to this
    institution.
        And, you know, on this committee, there is the range of
    political ideologies from left to right and everything in
    between, and there are lots of policy differences that we have,
    but I think we all believe that, over the years, we have given
    up some of our constitutional authority in a way that is not
    good for the people we represent. I think it is not in keeping
    with the Constitution. It is just not good for the country. And
    there are many reasons for that; we talked about a lot of that
    today.
        But the Rules Committee is also a committee that deals with
    issues of procedures and processes. And so, to the extent that
    there are tweaks or changes in how we approach some of these
    issues, this is actually the right committee to be talking
    about all this stuff. And I look forward, in the coming days
    and weeks, to work with Mr. Cole and others to determine what
    the next steps are. Some might, you know, be low-hanging fruit,
    and we might be able to move more expeditiously on those, and
    our subcommittees can delve more in detail on some of these
    subjects.
        The whole point of this is not just to have an intellectual
    discussion. It is to figure out whether we can actually take
    some next steps, actually change things for the better.
        The final thing I would say to all of you is to thank you
    so much. As you have probably have noticed, because I am sure
    you have testified before other committees before, other
    committees have time limits. But you have been here, like----
        Mr. Cole. Not here.
        The Chairman. Not here. Not here.
        And I want to be very honest. You just have to keep this to
    yourself. But we sometimes have very, very long hearings here,
    and sometimes, oftentimes, it is Members of Congress who are
    sitting where you are, testifying, and they go on and on and on
    and on. And I am going to tell you this, just between us, that
    sometimes, when it goes on forever, I look at the chandelier,
    and I daydream and say, ``Please fall,'' you know?
        It has never happened, but I want you to know--and I mean
    this as a compliment--not for a second did I think that during
    this hearing today. That is the highest compliment I can pay to
    all of you. And I really mean it. This has been very helpful.
    And we look forward to working with you as we flesh out some of
    these ideas that Mr. Cole alluded to, because----
        Mr. Cole. I don't think I will ever look at that chandelier
    the same.
        The Chairman. Yeah. But just keep it in this room, will
    you? Okay.
        With that, the committee is adjourned. Thank you.
        [Whereupon, at 1:40 p.m., the committee was adjourned.]

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