[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

                               __________
                               
                          
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                    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:]
    
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     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:]
    
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    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:]
    
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    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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