[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


               THE ADMINISTRATIVE PROCEDURE ACT AT 75:
                 ENSURING THE RULEMAKING PROCESS IS 
                 TRANSPARENT, ACCOUNTABLE, AND EFFECTIVE

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

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON ANTITRUST, COMMERCIAL,
                         AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                      WEDNESDAY, DECEMBER 1, 2021

                               ----------                              

                           Serial No. 117-47

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         Printed for the use of the Committee on the Judiciary
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         


               Available via: http://judiciary.house.gov
               
                              __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
48-551                     WASHINGTON : 2022                     
          
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member 
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr,       DARREL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREGORY STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania,      VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

       PERRY APELBAUM, Majority Staff Director and Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON ANTITRUST, COMMERCIAL,
                         AND ADMINISTRATIVE LAW

                DAVID N. CICILLINE, Rhode Island, Chair
                PRAMILIA JAYAPAL, Washington, Vice-Chair

JOE NEGUSE, Colorado                 KEN BUCK, Colorado, Ranking Member
ERIC SWALWELL, California            DARREL ISSA, California
MONDAIRE JONES, New York             MATT GAETZ, Florida
THEODORE E. DEUTCH, Florida          MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         W. GREGORY STEUBE, Florida
JAMIE RASKIN, Maryland               MICHELLE FISCHBACH, Minnesota
VAL BUTLER DEMINGS, Florida          VICTORIA SPARTZ, Indiana
MARY GAY SCANLON, Pennsylvania       SCOTT FITZGERALD, Wisconsin
LUCY McBATH, Georgia                 CLIFF BENTZ, Oregon
MADELINE DEAN, Pennsylvania          BURGESS OWENS, Utah
HENRY C. ``HANK'' JOHNSON, Jr., 
    Georgia

                       SLADE BOND, Chief Counsel
                      DOUG GEHO, Minority Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                      Wednesday, December 1, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable David N. Cicilline, Chair of the Subcommittee on 
  Antitrust, Commercial and Administrative Law from the State of 
  Rhode Island...................................................     2
The Honorable Ken Buck, Ranking Member of the Subcommittee on 
  Antitrust, Commercial and Administrative Law from the State of 
  Colorado.......................................................     3
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     4
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................     6

                               WITNESSES

David Michaels, Professor, Milken Institute School of Public 
  Health, The George Washington University
  Oral Testimony.................................................     9
  Prepared Testimony.............................................    12
Wendy Wagner, Richard Dale Endowed Chair in Law, The University 
  of Texas at Austin School of Law
  Oral Testimony.................................................    33
  Prepared Testimony.............................................    35
Jacqueline Patterson, Founder and Executive Director, The 
  Chisholm Legacy Project
  Oral Testimony.................................................    53
  Prepared Testimony.............................................    55
Jennifer Mascott, Assistant Professor of Law; Co-Executive 
  Director, C. Boyden Gray Center for the Study of the 
  Administrative State, Antonin Scalia Law School
  Oral Testimony.................................................    59
  Prepared Testimony.............................................    61

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Materials submitted by the Honorable Pramila Jayapal, a Member of 
  the Subcommittee on Antitrust, Commercial and Administrative 
  Law from the State of Washington, for the record
  Statement from Robert Weissman and Jack Gillis, Co-Chairs, 
    Coalition for Sensible Safeguards............................    90
  Statement from Blake Emerson, Assistant Professor of Law, 
    University of California Los Angeles School of Law...........    92
  An article entitled, ``Administrative Answers to Major 
    Questions: On the Democratic Legitimacy of Agency Statutory 
    Interpretation,'' Minnesota Law Revew........................    94
  An article entitled, ``We Ran OSHA. Here's the Truth About the 
    So-Called `Vaccine Mandate,' '' Time Magazine................   175
  Statement from James Goodwin, Senior Policy Analyst, Center for 
    Progressive Reform...........................................   178
  Statement from Martha Kinsella, Senior Counsel, Democracy 
    Program, Brennan Center for Justice..........................   237
  A report entitled, ``Proposals for Reform, Volume II,'' 
    National Task Force on Rule of Law and Democracy, Brennan 
    Center.......................................................   239

                                APPENDIX

A letter from Kara Rollins, Litigation Counsel, and Mark 
  Chenoweth, General Counsel, New Civil Liberties Alliance, 
  submitted by the Honorable Jim Jordan, Ranking Member of the 
  Committee on the Judiciary from the State of Ohio, for the 
  record.........................................................   314

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions from the Honorable David N. Cicilline, Chair of the 
  Subcommittee on Antitrust, Commercial and Administrative Law 
  from the State of Rhode Island, for the record.................   320
  Response to questions from David Michaels, Professor, Milken 
    Institute School of Public Health, The George Washington 
    University, for the record...................................   330
  Response to questions from Wendy Wagner, Richard Dale Endowed 
    Chair in Law, The University of Texas at Austin School of 
    Law, for record..............................................   335
  Response to questions from Jacqueline Patterson, Founder and 
    Executive Director, The Chisholm Legacy Project, for the 
    record.......................................................   492

 
                    THE ADMINISTRATIVE PROCEDURE ACT
                     AT 75: ENSURING THE RULEMAKING
           PROCESS IS TRANSPARENT, ACCOUNTABLE, AND EFFECTIVE

                              ----------                              


                      Wednesday, December 1, 2021

                        House of Representatives

                 Subcommittee on Antitrust, Commercial,

                         and Administrative Law

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 10:13 a.m., in Room 
2141, Rayburn House Office Building, Hon. David N. Cicilline 
[Chair of the Subcommittee] presiding.
    Members present: Representatives Nadler, Cicilline, Raskin, 
Jayapal, Scanlon, Dean, Johnson of Georgia, Jordan, Buck, 
Gaetz, Johnson of Louisiana, Bishop, Spartz, Fitzgerald, and 
Bentz.
    Staff present: David Greengrass, Senior Counsel; John Doty, 
Senior Advisor; Moh Sharma, Director of Member Services and 
Outreach & Policy Advisor; Cierra Fontenot, Chief Clerk; John 
Williams, Parliamentarian and Senior Counsel; Atarah McCoy, 
Staff Assistant; Joseph Van Wye, Professional Staff Member/
Legislative Aide for Antitrust, Commercial, and Administrative 
Law; Slade Bond, Chief Counsel for Antitrust, Commercial, and 
Administrative Law; Phillip Berenbroick, Counsel for Antitrust, 
Commercial, and Administrative Law; Mary Helen Wimberly, 
Detailee for Antitrust, Commercial, and Administrative Law; 
Ella Yates, Minority Member Services Director; Douglas Geho, 
Minority Chief Counsel for Administrative Law; and Kiley 
Bidelman, Minority Clerk.
    Mr. Cicilline. The Subcommittee will come to order. Without 
objection, the Chair is authorized to declare recesses of the 
Committee at any time.
    Good morning and welcome to today's hearing focused on the 
Administrative Procedure Act and the rulemaking process. Before 
we begin, I would like to remind Members that we have 
established an email address and distribution list dedicated to 
circulating exhibits, motions, or other written materials that 
Members might want to offer as part of our hearing today. If 
you would like to submit materials, please send them to the 
email address that has been previously distributed to our 
offices and we will circulate the materials to Members and 
staff as quickly as we can.
    I would also like to remind all Members and our Witnesses 
that guidance from the Office of the Attending Physician states 
that face coverings are required for all meetings in an 
enclosed space such as Committee hearings, except when actively 
speaking. I expect all Members on both sides of the aisle to 
wear a mask for the duration of today's hearing.
    I now recognize myself for purposes of making an opening 
statement. Congress enacted the Administrative Procedure Act 75 
years ago to establish guardrails to ensure that the rulemaking 
system is open, effective, and accountable. The APA was enacted 
in the wake of the New Deal which created new Federal programs 
and agencies to respond to the Great Depression.
    In the decades since, Congress has enacted landmark 
legislation to promote the public interest and protect 
children, workers, consumers, the environment, and society's 
most vulnerable. These laws ensure that we have clean air to 
breathe and clean water to drink, that food and medicine are 
safe, that workers are safe on the jobsite and that borrowers 
and investors do not get ripped off by predatory lenders. In 
most cases, Congress tasked agencies with implementing these 
laws through rulemaking, adjudication, and enforcement.
    Today's hearing is an opportunity to discuss proposals to 
update the Administrative Procedure Act and other laws to 
ensure that the rulemaking process is effective, transparent, 
accountable, and consistent with Congress' intent. Congress has 
long directed agencies to implement and enforce the laws. It is 
crucial that our agencies and our rulemaking process are 
accountable and that they provide real benefits to improve 
people's lives and make them better every single day.
    It is equally critical that the rulemaking process aligns 
with our democratic values. Administrative agencies should not 
be yet another venue that gives powerful corporations and the 
wealthy greater access and influence on the public, workers, 
small businesses, and disadvantaged communities that do not 
have armies of lobbyists.
    It appears our current process is struggling in this 
regard. As Professor Wendy Wagner will testify and I quote,

        Only about half the rules that affect the public involve at 
        least one public nonprofit or other commentator that is not a 
        regulated entity. And in proceedings in which a public interest 
        representative does file a comment, that entity is almost 
        always outnumbered at least twofold and in some studies tenfold 
        when compared to industry comments.

    Many corporations are still using the Big Tobacco Playbook 
to influence and delay actions. As Dr. David Michaels will 
testify, powerful corporations employ a strategy to convince 
regulators that hazardous products are not so hazardous after 
all or at least that there is so much uncertainty that there is 
inadequate convincing evidence to increase protections for 
Members of the public exposed to that product.
    It is critical that we address this problem. Delaying often 
directly contradicts Congress' intent when it instructs 
agencies to keep the public safe and promote the public 
interest. We must also make sure that Congress does not allow 
the courts to undo the will of the people. For decades, 
Congress has directed agencies to implement statute by issuing 
rules. However, in recent years, the Supreme Court has begun to 
threaten to dismantle the system of governance that has existed 
for 75 years.
    Conservatives on the Supreme Court appear posed to try to 
achieve what they have been unable to win support for at the 
ballot box. In a 2019 dissent in Gundy v. United States, 
Justice Gorsuch, along with Chief Justice Roberts and Justice 
Thomas, proposed to resurrect the long dormant nondelegation 
doctrine, thus Gorsuch and his colleagues would invalidate the 
long-standing practice of Congress directing agencies to 
implement and execute the laws Congress enacts. This result 
would jeopardize nearly every Federal program enacted under 
both Democrats and Republicans since the 1930s.
    As Justice Kagan correctly explained the logical conclusion 
of Justice Gorsuch's dissent would require that most of 
government is unconstitutional.
    Today's hearing is an opportunity to support potential 
paths forward for fixing these and other problems plaguing our 
rulemaking system. With that in mind, I am proud to cosponsor 
Congressman Jayapal's legislation to address many of these 
issues to Stop Corporate Capture Act. This important measure 
will ensure a more accountable, effective, and transparent 
rulemaking system. It requires greater disclosure and 
transparency in rulemaking proceedings, creates a public 
advocate to provide for more robust public participation in 
rulemaking and ensures that agency actions to implement and 
enforce the law accurately reflect congressional
intent.
    I look forward to hearing testimony from our esteemed panel 
of Witnesses on these matters and their proposals to address 
problems in our rulemaking system.
    I now recognize the distinguished gentleman from Colorado, 
Ranking Member Buck, for his opening statement.
    Mr. Buck. Thank you, Mr. Chair. I appreciate the 
opportunity to review the Administrative Procedure Act and 
examine ways in which we can better remove obtrusive government 
regulations from everyday Americans' lives. This hearing raises 
important issues about the growth of the Administrative State 
and Executive overreach in recent decades and I look forward to 
learning more from our Witnesses today.
    Precisely why the Executive Branch is so prone to overreach 
is a complex question, but there are two primary reasons that 
can explain it. The first is an inescapable reality of human 
nature that worried our Founding Fathers. People consistently 
aspire to more power. The second has developed over time. 
Congress has been unwilling to make hard decisions and as a 
result has shifted responsibilities over to the Executive 
Branch regardless of the constitutionality of such decisions.
    In more recent history, allegiance to party over the 
institution of Congress has sped up this shift. Under President 
Obama, we Witnessed one of the largest expansions of the 
administrative State in the modern era. By acting as though the 
Constitution and Congress were merely obstacles to be overcome, 
he dramatically increased the powers of the Executive Branch 
and further relegated the Congress to a back seat role with the 
Democrats in Congress cheering him on. He was so emboldened by 
a Congress more interested in partisan wins than constitutional 
principles that he believed with a pen and phone he could take 
care of most of his legislative needs.
    President Trump and Republicans in Congress took important 
steps to reign in the Administrative State following the Obama 
years. Several measures championed by the Trump Administration 
with bipartisan support sought to increase public input and 
transparent, streamline online guidance portals, and decrease 
regulatory burdens on small businesses with limited resources.
    Republicans in Congress have likewise proposed several 
bills to restore congressional authority and cut through the 
D.C. bureaucracy. I am proud to cosponsor several of these 
measures including Representative Cammack's regulations from 
the Executive in Need of Scrutiny Act which reestablishes 
Congress' primacy, relative to the Administrative State, as 
well as
    Representative Fitzgerald's Separation of Powers 
Restoration Act which reduces judicial deference to agency 
interpretations of law.
    Instead of continuing to deregulate and unleash the 
American economy as we recover from COVID-19 pandemic, the 
Biden Administration has chosen to revoke the policies Trump 
implemented in what could be generously described as throwing 
the baby out with the bath water. That decision, rooted in a 
distaste of Trump instead of genuine policy concerns, has real-
world impact for millions of Americans. Already we have seen 
what increased regulations on oil and gas companies can do to 
the price of fuel in America which has climbed nearly 50 
percent since President Biden took office.
    In the Founders' vision, Congress served as a crucial check 
on the powers of the Executive, collapsing the separation of 
powers risks the American freedoms and brings us closer to 18th 
century monarchies. Unfortunately, Congress continues to take a 
back seat to the Executive Branch leading to increased 
regulation and intruding into the lives of our constituents. 
Congress must reclaim its power and stop delegating its 
authority to the Executive Branch. Any reforms to the APA must 
center on streamlining regulations and limiting executive 
overreach.
    I appreciate the Chair holding this hearing and I yield.
    Mr. Cicilline. The gentleman yields back. I now recognize 
the Chair of the Full Committee, the gentleman from New York, 
Mr. Nadler, for his opening statement.
    Mr. Nadler. Thank you, Mr. Chair. Since this enactment of 
75 years ago, the Administrative Procedure Act has served as 
the foundational law governing the processes and procedures of 
the Federal rulemaking system. The safeguards established by 
the APA ensure that the public has the right to know about 
potential regulatory actions and the opportunity to provide 
useful and timely input to improve the rules issued by Federal 
agencies. They also provide the public with due process and 
rulemaking and require agencies to provide a reasoned analysis 
for their decisionmaking.
    The APA, along with judicial review, places essential 
guardrails on the rulemaking making process to protect the 
public from arbitrary and lawless agency actions. In part, 
because of these features, the APA serves as a quasi-
constitution for agency accountability and the rule of law. 
Many administrative law experts believe that there is 
significant room for improvement.
    Today's hearing is an opportunity to examine whether the 
APA is successfully serving its important goals. Some experts 
argue that the various legal checks on agencies and the 
oversight mechanisms that are in place need to be strengthened 
or streamlined. Other leading scholars have explained that 
because the benefits of agency actions often can be difficult 
to quantify, agencies have become overly reliant on industry 
supplied cost estimates making it more difficult to issue 
strong regulations that protect the public.
    In other cases, the regulatory system has routinely failed 
to reflect adequately the input of front-line workers or 
marginalized communities which are often denied a place at the 
table during the process. In a complex and evolving world, it 
is critical that we have an agile and effective regulatory 
system to address the many challenges we face. That is my I 
appreciate the efforts of the Subcommittee's Vice-Chair, 
Representative Jayapal, to make the rulemaking process more 
inclusive, accountable, and transparent. Her legislation, the 
Stop Corporate Capture Act, removes opportunities and 
incentives for fraud and deception in rulemaking proceedings 
and eliminates unnecessary bottlenecks that delay important 
regulatory initiatives.
    I want to thank Congresswoman Jayapal for her leadership on 
this legislation. I look forward to working with her, Chair 
Cicilline, Ranking Member Buck, and Members of the Subcommittee 
on these issues over the course of the next year.
    Finally, as part of the Committee's oversight of the APA, 
it is crucial that we ensure that Federal agencies are 
accountable, effective, and responsive in ways that materially 
improve people's lives. The COVID-19 pandemic has demonstrated 
how important it is that agencies have the tools, resources, 
and expertise they need to serve the public.
    I was pleased to see that President Biden issued a 
memorandum on his first day in office directing his 
Administration to prioritize modernizing and improving the 
rulemaking process. The memo explained that regulations that 
promote the public interest are vital for tackling national 
priorities and that streamlined regulatory review is crucial 
for enabling the Government to swiftly respond to many pressing 
issues facing our country.
    Across party lines, 71 percent of Americans support strong 
rules to protect the public, keep our workplaces safe, and 
protect the environment. It is critical that agencies work 
quickly and effectively to implement the laws reflecting the 
policy choices of Congress.
    I also look forward to working with the President's 
permanent Director of the Office of Management and Budget and 
the Administrator of the Office of Information and Regulatory 
Affairs to ensure that Federal agencies are faithfully 
implementing the law, as well as promoting and protecting the 
public interest. These are critical roles.
    I was happy to see that just last week, President Biden 
nominated Shalanda Young to serve as OMB Director. I urge the 
Senate to swiftly confirm her and for the President to move 
quickly to name a permanent OIRA Administrator.
    In closing, I thank Chair Cicilline for convening today's 
hearing on this important topic and I yield back the balance of 
my time.
    Mr. Cicilline. The gentleman yields back. I now recognize 
the Ranking Member of the Full Committee, the gentleman from 
Ohio, Mr. Jordan, for his opening statement.
    Mr. Jordan. Thank you, Mr. Chair. The Administrative 
Procedures Act is important, and I look forward to our hearing 
today and hearing from our Witnesses, but I will tell you this, 
what is important is the fact that the Justice Department 
continues to treat parents as domestic terrorists. The fact 
that the Attorney General hasn't been called back by our Chair 
to answer our questions when 41 days ago he came in here and 
misled us and more importantly misled the American people, I 
just can't figure out.
    I want the Committee to understand this. In a 24-day time 
period, here is what happened. On September 29th, the National 
School Boards Association writes a letter to the President of 
the United States asking the President to use the PATRIOT Act 
to go after moms and dads. One of the individuals who signed 
that letter, Ms. Garcia, two days later, on October 1st, gets a 
plum position on a board at the Department of Education. Three 
days after that letter is sent to the President of the United 
States asking him to treat parents as terrorists, the weekend 
of October 2nd and 3rd, Tim Langan, the head of the 
Counterterrorism Division at the FBI, is already having 
conversations with the Justice Department on how to implement 
the letters sent from the School Board Association to the 
President of the United States.
    So, think about that. The head of the Counterterrorism 
Division at the FBI is already talking about how to implement 
the memo that hasn't yet been sent from the Attorney General. 
We know this because of questioning our colleague, Ms. 
Stefanik, had of Mr. Langan, in front of the House Intel 
Committee.
    Of course, on October 4th, five days after the letter was 
sent, we have the now-famous memo from the Attorney General 
where he says we want to send to all 94 judicial districts 
around the country, every single district, we want a dedicated 
line of communication for threat reporting on parents, a snitch 
line on moms and dads. All that happens in five days. I have 
been around government a while and I have never seen government 
move that fast in my life.
    Two weeks later, October 20th, because of a brave 
whistleblower, we know about an email sent from the same guy, 
Mr. Langan, the head of the Counterterrorism Division of the 
FBI, he sends an email to special agents in charge, FBI agents 
around the country, saying put this threat tag, this 
designation, this label, on parents who show up at school board 
meetings and speak out against this curriculum that they don't 
want their children taught.
    The next day, a pretty important day, October 21st, the 
Attorney General comes in front of the House Judiciary 
Committee and says this: ``I could not imagine any circumstance 
where parents are treated as domestic terrorists.''
    The the only problem is 24 hours earlier, the head of the 
Counterterrorism Division had sent out an email saying exactly 
the opposite, using counterterrorism measures against parents, 
against moms and dads.
    Of course, the next day, October 22nd, the National School 
Board Association, because of the political fallout, they 
thought it was going to be a political winner, it turned out to 
be a political loser for them, and the National School Board 
Association withdraws the letter, and they say in that letter 
we regret and apologize for the letter we sent on September 
29th. All that happened in 24 days.
    Again, I have never seen government move that fast in my 
life.
    Now, those 24 days are just part of the story though. 
Because the most important part is what happened before 
September 29th. The most important part is the coordination 
between the White House and the School Board Association before 
the letter was ever sent.
    Here is what we know from FOIA requests from communications 
made by Mr. Slaven and Ms. Garcia. Here is what Mr. Slaven 
said: ``The White House requested additional information from 
the National School Boards Association before the letter was 
sent.''
    Ms. Garcia said this: ``The National School Boards 
Association communicated for several weeks with the White House 
before the letter was sent.''
    In other words, this thing didn't start, and this is the 
real story. The National School Boards Association letter 
wasn't the catalyst for this flurry of activity by the 
Department of Justice against moms and dads. It wasn't the 
catalyst; it was just the pretext. It didn't originate with the 
School Boards Association, it started with the Biden 
Administration and with the Garland Justice Department. They 
were looking for an excuse, looking for a pretext to target, to 
threat tag moms and dads. The fact that it has been 41 days 
since the Attorney General sat at that desk and lied to this 
Committee, and we haven't called him back? I just can't believe 
it.
    Mr. Chair, I hope the Chair of the Full Committee will ask 
Mr. Garland to come back and answer our questions because we 
have seen this pattern before frankly, and I know the 
Democrats, they like to make fun of this, but we have seen this 
pattern before. We saw this with the Justice Department in the 
Obama-Biden Administration. We saw Mr. Comey and Mr. McCabe, we 
saw that Justice Department, that FBI use the dossier as a 
pretext to do what they wanted to do, namely go spy on the 
Trump campaign. They knew the dossier was garbage, but they 
used that as the pretext, as the excuse, to go do what they 
already wanted to do. Same pattern here. Exact same pattern 
here. They get the School Board Association to write the 
letter; here is our excuse to do what we wanted to do, go after 
moms and dads because we don't like them objecting to critical 
race theory being taught in our schools.
    You know what? The one thing they didn't bargain for, the 
one thing they didn't bargain for was the fact that moms and 
dads said we don't care what you do. We don't care if you try 
to chill our speech. We don't care if you put a threat tag on 
us, label us domestic terrorists, use counterterrorism measures 
from the FBI against us, we don't care. We are going to stand 
up for our kids.
    The fallout from this, the backlash from this was 
unbelievable. Of course, we saw it play out in Virginia. So 
again, I would just say it has been 41 days, Mr. Chair, 41 days 
since the Attorney General misled us, the Judiciary Committee, 
and misled the American people.
    I hope our next hearing, whenever that is, Mr. Garland is 
in here answering a lot of questions we have. I am sure the 
Democrats have some questions, too. The fact that he hasn't 
been brought back is wrong and everyone knows it. I yield back.
    Mr. Cicilline. Just to be clear so that the record is 
complete, there are those of us who have reviewed all these 
materials and believe that the Attorney General testified 
consistent with everything that is contained in those 
documents, but that is for another day.
    Mr. Jordan. Would you yield for a question? Would the Chair 
yield for a question?
    Mr. Cicilline. I yield to the Chair of the Full Committee.
    Chair Nadler. I just want to point out that, whatever 
everyone thinks about what Mr. Jordan said, it has nothing to 
do with the subject matter of this hearing.
    Mr. Jordan. Would the Chair yield?
    Mr. Cicilline. It is now my pleasure to introduce today's 
Witnesses. Our first Witness is David Michaels, a Professor at 
George Washington University Milken Institute's School of 
Public Health.
    Mr. Jordan. Could not imagine any circumstance where 
parents are treated as domestic terrorists.
    Mr. Cicilline. Additionally, he has held numerous--
    Mr. Jordan. --Counterterrorism Division of the FBI--
    Mr. Cicilline. The gentleman is out of order.
    Mr. Jordan. If you would just yield for one second, I would 
like to--
    Mr. Cicilline. I will not. I am introducing Witnesses. I 
will begin from the beginning so everyone can hear it.
    Our first Witness is David Michaels, a Professor at George 
Washington University's Milken Institute School of Public 
Health. Additionally, he has held numerous posts at other 
institutions including the City of New York Medical School, the 
Albert Einstein College of Medicine, and the Icahn School of 
Medicine at Mount Sinai. Professor Michaels also has extensive 
experience working with executive agencies. He served as the 
Assistant Secretary for Occupational Safety and Health at the 
Department of Labor from 2009-2017, and as the Assistant 
Secretary for Environment, Safety, and Health at the Department 
of Energy from 1998-2001. Professor Michaels received a 
Bachelor's Degree from the City College of New York and both 
his Master's in Public Health and his Ph.D. from Columbia 
University.
    Today's second Witness is Wendy Wagner, the Richard Dale 
Endowed Chair in Law at the University of Texas at Austin 
School of Law where she has taught since 2001. She has held 
Visiting and Associate Professorships at Columbia University 
School of Law, Vanderbilt University Law School, and Case 
Western Reserve University School of Law. Before beginning her 
distinguished career in academia, Professor Wagner worked at 
both the Department of Agriculture and the Environment and 
Natural Resource Division of the Department of Justice. 
Professor Wagner received a Bachelor's Degree from Hanover 
College, a Master's Degree in Environmental Studies from Yale 
School of Forestry and Environmental Studies, and her J.D. from 
Yale Law School.
    Our third Witness is Jacqueline Patterson. Ms. Patterson is 
the Founder and Executive Director of the Chisholm Legacy 
Project, an organization that strives to connect Black 
communities on the front lines of climate justice with the 
resources they need. Before founding the Chisholm Legacy 
Project, Ms. Patterson established another organization focused 
on social justice, the Women of Color United. From 2007-July 
2021, Ms. Patterson served as the Senior Director for the NAACP 
Environmental and Climate Justice Program. She currently sits 
on multiple advisory boards, including the Center for Earth 
Ethics and the Hive Fund for Gender and Climate Justice. Ms. 
Patterson holds a Master's Degree in Social Work from the 
University of Maryland, and a Master's Degree in Public Health 
from Johns Hopkins University.
    Today's last Witness is Jennifer Mascott, the Co-Executive 
Director of the C. Boyden Gray Center for the Study of the 
Administrative State, and Assistant Professor at George Mason 
Antonin Scalia Law School. Professor Mascott has also held a 
teaching position as an Adjunct Professor in Administrative Law 
at the George Washington University School of Law. Before 
joining the faculty at Antonin Scalia Law School, Professor 
Mascott served as counsel at Consovoy McCarthy Park, LLC, from 
April 2019-January 2021. Professor Mascott took leave to serve 
as an Assistant Deputy Attorney General at the Office of Legal 
Counsel at the Department of Justice. She currently serves as 
an Executive Committee Member on the Federalist Society 
Separation of Powers Practice Group. Professor Mascott received 
a Bachelor's Degree from the University of Maryland at College 
Park and a J.D. from the George Washington University School of 
Law.
    We welcome all our distinguished Witnesses and we thank you 
for your participation. I will begin by swearing in our 
Witnesses. I ask our Witnesses who are testifying in person to 
please rise and I ask our Witnesses testifying remotely to turn 
on their audio and make certain that I can see your face and 
your raised right hand while I administer the oath.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information, and belief so help you God?
    You may be seated. Let the record show the Witnesses 
answered in the affirmative. Thank you again. Please note that 
your written statements will be entered into the record in 
their entirety. Accordingly, I ask that you summarize your 
testimony in five minutes. To help you stay within that time 
frame, there is a timing light in Webex. When the light 
switches from green to yellow, you have one minute to conclude 
your testimony. When the light turns red. It signals that your 
five minutes has expired.
    I now recognize Professor Michaels for five minutes.

                  STATEMENT OF DAVID MICHAELS

    Mr. Michaels. Thank you, Chair Nadler, Chair Cicilline, 
Vice-Chair Jayapal, Ranking Member Jordan, Ranking Member Buck, 
Members of the Subcommittee. My name is David Michaels. I am an 
epidemiologist and professor at the School of Public Health at 
George Washington University. I am honored to have been invited 
to provide testimony on updating the Administrative Procedure 
Act including through the Stop Corporate Capture Act.
    From 2009-2017, I served as Assistant Secretary of Labor 
for OSHA, the longest-serving Administrator in the Agency's 
history. I have also written many articles and two books on the 
use of science and regulation.
    Public health tragedies from cigarettes and asbestos to the 
climate crisis and the widespread PFAS contamination of our 
drinking water have necessitated the growth of America's public 
health environmental regulatory system. The objective of the 
laws and regulations and the agencies empowered to enforce them 
is not only to stop the damage and prevent future harm, but 
also to maintain and strengthen the free market system.
    Laws and regulations are the underpinning of our economic 
system. They define market structure and property rights while 
attempting to ensure that property rights don't intrude on 
personal liberties. It is clear that our current system of 
protecting the public's health, safety, wellbeing, and 
environment does not function well. We are in a constantly 
changing world characterized by the rapid appearance of new 
hazards and crises that can significant and potentially 
cataclysmic effects.
    We need an agile, regulatory system to address many 
difficult challenges: The climate crisis, COVID-19 variants, 
environmental injustice, income and wealth and equality, the 
affordable housing shortage, antibiotic resistant organisms, 
the opioid overdose epidemic, and the threats to financial 
stability proposed by crypto currency to name just a few. We 
need good research to address these.
    The science community has long recognized the funding 
effect. Studies funded by a private sponsor tend to deliver the 
results the sponsor wants. Recognizing the financial conflicts 
of interest and influence of study, virtually every scientific 
and medical journal requires authors to disclose potential 
conflicts especially who paid for the study.
    Published studies are now accompanied by a statement by the 
authors of sources of their funding and potential conflicts to 
alert readers and regulators to look more closely, knowing that 
financial interests may have influenced the results. In 
contrast, the Federal Government does not require any such 
disclosures when accepting public comments on proposed 
regulations, permits, or other actions or documents.
    The Stop Corporate Capture Act requires that participants 
in our regulatory system provide conflict disclosures 
comparable to those required by scientific journals. When I ran 
OSHA, we asked for the same disclosures from parties submitting 
technical comments in our rulemaking to strengthen silica, and 
beryllium exposure standards. This helped us identify material 
produced by conflicted scientists, especially those mercenary 
studies produced for the sole purpose of delaying or weakening 
public health protection lists.
    While disclosure is a useful step, it is not enough. The 
deeper problem is the financial conflict itself since this is 
what shapes the research. Under the APA, studies conducted by 
conflicted scientists are still entered into the regulatory 
proceedings and agents currently must consider them.
    The Tobacco Playbook manufacturing scientific uncertainty 
about the product's harms is often done by scientists employed 
by product defense firms whose business model involves 
producing studies that provide whatever conclusion the client 
wants and can pay for it, generally, minimizing their product's 
harm.
    In my books, I document how product defense firms have done 
this dirty work for manufacturers of cigarettes, asbestos, 
fossil fuels, diesel engines, PFAS, and a long list of other 
deadly products.
    The Subcommittee should consider amending legislation to 
add teeth to the disclosure requirements. If an agency 
determines a study is irreparably tainted by conflict of 
interest, the agency should be able to exclude it from the 
records.
    The Stop Corporate Capture Act has many other valuable 
improvements to the regulatory system including establishment 
of an Office of Public Advocate and the private right of action 
for regulatory failures.
    I strongly support these provides and I address them more 
fully in my written testimony. I applaud your efforts here 
today and I look forward to your questions.
    [The statement of Mr. Michaels follows:]
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    Mr. Cicilline. Thank you, Professor. I know recognize 
Professor Wagner for five minutes.

                   STATEMENT OF WENDY WAGNER

    Ms. Wagner. Chair Nadler, Chair Cicilline, Vice-Chair 
Jayapal, Ranking Member Jordan, Ranking Member Buck, and 
Members of the Subcommittee, thank you for the opportunity to 
testify today.
    As you know, the regulatory State is vital to the healthy 
function of our government, and the Administrative Procedure 
Act lies at the very heart of that healthy functioning.
    Yet, 75 years of piecemeal oversight by the courts, the 
Executive Branch, and even Congress has taken its toll on the 
effectiveness of the APA. Some of these added requirements, 
particularly those coming from the Executive Branch and the 
courts, work at cross purposes.
    Others are ineffective or even backfiring, and all these 
problems are long standing and have been around at least since 
the Reagan and Clinton Administrations.
    Now, to understand these problems, it's important to 
contrast what the APA promises to do on paper with what is 
actually happening in practice. This vantage point, I think, 
also highlights the excellent progress Representative Jayapal's 
bill makes in revitalizing the APA.
    So, on paper, the APA provides procedural requirements that 
are designed to ensure agencies are held accountable both for 
their scientific analyses and for their policy decisions. For 
example, when an agency promulgates a rule, it must first 
publish its initial proposal for public comments.
    It must then, by the terms of the APA, consider all those 
comments, and if the agency fails to do this in ways that run 
afoul of the APA, the courts can force the agency to start over 
again.
    This process is, in fact, lauded by a number of 
administrative law scholars as providing an excellent model for 
robust democratic deliberation.
    So, that's APA on paper. What is actually happening in 
practice? I'll identify two problems.
    First, the design of administrative process is very much 
concerned with ensuring agencies bring their very best science 
to the table. Seventy-five years of implementation has yielded 
some major cracks in this foundational goal.
    Foremost among them is the risk of politicization of agency 
expertise. There is a long-established practice within most 
Executive Branch agencies that position the political decision-
maker at the apex of all agency decisions including the 
scientific record.
    Thus, while the agency's technical experts may conduct an 
impeccable synthesis of the available scientific literature 
bearing on a policy question, the political officials are 
positioned, if they find it useful to their interests, to edit, 
change, including experts to come in and pick up some of the 
available scientific green on a policy question.
    The political officials are positioned they find it useful 
to their interests to edit, change, or otherwise manipulate 
that scientific record before it is ever made public. They can 
even select the Members of the peer review panels.
    Second, the APA is designed to hold agencies accountable to 
the public. Yet, the hodgepodge of judicial decisions and 
Executive Branch policies sometimes have the effects today of 
creating incentives for agencies to be behave less accountably 
and to find ways to work around Congress' requirements set out 
in the APA.
    The academic literature is overflowing with examples, and 
I'll just highlight one. As noted, under the APA agencies must 
solicit public comment on their proposed rules, but they need 
not ensure that the resulting participation includes all 
affected groups.
    So, to get the rule through, in fact, some courts actually 
negotiate those proposed rules with the most litigious groups. 
Empirical evidence bears out that agencies sometimes negotiate 
the rule proposals with industry in advance before it's 
published.
    We also see, as Chair Cicilline mentioned, that in about 
half of the rules that protect the public, the public itself 
and the public interest groups are nowhere to be found in 
commenting.
    Yet, all this is irrelevant to judicial review. To reverse 
these problems and many more, I commend Representative 
Jayapal's bill. It provides a much-needed public advocate.
    It institutes controls on the quality of science used for 
regulation and it provides greater transparency over White 
House review, and that's a small sampling of what it 
accomplishes.
    I think still more legislative direction is needed in this 
area. My written testimony includes a number of complementary 
proposals, but the highest priority is for Congress simply to 
place the burden on the agencies to establish why we should 
trust their processes both in terms of their expertise and in 
terms of their accountability.
    One thing we have learned over the last 75 years 
prescriptive requirements can be worked around and backfire. 
General demands for explanation can go a very long way to 
enhance agency accountability.
    An agency, for example, should explain how it has 
firewalled its scientific experts from political pressure. It 
should explain how public deliberations included meaningful 
deliberations with all major affected groups throughout the 
entire rulemaking process.
    Mr. Cicilline. Professor Wagner?
    Ms. Wagner. In return, the courts could be directed by 
Congress to afford the most excellent agency processes greater 
deference.
    Mr. Cicilline. Professor Wagner, your time has long 
expired. We're going get to questions and answers, if that's--
    Ms. Wagner. I am sorry, but I applaud your efforts. I did 
not see my red light is on.
    Mr. Cicilline. There is always room for applause.
    Ms. Wagner. Okay. Thank you. I look forward to your 
questions.
    [The statement of Ms. Wagner follows:]
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    Mr. Cicilline. Thank you so much.
    I now recognize Ms. Patterson for five minutes.

               STATEMENT OF JACQUELINE PATTERSON

    Ms. Patterson. Thank you so much and thank you for having 
me and for hosting this critical conversation.
    Our communities have seen the impact of the outsized 
influence of corporate entities on rulemaking for environmental 
regulations. EPA records from 1994-2009 found that industry 
groups held a virtual monopoly over informal communications 
that happened before proposed rules were publicly available.
    On average, industry groups engaged 170 times more in 
informal communications with EPA than public interest groups. 
These were communications that occurred before any proposed 
rules were even written.
    By the time the notices were published, comments from the 
public were buried in an avalanche of well-funded heavily 
credentialed comments from industry insiders and their highly--
paid allies.
    Industry groups submitted 81 percent of the comments during 
the notice and comment period, compared to public interest 
groups who submitted a mere four percent.
    Furthermore, between 2001-2011, the Office of Information 
and Regulatory Affairs (OIRA)--met with five times as many 
representatives of industry than with people representing 
public interest groups.
    The University of Wisconsin at Madison found a strong 
correlation between interest groups lobbying OIRA and the 
changes in the final rules that favored those very interest 
groups.
    So, for us, this is important because the people who are 
paying the price for a regulatory system that's being governed 
de facto by polluters include communities who are on the front 
lines of the health, social, and economic impacts due to 
unregulated toxic exposure, communities who are on the front 
lines of near-roadway air pollution from the under regulated 
combustible engine, communities and nations disproportionately 
impacted by climate change due to barely-leashed greenhouse gas 
emissions, and 76,000 coal miners who have died of Black lung 
disease because coal dust went grossly under regulated.
    Meanwhile, the average annual compensation of a coal 
company's CEO is $9.8 million. The profits made by the energy 
sector are in the billions as a result of a hamstrung 
regulatory system that paves the path for the companies to 
operate without rules that protect public health and wellbeing.
    When the public participates in the rulemaking process, it 
truly makes a difference. We have submitted written testimony 
and organized five multi-state delegations to provide in-person 
testimony on mercury and air toxic standards, new source 
performance standards, and beyond. School teachers, nurses, 
firefighters, community leaders, youth, aunties, uncles, 
participated in these proceedings.
    As a result, we had an EPA official in tears as she 
listened to the testimony of a grandfather from Steubenville, 
Ohio, with his grandson on his lap as he testified on the air 
quality he wants for his community and for his grandson.
    A coal company showed us its stripes as it cut off annual 
support to an NAACP branch saying, we only support our friends 
and your organization talks bad about coal to the EPA, so 
you're no longer our friend. In the end, we saw equity-based 
changes in the language for proposed rulemaking on air quality.
    Government entities are already putting infrastructure in 
place to ensure that they are truly acting as taxpayer-
supported public service.
    The Federal Energy Regulatory Commission established the 
Office of Public Participation. The Government Services Agency 
is engaging in a listening relationship with the NAACP's 
Centering Equity in the Sustainable Building Sector Initiative.
    The Federal Emergency Management Agency has established a 
memorandum of agreement with the NAACP and with the Institute 
of the Black World.
    So, we know what's possible. For our nation's regulatory 
system, going forward, it literally holds the lives and 
wellbeing of the people and the planet in its portfolio of 
responsibilities, so we offer these recommendations.
    Develop a parallel to the FERC Office of Public 
Participation throughout our regulatory apparatus, and then the 
capacity of this office must be significant, including 
technical assistance providers, community liaisons, popular 
educators, communicators and beyond to ensure a robustly 
successful effort of meaningful engagement and informed 
decision making.
    Make rule language user friendly. It should not take a law 
degree to interpret these draft rules. Of the people, by the 
people, for the people. We must take these words seriously.
    Find the communities that are on the margins and develop a 
system with a thorough set of mechanisms to engage those 
communities. Only the rising tide that builds from the margins 
inward will lift all boats. Pardon for the mixed metaphor.
    Finally, develop legislation governing and preventing money 
interests from having access to rule developers and decision-
makers. This includes guidelines around industry officers and 
executives becoming the decision-makers themselves by going 
into elected office and then working in allegiance and 
collusion with the industry.
    So, I'll close by saying that only with the above can we 
begin to deliver equal protection under the law. Only then can 
we begin to dream of the true Promised Land, one that lives up 
to the tenet of liberty and justice for all.
    More details are in my written comments. Thank you so much.
    [The statement of Ms. Patterson follows:]
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    Mr. Cicilline. Thank you, Ms. Patterson.
    I now recognize Professor Mascott for five minutes.

                STATEMENT OF JENNIFER L. MASCOTT

    Ms. Mascott. Thank you so much, Chair Nadler, Chair 
Cicilline, Vice-Chair Jayapal, Ranking Member Jordan, and 
Ranking Member Buck, and Members of the Subcommittee for having 
me here today.
    I'm Jennifer Mascott, a Professor at Scalia Law School, co-
lead of the C. Boyden Gray Center for the Study of the 
Administrative State and currently serve as a public member on 
the Federal agency the Administrative Conference for the United 
States.
    I'm so pleased to be here today to talk about this very 
important topic. I'm glad the Committee is looking into 
bringing more rulemaking accountability and transparency and 
reexamining the Administrative Procedure Act 75 years out.
    As my written statement talks about, the APA has not been 
meaningfully changed on the rulemaking procedural side in the 
75 years since it was enacted in 1946 as a textual matter, but 
as a practical matter, through various judicial opinions and 
agency practices over the years, arguably, today, the way that 
rulemaking works is quite different from the way in which the 
original text of the APA provided the procedures to occur.
    So, some of the ways in which practice deviates from the 
statutory text Congress could address, perhaps, by revisiting 
the APA and either specifying ways in which agencies can bring 
more transparency and go back to the original text of the APA 
or updating the APA procedures to reflect 21st century 
practices.
    Some specific examples are that the APA, for example, 
provided for a category of formal rulemaking where parties 
would have a chance to come and give oral presentation of their 
views, be questioned, introduce testimony.
    In the 1970s, because of a Supreme Court opinion, the bar 
for requiring agency formal rulemaking has been made so high 
that, as a practical matter, that category of agency action 
really no longer exists.
    The Department of Agriculture sometimes uses formal 
rulemaking, but to the extent that Congress thinks agencies 
should be subject to more procedures, give more public input, 
the formal rulemaking category could be expanded.
    The consequence of the formal rulemaking category being 
conscripted was that more procedures were put into the informal 
rulemaking category, which I think today notice and comment 
rulemaking actually, arguably, is quite different from the text 
of the APA as well, which provided really only that agencies 
provide a written opportunity to provide comments and agencies 
provide a statement of basis and purpose in the final rule.
    Today, as some of my colleagues have noted, as a practical 
matter, rules are hundreds of pages long. Lots of explanation 
can be very unpredictable in the courts which rules are going 
to be upheld, which are not, and agency practice can be 
inconsistent across the board. So, I would recommend Congress 
revisit that procedure as well.
    The final consequence that is arguably the most damaging is 
that because informal rulemaking notice and comment rulemaking 
has become so challenging, agencies have really been motivated 
to do quite a lot through informal guidance statements--
interpretive statements--that might be posted on websites, 
issued as letters, suggesting that maybe an agency will engage 
in an investigation or bring a charge and sometimes is taken, I 
think, as a just threat or concern by risk-averse American 
families and businesses and individuals and corporations.
    So, through informal guidance documents agencies often are 
significantly impacting the behavior of the American people 
without having to go through any procedural requirements at 
all.
    So, one thing I also think Congress could consider is the 
Trump Administration had several Executive Orders to address 
these practices, encouraging transparency and guidance 
documents, making sure that guidance documents were not 
imposing new standards, were not being used to issue threats, 
were not being relied on in adjudication.
    It also had an Executive Order requiring agencies to make 
clear what level of intent would be chargeable in a criminal 
offense.
    So, President Biden has rescinded those EOs but Congress, 
of course, could take legislative action to impose those 
procedural requirements across the board.
    I think the reason that the hearing today is so important 
is because today, as time has gone on, more and more actions 
are being taken that impacts American lives and families and 
local communities through rulemaking.
    So, I agree that a very important consideration is bringing 
more accountability and transparency. I think at the end of the 
day, less regulation in the Executive Branch, more policymaking 
by Congress, will ultimately be the solution, because as we're 
seeing today and, I predict, we'll see in the question and 
answer, there can be an awful lack of consensus questions about 
how agencies should act. Very challenging to figure out how to 
make democratically accountability agencies that are run by 
just one individual or one set of individuals.
    So, the Madisonian model, of course, in our founding 
documents of separation of powers policymaking in Congress. So, 
if the courts are not going to require more specificity in 
legislation, Congress could always decide on its own to revisit 
the laws that govern agencies and make very clear what the 
requirements are going to be that agencies have to follow and 
bring kind of that separation of powers brought to bear either 
through the Separation of Powers Restoration Act--the REINS 
Act--or other legislative proposals on the table.
    Thank you so much.
    [The statement of Ms. Mascott follows:]
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    Ms. Jayapal. Thank you for your opening statements. We will 
now proceed under the five-minute rule for questions, and I'll 
begin by recognizing myself for five minutes.
    Many Americans are taught in civics class that Congress 
passes a law and that's it. The reality is that major 
legislation enacted by Congress that addresses climate change, 
workers' rights, healthcare, must also be implemented and 
enforced by the Executive Branch to become a reality.
    To do that, Federal agencies go through a process of 
administrative rulemaking or the creation of regulation that 
enforces the law.
    Unfortunately, this has turned into a shadowy process where 
special interests and big corporations send a bevy of lobbyists 
to make sure that the rules benefit them.
    There's limited transparency or accountability in the 
creation and enforcement of regulation, little opportunity for 
the average citizen to combat industry-backed research, 
meetings, testimony that's too often vying against the public 
interest and, at the end of the day, allowing corporations and 
special interests to essentially capture our government with 
their massive and undue influence on Federal agency.
    Mr. Michaels is the former Assistant Secretary of Labor for 
OSHA. You've seen firsthand how companies thwart regulation 
through funding sham academic studies or powerful lobbying 
groups.
    What impact do these instruments of power have on the 
administrative process and how does this impact workers?
    Mr. Michaels. Representative Jayapal, thank you for that--
    Ms. Jayapal. You need to turn your microphone on. Thank 
you.
    Mr. Michaels. Representative Jayapal, thank you for that 
question.
    It's a huge impact. The wealthy corporations and wealthy 
individuals know how to impact the system in so many ways from 
the very beginning where they have lawyers who are preparing 
documents. They hire scientists to produce studies they know 
they have findings that will impact regulation.
    There's a revolving door, and so they hire very senior 
administrative officials who then can help them get through 
regulation, and the most sort of lurid examples I think 
everybody's aware of is that Perdue Pharmacy pharmaceuticals 
hired the FDA regulator, essentially, who looked at the opioids 
that they were producing to then work with them to make sure 
they could sell more opioids, really leading to this disastrous 
opioid epidemic.
    The public doesn't have an equal say in this and that's 
exactly the problem, and the agencies are outgunned, as you 
heard from Professor Wagner. Knowing that they will end up in 
court, regulators often sort of pull backward and they 
negotiate with themselves even to protect the agency and to get 
something through.
    The result is that our regulations are weaker, they're not 
protective, and people are paying the price through illness, 
through death, and through a destroyed environment.
    Ms. Jayapal. Thank you, Professor.
    Ms. Patterson, you're an expert in environmental and 
climate justice, and you've seen how the rulemaking process 
falls short in considering social equity and environmental 
regulation.
    Congress has required agencies to consider a host of 
industry-friendly economic factors when making rules but it 
hasn't done the same for elements like equity and justice.
    How can Congress address that oversight?
    Ms. Patterson. Thank you. So, one example is to make sure 
that we actually do have those avenues for public engagement in 
this conversation.
    So, as I talked about the Office of Public Participation 
and then also really building the capacity of agencies to be 
able to--and through that in building the capacity of agencies 
to be able to engage directly with communities.
    So, communities and public interest groups know the types 
of mechanisms that we need to have to ensure that we're 
delivering equity and they need to be able to be at the table 
with equal status to be able to put those ideas forward.
    Ms. Jayapal. Very important. Thank you.
    Professor Wagner, the Office of Information and Regulatory 
Affairs is responsible for reviewing proposed regulation by 
agencies, but it's often criticized for having too much 
control. OIRA instructs agencies to make substantial changes to 
rules, sometimes delaying the implementation of regulation 
altogether.
    How does Congress work to make OIRA more efficient?
    Ms. Wagner. Thank you for that question.
    Actually, your bill does an excellent job on that front.
    First, it suggests that OIRA can't even be involved with an 
agency rule until the agency checks that rule into OIRA. Right 
now, OIRA works upstream before the review process.
    Second, your bill requires much more transparency on the 
nature of the changes. I think it would be even more helpful to 
know why the changes were made, maybe even put some 
prohibitions on changes to the scientific record, especially 
scientific records that have prior been peer reviewed by expert 
panels before they hit OIRA.
    So, it could go even further. I think putting some 
transparencies protections in place that are enforceable would 
go a long way.
    Ms. Jayapal. Thank you so much.
    As legislators it's our responsibility to restore the 
public's faith in our government and my bill vastly improves 
that process.
    My time is expired. I yield back, and I now recognize the 
gentleman from Florida for five minutes, Mr. Gaetz.
    Mr. Gaetz. Thank you, Madam Chair.
    Ms. Patterson, in Chair Cicilline's introduction of you, he 
referenced your master's in public health and so I want to ask 
a question about public health. Is there a different chemical 
composition for vaccines in White neighborhoods as opposed to 
non-White neighborhoods?
    Ms. Patterson. Yes. So, my master's in public health does 
not mean that I have in any way had any access to be able to 
examine the different compositions of different vaccines that 
are provided in different neighborhoods.
    Mr. Gaetz. Do you have any basis to believe that the 
vaccines being administered in White neighborhoods versus non-
White neighborhoods are different?
    Ms. Patterson. I don't have any basis to even begin to 
evaluate that question because, again, I don't have access to 
the data samples or anything like that.
    Mr. Gaetz. What about the batching process? Is there 
something called a White batch of vaccines as opposed to a 
batch of vaccines that would be intended for non-White people?
    Ms. Patterson. Not that I've heard of.
    Mr. Gaetz. Not that you've heard of.
    It's interesting. I found a tweet of yours from December 3, 
almost a year ago today, 2020, where you tweeted, ``My COVID-19 
vaccination plan: Go to the Whitest neighborhood I can find to 
make sure my dose comes from a White batch.''
    How should we think about that tweet?
    Ms. Patterson. As the humor that it was intended, albeit 
kind of a dark humor in terms of the reality of the Tuskegee 
experiments and so forth in our community.
    So, there was a whole string of commentary that we had 
following from that about how it was a shame that we even have 
to think in these types of terms. So that's where--
    Mr. Gaetz. Well, it would seemingly be more of a shame if 
we thought in these terms without a basis, and I understand 
people, put things on Twitter sometimes that are jokes.
    I noted in response to your tweet an account called Urban 
Dashboard replied, ``You have a great sense of humor but too 
painful to laugh at that joke,'' and then you replied, ``I 
know. It's all too painful all day every day, and as I said, I 
was barely joking because it's real!''
    Ms. Patterson. Yes. Yes. The situation is real.
    Mr. Gaetz. So, is it real that there's different--because 
you talked about a White--are White batches real?
    Ms. Patterson. As I said before, that the reference was 
putting in context this larger conversation about the 
differential access to affordable and quality healthcare in our 
community. So, it shouldn't be taken literally.
    Mr. Gaetz. No, but you're--I have to correct you. Oh, it 
shouldn't be taken literally. Okay. Well, I guess my question 
is, you gave testimony today about your concern over the 
monopolistic sharing of information, about the criticality of 
the input of public interest groups, about we have to stop the 
politicization of agency decisions. Do you think it damages 
public health and do you think it damages the credibility of 
public interest groups like yours when you put out that your 
personal vaccination plan is to go to the Whitest neighborhood 
so that you can ensure that your dose comes from the Whitest 
batch?
    Ms. Patterson. Absolutely not, because, A, I didn't--
absolutely not.
    Mr. Gaetz. You don't think that's dangerous? So, how do I 
know if a batch is a White batch? If I wanted to follow--
    Ms. Patterson. Again, I've already--you're asking me a 
question--
    Mr. Gaetz. If wanted to follow your vaccination plan and I 
wanted one from the White patch, too, where would I go?
    Ms. Patterson. Again, you're being facetious, and I've 
already responded to the question, and so I'm not going to 
respond to it again because there's no new information to 
provide.
    Mr. Gaetz. Do you think that being facetious about race-
based vaccination issues is dangerous? Because we have seen 
data that there are communities of color that are more 
skeptical of vaccines. Do you think that facetious comments 
like this are helpful?
    Ms. Patterson. So, I think that they're important to raise 
the dialogue about why it is that people are more skeptical. I 
think it's important to raise the dialogue about how you can 
ensure that we do have--you're interrupting me.
    Mr. Gaetz. I only have a few moments left so what's--
    Ms. Patterson. You're interrupting me. You're interrupting 
me while I'm answering your question.
    Mr. Gaetz. Yeah, I'm interrupting you because I only have a 
few seconds left.
    Ms. Patterson. No, you're asking me a question. I'm asking 
the question and now you're breaking into my response.
    Mr. Gaetz. What's the most important part of the dialogue 
to understand ``from a White batch?''
    Ms. Patterson. So, I think it's not really a legitimate 
seeking of information when you're breaking in when I'm 
actually responding to the question.
    Mr. Gaetz. It's always legitimate to ask Witnesses before 
the Committee about their own statements and it's--
    Ms. Patterson. It's not legitimate to interrupt when 
somebody's trying to answer the question.
    Mr. Gaetz. Okay. Do you regret this tweet? Since it seems 
to be causing some consternation, do you regret having sent it?
    Ms. Patterson. No. Because it's causing consternation with 
you, it caused an interesting and important dialogue. That is 
not one that I'm the only one having, that a number of us are 
having in the community.
    Mr. Gaetz. Again, but I think that sometimes that dialogue 
can metastasize into disinformation and can actually harm the 
people that you say you're here to help.
    My time is up. I yield back.
    Ms. Patterson. No, it actually acknowledges the reality of 
what we all think.
    Mr. Gaetz. There's so reality of a White batch. That's just 
something you made up.
    Ms. Jayapal. The time of the gentleman has expired. The 
time of the gentleman has expired.
    I now recognize the Chair of the Full Committee, Mr. 
Nadler.
    Chair Nadler. Thank you. Professor Wagner, I'm particularly 
concerned that the Supreme Court may resurrect the 
nondelegation doctrine as a means of undoing the ability of 
agencies to implement statutes such as the Clean Air Act.
    Last month, the Supreme Court granted certiorari in West 
Virginia v. EPA in which this question will arise. Can you 
explain what the nondelegation doctrine is and what its 
resurrection would do to major legislation that Congress has 
passed in the last 80 years and what the stakes are if lower 
courts begin applying this doctrine?
    Ms. Wagner. Yes. Thank you, Chair, for that question. The 
nondelegation doctrine is a doctrine the courts have pulled out 
of the Constitution, a few words, that Congress shall make the 
laws, has a lawmaking power.
    So, the courts have interpreted that as requiring Congress 
to make all laws without being able to delegate broad 
discretion and delegations to the agencies.
    As an aside, there's a lot of literature now, particularly 
two important articles, that suggests there's no historic basis 
for even thinking there is such a doctrine in the Constitution.
    Putting that aside, over the last 200 years the courts have 
only applied the nondelegation doctrine twice in 1935, in fact, 
because it has sort of a flimsy basis.
    So, this is something we have worried about from time to 
time but hasn't really come to the fore. So, what has happened 
in Gundy is that we see some conservative justices in their 
dissent suggesting a whole new test for thinking about when 
Congress has delegated too much lawmaking power to the 
agencies.
    They say that statutes could be unconstitutional, 
potentially, if the agencies have more power than simply 
filling in the details or making fact finding. So, the minute 
agencies go beyond that there's a threat.
    This could be catastrophic, in fact, for the administrative 
State if that kind of dissenting position became the majority 
position because almost--I think the last count I saw was 99 
percent of Congress' statutes would essentially be at risk of 
being unconstitutional under that theory of the nondelegation 
doctrine.
    Hopefully, the justices won't go that far. If I were a 
Member of Congress, I would be very concerned about this new 
nondelegation doctrine trend because instead of Congress 
deciding what its lawmaking power is and how much it wants to 
delegate policy to agencies, it will be the courts deciding 
what Congress' lawmaking power is.
    Chair Nadler. Thank you. In recent years, Federal courts 
have begun to challenge long-standing precedent and in cases 
where Congress has not provided clear direction courts 
generally defer to an agency's reasonable interpretation of a 
statute the agency administers. This is known as the Chevron 
deference.
    Chevron was a unanimous decision. After 30 years, why are 
courts now beginning to question agency deference, and if 
courts eliminate Chevron deference and decide cases under de 
novo review, how will that affect the ability of an agency to 
do the jobs Congress has delegated to them?
    Ms. Wagner. Thanks again for the question. I think the 
question is a really hard one. I, unfortunately, would probably 
cite to ideology as the shift in Chevron and the approach to 
Chevron.
    As the courts give less and less deference to agencies, 
we're going to see a lot more litigation against agencies. 
We're going to see rules come even slower, less protection of 
the public health, because it's just a feeding ground for lots 
of litigation.
    So, as agencies lose deference, we will see a lot less 
protection of the public health than already is the case.
    Chair Nadler. Thank you.
    Ms. Patterson, prior to the agency issuing a significant 
rule, the Office of Information and Regulatory Affairs reviews 
the rule. That review process often includes input from and 
meetings with affected industry stakeholders.
    In your experience, is the public, particularly front-line 
communities and vulnerable groups most likely to be affected by 
an agency's action, involved and represented during this review 
process? If not, how is the absence of these stakeholders 
likely to affect the rules that agencies issue?
    Ms. Patterson. Thank you so much.
    The absence of the stakeholder voice and engagement is 
impacted by the people making the decisions not having the full 
understanding of what the impacts are and, therefore, the 
rulemaking not incorporating those very impacts.
    So, through not having the voice of communities that can 
speak to the impact and also speak to what types of remedies 
actually work for them--and we all know the adage that the 
people closest to the problems are also people closest to the 
solutions--without that input then, again, the rule is myopic. 
The rulemaking can be myopic and missing those critical voices 
and analysis. Thank you.
    Chair Nadler. Thank you. I yield back.
    Ms. Jayapal. The time of the gentleman has expired.
    The Chair now recognizes the gentleman from Louisiana, Mr. 
Johnson, for five minutes.
    Mr. Johnson of Louisiana. Thank you, Madam Chair.
    I want to at the outset here thank Ranking Member Jordan 
for what he said several moments ago continuing to draw 
attention to the weaponization of the Department of Justice 
under Attorney General Merrick Garland and it is--unlike what 
Mr. Nadler said earlier, it is directly relevant to the subject 
of this hearing.
    There is a theme. The theme is the continued abuse by the 
Executive Branch of our constitutional norms, that the 
Executive Branch is doing far beyond what is the scope of what 
it's designed to do and the agency problem is a big part of 
that with regard to the specific subject of this hearing.
    There's four key points that I think just, really, we need 
to make.

        (1)  Over regulation harms individuals and families and small 
        businesses and the economy. Federal agencies are now wielding 
        just such a tremendous amount of power that unelected 
        bureaucrats abuse it all the time. They are unelected, they're 
        unaccountable, and that kind of power was never anticipated by 
        the Founders of this country.
        (2)  President Biden has revoked, of course, as we have noted, 
        some of President Trump's most significant steps to check the 
        Administrative State. In fact, he's done the opposite.
              The Biden Administration wants to radically expand the 
        Administrative State and even allow agencies to Act outside 
        their statutory authorization without impunity. The Biden 
        Administration's overreach warrants congressional oversight.
        (3)  The modern Administrative State presents serious concerns 
        about agencies' political accountability and about preserving 
        individual freedom.
              Long-standing features of the Administrative State 
        conflict with constitutional principles including the 
        separation of powers between the three branches of government.
        (4)  Finally, Congress really does need to Act in this space. 
        Congress should never consider proposals to check the Biden 
        Administration--we should consider proposals to check the Biden 
        Administration's progressive vision.

    This vision they have is that we would have rule by woke 
bureaucrats. We have to restore congressional authority 
relative to the Administrative State and better shield the 
liberties of the American people.
    With that, I wanted to ask Professor Mascott a couple of 
questions about the APA. Of course--for folks watching at home, 
the Administrative Procedure Act was passed into law in 1946.
    Of course, it was in response to President Franklin 
Roosevelt's New Deal, and the New Deal, of course, caused the 
Executive Branch to balloon with the creation of many new 
agencies to implement his social and economic programs.
    The legislation had noble intent, of course. It was 
supposed to create uniformity across the Federal government. It 
was supposed to include the public in the agency processes and 
reinforce the role of judicial review of agency actions.
    What's happened is really the opposite, in many ways. The 
Supreme Court instituted the Chevron deference, which we all 
know, and the APA has allowed Federal agencies to, largely, go 
unchecked.
    So, Professor, just a quick question. Can you give us just 
a quick summary of the separation of powers and nondelegation 
principle arguments against the Chevron deference doctrine?
    Ms. Mascott. Yes. I mean, the key separation of powers 
arguments as you're alluding to, obviously, the constitutional 
structure meant to protect individual liberty is to have three 
separate branches each playing a different role.
    So, the general idea as it relates to the APA and the 
hearing would be, as folks have talked about, the role of 
Congress in legislating and setting policy and that has a very 
important function, obviously, because the Members here, of 
course, can directly represent electoral interests to families 
and businesses at home, across the country.
    So, there's not a single bit of action that will ever be 
able to be taken to bring that level of accountability and 
transparency and democracy and freedom from single 
administrative agencies acting in the separate branch of 
government. The Executive Branch was meant to carry out the 
law.
    Then, finally, the Chevron doctrine, as you've noted, is 
the question about on questions of law when an executive agency 
is supposed to be interpreting the power that Congress has 
given to it through a law who is responsible for making that 
determination.
    So, currently the courts have given deference to the 
Executive Branch, which inherently creates a bit of a conflict 
of interest on the law because the agency carrying out the 
power is then responsible for determining its scope.
    So, Congress could take action by clarifying that the 
actual terms of the original APA, which essentially says that 
agency action is supposed to be set aside if it's inconsistent 
with law, is, in fact, meant to impose a de novo standard 
review on questions of law and clarify that, and that would, in 
a significant measure, bring some accountability.
    Although, again, I think generally regulation needs to 
decrease. Federal action in general needs to decrease, but to 
the extent that it's taken at all it really should be by the 
broad representative body--Congress, House, and Senate--acting 
together with presidential signature on laws.
    Mr. Johnson of Louisiana. Very good. Twenty-five seconds 
left. Do we need to completely eliminate the Chevron deference 
or is it a more modest reform?
    Ms. Mascott. I think Chevron deference does not have a 
place under the terms of the APA. So, I think it should be 
eliminated on questions of law.
    Mr. Johnson of Louisiana. Very good. Thank you for your 
time.
    I yield back.
    Ms. Jayapal. The gentleman yields back.
    The Chair now recognizes the gentleman from Maryland, Mr. 
Raskin, for five minutes.
    Mr. Raskin. Thank you very much.
    Some regulatory agencies like the FTC, the CPSC, OSHA, and 
the EPA have been saddled with so-called hybrid rulemaking 
statutes that require a more formalized process for issuing 
rules with hearing procedures and cross-examination 
requirements that are far more suited to adjudication than 
rulemaking.
    Dr. Michaels, you are a leading expert in the field and a 
constituent of mine that I'm very proud of. Do you think that 
these procedures should be removed in favor of the usual APA 
notice and comment rulemaking procedures that have been 
abandoned for these particular agencies and commissions?
    Mr. Michaels. Congressman's Raskin, it's a great question, 
and something that's very important that we should be looking 
at. I don't know about totally abandoning them because I think 
that hybrid procedure actually gets to some very important 
conclusions.
    In OSHA we have the system where anybody who testifies at a 
hearing can cross-examine anyone else who testifies. So, 
there's tremendous opportunity to gather an evidentiary record. 
On the other hand, it takes a long time.
    So, I would like to think about, and I think we should all 
be thinking about, ways to cut down the amount of time 
necessary to do this, to cut down the analytical requirements. 
The OSHA law says that OSHA has to show that every regulation 
is economically and technologically feasible in great detail. 
As a result it takes many years to issue a standard. The silica 
standard we put out took 19 years.
    Mr. Raskin. Let me ask you--and I will throw in Professor 
Wagner here, too--do think that the current OIRA review process 
is cost-effective and should be maintained as it is given the 
added time that is taken for such review and given the growing 
criticism that OIRA primarily focuses on reducing regulatory 
costs rather than increasing regulatory benefits for social 
efficiency generally? Should OIRA really be assigned a 
different role than it currently has?
    Ms. Wagner. Yes, thank you. I sort of straddle the fence 
there, but I actually think that we wouldn't lose anything if 
we got rid of OIRA review.
    Currently it's not only causing delays and leading to 
mysterious withdrawal rules, but OIRA is really getting in the 
details including changing the science, overriding long 
extensive regulatory processes including expert peer review, 
and then literally changing the standards like it did in the 
secondary ozone. So, off the cuff, I am not sure we would lose 
anything by getting rid of OIRA review.
    The White House should be involved in agency decisions and 
should interact at some level. It's just not clear to me that 
it should be through this formalized extremely controlling, 
very secretive OIRA review process.
    Mr. Raskin. Got you. Dr. Michaels, what do you think?
    Mr. Michaels. You know what, I agree. I think OIRA can play 
a useful role. I don't think it should be eliminated. I think 
we do need an interagency review process, but the Stop 
Corporate Capture Act includes much more transparency, which in 
my testimony I address, which is really important.
    I also think it's worth nothing that while OIRA really has 
been a conduit for special interests to be able to intervene 
secretly in regulations in the past, I think the current 
Administration is working very hard to eliminate that and to 
expand OIRA's commitment to not just looking at costs and 
benefits, which are important of course, but to looking at 
equity, justice, distributive effects, and pushing agencies to 
do that. I think that's really a useful thing for them to do.
    Mr. Raskin. Okay. A lot of statutes are silent on the venue 
for judicial review of regulatory rules that are adopted. Under 
the APA this means that rules governed by particular statutes 
are often subject to review in a District Court chosen by the 
challenger which delays the review and of course promotes forum 
shopping.
    Professor Wagner, since there's no need for an evidentiary 
hearing in such proceedings, nor for a two-stage review of such 
rules, would you agree with me that Congress should instead 
require that all judicial review of legislative rules go 
directly to the courts of appeal?
    Ms. Wagner. I think that's an excellent suggestion. The 
forum shopping that we've seen over the years is--leads to 
terrible inconsistency and lots of complicated District Court 
rulings. So yes, I think that is an excellent idea.
    Mr. Raskin. You have written that the notice and comment 
process has become dominated by corporate interests and other 
highly-resource commenters. What can be done to address this 
problem? Is there any thought of having agencies provide 
assistance to applicants who don't have the same resources to 
participate in proceedings?
    Ms. Wagner. Thank you for that question. I definitely think 
we should think about subsidies and ombudsman and proxies 
provided to major effective groups.
    As I mentioned in my oral and written testimony, I also 
think that Congress should simply create incentives for 
agencies to justify their decision-making processes from 
beginning to end, that they have considered and included all 
major groups, putting the burden on the agency--
    Ms. Jayapal. The time of the gentleman has expired. Thank 
you. I now recognize--the Chair now recognizes the gentleman 
from North Carolina, Mr. Bishop for five minutes.
    Mr. Bishop. Thank you, Madam Chair.
    Is my mic working? Yes. Okay. I was interested to read 
briefly--unfortunately, I didn't get long enough time with the 
materials from you to spend much time with them, but it strikes 
me that there is this multilayered potentially undermining of 
the constitutional structure imbedded in the APA, and some of 
these things--I am sorry, what is your name at the end, ma'am?
    Ms. Mascott. Professor Mascott.
    Mr. Bishop. Thank you, Professor Mascott. You have 
addressed that--and as I sort of collapsed them all, there 
was--you have got concentration of power in legislative 
enforcement and adjudicative power in one place in the agency 
as opposed to the Madisonian design that you have talked about 
where the Founders were careful to separate power and create 
separate parts of government vying against each other.
    It insulates a lot of Federal policy, maybe the primary 
generator of Federal policy from democratic control, because 
you are separate from the voters.
    Courts are to arguably--now, Professor Wagner, I was 
intrigued by the fact that you say you don't see any--maybe no 
basis for the nondelegation doctrine to be read in the 
Constitution; and we probably need longer than I have here to 
talk about that, but it seems to me at least there is an 
argument that courts abdicate their role to say what the law is 
with the regulatory deference doctrines. I think people would 
probably think of more examples, but presidents increasingly 
resort to the form of regulatory rulemaking and order-issuing 
mechanisms to ascribe a patina of legitimacy to the most 
egregious abuses of power. The examples would be the OSHA vax 
mandate, at least the Fifth Circuit's view of that.
    Professor Michaels, I know you have taken a different view 
in Time Magazine, I understand. Or before that sort of a 
recalcitrant President Biden ordering an eviction moratorium 
extension after the Supreme Court had said it couldn't be done.
    Then you go even beyond that to this issue of the fact that 
if that isn't all bad enough, much agency action now is by 
informal guidance that isn't even subject to the procedural 
protections of the APA in making rules, or even in the 
adjudicative processes.
    All of that is very troubling to me. I applaud the fact 
that we are looking at this, but the other thing that is very 
striking to me as a relative newcomer here is that sort of the 
main thrust as I perceive it of what the majority's questions 
have been, what the majority's Witnesses have said, is that 
they want to go further in the sense of being careful to 
advance some and maybe suppress others in the regulatory input 
process to achieve some notion of justice.
    Those ideas seem to me, without having had an opportunity, 
Representative Jayapal, to study your bill yet, to raise 
questions about First amendment rights of speech and 
petitioning the government. So, all of that is troubling to me.
    Then I was listening to Mr. Gaetz and then someone sent me 
this. I don't know if it's Professor Patterson or Ms. 
Patterson; forgive me. I don't have the Witness list in front 
of me. I was handed something that was from your appearance at 
the Racial Capitalism Designs for Energy Transition and the 
Green New Deal at the Rhode Island School of Design.
    In response to it someone who talked about--a gentleman 
named Baker who posed a question about the opportunity of 
revolution, you answered and you said,

        I would also agree and, well, although maybe I would say I'm 
        not only opposed to revolution; I'm in favor of revolution, 
        very much so, although NAACP might not really cosign with that. 
        And I do believe in order for us to truly have liberation or 
        for us to truly have human rights and so forth we can't--the 
        system isn't going to allow for it fully.

    I would love to skip more. I think I am getting the essence 
of it. You say that you are for changing the State. So, let me 
leave my time I think to you, Ms. Patterson, or Professor 
Patterson, if that's correct; pardon me for that. Are you a 
revolutionary? Do you believe we should dispose of the American 
State as it is constituted?
    Ms. Patterson. When I say this--when you say dispose of the 
American State, I'm not sure how to interpret that, but I 
definitely believe that our system was designed for there to be 
winners and losers. I believe that it was predicated on this 
notion of really what we've seen in terms of so much of the 
power going to people who are seeking profit. I believe that 
for us to truly have liberty and justice for all we have to 
change a system that does have so many pathways for profiteers 
to thrive and so little pathways for justice to prevail for 
front-line communities. I have--
    Ms. Jayapal. The time of the gentleman has expired.
    I now recognize the gentlelady from Pennsylvania, Ms. 
Scanlon, for five minutes.
    Ms. Scanlon. Thank you, Chair. So, we are talking about the 
Administrative Procedure Act, the process by which Federal 
agencies can write and enforce regulations to implement the 
statutes that Congress passes and serve the public interest.
    We have talked a little bit about the Office of Information 
and Regulatory Affairs, or OIRA, as its acronym is known, and I 
wanted to focus--and this is called sometimes the most powerful 
government agency that no one has ever heard of.
    I wanted to focus a little bit on the cost benefit analysis 
that is used in our regulatory system because there is a lot of 
concern that we are not accurately judging costs and benefits, 
that it is too weighted to what are the costs to a corporation, 
for example, that might be impacted by a regulation and not 
really thinking about the impact on the public of either 
regulation or deregulation.
    So, Dr. Michaels, you mentioned in your testimony--I think 
you said just as regulations have costs and benefits the 
failure to protect the public's health, safety, and well-being 
also has costs and benefits which--and often the benefits 
accrue to private parties who are profiting from actions that 
hurt the public.
    So, what occurs to me is, for example, if we have a large 
company dumping into our streams or something, there are 
impacts there on wildlife, on downstream homes, families, and 
water quality, et cetera, but we don't seem to adequately take 
those costs into effect when we are doing these regulatory 
reviews.
    Can you explain a little bit about how the failure to 
regulate has costs and provide us with some examples?
    Mr. Michaels. Thank you. That's a really important 
question. We have a system that allows and encourages delay. 
For the government to step in to protect workers, to protect 
the environment they have to go through a long process. It 
could be extremely long. As long as that goes on the regulated 
parties have no incentive to address the problem. So, those 
costs to individuals and to the environment are never even 
taken into account.
    When we get to the actual regulation itself, when we try to 
estimate what's the cost of the regulation, it's often to the 
polluter or to the corporation. Then the benefits are much 
harder to monetize because benefits--what is clean air worth to 
you to be able to see beyond the smoke, or the emotional impact 
on the family whose breadwinner has been killed in a work-
related accident? We don't say that's one of the--that cost to 
the polluter, to the corporation is not considered.
    So, we have a whole system that essentially privileges 
corporations, polluters, and manufacturers of dangerous 
products over the people who could be affected by their 
products.
    One of the really important points in the Stop Corporate 
Capture Act is to say we have to start dealing with that. We 
have to look at benefits you can't monetize. What does it mean 
to be able to have a type of animal species which will 
disappear from the earth? Is that valuable to us? Of course, it 
is, but how much is that?
    Ms. Scanlon. Well, you said what is clean air worth? I 
represent a district where I think one in four of our kids have 
asthma and largely as a result of pollutants in the atmosphere. 
So, it is worth a hell of lot both to those kids and their 
families, but also in terms of the costs to society of treating 
that asthma, of lost opportunities for those kids.
    Do you have suggestions, specifically suggestions on what 
we can do to redress this imbalance in how we assess costs and 
benefits?
    Mr. Michaels. Well, I think the two steps that we're taking 
right now, which first, President Biden's memo saying that OIRA 
should begin to address this; and we expect a memo to come out 
of OIRA soon, is an important first step, and of course, this 
legislation which just raises the issue.
    I think we need a public discussion to talk about this. We 
need people to really talk about what is it worth? Can we 
accept loss of a species or our kids getting asthma, which of 
course means a lot more than simply just the cost of going to 
the physician, which already is a big cost. What does it mean 
to have a life where you can't really do certain things or 
you're always afraid? We don't have good ideas how to monetize 
that. Maybe we can't put a dollar amount on it, but we have to 
take that into account and take our regulations more seriously 
to make sure people have better lives.
    Ms. Scanlon. All right. I do think some of the costs are 
actually readily available, but the focus has been too narrow 
in our regulatory systems.
    Mr. Michaels. Yes.
    Ms. Scanlon. Okay. I see my time is expired. Thank you. I 
yield back.
    Ms. Jayapal. The time of the gentlelady has expired. The 
Chair now recognizes the gentleman from Oregon, Mr. Bentz, for 
five minutes.
    Mr. Bentz. Thank you, Madam Chair. My question is really to 
Professor Mascott, but our systems obviously are becoming 
incredibly complex, and I am just going to talk about 
environments for a moment.
    In Oregon, our governor decided after our legislature did 
not pass cap-and-trade to delegate the institution or the 
implementation of that particular Green New Deal concept to the 
DEQ, the Department of Environmental Quality. The rulemaking 
began.
    There has been some suggestion that this rulemaking is not 
balanced and perhaps those large corporations, who by the way 
in this case are supplying energy to all the rate payers in 
Oregon, are perhaps being too aggressive in trying to protect 
those who they serve, and that perhaps other folks should be 
invited in; as they are by the way, to be heard, if you will.
    It sounds as though from remarks made earlier that there is 
a demonization of anyone that is corporate, and I just want to 
call out that what I have seen in my years in the Oregon 
legislature was just the opposite, where we saw corporations 
doing their best to try to protect against inappropriate means 
of transitioning from different types of power, power 
generation.
    My question to you is if this concept of more balanced 
input that we have heard suggested is to occur, what form would 
it take? Because what I have seen is that those who are charged 
with providing electricity and energy to our folks, that is 
their job, and so they show up, doing their best to try to make 
sure these rules that have been delegated after they couldn't 
get it through a legislature which happened, also, with Rule 
1.11(d) in this body, or the then-president wanted that to 
happen.
    What would you suggest being done to convince folks that 
the public is being heard? By the way, the public is being 
heard in our State, but we have heard maybe it is not being 
heard now. So, professor, what would you suggest?
    Ms. Mascott. Sure. Thanks, congressman. Obviously, at the 
State level separation of powers principles might be different 
States by State, but I think the general principle, the 
Madisonian principles stands true at every level of government 
in the sense that, as folks have noted, concentrated power does 
tend to corrupt, or at least keep one from being able to see 
multiple perspectives.
    So, I think having--it is helpful to have many voices 
involved. I categorically do not think that the best way to 
approach that is through trying to shoehorn it into the 
rulemaking process. I think that the Constitution has provided 
for all voices: Corporations, businesses, families, religious 
organizations, parents, to be heard through their electoral 
representatives really in Congress, which is why policy making 
should be made by legislative bodies.
    Because whether it's the State legislature divided up 
between local districts or the Federal legislature divided up 
between 435 communities represented across the country that 
process is the optimal one for many voices and interests being 
able to be heard through a representative democracy and that 
there shouldn't be necessarily an artificial balancing put into 
place in the rulemaking process.
    I think the challenges that we're hearing from many of the 
Witnesses today with people feeling like they're fairly heard 
in rulemaking simply is evidence again that too much rulemaking 
is happening at the Federal level and in the Executive Branch. 
That it can really be in the best interest of Congress and the 
America people for Congress, whether it's a--one of the larger 
agency organic statutes or the APA itself, to take a close look 
at recommendations for how to give more clear direction to 
executive actors about how to carry out power.
    If institutionally that seems like it would slow things 
down or be a challenge, a model like the REINS Act where the 
executive agencies do the work of the research, kick proposals 
to Congress but Congress then brings it to electoral 
accountability to bear and yet saying yea or nay to the 
legislative process could be one proposal for moving forward.
    Mr. Bentz. Thank you and I appreciate that. I'm going to 
yield the last 30 seconds to Mr. Bishop.
    Mr. Bishop. I don't know if 30 seconds does it for me.
    Professor Mascott, let me just--I sort of summed up some of 
the challenges I saw. Is that an apt summary? What can you say 
about the legislation? I don't know if you have seen 
Representative Jayapal's legislation, but there is some 
Warren--Elizabeth Warren has legislation I understand that 
codifies the deference to Chevron and it does some other things 
on INPO. Do you have any views on that or how that would 
improve APA or the Administrative State?
    Ms. Mascott. Well, to your first question about are we 
getting at all the constitutional questions, I do think one 
underlying, even more threshold question is the level of 
division of power between the Federal government and the State 
government and local bodies. So, I think Federal government is 
a government of enumerated powers, and so everything should be 
limited. I have not, and I'm happy to take a look after the 
hearing, had a chance to look at professor--or Ranking Member 
and Vice-Chair Jayapal's bill. Be happy to do so. I think--
    Ms. Jayapal. Time of the gentleman has expired. If you want 
to just--
    Ms. Mascott. All right.
    Ms. Jayapal. Thank you. The gentleman yields back. The 
Chair now recognizes the gentleman from Wisconsin, Mr. 
Fitzgerald, for five minutes.
    Mr. Fitzgerald. Thank you, Madam Chair. My colleagues have 
discussed many of the problems with the unchecked power of un-
elected bureaucrats in the Federal government. There is perhaps 
no better example of this than the conduct of the FBI in the 
Russiagate investigation.
    This Committee spent significant time on allegations that 
President Trump colluded with Russia. He was ultimately 
acquitted of these allegations by the Senate. These allegations 
have been proven to be a sham that wasted years of what could 
have been spent on more important issues like securing our 
southern border.
    DOJ Inspector General Michael Horowitz released a report in 
December of 2019 that concluded the FBI Trump Russia 
investigation was filled with serious missteps and concealed 
information from the Foreign Intelligence Surveillance Act, 
FISA Court. Now, the Durham investigation has demonstrated that 
the Steele dossier was wildly inaccurate. The Clinton campaign 
cash Fusion GPS to draft a dossier as opposition research. I 
think we all know that now.
    Fusion GPS relied on information from Igor Danchenko, a 
Russian who worked at the Brookings Institute. Mr. Danchenko 
based his information on tales--on tall tales from Chuck Dolan, 
a public relations executive who worked extensively with the 
Clinton campaign in the past.
    The whole scheme was a vicious circle that began and ended 
with the Clinton campaign. The fact that the Steele dossier 
served as the basis for two years of Democrat obstruction needs 
to be investigated further by this Committee.
    Changing gears. We should also be looking at many of the 
unconstitutional rules issued by the Biden Administration and 
the executive agencies. The Administrative State's powers have 
encroached significantly on the Legislative and Judicial Branch 
over the last several decades. It is now common for an agency 
to write a regulation with the force of effective law, executes 
the regulation, and adjudicates disputes under that regulation 
consolidating, consolidating all three Federal powers into a 
single entity.
    Other ways agencies set policy raise similar concerns. For 
example, seeking judicial deference to agency views. Due to the 
broad delegations of authority and statutes and expansive 
interpretation of the Constitution's commerce clause the 
Founders would likely neither recognize nor bless the modern 
Administrative State.
    A few months ago, I introduced the Separation of Powers 
Restoration Act to mitigate the abuse of powers by un-elected 
bureaucrats in our Federal agencies. The bill would overturn 
the Supreme Court decision in Chevron v. Natural Resources 
Defense Council that in interpreting an ambiguous statute court 
should defer to the agency's interpretation.
    Ms. Mascott, can you discuss how this legislation would 
help curb some of the executive overreach by the Biden 
Administration that has been discussed here today and restore 
what we all would consider better checks and balances to the 
Legislative and Judicial Branches?
    Ms. Mascott. Sure. So, as we've talked about a lot of the 
agency statutes that are in play now do delegate broad power to 
the agencies or have been interpreted that way.
    So, I think the first thing to do would be tighten up those 
standards so it's clear by the text of the statute that as you 
say because--and as your bill I think points out, because those 
standards are already so broad, then giving deference to the 
individuals who are supposed to carry out the power to 
interpret what it means can often lead to even greater 
concentrations of power and less accountability and 
transparency.
    What's interesting actually is the initial Chevron decision 
was issued by--was written by then-Justice Stevens and his 
understanding over the years apparently was that it was not 
even meant to put into place a new system of deference 
necessarily, although that's how it's played out over time.
    It's inconsistent the way it's carried out now with the 
text of the APA, and so the Separation of Powers Restoration 
Act would helpfully clarify that the current standard of 
judicial review, or restate, or redirect that courts should 
decide what the law is--and make sure that Congress' 
instructions to agencies on questions of law are more clearly 
followed and not handed over to the Executive Branch to 
interpret and carry out.
    Mr. Fitzgerald. Thank you. Thank you, Madam Chair. I yield 
back.
    Ms. Jayapal. The gentleman yields back. The Chair now 
recognizes the gentleman from Georgia, Mr. Johnson, for five 
minutes.
    Mr. Johnson of Georgia. Thank you, Madam Chair.
    In 1984, the Supreme Court unanimously decided Chevron v. 
NRDC and created a standard of deference that courts apply when 
reviewing an agency's interpretation of a statute.
    This standard has been applied numerous times across 
numerous Administrations, although, I might add that 
Republicans tend to want to do reform when a Democratic 
President and Administration is in power. This standard has 
been applied numerous times and it has been revisited and 
ratified by the Supreme Court on several occasions.
    Congress and agencies have relied for over 30 years on the 
concept of Chevron deference when enacting legislation and 
issuing rules.
    Professor Wagner, can you explain the concept of Chevron 
deference and why it is so important for generalist courts to 
defer to expert agencies when interpreting ambiguous statutory 
language?
    Ms. Wagner. Yes, thank you for that question. So, Chevron 
does say that if the statute is clear, then the court 
interprets it. When the statute is ambiguous, then we look to 
what the agency's interpretation is. The reason is because 
those are policy-laden political decisions and the judiciary is 
not equipped, nor appropriate to decide political issues. So, 
that is the structure underlying Chevron and why the courts 
thought it was appropriate that when it comes to policy making 
we would defer to the political branches.
    Mr. Johnson of Georgia. Thank you. Do you think it is 
healthy that the current Chevron analysis and the body of law 
under that analysis should remain undisturbed by legislative 
fiat?
    Ms. Wagner. Thanks for that question. The truth of it is 
the courts have been all over the map and many have not 
followed Chevron at all, nor do they even cite Chevron. I think 
that the Chevron doctrine has a great deal of sense behind it 
in terms of not having the courts meddle with political 
decisions.
    So, I think having a signal from Congress, that is an 
appropriate way for the courts to review agency decisions would 
be super helpful because unfortunately a lot of courts are not 
applying Chevron deference.
    Mr. Johnson of Georgia. Thank you. Ms. Patterson, opponents 
of government action often fall back on the narrative that 
regulations kill jobs or that they hurt the economy despite 
evidence to the contrary. How can Federal agencies ensure that 
agency action is informed by actual data and evidence?
    Ms. Patterson. Thank you so much. So, certainly, we should 
rely on data from even our own agencies, such as the Renewable 
Energy Laboratory, the National Renewable Energy Laboratories, 
and otherwise that very much point out the opportunity--even in 
the Department of Labor--the opportunities in the new energy 
economy.
    So, recognizing that while we do have a necessary mandate 
to protect the public and protect our environment on which we 
all rely for our existence, we also have a mandate to ensure 
that the economy thrives. We can do in the new energy economy, 
that we know that the solar-wind energy technicians are the 
number one growing job in the country. We know that solar 
industry is one of the top 10 growing industries in the nation. 
We know that this data exists from our own agencies and 
otherwise.
    So, it's really to make sure that we know what that data is 
and that we're in dialog with labor and with front-line workers 
groups to ensure that we know what they want in the path to a 
new energy economy.
    Mr. Johnson of Georgia. Thank you, professor. Also, 
Professor Wagner in her testimony discussed how agencies and 
other parties have found gaps and loopholes around the notice 
and comment process under the APA and this can result in 
agencies essentially pre-negotiating with some stakeholders 
outside of public view.
    Do civil rights groups, public interest organizations, and 
front-line communities usually have access to this pre-
negotiation of rules?
    Ms. Patterson. Not that I've experienced. That's coming 
from a civil rights organization and working with multiple 
public interest groups as the data that I showed in the 
beginning that's in the written record now. There is such an 
extreme deferential in terms of that access, and so no.
    Ms. Jayapal. The time--
    Mr. Johnson of Georgia. Well to be clear--
    Ms. Jayapal. The time of the gentleman has expired.
    Mr. Johnson of Georgia. Thank you.
    Ms. Jayapal. The Chair now recognizes the Ranking Member of 
the Subcommittee, the gentleman from Colorado, Mr. Buck, for 
five minutes.
    Mr. Buck. I thank the Chair.
    Professor Michaels, I was looking at your written statement 
and on page 11 you quote President Biden's order from January 
20. There are several factors that you believe should be 
considered in addition to cost. Am I correct in that? You need 
to put your microphone on. We are going to have a conversation 
here. We want to make sure everybody can hear us.
    Mr. Michaels. Yes, sir.
    Mr. Buck. Okay. So, the one that jumped out at me, and I 
really don't understand it, is the word equity and the concept 
of equitable. Professor Michaels, there are three professors on 
this panel today, three in this room. Is that correct?
    Mr. Michaels. I believe so.
    Mr. Buck. Okay. The Democrats have chosen on your nameplate 
to put the word professor, but on the two ladies' nameplates 
they only have the word Ms. Do you think that is equitable that 
the Democrats have discriminated against the women who are 
professors here?
    Mr. Michaels. I'm not sure it's inequitable, but it's 
certainly incorrect.
    Mr. Buck. Well, okay. In terms of equity, we want to 
promote equity. Why would you possibly discriminate against--
and from their testimony today far more interesting to me than 
yours, frankly. I think that we should promote the idea that 
they are professors. So, I think it is really unfortunate that 
the Democrats have shown their discrimination and I think it 
should be corrected at some point, that they are professors and 
we should treats them that way.
    Mr. Michaels. I would agree with you.
    Mr. Buck. Professor Mascott, let me ask you something: I 
think that there are a number of other factors that are 
involved that President Biden wants the agencies to consider, 
and one of them is public health and safety. Do you think that 
defunding the police is part of the consideration for public 
health and safety?
    Ms. Mascott. Well, look, thank you, Congressman. So, I'm 
here obviously for legal expertise, and so don't have as much 
on the policy, but I think, generally speaking, that the policy 
determinations of which factors should be looked at in 
regulating and in making the laws--
    Mr. Buck. I was really asking about defunding the police. 
You don't want a go with me, do you? I will ask you another 
one.
    Ms. Mascott. Well, defunding police--
    Mr. Buck. How about social welfare? Do you think it is fair 
for the Biden Administration to tell gun owners what kinds of 
guns they can use to protect their homes and their families? Is 
that the kind of consideration that the Biden Administration 
wants when he issued this order?
    Ms. Mascott. Well, I think that what I was trying to say 
before is that, no, the Biden Administration shouldn't be, I 
don't think, putting in place any of those factors when it 
carries out laws by Congress unless Congress has put the 
factors in itself.
    Mr. Buck. Here is another one: They talk about racial 
justice. Is it racially just to discriminate against Asian 
students when they apply to universities or law schools as 
opposed to other students? Is that racially just?
    Ms. Mascott. Well, I agree with your concern about that as 
well, and again do not think that imposing a particular view of 
racial justice should be done by the Executive Branch.
    Mr. Buck. How about environmental stewardship? Certainly, 
the fuels that the Chinese use for their energy are far more 
destructive to our environment and cause more harm in terms of 
the climate change theory than the fuels in the United States. 
Do you think the Biden Administration would consider that in 
this memo that they wrote?
    Ms. Mascott. I have concerns, as I mentioned before, with 
the Executive Branch really doing anything to choose what 
factors should and should not be looked at in regulations.
    Mr. Buck. I have got one more for you.
    Ms. Mascott. I think it's a decision for Congress.
    Mr. Buck. You are going to like this one. It talks about 
the interests of future generations. Is the Biden 
Administration interested in protecting unborn babies?
    Ms. Mascott. Well, again, I think that is an issue that 
should be dealt with at the State and local level and with 
legislation and not by the courts taking it off the table or by 
the Executive Branch.
    Mr. Buck. I have something from your testimony that you 
might want to answer more than those couple of questions, but 
here's one for you: You talk about the Biden Administration 
rescinding different Executive Orders from the President. One 
that I am definitely concerned about as a former prosecutor is 
the ability of administrative agencies to enact criminal 
statutes, or criminal rules.
    Any thoughts on rescinding that?
    Ms. Mascott. To be honest, I was surprised actually that 
the Biden Administration rescinded it because it did seem to me 
to be a policy that would have bipartisan support because there 
is a lot of criminalization at the Federal level in general. To 
impose it by regulation is challenging and what the Executive 
Order simply did was to say that it needs to be very clear from 
agencies what level of intent is going to be used to prosecute. 
It seems like everybody--
    Mr. Buck. I thank you for your question--your answers.
    Ms. Mascott. Okay.
    Mr. Buck. I'm sorry, but I have run out of time. I yield 
back.
    Ms. Jayapal. The time of the gentleman has expired. I want 
to thank the gentleman for pointing out the unintended errors 
on nameplates. We will get new nameplates made and put before 
us.
    The Chair now recognizes the gentlewoman from Pennsylvania, 
Ms. Dean, for five minutes.
    Ms. Dean. I thank the Chair. I thank all the testifiers. 
Madam Chair, and to the testifiers my absence here is because I 
am running between two hearings, so please take it as no 
indication of an absence of interest in what you have testified 
to. I thank you for participating today.
    Dr. Michaels, I was interested in something that I read in 
your testimony. You described the Tobacco Playbook which has 
had an impact and maintained a grip on American society for 
decades, in fact, my entire lifetime. Could you please detail 
the Tobacco Playbook, provide an example of how that is--what 
it is and what it was and how it is being used today?
    Mr. Michaels. Thank you, Representative Dean. The tobacco 
industry with the help of the public relations industry figured 
out in the early 1950s that they couldn't say that tobacco 
didn't cause lung cancer, smoking didn't cause lung cancer, but 
they could say the science is unclear and they inflated 
anything that didn't look like lung cancer being caused by 
tobacco. So, for example, they put out some pamphlets that say, 
bald men are at greater risk for lung cancer, which of course I 
was interested in.
    The point is they would avoid addressing that problem to 
delay regulation. That strategy now, that disinformation 
playbook, is widely used. We see it in climate change of course 
where the fossil fuel companies paid some very marginal 
scientists to go out and say no, no, the studies don't say 
this; they say that.
    So, now we have a whole industry that creates this 
disinfor-
mation, that does strategic literature reviews and then puts 
them into the EPA or the OSHA to say look, we've looked at this 
literature and it's not right. As I talk about in my testimony, 
it could take an agency years to respond to that. Of course, as 
we talked earlier, delay of regulation has a real cost to the 
public.
    Ms. Dean. As a point of personal privilege, my father wrote 
60 years ago an article entitled, ``England Warns Its Use.'' 
So, I worry desperately about disinformation campaigns of old 
and disinforma-
tion campaigns of today.
    Ms. Patterson, what do agencies need to do to make 
providing input more accessible for front-line communities and 
other affected groups? You stated effective groups need a seat 
at the table in your testimony. What concrete steps can we take 
here to make sure that effective groups have a seat, have a 
voice against the issue at hand and the rulemaking at hand as 
well as against disinformation?
    Ms. Patterson. Yes, thank you so much.
    First, to really make sure that the information that is 
being under consideration that is put in terms and in forums 
that are accessible for communities to be able to know what 
they are weighing in on. So, ensuring that we have digestible 
information in terms of what's being proposed.
    Before I talked about having concrete mechanisms, like an 
Office of Public Participation and so forth, and therefore 
making sure that those offices have people that are able to be 
liaisons, to be translators, to be communicators and popular 
educators, to be able to reach the communities that need to be 
able to give this input.
    Second, to make sure that the avenues for providing the 
inputs are there, that at every juncture that the public, the 
communities know where they can give input in the same way as--
I talked about the disparities in the beginning, that at all 
the junctures, whether it's before something is being written 
so they can give input on design while it's being written, so 
they can give input on process, and then providing input on 
final drafts. So, ensuring that we're really doing an audit of 
all levels and all pieces of the continuum. So, those are some 
of the concrete examples. Certainly, in my written testimony I 
gave a little bit more, but go on. Yes.
    Ms. Dean. I thank you very much for that. I will use the 
remaining time that I have maybe with a global question, Dr. 
Michaels. In addition to what Ms. Patterson just said, what 
would a well-functioning rulemaking system look like? What 
concrete improvements can we make from what we have right now?
    Mr. Michaels. Well, certainly, a level playing field. Right 
now, wealthy individuals, corporations have a tremendous amount 
of input, and it just isn't fair. Poor communities, 
disadvantaged communities, just regular folks, workers, people 
who care about their environment have nowhere near the ability 
to weigh in. So, as long as we have a system that works now, we 
really need advocates for the rest of us, not just for the 
wealthy and powerful.
    Ms. Dean. I thank you. I thank you all for your 
participation and your testimony today.
    With that I yield back.
    Ms. Jayapal. The gentlewoman yields back. The Chair now 
recognizes the Ranking Member of the Full Committee, Mr. Jordan 
from Ohio, for five minutes.
    Mr. Jordan. Thank you, Madam Chair. Professor Mascott, when 
was Dr. Fauci elected to office?
    Ms. Mascott. At no time.
    Mr. Jordan. Has he ever been elected to anything?
    Ms. Mascott. He's not--certainly not in the current role.
    Mr. Jordan. Is he a Member of Congress?
    Ms. Mascott. No.
    Mr. Jordan. Now Dr. Fauci is a smart guy. In fact, if you 
don't believe me, just ask him. He said Sunday on a TV show 
that, quote, ``I represent science.'' So, I am not saying he is 
not a smart individual, but who does Dr. Fauci answer to?
    Ms. Mascott. Well, well, at this point, I mean presumably 
indirectly to the President, but I take your point.
    Mr. Jordan. Well, I don't even think--professor, with all 
due respect, I don't even think he answers to the President 
because President Biden says we follow the science and Dr. 
Fauci has basically said I am science, almost like God 
speaking. So, I don't even think he answers to the President.
    So, this is what scares me is the fact that it is people 
who have never put their name on a ballot, never went out and 
talked to we the people who are making the decisions, and 
frankly the Democrats' Witnesses likes it that way. Let me just 
read from Mr. Michaels', Professor Michaels' testimony this 
morning. Just one sentence.

        We need an agile regulatory system to address the climate 
        crisis, COVID-19 variants, environmental injustice, massive 
        income, wealth inequality, affordable housing shortage, 
        antibiotic resistant organisms, the opioid overdose epidemic, 
        and threats to the financial stability posed by crypto-
        currency.

    We don't need a Congress. We don't need a Congress. We got 
this regulatory system that the Democrat Witness thinks we 
need. So, forget like putting your name on a ballot and going 
actually out and talking to the people and getting elected to 
office and being in the United States Congress. We don't need 
it according to Mr. Michaels.
    Ms. Mascott. So, I think--
    Mr. Jordan. Isn't that your concern?
    Ms. Mascott. Yes, I think you're putting your finger on a 
very poignant example and current practice where we have a 
significant problem facing the country, obviously the pandemic. 
There's a very broad statute, the quarantine statute from the 
1940s that had not been carried out anywhere close to the way 
it has been applied recently. In the past--
    Mr. Jordan. Mr. Michaels doesn't want to limit to that. Dr. 
Fauci may want to. Who knows what he wants. He probably just 
wants to be dictator. Mr. Michaels doesn't want to limit it to 
that. He talks about affordable housing. He is talking about 
cryptocur-
rency. He is talking about environmental injustice. I mean he 
is talking about all kinds of things that he thinks the 
regulatory State needs to be able to agilely in some kind of 
fashion be able to deal with.
    Ms. Mascott. Yes.
    Mr. Jordan. So, it is not just quarantine issues.
    Ms. Mascott. Well, of course, and I think the reason--what 
you're pointing to, right, is the breadth of a law and how it's 
being interpreted. If we defer to the Executive Branch's 
interpretation, that housing and cryptocurrency and whatever 
else falls within--
    Mr. Jordan. That is how it works, isn't it? There are 
always some exceptions and there is some give and take in the 
comment period for these, but the agency proposes a rule.
    Ms. Mascott. Right.
    Mr. Jordan. Then they enforce the rule. Then if there is a 
dispute, they have an Article 1 Judge, Executive Branch Judge, 
adjudicate. They want more of that. They want them to do that 
for everything. So, why do we need a Congress?
    Ms. Mascott. Right, the concentration of power I think in 
single entities is one of the greatest problems facing our 
system of government.
    Mr. Jordan. No kidding. No kidding. Some of these people--I 
mean the people who make decisions and impact small business 
owners, Americans--I mean just every single day the regulatory 
State, the bureaucratic State runs this country, and it is a 
huge problem. It is the biggest threat to liberty I think we 
see. I haven't seen the bill that the Chair is introducing, but 
my gut tells me it probably moves in the direction that their 
Witness wants it to go, which is more power to the bureaucratic 
State. Is that your interpretation of their bill? I don't know 
if you have seen it either, because I haven't.
    Ms. Mascott. I have not seen the bill. I will say I think 
the most constitutional approach would be for power to be 
disbursed among different decision makers: State, local, 
communities, and families. Then at the Federal level policy 
making in Congress. You all have a lot of power here to be able 
to put those systems in place and make policy decisions.
    Mr. Jordan. We are supposed to have a lot of power. It is 
something we need to claim back or take back. This idea that 
bureaucrats are going to run the country is, as I said before, 
frightening.
    You said this earlier. I just want to read this. I think 
this is--you put this well and you just basically said the same 
thing.

        The distribution of power over separate branches of government 
        helps to ensure that each branch can more effectively perform 
        its function of serving as a check on the other branches in 
        order to better secure.

This is the important part:

        the private interests of every individual. The security 
        for civil rights consists in the multiplicity of interests.

    That is the Constitution. That is what this Committee is 
supposed to uphold. More than any other Committee in the 
Congress we are supposed to be focused on that and, yet, we 
have Witnesses come in here and basically say do away with 
Congress. Let the regulatory State run the country. That is 
frightening. I yield back.
    Ms. Jayapal. The gentleman yields back.
    I see unanimous consent to add a number of statements and 
letters regarding the current State of the rulemaking process 
and potential legislative reforms. A letter from Robert 
Weissman and Jack Gills, the Co-Chairs of the Coalition for 
Sensible Safeguards; a letter from Blake Emerson, Assistant 
Professor of Law at UCLA's School of Law, an article by David 
Michaels and Jordan Barab published by Time magazine titled, 
``We Ran OSHA: Here's the Truth About So-Called Vaccine 
Mandate;'' a letter from James Goodwin, the Senior Policy 
Analyst at the Center for Progressive Reform; a letter from 
Martha Kinsella, Senior Counsel at the Brennan Center for 
Justice's Democracy Program; the Brennan Center's National Task 
Force on Rule of Law and Democracy's Proposals for Reform, 
Volume 2. So, ordered.
    [The information follows:]    

                       MS. JAYAPAL FOR THE RECORD

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

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Ms. Jayapal. I now recognize the gentlelady from Indiana, 
Ms. Spartz, for five minutes.
    Ms. Spartz. Thank you, Madam Chair. I think we talk a lot 
about corporations here and hiring scientists. I think 
scientists hired by government are also not less biased because 
every scientist, every project I have seen, every study usually 
always pleases the payer. Every government study always yields 
the result that the government asks them to yield. So, I would 
not really give too much credibility to government pay studies. 
Or a lot of universities pay, if you want to actually get 
tenure, if you are not published your work within the small 
group of people that have their own views, you are probably not 
going to get a tenure.
    So, there is a lot of subjectivity. Honestly, if you look 
about we are replacing right now the really liability with 
unenforceable regulations where most of them should be decided 
in the court of law and not given so much immunity. A lot of us 
are joking that and a lot of these attorneys will be out of 
business if we continue giving these unlimited immunities.
    My question is just a quick question I have for Dr. 
Mascott. You are a professor of law. I am just in accounting. 
When I look at the level of regulation and Executive Orders 
that have been expanding to the level, unbelievable. I was 
shocked to see that actually Congress doesn't have a 
streamlined process to deal with Executive Orders. 
Congressional review acts does not apply. So, we streamline at 
least somewhat to look at regulations. Do you believe we need 
to really do a better job to see how we can deal more 
effectively with Executive Orders?
    Ms. Mascott. I do think that Executive Orders at times are 
being used in ways that they were not originally intended. I 
mean, the intent of the Executive Order, of course, is for the 
President to be able to oversee the Executive Branch.
    I think the fundamental problem is that Congress needs to 
take a greater share of the policy making power, delegate 
narrower areas of authority with more detail and then there 
would not be as much of an area of discretion within which the 
Executive Order would operate.
    Ms. Spartz. So, just generally, if we make a lawless 
ambiguous, which I really know alot attorneys don't, but I do. 
So, that would help. Is there anything that for us really to 
oversee and streamline the process if we do believe that 
President; and regardless who it is, Republican of Democrat 
president, overstepping his authority?
    Ms. Mascott. I certainly think in areas of laws and just 
start subject matter by subject matter where it's causing the 
greatest concern, whether it's now with the pandemic or 
whatever, for Congress to exercise its policy will, and that 
could be through constraining what the Executive, including by 
Executive Order, is able to do in areas of domestic policy.
    Ms. Spartz. So, just define a little better what they can 
do?
    Ms. Mascott. Absolutely. Much better, yes.
    Ms. Spartz. Okay. Well thank you so much. I yield my time 
to Mr. Johnson of Louisiana.
    Mr. Johnson of Louisiana. Thanks so much, my colleague. The 
APA is supposed to provide greater transparency and public 
participation in agency rulemaking, and I am pleased to hear my 
colleagues, including the gentlelady from Washington, stress 
the importance of this principle, especially in the area of 
healthcare.
    So, I am a bit surprised that my colleagues on the other 
side of the aisle all voted for the Build Back Better Act, 
which waives APA rulemaking and judicial review in more than a 
dozen places with respect to the regulation of drug prices.
    The question really quick is, does any Member of the panel 
believe that significant agency actions like this should be 
done in the dark with no notice and comment or judicial 
oversight, especially with such a significant area in the 
economy? Anybody? Anybody agree with that?
    The question is do the Witnesses think that these 
provisions need to be removed to ensure that the public knows 
how drug pricing is being regulated and what went into those 
decisions?
    Professor Michaels, do you have an opinion on that? Should 
it be removed?
    Mr. Michaels. You know what, I can't comment on that since 
I don't have any direct knowledge of what the provisions are in 
the Build Back Better Bill.
    Mr. Johnson of Louisiana. Okay. All right. How about, Ms. 
Wagner, any comment on that?
    Ms. Wagner. Unfortunately, I also don't know anything about 
it.
    Mr. Johnson of Louisiana. You know what, none of our 
colleagues know either. There was no discussion about these 
provisions when the House was considering the bill. I would be 
surprised if any Member, any of my colleagues are even aware it 
is in there. Isn't that why we need greater deliberation and 
transparency in governmental action?
    Professor Mascott, comment on that? Thoughts about it?
    Ms. Mascott. Well, I certainly think consistent with just 
the general nature of my comments, and, again, I have not 
myself seen that particular legislative proposal, but I think 
the policy making when we're talking about imposing new 
requirements on regulated people and individuals should be done 
through Congress.
    Mr. Johnson of Louisiana. So, just for reference of those 
who want to thumb through this at home, pages 647, 2000, 2015, 
2020, 2062, 2081, 2114, and 2124. At least eight places in this 
bill it puts it in a dark closet and allows un-elected woke 
bureaucrats to make the rules.
    I would yield to Mr. Buck.
    Mr. Buck. I was just wondering if my colleague thought that 
anyone in Congress had read that bill before it passed, because 
to my knowledge we got that bill with just a few hours before 
we voted on it.
    Mr. Johnson of Louisiana. I am out of time, but I don't 
think it was possible to read. I yield back.
    Ms. Jayapal. The time of the gentleman has expired.
    This concludes today's hearing. Thank you to our 
distinguished Witnesses for attending.
    We must curb the undue power of corporations, prioritize 
the interests of the public, and clear a path for public 
participation in the law. Legislation like my bill, the Capture 
Act, will vastly improve the rulemaking process by increasing 
accessibility, transparency, and accountability. I look forward 
to working with my colleagues to address this issue.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the Witnesses 
or additional materials for the record.
    The hearing is adjourned.
    [Whereupon, at 12:13 p.m., the Subcommittee was adjourned.]    

                                APPENDIX

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                        QUESTIONS AND RESPONSES

                             FOR THE RECORD

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