[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


              REINING IN THE ADMINISTRATIVE STATE: AGENCY
                  ADJUDICATION AND OTHER AGENCY ACTION

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

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON THE ADMINISTRATIVE STATE, 
                    REGULATORY REFORM, AND ANTITRUST

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               __________

                       WEDNESDAY, MARCH 20, 2024

                               __________

                           Serial No. 118-68

                               __________

         Printed for the use of the Committee on the Judiciary
         
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               Available via: http://judiciary.house.gov
               
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                   U.S. GOVERNMENT PUBLISHING OFFICE                    
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                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
KEN BUCK, Colorado                       Member
MATT GAETZ, Florida                  ZOE LOFGREN, California
ANDY BIGGS, Arizona                  SHEILA JACKSON LEE, Texas
TOM McCLINTOCK, California           STEVE COHEN, Tennessee
TOM TIFFANY, Wisconsin               HENRY C. ``HANK'' JOHNSON, Jr., 
THOMAS MASSIE, Kentucky                  Georgia
CHIP ROY, Texas                      ADAM SCHIFF, California
DAN BISHOP, North Carolina           ERIC SWALWELL, California
VICTORIA SPARTZ, Indiana             TED LIEU, California
SCOTT FITZGERALD, Wisconsin          PRAMILA JAYAPAL, Washington
CLIFF BENTZ, Oregon                  J. LUIS CORREA, California
BEN CLINE, Virginia                  MARY GAY SCANLON, Pennsylvania
KELLY ARMSTRONG, North Dakota        JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey            MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas                    VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama                 DEBORAH ROSS, North Carolina
KEVIN KILEY, California              CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming             GLENN IVEY, Maryland
NATHANIEL MORAN, Texas               BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
                                 ------                                

               SUBCOMMITTEE ON THE ADMINISTRATIVE STATE,
                    REGULATORY REFORM, AND ANTITRUST

                     THOMAS MASSIE, Kentucky, Chair

DARRELL ISSA, California             J. LUIS CORREA, California, 
KEN BUCK, Colorado                       Ranking Member
MATT GAETZ, Florida                  HENRY C. ``HANK'' JOHNSON, Jr., 
DAN BISHOP, North Carolina               Georgia
VICTORIA SPARTZ, Indiana             ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin          TED LIEU, California
CLIFF BENTZ, Oregon                  PRAMILA JAYAPAL, Washington
LANCE GOODEN, Texas                  MARY GAY SCANLON, Pennsylvania
JEFF VAN DREW, New Jersey            JOE NEGUSE, Colorado
BEN CLINE, Virginia                  LUCY McBATH, Georgia
HARRIET HAGEMAN, Wyoming             ZOE LOFGREN, California
NATHANIEL MORAN, Texas               STEVE COHEN, Tennessee
KELLY ARMSTRONG, North Dakota        GLENN IVEY, Maryland
                                     BECCA BALINT, Vermont

               CHRISTOPHER HIXON, Majority Staff Director
         AARON HILLER, Minority Staff Director & Chief of Staff
                           
                           C O N T E N T S

                              ----------                              

                       Wednesday, March 20, 2024

                                                                   Page

                           OPENING STATEMENTS

The Honorable Thomas Massie, Chair of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of Kentucky..............................................     1
The Honorable J. Luis Correa, Ranking Member of the Subcommittee 
  on the Administrative State, Regulatory Reform, and Antitrust 
  from the State of California...................................     2
The Honorable Jerrold Nadler, Ranking Member of the Committee on 
  the Judiciary from the State of New York.......................     3

                               WITNESSES

Mark Chenoweth, President & Chief Legal Officer, New Civil 
  Liberties Alliance
  Oral Testimony.................................................     5
  Prepared Testimony.............................................     8
Jennifer L. Mascott, Co-Executive Director, The C. Boyden Gray 
  Center for the Study of the Administrative State, Antonin 
  Scalia Law School
  Oral Testimony.................................................    36
  Prepared Testimony.............................................    38
Robert Alt, President & CEO, The Buckeye Institute
  Oral Testimony.................................................    46
  Prepared Testimony.............................................    48
Skye L. Perryman, Juris Doctor, President & CEO, Democracy 
  Forward Foundation
  Oral Testimony.................................................    55
  Prepared Testimony.............................................    57

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted for the record by the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust are 
  listed below...................................................    99

An article entitled, ``Opinion | This Quiet Blockbuster at the 
  Supreme Court Could Impact All Americans,'' Nov. 22, 2023, The 
  New York Times, submitted by the Honorable Mary Gay Scanlon, a 
  Member of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of 
  Pennsylvania, for the record
An article entitled, ``We Don't Talk About Leonard: The Man 
  Behind the Right's Supreme Court Supermajority,'' Oct. 11, 
  2023, ProPublica, submitted by the Honorable Becca Balint, a 
  Member of the Committee on the Judiciary from the State of 
  Vermont, for the record
A letter from the Coalition for Sensible Safeguards, Mar. 19, 
  2024, to the Honorable Thomas Massie, Chair of the Subcommittee 
  on the Administrative State, Regulatory Reform, and Antitrust 
  from the State of Kentucky, and the Honorable J. Luis Correa, 
  Ranking Member of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of California, 
  submitted by the Honorable J. Luis Correa, Ranking Member of 
  the Subcommittee on the Administrative State, Regulatory 
  Reform, and Antitrust from the State of California, for the 
  record
A dissenting statement of Commissioner Brendan Carr, Federal 
  Communications Commission, submitted by the Honorable Thomas 
  Massie, Chair of the Subcommittee on the Administrative State, 
  Regulatory Reform, and Antitrust from the State of Kentucky, 
  for the record

                                APPENDIX

Materials submitted by the Honorable Jerrold Nadler, Ranking 
  Member of the Committee on the Judiciary from the State of New 
  York, for the record
  An article entitled, ``How the Supreme Court Could Limit 
      Government's Ability to Serve Americans in All Areas of 
      Life,'' Jan. 10, 2024, CAP 20
  An article entitled, ``The Supreme Court's Assault on 
      Government Could Make the Far-Right's Dreams Come True,'' 
      Feb. 15, 2024, CAP 20
  A statement from Elizabeth Skerry, Regulatory Policy Associate, 
      Public Citizen, March 20, 2024

                 QUESTIONS AND RESPONSES FOR THE RECORD

Questions for Skye L. Perryman, Juris Doctor, President & CEO, 
  Democracy Forward Foundation, submitted by the Honorable J. 
  Luis Correa, Ranking Member of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of California, for the record
Questions for Mark Chenoweth, President & Chief Legal Officer, 
  New Civil Liberties Alliance, Jennifer L. Mascott, Co-Executive 
  Director, The C. Boyden Gray Center for the Study of the 
  Administrative State, Antonin Scalia Law School, and Robert 
  Alt, President & CEO, The Buckeye Institute, submitted by the 
  Honorable Harriet Hageman, a Member of the Subcommittee on the 
  Administrative State, Regulatory Reform, and Antitrust from the 
  State of Wyoming, for the Record
    No response at the time of publication

 
                  REINING IN THE ADMINISTRATIVE STATE:
                     AGENCY ADJUDICATION AND OTHER
                             AGENCY ACTION

                              ----------                              


                       Wednesday, March 20, 2024

                        House of Representatives

               Subcommittee on the Administrative State,

                    Regulatory Reform, and Antitrust

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, the Hon. Thomas 
Massie [Chair of the Subcommittee] presiding.
    Members present: Representatives Massie, Issa, Gaetz, 
Spartz, Fitzgerald, Bentz, Van Drew, Cline, Hageman, Moran, 
Correa, Nadler, Johnson, Scanlon, McBath, Ivey, and Balint.
    Mr. Massie. The Subcommittee will come to order. Without 
objection, the Chair is authorized to declare a recess at any 
time. We welcome everyone to today's hearing on Agency 
Adjudication and Other Agency Action.
    I will now recognize myself for an opening statement. In 
today's hearing, we will address how some Federal agencies 
bring enforcement actions against defendants before the 
agencies' own in-house courts. This practice, when Federal 
enforcers sue defendants, but bring the case before the 
agencies' own judges instead of before an Article 3 Court, 
raises a number or concerns.
    In addition to considering these concerns, we will have the 
opportunity today to explore ideas for reform. Stepping back, 
the Administrative State is made up of numerous Federal 
agencies. A number of these Federal agencies have the power to 
sue defendants to enforce the law and the agencies can choose 
where to sue, in house or before an Article 3 Judge.
    There are significant differences between facing an agency 
in an Article 3 Court and facing the agency's own in-house 
adjudicator. For example, a number of Federal agencies make 
their own rules of procedure and evidence. These rules can 
differ from agency to agency, and they differ from the rules 
used in Article 3 Courts, sometimes in ways that work in the 
agency's favor. Often Administrative Law Judges preside over 
these cases and unlike Article 3 Judges, the Administrative Law 
Judges are hired and paid by the same agencies that bring the 
cases before them.
    Today, we can examine whether these judges are truly 
independent of the agencies that employ them. Also, unlike in 
Article 3 Courts, when an agency sues a defendant in an in-
house court, the defendant lacks access to a jury, a right the 
Seventh Amendment protects. Think about that. If the agency 
wants to opt for a jury trial, it can, but the defendant, whose 
rights are at stake, cannot. These and other concerns create a 
risk of perceived institutional bias that the deck is stacked 
against the defendants. The risk of perceived bias is made 
worse by the extraordinarily high number of cases won before 
their own courts. Because the agencies play by their own rules, 
it is easier for them to get preferred outcomes.
    Finally, there is arguably a lack of due of fairness and 
due process in some of these cases. Defendants are often unable 
to seek interlocutory appeals on evidentiary and other 
procedural rulings. The effect is that defendants with limited 
resources face long odds of success and prolonged and costly 
challenges from agencies. This imbalance allows agencies to 
force settlements through exhaustion and can be a way for 
agencies to avoid judicial oversight from a truly independent 
adjudicator.
    To add insult to injury, when defendants settle, some 
agencies use gag orders to prohibit defendants from discussing 
their matter critically. There is a serious lack of 
transparency in an administrative adjudication. It undermines 
confidence and legitimacy of the proceedings and ultimately in 
the justice system.
    Today's witnesses are leading scholars and practitioners 
with significant knowledge of this subject matter. I look 
forward to hearing from our panel of expert witnesses in 
discussing these important items.
    I now recognize the Ranking Member, Mr. Correa, for an 
opening statement.
    Mr. Correa. Thank you very much, Mr. Chair, for holding 
this most important hearing. Today, I think this hearing is 
about safety. My constituents back home, when they shop at a 
grocery store, buy prescriptions at a pharmacy, they want to 
make sure, they want to know that what they are doing is 
getting something safe. They are buying a safe product. They 
want to know when they take their children to a playground, to 
a school, that they are going to be safe, that they won't be 
playing in a polluted field that might affect their health. 
They want to know when they are working that it will be in a 
safe environment. They also want to know that they want to 
exercise their right to join a union, that this right will be 
respected.
    Let's face it, Administrative Law, most of my constituents 
won't know what this is as they shouldn't. That is why they pay 
us to do the job for them, to keep them safe, and to make sure 
that their families are safe. That is why I am concerned today 
by the efforts we see from my friends across the aisle here in 
Washington to make it harder for these agencies to do their 
job. Legislation proposed by the majority will leave people in 
my community and all over America much worse off by paralyzing 
the very agencies responsible for looking after our food 
supply, our environment, our free market, our medications, and 
much, much more.
    Very soon, the Supreme Court will decide three cases which 
taken together could tie down our agencies in a new wave of 
litigation, uncertainty, and ultimately harming ordinary 
Americans and businesses on Main Street.
    Mr. Chair, while some will claim the Administrative State 
threatens free enterprise, let's look at the facts. Today, our 
economy is stronger than ever. Under President Biden, we see 
very strong economic growth, millions of jobs are created, 
inflation is under control, and a thriving economy that is 
second to none in this world; an economy, a government, that 
are functioning well with reasonable regulations.
    Again, this is about safety, safety of those back home on 
Main Street. I would say instead of attacking our regulatory 
agencies, let's help them to do their job, do their job better. 
Let's give them the resources, the funding they need to carry 
out their missions, and let them use their expertise that they 
have acquired over the decades of work to do their job which is 
protecting our friends and neighbors and people that live on 
Main Street. That, I would say, will keep our economy moving 
forward, and give our constituents at home peace of mind that 
they deserve when they think of our government priorities and 
the job we are doing for them here in Washington, DC.
    Mr. Chair, thank you for calling for this hearing and I 
yield back the balance of my time.
    Mr. Massie. Thank you, Mr. Correa. I now recognize the 
Ranking Member of the Full Committee, Mr. Nadler, for his 
opening statement.
    Mr. Nadler. Thank you, Mr. Chair. Mr. Chair, today, we are 
gathered not to discuss how the Executive Branch might work to 
better protect our air, water, food, or health. Instead, the 
Republican majority has gathered us to give another platform to 
far-right advocates who want to dismantle the very agencies 
charged with protecting our health and safety. Not content to 
assault our government only in open and violent insurrection, 
extreme right-wing actors are also launching assault through 
our courts to ensure that it is impossible for our government 
to function. Unfortunately, as we will see today, those two 
acts of bad faith now go hand in hand. Add to this fact by 
billions of dollars in dark money are bringing cases to our 
highest court with the purpose of overturning decades of 
precedent, cases that will create uncertainty for businesses 
across the Nation that will undermine the protections we rely 
on for clean air and clear water and that will enable 
corporations to evade the law.
    Based on controversial, novel, and aggressive 
interpretations of our Constitution, these actors are giving 
the court the chance to enlarge its power while undermining and 
limiting those of the people. In one set of cases, Relentless 
and Loper Bright, they seek to upend decades of precedent 
holding that the court should respect Congress' authority to 
delegate the agency experts the careful task of implementing 
our laws. Instead, they would rather have judges who lack 
expertise in these often technical matters, to substitute their 
own policy judgments in place of those from experts.
    After a determined campaign to stock the courts of 
extremists eager to carry out the corporate agenda, it is easy 
to see why. A poor outcome in this case would affect 
innumerable rules and would undermine the very protections 
Americans depend on. In another case, Jarkesy, the plaintiffs 
are attacking a system that delivers quick relief from 
independent judges across the Executive Branch. A poor outcome 
in this case would mean that litigants no longer have access to 
approximately 2,000 Administrative Law Judges, or ALJs, to 
decide issues ranging from Social Security benefits to 
securities fraud. If this happens, they will have to wait many 
years for the far smaller Federal bench consisting of fewer 
than half as many judges to hear their cases. For those who 
want to do away with ALJs, the endless delay, and the inability 
of regulatory agencies to enforce the laws is a feature, not a 
bug.
    In another course, Corner Post seeks to subject regulations 
to challenge indefinitely, inviting a flood of litigation for 
years to come. The same forces behind these cases support other 
radical efforts to undermine regulations that protect 
Americans' health and safety. In the same term, the Supreme 
Court is being asked to overturn the FDA's authority and expert 
judgment in regulating Mifepristone, a key tool in ensuring 
reproductive freedom, to block a national air pollution rule 
developed over many years by experts at the EPA that is 
predicted to save thousands--tens of thousands of American 
lives, and to overturn the considered judgment of the ATF that 
bump stocks transform semiautomatic weapons into machine guns, 
capable of discharging hundreds of rounds of lethal ammunition 
per minute as we saw in the deadly mass shooting Las Vegas in 
2017.
    These cases are not just an attack on the functioning of 
our expert agencies, but they are also an attack on the 
separation of powers, a key pillar of our Constitution, and the 
basis for our system of government. They seek to take power 
away from elected representatives and the officials they charge 
with carrying out their mandate and empower judges to 
completely override the determinations of agency experts, 
substituting their own judgments regardless of a comparative 
lack of technical knowledge and understanding of the underlying 
subject matter for the carefully crafted and scientifically 
based decisions made by agencies.
    These cases may seem to involve esoteric parts of the law, 
but they have the power to impact every person, every business, 
and every aspect of our environment. This war on government, 
this war on our separation of powers will make us all less 
safe. It will cause serious harm to businesses. It will be 
mired in uncertainty. It will endanger our public health by 
undermining critical regulations. It will threaten our economic 
health by letting large corporations break the law without 
consequence. This war on the government hurts us all.
    I urge my colleagues to listen closely to what the 
majority's witnesses say here today. They have not been shy 
about telling the public exactly what they have planned, and I 
doubt that there will be any less bold today. They will offer a 
road map for the MAGA majority to continue its assault on the 
regulatory process and the critical protections that executive 
agencies provide.
    If they succeed, the economic prosperity fostered by 
President Biden's policies will be lost. Right now, the U.S. 
economy is one of the strongest in the world. Our rebound from 
the pandemic is the envy of the world. Unemployment has been at 
a sustained, historic low. Wage growth is outpacing inflation. 
Consumer sentiment is up. We must not stand idly by while the 
far right continues its destructive mission. Instead, we must 
act to protect our Constitution, to protect the separation of 
powers, and to protect the American people. I yield back the 
balance of my time.
    Mr. Massie. I thank the Ranking Member of the Full 
Committee. Without objection, all other opening statements will 
be included in the record.
    I will now introduce today's witnesses. Mr. Mark Chenoweth 
is the President and Chief Legal Officer of the New Civil 
Liberties Alliance, a nonprofit organization that engages in 
litigation and advocacy to protect Americans' rights. He has 
previously worked in private practice and served as Chief of 
Staff to then Congressman Mike Pompeo, legal counsel to 
Commissioner Anne Northup at the U.S. Product Safety 
Commission, and as an attorney advisor in the Office of Legal 
Policy at the Department of Justice.
    Ms. Jennifer Mascott is an Assistant Professor of Law and 
Co-Director of the C. Boyden Gray Center for the Study of the 
Administrative State at the Antonin Scalia Law School at George 
Mason University. Professor Mascott has written extensively on 
Administrative Law and serves as a public member of the 
Administrative Conference of the United States. She previously 
served as the Deputy Assistant Attorney General in the DOJ 
Office of Legal Counsel.
    Mr. Robert Alt is the President, Chief Executive Officer, 
and a member of the Board of Trustees of the Buckeye Institute. 
The Buckeye Institute is a nonprofit organization that works to 
advance free market public policy. He previously served as 
Director of the Center for Legal and Judicial Studies at The 
Heritage Foundation.
    Ms. Skye Perryman is the President and Chief Executive 
Officer of Democracy Forward, a nonprofit organization that 
works to advance democracy and social justice. She previously 
served as the Chief Legal Officer and General Counsel of the 
American College of Obstetricians and Gynecologists and has 
worked in private practice.
    We welcome our witnesses and thank them for appearing 
today. We will begin by swearing you in. Would you please rise 
and raise your right hand?
    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?
    Let the record reflect that the witnesses have answered in 
the affirmative. Thank you. Please be seated. Please know that 
your written testimony will be entered into the record in its 
entirety. Accordingly, we ask that you summarize your testimony 
in five minutes.
    Mr. Chenoweth, you may begin.

                  STATEMENT OF MARK CHENOWETH

    Mr. Chenoweth. Chair Massie, Ranking Member Correa, and 
other Subcommittee Members, thanks for inviting today's 
testimony. My name is Mark Chenoweth. I am the President and 
Chief Legal Officer of the New Civil Liberties Alliance, a 
nonpartisan, nonprofit civil rights organization founded by 
Columbia Law School Professor, Philip Hamburger, to combat 
unlawful administrative power.
    NCLA's 14 attorneys pursued more than 50 original 
litigation cases against unlawful administrative agency actions 
last year alone, including two of them that the Chair Nadler 
mentioned. This work gives us an up-close, real-world look into 
the various ways in which administrative adjudication violates 
Americans' civil liberties, adjudications, by the way, that 
enmesh ten times more people than do Federal District Courts. 
So, your constituents may actually be familiar with this 
process.
    My written testimony compiles a list of 25 pathologies of 
administrative adjudication for the Committee's benefit. Before 
discussing a few of these, I would like to highlight the legal 
mistakes behind administrative adjudication.
    It is typically understood that Federal agencies have no 
power to act unless Congress gives it to them. The Constitution 
gives Congress only legislative powers. Congress cannot 
delegate a power it does not have, so it cannot delegate 
judicial power. Article 3's vesting of judicial power in the 
courts is exclusive and mandatory. It says,

        The judicial power of the United States shall be vested in one 
        Supreme Court and in such inferior courts as the Congress may 
        from time to time ordain and establish.

By saying the judicial power shall be vested, Article 3 made 
clear that the location of that power was mandatory. It 
authorizes Congress to locate judicial power only in inferior 
courts, not administrative agencies. In setting up 
administrative tribunals, then Congress has unconstitutionally 
divested the courts of their judicial power, so it needs to 
unwind much of this unlawful regime.
    Apart from these structural constitutional violations, 
administrative adjudication violates the Fifth Amendment, the 
Sixth Amendment, and the Seventh Amendment. When I speak of 
Fifth Amendment violations, I am chiefly referring to the lack 
of due process. Agency proceedings scrapped the Federal Rules 
of Civil Procedure and the Federal Rules of Evidence, 
substituting the agency's own rules or making things up as they 
go. Worse yet, a fundamental tenet of due process is an 
impartial judge, but ALJs are structurally biased in a pro-
agency direction. They are not allowed to question the 
constitutionality or legality of the laws or regulations they 
enforce. They routinely shift the burden of proof to the 
respondent. They are beholden to their agency for their very 
employment. Unlike the Department of Justice in criminal cases, 
agencies are also not required to turn over exculpatory 
evidence to targets of enforcement, so even if the agency has 
proof of your innocence, it doesn't have to share that with 
you. Where is the justice in that?
    Sometimes the due process violations are even grosser. In 
early April 2022, SEC disclosed a so-called controlled 
efficiency, admitting that its enforcement staff had illegally 
accessed the files of its in-house judges in NCLA client 
Michelle Cochran's case and George Jarkesy's case and 
eventually in dozens of other cases. As The Wall Street Journal 
puts it, it is the equivalent of a party in litigation having 
access to a judge's briefs from her law clerks. SEC dismissed 
42 pending enforcement cases to dodge accountability for this 
unbelievable travesty of justice and Congress needs to get to 
the bottom of it. Note that this kind of sloppy cross 
contamination of functions illustrates the weakening of the 
separation of powers when they are combined in a single agency. 
This could never have happened if the Department of Justice 
didn't share the same computer system with the judges.
    In terms of the Sixth Amendment, one aspect of NCLA client 
Ray Lucia's administrative prosecution deserves special 
mention. Ray Lucia tried to call his witnesses' clients who 
would testify that they had never been misled or defrauded by 
him or his use of the term back test. Before they could 
testify, the SEC served those witnesses with last-minute 
subpoenas that required them to turn over all their financial 
records for the last five years from any source whatsoever on 
penalty of perjury. Despite being loyal clients, they didn't 
want to subject themselves to such an onerous and privacy and 
security violating a task, so they declined to testify. Having 
withdrawn them from his witness list, Ray proceeded to judgment 
before his ALJ without a single client witness to speak in his 
defense. Such witness intimidation would never be countenanced 
in a real Federal court by a real Federal judge. Such witness 
intimidation, in fact, violates the Six Amendment which 
guarantees the right to have compulsory process for obtaining 
witnesses in one's favor. That right to secure witnesses not 
only doesn't obtain an administrative adjudication as it does 
in Federal court, but apparently witnesses who have agreed to 
testify can be excluded by agency dirty tricks.
    The Seventh Amendment is violated because rather than have 
facts found by a jury, the ALJ finds the facts in an agency 
proceeding and the agency controls the administrative record on 
appeal. So, even when a case reaches an Article 3 Court for 
review, there has never been a jury and the factual record 
amassed below gets referred to by the judge. The Seventh 
Amendment guarantees the right to trial by jury in suits under 
common law. It thereby applies to all civil actions other than 
in admiralty and equity, including actions brought to enforce 
statutory rights that are analogous to common law causes of 
action ordinarily decided in English law courts in the 18th 
century. Equity involved property and contract claims, not 
government enforcement, and Federal agencies do not sit in 
admiralty, so agencies routinely violate defendants' Seventh 
Amendment rights by conducting enforcement proceedings without 
a jury.
    For all these reasons, administrative adjudication is an 
abomination. It supposedly provides expert judges and more 
efficient proceedings in exchange for the denial of due process 
protections that in truth ALJs are not experts, administrative 
tribunals are not efficient, and the denial of due process in 
agency tribunals with structurally biased umpires is 
pernicious. Congress has the power to abolish unlawful 
administrative tribunals and restore the Fifth, Sixth, and 
Seventh Amendment rights of the people currently subjected to 
these proceedings. It should do so. Thank you.
    [The prepared statement of Mr. Chenoweth follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Massie. Thank you, Mr. Chenoweth.
    Professor Mascott, you may begin.

                STATEMENT OF JENNIFER L. MASCOTT

    Ms. Mascott. Good morning. Thank you for having me here 
today. I will be testifying today in my personal capacity as an 
academic and my views do not necessarily represent those of my 
institution.
    As the Supreme Court continues this term, it should review 
the constitutionality of widespread agency practices, the scope 
and proper role of agency administration is a critically 
important topic.
    Today, in modern practice, agency action touches nearly 
every aspect of American society. Agency officials make 
policies impacting religious institutions, schools, small 
businesses, individuals, and families. These actions and 
decisions extend into American pocketbooks, financial 
investments, contracts, healthcare, children's sports teams, in 
hiring, and employment terminations is just a few examples.
    With all that is at stake, as the Members of this Committee 
know, it is essential to ensure that agency procedures 
implementing these policies are fair, equitable, preserve 
individual rights, and maintain consistency with the Federal 
constitutional separation of powers.
    It is true, as parties on both sides of the issues agree, 
that forums of Executive Branch adjudication have existed since 
the first year of the first Federal Congress in 1789. 
Adjudication is a broad category and involves just applying 
general rules of law to particular facts. The early cases of 
Executive adjudication and in fact, adjudication for a 
significant portion of our Nation's history was much more 
modest and constrained than adjudication today. It has extended 
into many fewer and more limited subject matter areas such as 
the resolution of internal Executive Branch disputes and the 
allocation of government resources.
    Current administrative practice is substantially and even 
categorically different. Underlying agency power has ballooned 
over the past few decades with allocations of significant 
regulatory, investigative, and adjudicative power blended 
within single agencies. Agencies and commissions today have 
substantial power to make policy, to investigate and obtain 
documents, and then to determine internally within their own 
tribunals whether violations of those policies have occurred 
and the civil and monetary punishments that should be imposed 
for those violations. These adjudicative determinations can 
amount to what is essentially an exercise of judicial power, at 
least as that category was understood historically within our 
American constitutional system.
    Yet, these agency determinations are a kind without the 
application of many of the individual rights, protections, and 
procedural mechanisms for fairness, transparency, and 
accountability that are the hallmark of what we consider to be 
just administration of law here in the United States. That 
procedurally loose and flexible agency adjudication has the 
potential to subject individuals and businesses to hundreds of 
millions of dollars in penalties to lifetime bars in 
professional practice and to years in investigations and 
litigation.
    Agency adjudicators often are referred to as judges within 
the administrative system, yet they are not appointed by the 
President with Senate consent. They do not have tenure and 
salary protection and they are therefore not constitutionally 
independent. They are appropriately subordinate to the 
supervision of agency commissioners, and cabinet secretaries, 
and the President. This Presidential supervision is critical to 
electoral accountability and to democratic checks, yet that 
Presidential accountability and supervision is anything but 
complete. The removal of agency adjudicators is subject to 
Merit Systems Protection Board approval under the current 
framework. Then there is the deeper question about whether 
Executive adjudicators subject to the political process should 
be issuing decisions that interrupt American liberty and 
property interests.
    Historically, the understanding was no. Today, rather than 
merely reaching factual determinations or ensuring that parties 
comply with regulations or give restitution for wrongdoing, 
agencies are imposing significant penalties and sanctions that 
resemble exercises of judicial power and in doing so, unlike in 
Federal courts, agencies have significant flexibility to create 
their own procedural rules, giving an even greater home field 
advantage to those agencies.
    Further, agencies are often not subject to meaningful 
Congressional guidance about when to bring charges in Federal 
court as opposed to their own tribunals, and agencies are not 
even required to publish the factors that they rely on when 
deciding which of those tribunals to choose.
    Further, individuals facing agency investigations and 
adjudication can be under enormous pressure to reach 
settlements with agencies which then causes them to waive their 
rights to any future judicial review. It was not always this 
way. This term, the Supreme Court is reevaluating whether 
certain agency actions are currently administered through 
procedures instructions that are in tension with the 
Constitution. Regardless of the outcome of those cases of a 
constitutional matter, Congress has authority to act and 
reconsider whether agency adjudication has now expanded so 
considerably and so much outside historic procedural norms and 
rights protections that it should be curbed and regulated much 
more closely by Congress.
    Thank you. I look forward to your questions.
    [The prepared statement of Ms. Mascott follows:]
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    Mr. Massie. Thank you, Professor Mascott.
    Mr. Alt, you are now recognized for your testimony.

                    STATEMENT OF ROBERT ALT

    Mr. Alt. Thank you, Chair Massie, Ranking Member Correa, 
and the Members of the Subcommittee. Thank you for inviting me 
here to testify today at this important hearing. My name is 
Robert Alt, and I am President and CEO of the Buckeye 
Institute. Through our Legal Center, the Buckeye Institute 
frequently litigates in the field of Administrative Law.
    As we began this morning, there were some questions 
associated with whether or not constituents were familiar with 
or would be sort of moved by issues of Administrative Law, so 
let's break it down to its basics. Everything that I need to 
know about Administrative Law I may not have learned in 
kindergarten, but one key principle I did learn back then 
stands out. The one who cuts doesn't also to get to do the 
choosing. Every child understands the separation of functions 
rule. It is only fair. Yet, contrary to the Founders' design, 
administrative agencies perform the legislative functions in 
making rules, perform executive functions in enforcing the 
rules, and contrary to the venerable cut versus choose 
principle, then as judges in their own cases by means of in-
house adjudication.
    The use of administrative adjudication to decide issues or 
substantial private rights are at issue, raises issues of 
independence and fairness, particularly where these processes 
deny rank-and-file citizens of constitutional rights and 
procedural protections afforded in Article 3 Courts.
    First, Administrative Law Judges who fail to meet the 
Article 3 constitutional requirements of appointment by the 
President, confirmation with the advice and consent of the 
Senate, tenure during good behavior, fixed compensation, and 
placement in a co-equal branch of government all lack the 
fundamental characteristic that these requirements were 
designed to ensure, judicial independence. The constitutional 
requirements for Article 3 Judges are not just empty formalism, 
but rather these requirements are background rules that 
together substantively create the conditions necessary for a 
fair and independent system of adjudication.
    Issues of judicial independence become even more pronounced 
when the adjudication is conducted by non-ALJ adjudicators. 
According to a study by the Administrative Conference of the 
United States, of these 17 non-ALJ types surveyed that preside 
over hearings in which their agencies are parties, more than 
one third have no separation of functions which means that the 
non-ALJ adjudicators may act as judge, investigator, and 
prosecutor in cases involving their agencies. Whatever hat the 
non-ALJ adjudicator wears on a particular team remains the 
same, the agency. These non-ALJs are frequently subjected to 
performance appraisals that the authors of the ACUS study 
warned, ``could serve as subtle and not so subtle methods of 
influencing non-ALJ decisionmaking.''
    Still, many of these adjudicators are eligible for bonuses, 
based on factors that further call into question their 
independence. Unsurprisingly, agency adjudicators are therefore 
much more likely to rule for agencies. The Wall Street Journal 
reported that the SEC enjoyed a 90 percent success rate in its 
own hearings, but only a 69 percent success rate against 
defendants in Federal court. The New York Times reported 
similar statistics, finding that the SEC succeeded 92.7 percent 
of the time with its internal judges, but only 77 percent of 
the time in Federal court. There is an undeniable home court 
advantage in in-house adjudication.
    We shouldn't be surprised that individuals who one day 
serve as an investigator, another serve as a prosecutor, and 
yet another serve as a judge, and who are reviewed and given 
bonuses by the very agency for which they are adjudicating 
claims which find for the agency at a higher rate than 
independent Article 3 Judges. The incentives are built into the 
system itself. The only surprise here is that anyone would 
defend in the name of safety this same process as being a 
reasonable substitute to an independent Article 3 Court.
    Exacerbating the lack of independent decisionmakers, 
defendants in administrative adjudications are deprived of the 
right to juries under the Seventh Amendment. They are deprived 
of trials which are governed by the Federal Rules of Civil 
Procedure and the Rules of Evidence which provide due process 
protection for defendants, including requirements for hearings, 
calling witnesses, and discovery. The constitutional 
requirements for Article 3 Judges, in conclusion, are not empty 
formalities, but ensure the crucial independence of the 
judiciary in the exercise of judicial power. The usurpation of 
this authority by the Administrative State has led to 
adjudication by decisionmakers who lack independence and who 
therefore rule in favor of their own agencies at rates in 
keeping with that dependent status.
    Thank you for the opportunity to testify. I welcome any 
questions you may have.
    [The prepared statement of Mr. Alt follows:]
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    Mr. Massie. Thank you, Mr. Alt.
    Ms. Perryman, you are now recognized for your testimony.

                 STATEMENT OF SKYE L. PERRYMAN

    Ms. Perryman. Thank you, Mr. Chair and Mr. Ranking Member, 
for the opportunity to be here today.
    My name is Skye Perryman. I am a lawyer and the President 
and CEO of Democracy Forward Foundation, which is a nonpartisan 
national legal organization that promotes democracy and 
progress.
    Democracy Forward has the privilege of representing clients 
that make up the very fabric of our democracy across the 
Nation, including organizations of small business owners and 
entrepreneurs, veterans, doctors, teachers, students, and so 
many more.
    Our north star is a commitment to our country's founding 
idea that our government should be by, of, and for the people, 
deriving its power from the consent of the governed. When the 
government does its job and works for people within the bounds 
of law, our society is stronger, and when the government strays 
from this purpose, serving only private interests or 
particularized agendas, our democracy and the well-being of 
people and communities throughout our Nation is in danger.
    Today, our Federal system of democracy, Congressional 
power, and the ability of the government to deliver for the 
American people and for communities across this Nation is 
threatened by certain litigation in Federal courts and by other 
efforts.
    More than six cases on the current Supreme Court's docket 
could threaten our government's ability to deliver and do the 
job for the American people. These cases do involve the work of 
Federal agencies which are responsible for implementing things 
like Social Security, Medicaid, small business lending 
programs, drug and safety protocols, and more.
    This term, two cases, known as Loper Bright and Relentless, 
seek to overturn more than 40 years of legal precedent known as 
the Chevron Doctrine and threaten the ability of agencies to 
effectively implement critical programs that Congress has put 
in place.
    Chevron deference recognizes the power of this Congress to 
delegate to agencies implementation of policies, and that when 
Congress passes a law that might contain broad or ambiguous or 
unclear language, that judges should defer to the expertise of 
Federal agencies in implementing that law and not to generalist 
judges.
    Overturning Chevron, as the court is being urged to do, 
could have sweeping implications. Without courts deferring to 
agency interpretations in appropriate circumstances and to this 
Congress' intent, there is a concern that courts will 
substitute their own views for the experience of our Federal 
agencies.
    While these cases--and Members of the Committee mentioned 
them in opening statements--but while these cases have received 
some modest attention from media outlets and policymakers, 
they've received far less attention than they deserve.
    Characterizations of these issues as concerning, quote, 
``the Administrative State'' often fail to describe the high 
stakes of these matters to millions of American people. 
Researchers and scholars have warned that everything from our 
Nation's promise to support quality education to the work that 
our agencies do to protect the food, medical and drug supplies, 
to worker, and public health protections, could be weakened if 
the court overturns this critical precedent.
    Among the risks is also regulatory stability, which not 
only is important for the benefits and the services that 
Federal agencies provide, but is also critical for the ability 
of small businesses and others to grow, thrive, and compete in 
our economy.
    In addition to Loper Bright, Relentless, and Corner Post, 
we are also seeing cases of the Supreme Court that have arisen 
as a result of the Federal Government having to appeal orders 
from the U.S. Court of Appeals, from the Fifth Circuit, where 
that court has adopted positions that not only undermine 
critical agency functions, but also undermine the way this 
body, Congress, has chosen to create and structure agencies.
    As explained in more detail in my written testimony, these 
cases involve challenges to the structure Congress has chosen 
in funding the Consumer Financial Protection Bureau, as well as 
core functions of the SEC in administrative adjudication.
    The Fifth Circuit has also issued a rule, at the behest of 
special interests in Texas, that undermines the FDA's 
scientific and longstanding regulation of an essential 
medication, a decision that has been opposed by both the 
medical community and the healthcare industry more broadly.
    Notably, many of the same interests that are seeking to 
undermine both healthcare access, including access to the 
essential medication Mifepristone, are the same interests 
lodging attacks against the work of other agencies and this 
Congress.
    Today, our Federal system of democracy, and the ability of 
the Federal Government to do the work and to deliver for the 
American people and communities, is threatened. Attacks on the 
ability of our Federal agencies to implement policies enacted 
by this Congress, attacks on the independence of the civil 
service, and attacks on Administrative Law Judges, all could 
have wide-sweeping, negative consequences for the stability and 
prosperity of our country. The stakes in these matters are high 
and cannot be ignored.
    Thank you for having me here today to speak about these 
issues, and I'll look forward to your questions.
    [The prepared statement of Ms. Perryman follows:]
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    Mr. Massie. Thank you, Ms. Perryman.
    We will now proceed under the five-minute rule with 
questions.
    The Chair recognizes the gentleman from Wisconsin, Mr. 
Fitzgerald, for five minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    In June 2023, the FTC quietly issued a rule effectively 
diminishing the role of its Administrative Law Judge, or ALJ. 
Under the new process, the ALJ will no longer render a, quote, 
``initial decision,'' that would become the agency's decision, 
but, instead, issue a recommended decision that would be 
revised by the same FTC Commissioners who brought a complaint 
in the first place.
    Mr. Chenoweth, this looks on the surface as if Chair Khan 
is unhappy with their track record in front of the ALJ and is 
trying to further stack the deck against merging parties. What 
are your thoughts on that comment?
    Mr. Chenoweth. I think you're right, Congressman 
Fitzgerald. The fact that the FTC is trying to diminish the 
role of the ALJ in this way is troubling. It does suggest that 
they're looking for an outcome determinative sort of result 
from the ALJ, rather than asking the ALJ to exercise 
independent judgment.
    It just underscores what we were saying in some of our 
opening statements about the fact that these ALJs are not 
independent; they're under the thumb of the agencies. At any 
point in time, they can be intimidated; they can be demoted in 
the way that has happened at the FTC. That's why we need these 
sorts of cases to be in front of real judges in real Federal 
courts.
    Mr. Fitzgerald. So, further adding to this narrative that 
Chair Khan has been stacking the deck, just last week they 
announced that the FTC had hired Jay Himes to serve as one of 
the agency's ALJs. Mr. Himes has previously represented Open 
Markets Initiative, or Institute--excuse me--in front of the 
FTC, the very same organization, in which, Chair Khan's mentor, 
Barry Lynn, founded, and Chair Khan herself served as legal 
director.
    So, again, let me ask you kind of a followup question. So, 
the FTC used to have neutral ALJs with a track record of 
careful deliberation and kind of this impartial view of 
antitrust law. Should businesses, or how should they 
anticipate, or should businesses be worried how this is 
perceived, and the bias involved in it?
    Mr. Chenoweth. Well, I think there's tremendous bias. The 
only thing I would take issue with that you said, Congressman 
Fitzgerald, is that the old ALJ is completely unbiased. Because 
if you look at the FTC's track record in front of its, its own 
ALJ, it won something like 24 out of 25 times in a row, and it 
was only the one time when the ALJ didn't rule in favor of the 
agency that the agency, then, turned around and decided to hire 
a new ALJ and demote the old one. So, it just sort of tells you 
everything you need to know about how this process works in the 
real world.
    Mr. Fitzgerald. Yes, I probably agree with your comment.
    It seems to me the biggest problem is the FTC getting kind 
of two bites at the apple when it comes to challenging mergers. 
They can seek a preliminary injunction in Federal court, and if 
they lose, can conduct a full administrative trial before ALJ.
    Court records from the recent case of Axon Enterprises v. 
The FTC revealed that over 25 years the FTC has not lost a 
single case that went through their own administrative process. 
You compare that with the agency's success rate in Federal 
court, which is, somewhere around 50 percent probably.
    So, perhaps even worse, they don't even have to listen to 
the ALJs; they can simply overrule the decision, and they do 
nearly unanimously. Then, previous testimony before the 
Committee shows that the ALJ has overruled the FTC only five 
times in the last 25 years.
    Should Congress continue to allow the FTC to take, as I 
described it, two bites at the apple? Mr. Alt, do you have--
maybe you have a comment on that?
    Mr. Alt. Obviously, I think that's problematic, and this is 
something that we see with multiple different agencies, where 
they really have a choice as to how to proceed with actions 
against potential defendants--with a general lack of 
transparency as to whether or not they begin with an in-house 
proceeding or go into Federal court. This ends up being 
extraordinarily problematic.
    Going to your previous question with regard to the lack of 
bias or the specialization of the particular ALJs who are 
giving them one of the bites at the apple; one, if you actually 
take a look at these ALJs, frequently, they don't have peculiar 
specialization in the areas; frequently, they may be brought in 
from another agency, where they've got some previous 
adjudicative experience, but not necessarily anything within 
the particular agency in question. So, that ends up being 
problematic.
    I think it really goes back to what we talked about at the 
beginning, about the protections that are put in place in the 
Constitution for the exercise of judicial power. One of them 
ends up being the advice and consent of the Senate.
    So, when you have something like the question you had about 
the lack of bias on the part of the ALJ, those things can be 
explored by subjecting a nomination to the advice and consent 
process, which the Senate Judiciary Committee is fully capable 
of doing. However, on something with regard to many of the ALJs 
and non-ALJ positions, they are not subjected to that kind of 
review.
    Mr. Fitzgerald. Thank you, Chair. Mr. Chair, I will yield 
back. I yield back. Thank you.
    Mr. Alt. Thank you.
    Mr. Massie. I thank the gentleman from Wisconsin.
    I now recognize the Ranking Member, Mr. Correa from 
California, for five minutes.
    Mr. Correa. Thank you, Mr. Chair.
    I want to thank our witnesses today for your testimony. I 
appreciate you being here today.
    Let me start out with Ms. Perryman. I have two questions 
for you, ma'am.
    First, if the Supreme Court overturns Chevron, what will be 
the burden on Congress?
    Ms. Perryman. First, to say I think there would be a 
significant burden and also, that overturning Chevron would 
actually usurp a lot of Congress' authority that is already 
utilizing all the time in delegating authority to agencies to 
see that the laws are executed in their expertise.
    What we know is that, if the Court overturns Chevron, there 
will be a range of litigation seeking to unseat longstanding 
Federal regulations that are critical to the policies and the 
procedures that are critical to our country's functioning, 
whether that's in the healthcare sector, in the environmental 
sector, in the small business sector, or otherwise. So, 
Congress would have a very heavy burden of having to try to 
adopt a variety of expertise that, frankly, this body has never 
recognized itself as having, to be able to replace that 
expertise of agencies.
    Mr. Correa. Ms. Perryman, are we talking about here policy 
and implementation? Congress comes up with policy. Then, the 
issue becomes implementation. So, how much detail would 
Congress have to delve into doing our job if Chevron is 
overturned?
    Ms. Perryman. I think that's a significant question. The 
fear is that the courts would require so much detail here, that 
litigants would come in and challenge everything that wasn't 
detailed, so enough that it would really compromise the ability 
of this body to be able to broadly legislate and serve the role 
that it needs to serve for the American people.
    Mr. Correa. Very quickly, Ms. Mascott, what do you think?
    Ms. Mascott. Well, I actually think that if the Court says 
that Chevron deference is no longer an acceptable way to 
interpret law, it will actually restore Congress' power and 
intent in legislation. Because all that the doctrine does right 
now is say that--
    Mr. Correa. That would mean our job would probably change 
quite a bit.
    Ms. Mascott. Well, I don't think so, Congressman. I think 
that what you enacted initially would be more faithfully 
applied by the agencies and by the court system. I think the 
other thing to keep in mind is that Chevron just--
    Mr. Correa. I think a lot of that is we're talking about 
intent here and the actual implementation.
    Ms. Mascott. The implementation, actually, I don't think 
that's related to the Chevron deference at all. Chevron is 
about the initial questions of law. To the extent Congress 
enacts broad statutory terms that give agencies power to 
regulate, the courts will continue to give deference to the 
agencies under arbitrary or capricious policy review.
    Mr. Correa. Thank you very much. Thank you very much.
    I have to get back to my second question, which is--
    Ms. Mascott. No problem.
    Mr. Correa. --let's talk about the Corner Post case. If 
it's upheld, where do we go? What's the difference? What's the 
changes here?
    Ms. Perryman. I think there's a real concern here, because 
what the Corner Post case would do is it would, potentially, if 
the petitioners' argument is sustained, a number of litigants 
could seek to try to overturn longstanding Federal programs, 
longstanding Federal regulations that have already been 
adjudicated and decided in Article II Courts, and their 
lawfulness has already been decided.
    You could have a reopening of so many of these issues. So, 
combined with Chevron deference and the potential of the Court 
to overturn that, it could be really detrimental to people and 
communities throughout the country.
    Mr. Correa. What if you have the Chevron Doctrine 
overturned and Corner Post is successful? What do you have?
    Ms. Perryman. I think that's doubly devastating for so many 
programs, whether they're healthcare programs, environmental 
programs, or a variety of other programs where the Federal 
agencies are seeking to do the work that Congress put them to 
do.
    Mr. Correa. Thank you very much.
    Ms. Mascott, I'm going to give you a minute to answer that 
as well.
    Ms. Mascott. Well, I think just a larger point about the 
hearing today, and Chevron deference and agency adjudication, I 
think that the Members of this Committee might all have 
different policy views about how much agencies should be 
regulating in the first place. When it comes to adjudication, 
we're talking about basic issues of fairness, and simply making 
sure that, once the agencies have issued their policies, they 
have to apply those policies in a way that's consistent with 
longstanding individual rights protections, jury trial 
protections, and go into Federal court and have some outside 
accountability.
    I'm really glad that the Committee is taking a look at 
these important issues today.
    Mr. Correa. I am, too, because I think these are two, 
three, four, five cases before the Supreme Court, and we're 
going to be having to live with the aftermath of those 
decisions. I think it's important that all of us look at these 
decisions and the aftermath very carefully.
    Thank you very much, Mr. Chair. I'm out of time, and I 
yield.
    Ms. Mascott. Thank you.
    Mr. Massie. Thank you, Ranking Member Correa.
    I now recognize Ms. Sparks from Indiana for five minutes.
    Ms. Spartz. Thank you, Mr. Chair.
    I definitely can tell that we have a significant difference 
of opinion on what the government was created for. From my 
perspective, government wasn't created--only socialist 
governments are created--to provide for prosperity and promises 
that it can never fulfill. It always runs out of money. 
Unfortunately, our government did, too.
    Our government was created under the Constitution to 
protect rights to life, liberty, and property. Unfortunately, 
the Administrative State became very, very oppressive, and 
unless you are very politically connected or wealthy, you have 
no ability to survive in the current environment.
    It's getting to the point that the little guy is getting 
destroyed. You have no ability--don't tell me that any normal 
person has an ability--to have an influence on the Executive 
Branch and the President to replace these judges. Unless you 
can give a couple of million dollars to the campaign of a 
President, you are screwed. This is the reality what we have.
    So, I think we really have to start thinking about how 
we're going to resolve that. That's my question for the 
witnesses. We know that we're troubled. The Chevron Doctrine 
discussion, it's a very serious discussion. I'm glad it's 
happening, and hopefully, the Supreme Court will start doing 
some things to restore some imbalances.
    What are the things we need to do? Maybe, Professor 
Mascott, you can tell how we got here and what are we going to 
do? Because this is not a good situation.
    Ms. Mascott. Well, thank you for the question, 
Congresswoman.
    Particularly since we're here today talking about agency 
adjudication for starters, to look at some of the recent 
statutory changes and the explosion of agency power to bring 
enforcement actions within its own tribunal.
    One thing that often gets lost in the discussion--and 
you're raising some important points in your remarks--is how 
recently we have expanded internal agency tribunals. It wasn't 
until 1990, for example, that the SEC was able to bring and 
impose a lot of civil monetary penalties in important 
proceedings in-house. Then, it was a few years after that, that 
those penalties and those internal proceedings were applied to 
parties outside of registered entities.
    The Dodd-Frank Act, in particular, really explosively 
expanded agency power to bring enforcement actions in its own 
tribunal. It's unclear really why that's necessary. One of the 
stated reasons tends to be efficiency, but we know from 
litigation that a lot of the other witnesses have been involved 
in here, that agency procedures themselves often take years to 
wind through the process.
    So, as an initial matter, this Committee and Congress could 
go back and reexamine whether agencies should be imposing 
sanctions, lifetime bans, and penalties at all in their own 
tribunals, or whether they should go into the court system.
    If you are going to preserve agency adjudicative authority, 
perhaps require transparency. Agencies should maybe have to 
publish the factors that they use when they decide how they're 
going to engage in these proceedings.
    It really should be much more restrained, subject to the 
accountability of constitutional rights.
    Ms. Spartz. I don't think accountability is going to happen 
within agencies, I'm sorry to tell you. This is very--it sounds 
so good on paper, but it has to happen somehow in a different 
way.
    Mr. Alt, do you have some ideas?
    Mr. Alt. Well, ultimately, I think you--when you have these 
core issues, when you have the sorts of penalties that we see 
the SEC meting out, where you permanently bar individuals from 
practicing their profession, where you see Draconian penalties, 
these are questions that I think properly should be decided by 
Article III Courts. Quite frankly, there's no substitute for 
that, and I think Congress could go ahead and make that 
requirement.
    Ms. Spartz. So, we can start suing our agencies, correct? 
That's the only way, to sue agencies for unreasonable 
decisions? Or what are we going to do?
    Mr. Alt. Well, it at least--
    Ms. Spartz. Not allow people to do that or what are we 
going to do?
    Mr. Alt. Well, in terms of that, that at least--
    Ms. Spartz. What is our recourse? What is it? If you're a 
normal American, what is your recourse if you have unreasonable 
fines that are happening? What is he going to do? In 
unreasonable decisions, what are you going to do?
    Would you have, Mr. Chenoweth, do you have some 
suggestions? What do you do as a normal person that goes 
through this process if there is no transparency, and they can 
do whatever they want? You have no ability to influence. There 
is no trial. There is no jury. It's really the process is so 
insider-driven and you have no ability. Unless you're well-
connected, you're in trouble.
    Mr. Chenoweth. Even if you're well-connected and wealthy, 
you don't have a chance. Folks in front of the SEC settle their 
cases 98 percent of the time. It's not because 98 percent of 
the people the SEC goes after are guilty. It's because they 
can't afford to fight all the way through the process for years 
and years and years and years on end.
    The agency beats them down into submission and finally puts 
a settlement offer on the table that they can't afford not to 
take because they're out of money, and they want to get back to 
practicing their career. They're just not able to continue to 
fight for their innocence.
    So, as long as these administrative adjudication apparatus 
are in place, that there isn't a lot of hope for people who 
find themselves arrayed against the Federal Government in these 
enforcement actions. You need the independent Federal judiciary 
as the intermediary between the individual citizen and the 
State.
    Ms. Spartz. Thank you. My time has expired.
    I guess we need to be a lot better lobby for the people, 
we, as the Congress.
    Thank you.
    Mr. Massie. I thank the gentlelady from Indiana.
    I now recognize the Ranking Member of the Full Committee, 
Mr. Nadler, for five minutes.
    Mr. Nadler. Thank you, Mr. Chair.
    Ms. Perryman, while Congress sets broad policies, we cannot 
possibly craft the myriad of technical and detailed rules 
necessary to carry out those policies. It would be reckless for 
us to believe otherwise. That's why we write laws with the 
expectation that agencies are staffed with subject matter 
experts who can ensure that our laws have the effects we 
intend.
    How would overturning Chevron affect our efforts to combat 
climate change?
    Use your mic.
    Ms. Perryman. Thank you, Mr. Ranking Member of the 
Committee.
    I think it could be devastating. As you've noted, there is 
significant subject matter expertise within our Federal 
agencies. Congress has the legislative power and does pass 
laws. Those laws have to be implemented, and Congress cannot 
start to implement every single law--it wouldn't--that it 
passes. So, overturning Chevron I think will be significant 
with respect to climate, but also with respect to healthcare, 
with respect to so many other essential government functions. 
There have been a number of scholars and researchers that have 
warned about the broad, sweeping implications of something like 
this.
    Mr. Nadler. How about Corner Post with respect to climate 
change?
    Ms. Perryman. Corner Post presents a particular concern. 
Just as you highlighted, if the Supreme Court were to adopt the 
petitioners' argument in Corner Post, what you could have is a 
potential avalanche of litigation over longstanding rules and 
regulations that have been on the books for many years that are 
a subject--that have been on the books for many years. That 
could really unleash a lot of regulatory instability, as well 
as problems for addressing the urgent needs that this Congress 
has asked the agencies to address.
    Mr. Nadler. The same question: How would overturning 
Chevron affect our efforts to ensure clean water and air for 
our communities?
    Ms. Perryman. It's, roughly, the same answer. There are a 
number of policies that Congress has passed to ensure clean 
water and clean air, but those have to be implemented by our 
Federal agencies. They implement and work on those policies 
every day.
    Overturning and replacing that agency expertise with the 
views of generalist judges is very concerning to both the 
integrity of the policies that Congress seeks to have 
implemented, as well as to the health and well-being of the 
American people.
    Mr. Nadler. The same question on Corner Post.
    Ms. Perryman. I'm going to give you--I'm going to give you 
the same answer.
    Mr. Nadler. OK.
    Ms. Perryman. The real concern with Corner Post, of course, 
is that you have a number of rules and regulations, policies 
that are doing the work for the people, that have been on the 
books for so long. Upending the statute of limitations, where 
any litigant can come in and seek to engage in judicial 
manipulation by trying to challenge longstanding rules that 
have already been litigated and found to be lawful, that's very 
concerning.
    Mr. Nadler. Thank you.
    I'm hearing lots of contradictions from the majority's 
witnesses. ALJs are not sufficiently independent, and yet, the 
FTC diminished the role of ALJs to lessen their importance. 
ALJs are not independent enough, so we should allow them to be 
fireable at will.
    Finally, from the majority's witness statements, it appears 
that they are in favor of an Article III trial for every TSA 
PreCheck application. I cannot imagine the burden on our 
courts.
    Ms. Perryman, a poor outcome in the Jarkesy case would mean 
that endless cases from the public will be pushed from expert 
Administrative Law Judges onto the already overburdened Federal 
courts. What would a delay in these cases mean for litigants?
    Ms. Perryman. I think the delays would be significant, as 
would the delay for people who are seeking to be protected by 
the laws that agencies are, that agencies are implementing.
    I would also just note that, in the Jarkesy case, of 
course--and you mentioned this contradiction--but the same 
interests that are seeking to undermine ALJs overall, and are 
saying that they're not independent enough, are also seeking to 
undermine the removal protections for them, which is something 
the American Bar Association, as well as a number of 
institutions have supported, to make sure that ALJs function in 
that quasi-role with impartiality.
    Mr. Nadler. True.
    How many judges would you--how many Article III Judges 
would we need to appoint to the Federal bench to account for 
these cases?
    Ms. Perryman. I don't have a precise number, but you are 
familiar, I'm sure, with a report that came out of Thomson 
Reuters and some others on the overburdened nature of our 
Article III Courts. So, I think you would have a significant 
number of additional Article III Judges that would already need 
to be appointed, not only--
    Mr. Nadler. If we got rid of ALJs, would you say it might 
be we have to appointment 600 new Article III Judges?
    Ms. Perryman. We would definitely have to appoint a 
significant amount.
    Mr. Nadler. More than a hundred, several hundred?
    Ms. Perryman. I would think so.
    Mr. Nadler. I wonder, then, how many judges the Chair would 
like President Biden to appoint to ensure that these cases are 
heard in a timely fashion.
    Mr. Chair, I yield back.
    Mr. Massie. Just to indulge the question there, the 
argument is that justice is too expensive, and I'm not buying 
that.
    Mr. Nadler. No, the argument is that, if you want President 
Biden to appoint six or seven hundred new Federal judges, go 
this direction.
    Mr. Massie. I thank the Ranking Member of the Full 
Committee for his questions.
    Then, I'll recognize the gentleman from Oregon, Mr. Bentz, 
for five minutes.
    Mr. Bentz. Well, thank you, Mr. Chair.
    I thank the witnesses for being here today.
    From the remarks made by the Ranking Member at the 
initiation of the hearing, almost the suggestion was that 
agencies should be able to wield unbridled power in how they 
regulate.
    I would ask, Mr. Chenoweth, if this is a reflection really 
of the shift of the burden that actually happens in these 
hearings to the regulated party, as opposed to the agency who 
is trying to enforce whatever the regulation might be. Can you 
address that?
    Mr. Chenoweth. Yes, absolutely. Let me first just say that 
I know how many Federal judges you'd have to replace the ALJs 
at the FTC. One or two. At the SEC, four or five. Problem 
solved at both agencies. So, I just wanted to get that in 
there.
    To your point, Congressman, could you--I distracted myself. 
Could you rephrase your question?
    Mr. Bentz. So, the question is there a shift in the burden 
of proof?
    Mr. Chenoweth. Yes, thank you.
    Mr. Bentz. Yes.
    Mr. Chenoweth. There absolutely is a shift in the burden 
when folks appear in front of these agencies. If you're in 
Federal court and the prosecutor is coming after you, the State 
has the burden of proof to show that you have disobeyed one of 
these regulations or perhaps broken a criminal law. If you're 
in front of one of these administrative agencies, far too often 
they do shift the burden to show that you didn't violate the 
rule or that you aren't in--
    Mr. Bentz. Right, the initial assumption is you violated 
the rule and it is your job when you come into that hearing to 
prove that you didn't.
    Mr. Chenoweth. That's correct.
    Mr. Bentz. That is what is actually--that what has happened 
in the--I don't know how many of these I have handled in my 
practice, but it seemed like it was always that way. So, on 
you, Mr. Bentz, and your client to try to prove that you didn't 
do it.
    I want to go to some of my research in anticipation of this 
hearing I looked at the Administrative Conference of the United 
States. So, perhaps, Ms. Mascott, you can tell me if you have 
heard of it and is it worth us reviewing the suggestions they 
may make for improving the administrative process?
    Ms. Mascott. The Administrative Conference? Yes. So, I'm a 
member of the body and yes, I think it's worth reviewing 
recommendations put forward by the Administrative Conference. 
Obviously, it's Congress' job to structure administrative 
agencies. ACCIS has resources to be able to give information 
that sometimes can help with that practice. For example, I 
helped to co-author a study on the appointment of 
Administrative Law Judges a while back.
    One other point, if we're looking at agency practice, if I 
may, just to the comment raised earlier about TSA pre-check and 
agency adjudication. I think it's really, as a member of ACCIS, 
critical to think about all the distinctions in the different 
kinds of agency sanctions and procedures we're talking about.
    To Mr. Chenoweth's point, when we're talking about these 
significant penalties and sanctions, we're really talking about 
formal hearings conducted by a handful of people that have 
massive implications for regulated parties. That's very 
distinct from run-of-the-mill decisions about whether to issue 
a pre-check, a qualification, or even Social Security benefits 
that--
    Mr. Bentz. If I may interrupt, because I have--
    Ms. Mascott. Yes, sir. Go ahead.
    Mr. Bentz. --to talk about Chevron for a moment and go to 
Mr. Alt for his thoughts.
    Ms. Mascott. Sure. Absolutely.
    Mr. Bentz. It seemed to me that the issue when you take 
power away from the agencies you are doing so many times 
because of the political nature of their decisions. To suggest 
that every agency's decision is somehow perfect by virtue of 
being based on the facts and that is not true. You call this 
the whiplash that occurs after each different party takes over 
the White House. All of a sudden, there are a whole bunch of 
changes, because it is political.
    So, the question really is if Chevron comes out the way I 
think it might, and there is a restriction on which agencies 
are allowed to decide, are we going to be the better for it 
because we have Federal judges deciding? That is the question. 
Before you answer it, I want to go to the quality of the ALJ 
judges and ask you is that the proper space for us to be 
focusing? If we can improve the judges in the Administrative 
Law space, is that the point of greatest impact?
    Mr. Alt. So, I'll take those questions in turn with the 
latter, should we be improving the ALJs?
    Mr. Bentz. Please.
    Mr. Alt. At a certain point I think that's rearranging deck 
chairs on the Titanic. It doesn't actually solve the underlying 
problem. You can have high-quality ALJs, but they're not going 
to be independent. The deck is stacked against them ultimately. 
To actually assure independence for these core questions where 
life, liberty, and property are at stake, those need to be 
answered by Article 3 Courts.
    Mr. Bentz. Right.
    Mr. Alt. That's the constitutional design.
    As for your question with regard to Chevron deference, 
look, the elimination of Chevron--there's been a lot of 
questions about sort of what policy effects it would have. It's 
ultimately policy-neutral. The question really comes down to--
this goes to what happens when there's an ambiguity in the law 
and whose job it is to interpret the law. You can go back to 
Marbury v. Madison. It is emphatically the role of the 
Judiciary to interpret the law. When there are these ambiguous 
questions--I used to teach a class on legislation, which is 
really about methods of interpretation. The judges are well-
suited to suss out ambiguities, and we should let them do that.
    Mr. Bentz. Thank you for that.
    Yield back, Mr. Chair.
    Mr. Massie. I thank the gentleman from Oregon.
    The gentleman from Georgia, Mr. Johnson, is now recognized 
for five minutes.
    Mr. Johnson. Thank you, Mr. Chair.
    Mr. Chenoweth, it has been said on the street many times 
that you and Charles Koch are best friends forever. Is that 
true?
    Mr. Chenoweth. I wouldn't say that he's my best friend or 
that I'm his best friend, no.
    Mr. Johnson. Well, he is your biggest funder though to your 
organization, the so-called New Civil Liberties Alliance, which 
sounds like it's for personal liberties, but actually it is for 
corporate liberties, I believe. He is your biggest funder, is 
he not? Yes or no?
    Mr. Chenoweth. Well, we don't disclose who our funders are, 
Congressman.
    Mr. Johnson. You know that Charles Koch and his--
    Mr. Chenoweth. I can tell you that over 70 percent of our 
funding meets the IRS definition of public funding.
    Mr. Johnson. You don't want to tell us that Charles Koch is 
your best friend forever, I understand.
    Mr. Chenoweth. Well, Congressman, I worked--
    Mr. Johnson. The fact of the matter is, sir, that--
    Mr. Chenoweth. --at Koch Industries for four years. He was 
my boss.
    Mr. Johnson. --is a great connection that you have 
established and that continues to this day--
    Mr. Chenoweth. No, that is not true, sir.
    Mr. Johnson. --strengthened more and more--
    Mr. Chenoweth. That is not true.
    Mr. Johnson. --especially when you are coming to Congress 
to carry the water for the Koch brothers. They are some of the 
world's biggest--in fact, the second largest private 
corporation engaged in oil and petroleum, and chemicals and 
fertilizer polluting our environment, killing animals, human 
beings, and polluting the air and water. They don't want to 
have any agency--
    Ms. Hageman. Point of order.
    Mr. Johnson. They don't want to--
    Ms. Hageman. Point of order.
    Mr. Johnson. Well, if you would stop my time.
    Mr. Massie. The gentlelady will state her point of order.
    Ms. Hageman. I believe that the accusation coming from the 
gentleman from Georgia is bordering on libelous and I would 
request that these words be taken down. I think that he has 
just accused people of murder and I think that is entirely 
inappropriate for an administrative proceeding.
    Mr. Nadler. Mr. Chair, words can be taken down only when 
directed at another Member of the House.
    Mr. Massie. The point of order is overruled, and I would 
ask Members to maintain a level of decorum.
    Mr. Johnson. Thank you, Mr. Chair.
    Mr. Massie. The gentleman is recognized.
    Mr. Johnson. Now, Mr. Chenoweth, is it your contention that 
Congress does not have the ability to set up inferior tribunals 
to the Article 3 Courts?
    Mr. Chenoweth. Certainly, Congress can set up inferior 
tribunals but they can't do it in ways that violate due process 
right.
    Mr. Johnson. It says that at Article 1, Clause 8, Section 
9. Congress has the ability to constitute tribunals inferior to 
the Supreme Court. So, is it your contention that an 
Administrative Law or an Administrative Law Judge, the office 
of a judge is not a tribunal that can be set up by Congress?
    Mr. Chenoweth. Well, I would refer the Congressman to the 
written testimony where I explain why the tribunals clause from 
Article 1 does not in fact authorize Congress to give judicial 
power to those tribunals. These are Article 1 Courts.
    Mr. Johnson. Are you an originalist or--and a textualist as 
well?
    Mr. Chenoweth. Say that again?
    Mr. Johnson. Are you an originalist in your judicial 
interpretation? Because I mean this is the clear language. A 
textual approach to deciding these questions can be employed 
also. It is pretty clear what the Constitution says that 
court--that Congress is authorized to do.
    Mr. Chenoweth. That's right. As it says in the written 
testimony, Congress can set up tribunals, but what they can't 
do is assign the judicial power of the United States to those 
tribunals. These are Article 1 Courts; they're not Article 3 
Courts.
    Mr. Johnson. Well as a matter of fact, isn't it true that 
these administrative decisions are appealable in court?
    Mr. Chenoweth. They are appealable eventually.
    Mr. Johnson. They are appealable in a de novo process.
    Mr. Chenoweth. They are not appealable de novo, sir, and in 
fact the judges at the Court of Appeals--the legal 
determinations are de novo, but the factual record is set by 
the administrative process without a jury. There are no jury 
rights in these administrative proceedings. So, when a case 
gets up to the Court of Appeals, the Court of Appeals can 
overturn legal mistakes, legal errors that have been made, but 
they can't overturn the factual mistakes.
    Mr. Johnson. Well, point well-taken, but the fact is there 
is judicial review of agency rulemaking and agency ALJ 
decisionmaking.
    Mr. Chenoweth. Well, as I said, 98 percent of the folks at 
the SEC settle before they ever reach the Court of Appeals, so 
most of the time there isn't review.
    Mr. Johnson. Those folks who you talk about are not really 
just working individuals, somebody who is earning a wage. These 
are high-dollar, wealthy, 2017 tax cut, top one percent 
individuals, isn't that correct?
    Mr. Chenoweth. Well, the woman we represented at the 
Supreme Court, Congressman, Michelle Cochran, was a single mom, 
accountant in Texas, who--
    Mr. Johnson. You set that real perfectly, too, didn't you?
    Mr. Chenoweth. Well, she came to us. She came to us because 
the SEC had put her through six years of hell. She was not able 
to raise any of the constitutional objections to the tribunal 
because at that point four or five different Courts of Appeals 
had said you have to go all the way through the entire 
administrative process for 5-9, even 10 years, in the case of 
Mr. Bandimere, before you're ever allowed to get to Federal 
District Court, ever allowed to raise any constitutional 
objections to the tribunal. The New Civil Liberties Alliance 
took Ms. Cochran's case and we pleaded with the Fifth Circuit 
and then the Supreme Court. You need to allow people to raise 
constitutional objections before they go through the process.
    [Simultaneous speaking.]
    Mr. Johnson. It's perfect case that had been set up in 
advance and run through the process. We know how you all work.
    Mr. Chenoweth. The way that case to us, Congressman, is 
that Ms. Cochran learned about Ray Lucia's case because Mr. 
Lucia was at the Supreme Court. She contacted Mr. Lucia and 
told him about her story and said, do you know anyone who can 
help me? He referred her to the New Civil Liberties Alliance. 
That's how we got that case, Congressman.
    Mr. Johnson. Certainly. Thank you, sir.
    Mr. Massie. I thank the gentleman from Georgia.
    I now recognize the gentlelady, Ms. Hageman, from Wyoming 
for five minutes.
    Ms. Hageman. Mr. Chenoweth, it is good to see you again, 
and I appreciate your testimony and you correcting the record 
from the gentleman from Georgia in terms of the actual facts 
and legal situation we are facing in this country.
    NCLA has been at the forefront of these issues and done 
excellent work in exposing the unconstitutionality of much of 
the Administrative State and the erosion of our constitutional 
foundation. I would like to focus on this experience to 
demonstrate how the Administrative Law Courts and ALJs are--and 
ALCs are facilitating the abuse and overreach of these Federal 
agencies.
    Do Federal agencies have incentives such as higher chance 
of success or procedural benefits to pursue enforcement actions 
with an ALJ versus an Article 3 Court?
    Mr. Chenoweth. They absolutely have higher rates of success 
as Mr. Alt mentioned earlier. We have those numbers 
specifically at the SEC which he shared with the Subcommittee. 
I don't have figures at some of the other agencies, but we 
certainly know that these agencies tend to pursue sort of cases 
more aggressively in their own courts with novel theories that 
they know that they couldn't get past a Federal District Court 
Judge.
    Ms. Hageman. Well, the Administrative Law Judges are 
actually part of the very agencies who are the party pursuing 
the enforcement proceeding, isn't that right?
    Mr. Chenoweth. That is correct.
    Ms. Hageman. Have you ever found any evidence of 
coordination or work between the ALJs and the agencies in 
actions that are before the ALJs?
    Mr. Chenoweth. No, we found a few different things. In my 
written testimony, I talk about the fact that at the NLRB, for 
example, the prosecutors and the judges are the same people. 
They just trade hats on different days. I find that to be 
shocking that you're supposed to--as somebody who's up 
against--on the other side of one of these transactions, that 
the person who's prosecuting the next guy in line is my judge 
and vice-versa. That just doesn't seem like a very likely 
scenario to create fairness from your adjudicator.
    Ms. Hageman. Well, in my experience in taking lawsuits 
against the Federal Government is that the Federal Government 
and these administrative agencies essentially have unlimited 
resources to prosecute and persecute citizens in this country, 
whether they are wealthy or destitute. It doesn't matter. They 
have unlimited resources.
    Professor Mascott, just really quickly, your testimony 
references CFPB authority to levy fines at $25,000 a day. Other 
agencies such as the EPA can bring forward daily fines more 
than double that amount. In fact, right now the EPA can pursue 
fines of over $59,005 a day.
    I recently had a lawsuit where the fines were $37,500 a day 
for a gentleman who did nothing more than straighten an 
irrigation ditch on his own personal property, in effect 2.1 
acres of land. By the time we went to trial he was facing 
penalties of almost $65 million.
    How can the threat of the imposition of such heavy 
financial burden on regulated parties further deprive 
legitimate adjudicative relief for the Americans when they are 
facing those kinds of penalties?
    Ms. Mascott. Well, it's significant authority, as you 
mentioned, and indeed for knowing violations the CFPB can 
impose up to a million dollars in penalties per day. So, 
Congress has the power to be able to revisit this situation and 
make sure that rights are not intruded in the first instance by 
simply in a lot of these cases taking away the newly given 
power for agencies to bring charges in their own tribunals. If 
if there's an actual issue and there's been wrongdoing, it can 
be brought in Federal court, it can be established through 
tried and true historical constitutional processes to protect 
interests. Thank you.
    Ms. Hageman. Ms. Perryman, do you believe that fines of 
almost $65 million for straightening and irrigation ditch on 
our property would be a violation of the Eighth Amendment to 
the United States Constitution being an excessive fine?
    Ms. Perryman. I'm not prepared today to talk about a 
specific hypothetical.
    Ms. Hageman. OK. So, let's get back to you, Mr. Chenoweth. 
I think that it shocks the conscience and I think it should 
shock the conscience of any person in the United States who 
actually understands that our government is a government of by 
and for the people, not a government of administrative 
agencies.
    So, Mr. Chenoweth, we have discussed the abuses of the 
Administrative State, but it is not just the agency 
adjudication that is abusive. It is also unlawful at its core. 
What I would like you to do with the remaining few minutes or 
seconds that I have--do you have any ideas of how we can reform 
this system so that we do not see the constitutional abuses 
that we have been experiencing, especially in the last 30 
years?
    Mr. Chenoweth. Well, I just really only have time for maybe 
one idea, which is imagine how salutary it would be if ALJs 
only had authority to decide cases when both parties opt into 
the arrangement.
    Mr. Nadler expressed concern earlier about not having 
access to ALJs. You know what, if you want access to an ALJ, 
have at it. I'm perfectly fine with that, but you shouldn't put 
somebody in front of an ALJ against their will.
    It would create an incentive for them to behave fairly. It 
would be more like magistrate judges in Federal District Court. 
It would ensure that only cases where significant rights claims 
were not at stake would be shunted to these ersatz tribunals. I 
think that would be a really good reform. It's just one reform, 
but at least it would be an improvement over the status quo.
    Ms. Hageman. Thank you very much, and I yield back.
    Mr. Massie. I thank the gentlelady from Wyoming.
    I now recognize Ms. Scanlan from Pennsylvania for five 
minutes.
    Ms. Scanlan. Thank you, Mr. Chair.
    Mr. Chenoweth, I just wanted to give you a chance here to 
correct something. Isn't it correct that after last year's 
SCOTUS decision in Axon that litigants can raise constitutional 
questions before an ALJ adjudication in Federal court if they 
so choose?
    Mr. Chenoweth. That's exactly right. So, the case Axon v. 
FTC was paired with SEC v. Cochran, which was our case with 
Michelle Cochran.
    Ms. Scanlan. OK.
    Mr. Chenoweth. There was one decision in both cases and it 
held exactly as the Congresswoman said.
    Ms. Scanlan. As we said? OK. I think there might have been 
a misstatement prior.
    So, as we speak, conservative dark money groups are funding 
lawsuits before the Supreme Court, and apparently witnesses 
before this panel, to completely upend these essential 
government functions. Today's hearing is being used to advance 
an extreme legal position that would hamstring and dismantle 
the Federal agencies that preserve our health and safety, that 
protect us from bad actors and fraud, that keep our air and 
water clean, and are food and medicine safe. Americans 
overwhelmingly want a responsive and effective government, 
Federal Government.
    So, let's be clear about what is going on. Our Republican 
colleagues don't want the government to work so that 
corporations are not held accountable for their actions. 
Regulatory agencies like the FDA, EPA, and OSHA employee highly 
skilled experts to draft the rules that protect public health 
and safety. Congress, through the legislative process, has 
given these agencies specific authorities to carry out with 
their expertise.
    I would hope that we could agree that subject matter 
experts, rather than lawyers and Members of Congress, should be 
the people evaluating new prescription drugs or making sure 
that planes don't fall out of the sky.
    One of our witnesses today tried to put the concepts in 
today's hearing into terms that kindergartner might understand, 
but I would note that those kindergartners ride to school in 
car seats that must meet Federal standards, they eat food 
inspected for safety by Federal regulators, they play with toys 
that don't use lead paint because of Federal regulations, and 
they sleep in pajamas that are manufactured to standards so 
they don't catch fire readily.
    If the Chevron Doctrine is shot down by the Supreme Court, 
detailed and technical decisions like these will have to be 
decided by judges or legislated by Congress, and given the 
burdens and delays in our court system and the increasingly 
poor record of Congress in being able to legislate on the most 
basic of tasks, that result is far from reassuring.
    Ms. Perryman, if the Supreme Court overturns the Chevron 
Doctrine, what would that mean in practical terms for families 
and workers and are our courts prepared to step into that gap?
    Ms. Perryman. If the Supreme Court overturns Chevron, this 
would be another situation in a long line of situations where 
the government is going to be prevented from doing the work of 
the American people to keep them safe and to be able to enable 
communities and people to thrive.
    You've given some examples in your lead-up to your 
question, but we have seen this throughout the Federal system 
where there are a number of areas where Congress implements and 
passes a law. It is a law that people desperately need. 
Congress has the authority to do that. Agencies are--and 
Congress creates agencies. Agencies are the bodies that can 
implement that law, and their ability to have discretion in 
doing that, where their subject matter expertise is clear, 
where Congress has not necessarily prescribed 1,000 pieces of 
policy detail, is really essential to keep the government 
working for the people.
    Ms. Scanlan. Well, let's talk about those agencies because 
much of the testimony today is centered on the implications of 
pending court cases, but your testimony raises another threat 
to the ability of civil servants, subject matter experts who do 
the work to implement the safeguards that Congress has 
legislated.
    In your testimony you highlight a related threat to good 
government and the ability of the Federal Government to do the 
work of the American people. That is an unprecedented effort by 
right-wing special interests known as Project 2025 that would 
gut our civil service workforce in the event of the Republican 
candidate winning this year's Presidential Election, permitting 
the firing of the nonpartisan subject experts who make our 
government agencies function and making those currently 
independent civil servants subject to political influence and 
loyalty tests.
    Can you comment on the threat posed by Project 2025?
    Ms. Perryman. I think Project 2025; it's been published, is 
an incredibly concerning threat to our overall system of our 
overall system of government. You've highlighted a major one, 
which is a threat to our civil service, the ability of people 
to do the work of the American people, civil servants. There's 
2.2 million of them. They're in all States across the country. 
They swear an oath to our Constitution and have, obviously, to 
do the work regardless of political ideology or partisan 
agenda.
    So, threats to that independent civil service are 
incredibly concerning, and you see that summarized in Project 
2025, as well as in a number of other efforts that we're seeing 
from extremist organizations.
    Ms. Scanlan. Thank you. Mr. Chair, I would just seek 
unanimous consent to introduce an article by Kate Shaw 
entitled, ``This Quiet Blockbuster at the Supreme Court Could 
Impact All Americans.''
    Mr. Massie. Without objection, so ordered.
    Ms. Scanlan. Thank you. I yield back.
    Mr. Massie. I know recognize Mr. Moran from Texas for five 
minutes.
    Mr. Moran. Thank you, Mr. Chair.
    Mr. Alt, I want to start with you. Mr. Chenoweth was just 
mentioning this question I have for you, and that is about the 
ability for defendants to potentially opt out or remove these 
cases to Article 3 Courts. That is one of the ironies of the 
administrative adjudications. The agency can actually choose to 
bring it in Federal court and seek a jury trial. Would a 
defendant's right to opt out of in-house courts help address 
this imbalance? If so, how?
    Mr. Alt. It certainly could. I guess my question is, the 
devil being in the details, making sure that the provision 
which would permit for removal would be sufficiently automatic 
or easy so as to preserve the rights.
    One of the things that I think we've all talked about is 
the degree to which the current proceeding essentially stacks 
the deck in such a way that it exhausts the resources of 
defendants before they ever have a chance to see an Article 3 
tribunal.
    So, anything we can do to actually make it so that they can 
avail them self at the first instance of an independent Article 
3 Judge would be a great improvement over the current process.
    Mr. Moran. Thank you.
    Mr. Chenoweth, back to you on a new matter. We haven't 
talked about gag orders, but your organization, the New Civil 
Liberties Alliance, has raised a concern about gag orders in 
administrative settlements, particularly settlements involving 
the SEC. Would you describe for folks that are watching what a 
gag order is, how agencies use these gag orders in settlements, 
and why exactly it is that you have a concern with this?
    Mr. Chenoweth. Yes, absolutely. So, there's a gag rule that 
the SEC implemented in 1972. It's one of only two agencies that 
we're aware of that gags folks who settle with the agency. They 
passed it as a housekeeping rule. A housekeeping rule doesn't 
have to go through notice and comment, but a housekeeping rule 
also isn't supposed to affect anyone outside the agency. 
Obviously, the whole point of a gag rule is to gag the 
defendant, so it does affect third parties outside the agency.
    So, it was unlawfully promulgated by the SEC. This was back 
when Bill Casey I believe was the Chair of the SEC during the 
Nixon Administration. So, you have the Nixon Administration 
wanting to gag people who settle with the agency.
    Then, today we have folks defending that in the current 
administration, which I don't really understand why they're so 
eager to gag everyone. The Department of Justice doesn't gag 
anyone who settles with the Department of Justice, but the 
Securities and Exchange Commission insists on pain of 
settlement--in other words, they will not settle a case with 
you unless you agree to this language. Believe me, we've tried. 
They won't do it. The reason is that they don't want anyone out 
there criticizing the agency and explaining exactly what 
happened.
    These 98 percent of people who settle with the agency, they 
don't want any of those people to be able to talk to Congress 
or talk to the general public about what is happening to them, 
what they went through, and what the deficiencies are in the 
SEC's investigatory and adjudicatory processes. It's a very 
effective gag that the agency--that the SEC--the CFTC is the 
other one that has this, I should mention.
    Mr. Moran. Well, it seems--
    Mr. Chenoweth. It's unconstitutional.
    Mr. Moran. Yes, I was going to say it seems contrary to the 
very basic principles of the First Amendment, that we are now 
gagging individuals so that they don't criticize government and 
government's overreach in their life. Would you agree with 
that?
    Mr. Chenoweth. I would absolutely agree with that. There 
are some rights that you can give up in exchange for 
settlement. You can give up the right to appeal, for example, 
as part of a settlement, but the First Amendment shouldn't be 
something that you give up. Certainly, if you were in a Federal 
District Court a Federal judge couldn't take away your First 
Amendment rights as a part of a penalty against you if you were 
to lose in court.
    So, if you go to court and win or lose, you still have your 
First Amendment rights, but if you settle with the SEC, you 
lose the right to speak any more about your case. Some of the 
folks that we have as clients, sir, are in their 70s and 80s. 
They've seen codefendants go to their grave never being able to 
clear their name. These are folks who--they didn't do--if you 
got the whole story of what they did, you wouldn't think that 
they did anything that was worth going after at all, let alone 
something that they should have to wear as a badge of dishonor 
for the rest of their lives.
    Mr. Moran. Professor Mascott, I want to come to you for the 
last question, and anybody else can weigh in after she does, 
but I am curious about looking to the future. Where do you see 
red flags where this type of in-house tribunal might spread 
even further, either by subject matter or new agency, where we 
are seeing creep into other agencies to take away the rights of 
citizens to actually go to the Judicial Court system to get 
their claims adjudicated? Where are we seeing that, what should 
we be aware of, and where should be watching?
    Ms. Mascott. Well, I think that as agencies continue to get 
more and more regulatory authority in more subject matter areas 
there's just going to be more incentive to produce broad 
regulations and engage in burdensome investigations and then 
adjudicate these challenges within their own court systems. So, 
I really do think Congress should take a look at whether--now 
that we've had a few years looking at how this operates and 
have the Supreme Court looking at--whether all these questions 
of judicial review should be taken off the table by just 
requiring agencies simply to go into court in the first place.
    If the agencies have a valid rule and they're imposing it 
against the right people, they should be able to bring those 
charges in Federal court without any problem, and it can solve 
all these questions of constitutional rights.
    I also think the solution as an interim matter of allowing 
people to remove from agencies to Federal court could be a good 
one to look at.
    In addition, I think there just doesn't seem to be any 
reason why Members on both sides couldn't agree to requiring 
agencies to publish more rules about how their--publish more 
information about how they decide they're going to bring 
charges and what procedures they use to bring these charges and 
bring the kind of transparency that we all have to follow here 
and in the Federal court system. Thank you, Congressman.
    Mr. Moran. Thank you, Mr. Chair. I yield back.
    Mr. Massie. I thank the gentleman from Texas.
    The gentlelady from Georgia, Ms. McBath, is now recognized 
for five minutes.
    Ms. McBath. Thank you, Chair Massie and Ranking Member 
Correa.
    Thank you each and every one of you for your witness and 
your testimony today. Thank you for coming to this hearing to 
discuss the importance of regulatory agencies and our need to 
have experts review and propose rules and/or guidelines.
    We need regulatory agencies because they are an invaluable 
source of knowledge and information gained from experts with an 
intimate understanding of very niche areas. These individuals 
are oftentimes more qualified than us here in Congress to 
provide guidelines, recommendations, and regulations. The 
knowledge possessed by regulatory agencies provides us with a 
cleaner environment, safe food, and a growing economy. The 
almost 2,000 Administrative Law Judges who are subject experts 
operating at these agencies are the best means to ensure that 
cases are heard by experts and make informed decisions within a 
reasonable timeframe.
    I am sure most of us here, in particular, my colleagues and 
I would hate to go to a family law judge to handle a tax case. 
So, why would we take the entire caseload of 2,000 
Administrative Law Judges with subject matter expertise to the 
less than 900 Federal judges already struggling with backup 
dockets? Recommendations made by ALJs are subject to review by 
Federal courts, meaning a decision by an ALJ is not an end-all. 
The process that we have in place is fair and it has fairness 
in mind. Our agencies were structured like this for a reason.
    As Members of Congress, we don't possess the knowledge or 
the expertise and the time that is necessary to cover every 
single issue that may need some form of regulation, nor would 
our government be able to function if these agencies were 
eliminated or further limited from doing their jobs. Checks and 
balances are crucial, and balance means that we are 
collectively doing our job to keep our agencies in line without 
taking away their ability to regulate and to resolve.
    We should want safe travel, we should want safe 
medications, and we should want safer workplaces.
    Ms. Perryman, my question is for you. If the Supreme Court 
were to rule in favor of the respondent in Jarkesy and limit 
the power of ALJs to hear cases, what would this mean for 
agencies looking to adjudicate cases?
    Ms. Perryman. Well, I'll make a few comments on your 
question, Congresswoman. One is I think if the Supreme Court 
rules in favor of Jarkesy, there's also a ruling there that 
would really usurp Congress' power because Congress structured 
the SEC in a particular way and acknowledged these overlapping 
functions that ALJs provide in that situation. So, I don't want 
to get lost in today's discussion where there has been a lot of 
discussion of executive power or overrunning of executive 
power. These are ways that Congress in fact structured many 
agencies.
    I do think that it will make our agencies less effective, 
and it will certainly make the American people suffer because 
there will not be more timely ways of resolving administrative 
disputes.
    Ms. McBath. Thank you. My second question then, a followup, 
is how would the long delay for these administrations affect 
our small business community and members of the public if they 
have to go through the Federal system?
    Ms. Perryman. We certainly know that delay is a concern, 
and we've even heard some of the witnesses here today talk 
about that in different respects. So, I do believe that this 
decision in favor of Jarkesy and some of the other proposals 
that have been mentioned here today would lead to unnecessarily 
delay, delaying the ability of the government to do its job, 
which is again how Congress structured these agencies.
    Ms. McBath. We certainly don't need any more delays in this 
body. I yield back the balance of my time. Thank you.
    Mr. Massie. I thank the gentlelady from Georgia.
    I know recognize the gentleman from Virginia, Mr. Cline, 
for five minutes.
    Mr. Cline. Thank you, Mr. Chair. Appreciate you holding 
this hearing and I appreciate the witnesses for appearing.
    Mr. Alt, since agency adjudication denies defendants jury 
trials and impartial rulings on interlocutory appeals and 
procedural challenges, do you think this leaves defendants in a 
negative position overall and worse off than if their case had 
been heard in an Article 3 Court?
    Mr. Alt. Absolutely. If their claim was before an Article 3 
Court they would have access to their Seventh Amendment rights, 
the would have a number of additional procedural protections 
provided by the Federal Rules of Evidence and the Federal Rules 
of Civil Procedure, neither of which apply in administrative 
proceedings.
    It is really quite frankly--it's worth taking a step back, 
and this really is what we're talking about in this hearing. 
It's not whether we're going to have the policies that Congress 
wants. If in fact these agencies are regulating as experts, 
implementing Congress' desires with regard to these policies, 
whether it's clean air, water, et cetera, they should have 
nothing to fear in going before an Article 3 tribunal. They 
shouldn't have to stack the deck. They shouldn't be taking away 
the rights of Americans, and shame on them for trying to do so.
    Mr. Cline. While agencies can opt to bring their case in a 
Federal court and seek a jury trial, can defendants do the 
same?
    Mr. Alt. No.
    Mr. Cline. So, would you agree that this presents a pretty 
significant imbalance in agency adjudication and that Congress 
has options? What would you recommend Congress do in regard to 
addressing this imbalance?
    Mr. Alt. So, there's a couple of ways that you could 
address it. We've talked about some of them here today. One is 
to sort of even the playing field and make it so that both 
parties have to consent to appearing before an ALJ.
    The other option is offering removal authority if the 
agency chooses to initiate its proceeding against a defendant 
in an administrative tribunal to give the defendant the ability 
to move for removal to a Federal court.
    A third option, which I think I mentioned, is simply in 
some of these cases that involve core rights, is stripping the 
authority of these agencies to initiate internal proceedings 
and requiring those to go before Article 3 tribunals.
    I should add; and I think all three witnesses have 
emphasized this, the claim that this would require thousands of 
additional judges is hyperbole. The claim that this would deal 
with all Social Security claims and so forth, also hyperbole. 
If we're talking about for instance these core issues where 
you've got substantial fines, loss of the ability to continue 
to conduct your business, things of this nature--in the case of 
the SEC it's what, I think what, five ALJs? This is a much more 
limited remedy than what has been suggested.
    Mr. Cline. Professor Mascott, would you agree with that 
assessment?
    Ms. Mascott. Absolutely, Congressman. The 2,000 number 
sounds high, but it also includes the hundreds of Social 
Security judges that Mr. Alt is referencing. Not only is what's 
happening in the Social Security courts different in kind than 
what we're talking about here today, but while those judges 
have the title Administrative Law Judges, as a statutory matter 
they're actually not. The formal Administrative Law Judges are 
hearing officers that the APA is talking about. So, they do 
something different, and they're hired. It's just a totally 
different role than what we're talking about with the regular 
ALJs who are more--about 100 in number, a little bit over 100, 
and in the really core agencies, as Mr. Chenoweth mentioned, 
fewer than a dozen typically.
    The other point that was raised earlier about expertise of 
Administrative Law Judges, actually most of the current 
Administrative Law Judges were hired under the old, in place 
until about 2018, Civil Service Hiring System which allows ALJs 
to be moved around from agency to agency. So, there isn't 
necessarily specific subject matter expertise that's grown up 
over decades anyway.
    Also, we are talking most fundamentally I think about just 
the rights and the safety and the interests of the American 
people and want to make sure that those rights are protected in 
the Federal court system and that Congress as the elected body 
is making the initial key policy decisions.
    If I can make one more point, on the issue of expertise if 
Congress wants to benefit from regulatory expertise, one 
possible way to do that would be to get recommendations or 
studies or proposed rules from the agencies and then let the 
elected body of Congress have an up or down vote on whether 
those policies are going to be made effective so that the 
people's interests are protected. Thank you.
    Mr. Cline. I thank the gentlelady, or thank the witness and 
I yield back.
    Mr. Massie. The gentleman from Virginia yields back.
    I know recognize Mr. Ivey from Maryland for five minutes.
    Mr. Ivey. Thank you, Mr. Chair. I appreciate it and I 
appreciate this hearing.
    I came to the hearing with a very different perspective 
than I have at the moment, but let me make sure I am 
understanding what you are saying.
    So, there have been comments about rulemaking and expertise 
that come with that. My sense is that you are not really 
focusing on that today. Also, the discussions about Chevron and 
some of the other lines of cases that have come, my sense is 
you are not really talking about that so much today either. As 
opposed to being doctrinal, it is more structural.
    So, the argument I think you are making is that 
Administrative Law Judges are biased and there is a better way 
to go if you have Article 3 Judges who are neutral, et cetera. 
Is that fair, Mr. Alt?
    Mr. Alt. Well, as I understood the scope of the hearing, it 
was essentially administrative adjudication and related topics. 
So, yes.
    Mr. Ivey. OK.
    Mr. Alt. Going to the bias of those adjudicators.
    Mr. Ivey. Right. Professor?
    Mr. Chenoweth. Yes, I agree with you, Mr. Ivey.
    Mr. Ivey. All right. Well, let me ask you this because 
let's assume for the sake of argument that I agree with your 
thrust with respect Administrative Law Judges. I appeared in 
front of Administrative Law Judges. I don't necessarily think 
Article 3 Judges walk on water necessarily either, so there are 
challenges in both courts, especially from the financial 
exhaustion standpoint.
    I am not clear on exactly--professor, you were just 
touching on this a little bit--if you are going to move toward 
eliminating these Article--I mean the ALJs, and I am not 
exactly sure how many there are. We got the 2,000 number. You 
all are talking dozens. It seems it might be more in the 
middle, but there is an easy way to find out, and maybe when 
you have a chance to submit comments later you can actually run 
down the number and send it to me.
    The other piece would be that I am curious about is the 
cost differential between Article 3 Judges and ALJs because it 
is money we are going to have to figure out how to do that.
    Mr. Chenoweth. Do you mean the salary difference, sir?
    Mr. Ivey. Yes.
    Mr. Chenoweth. OK.
    Mr. Ivey. Well, it is salaries and then I think they 
probably get law clerks in a way that ALJs don't, for example--
    Mr. Chenoweth. That's true.
    Mr. Ivey. --and there is a whole structure and pension 
system, all that stuff. Send that to me instead of making me 
figure it out. I am not exactly clear on how that transition 
would work and I am pretty sure that--I don't even know if we 
have got a bill pending in the House, for example, that would 
do the transformation that you are talking about.
    I am also not clear on whether these would be Article 3 
Judges. So, would these be--they would just get assigned to 
D.C. Circuit, for example, or Eastern District of Virginia, or 
would they be in the Federal Circuit? What do you exactly have 
in mind there?
    I guess there is also the Article 1 option, which is D.C. 
Superior Court. As I understand it those are Article 1 Judges 
that have full power to adjudicate and most standards do it 
just as well as the Article 3 types of judges would. So, if you 
could send me that kind of information, that would be helpful.
    The other piece would be you have sort of talked in terms 
of some of the sorts of intermediate reforms you would want to 
see: Turning over exculpatory evidence, citizen's right to opt 
out, the removal option that you talked about, the burden--
shifting of the burden of proof or disallowing the shifting of 
the burden of proof, gag orders, all which I agree with I think 
the points that you all made on those.
    Can you give me a list of what would be moving forward?
    Let me say this, too, as I end up because I have only got a 
minute left, I am very nervous about shifting these sorts of 
adjudication activities to Congress, because we are not 
prepared to handle those by any stretch of the imagination, if 
there is a desire to do that, and I hear that from my 
Republican colleagues periodically.
    There was the Office of Technology Assessment that was 
eliminated in 1995 as part of the Contract with America. That 
had been created with the thought of providing a body of 
experts, scientific and technological experts who could help 
Congress resolve those types of issues. I don't think that we 
should be--Chair Massie has that kind of background, but most 
of us here are lawyers or something along those lines. So, I 
think it would be risky for us to try and take that on.
    We do these two-hour hearings as opposed to the two-week 
hearings that you would have frequently if--some of these 
administrative proceedings to resolve highly technical issues 
like the ones we were talking about. How much arsenic can you 
have in water for parts per billion? I certainly don't think we 
are set up to handle those.
    If there are other types of options that you all see, 
please give us those. Your testimony talked about some of those 
things, but the overall thrust is constitutional issues. If I 
agree with that, what are the specific proposals you are 
talking about that we could implement in a reasonable way and 
try and address those? With that I yield back.
    Mr. Massie. Thank you, Mr. Ivey, and thank you for always 
coming to these hearings with an open mind and listening to the 
witnesses. A lot of times we fail to do that. We come with 
predetermined outcomes, so I appreciate Mr. Ivey.
    Now, I recognize Mr. Issa from California for five minutes.
    Mr. Issa. I am going to use a minute, because you hit on a 
sore subject for me, and I just want to share it with you. I 
was on Energy and Commerce also at the time. In the Bush 
Administration it was the EPA that arbitrarily with no science 
supporting it lowered how much arsenic per billion and took 
half the wells in New Mexico offline without any science 
showing that what level unsafe becomes safe in arsenic. They 
did so because they said, well, at the level we picked we know 
it is safe. Arbitrary, capricious. They got away with it. By 
the way, that was George W. Bush's EPA Administrator. If I 
could do it over again, I would be more incensed than I am two 
decades later.
    With that, we have dealt in a couple of areas that are 
important. Many of the Members on the other side of the aisle 
seem to think that the--and one of the witnesses--that 
overturning Chevron would be just the end of the world.
    Let me ask a question. Before the 1980s were we doing OK 
without Chevron as a doctrine? Professor?
    Ms. Mascott. Yes. Certainly, this body has the power to be 
able to make clear statutes that can be interpreted by courts. 
Indeed, actually--
    Mr. Issa. So, we got through 200 years without Chevron 
Doctrine?
    Ms. Mascott. Yes, sir.
    Mr. Issa. You think we might survive as a body if it went 
away or substantially was changed?
    Ms. Mascott. Well, I do. The author of the opinion, Justice 
Stevens, actually there's evidence maybe he didn't even think 
he was putting in place a great new doctrine. So, it certainly 
should be revisited.
    Mr. Issa. Is it fair to say that the history post-Chevron 
is that administrations look to put ambiguity in their 
suggestions into legislation for the very purpose of giving 
themselves freedom going forward?
    Ms. Mascott. There's certainly a risk of--
    Mr. Issa. Antonin Scalia had noted that it seemed like 
there was a change in what administrations tried to put into 
legislation after they had that opportunity.
    Ms. Mascott. Absolutely in legislation and then also in the 
agency's own rules making those ambiguous so that they can fill 
in the gaps later.
    Mr. Chenoweth. Then from a litigating standpoint, too, 
Congressman. What's been told to me by folks in the Solicitor 
General's Office, for example, is that the agencies will come 
to them, and the question isn't what does the law mean? The 
question is what can we get away with? How far can we push our 
interpretation and still get Chevron deference to it?
    Mr. Issa. For all four of you, do you agree that 
administration after administration over the last let's say 
four or five administrations have created rule changes that are 
each one somewhat the opposite of the one before and yet said 
they were faithfully supporting the intent of Congress? Is 
anyone there that disagrees, from the left to the right?
    [No response.]
    Mr. Issa. OK. Well, then that I think is the best reason 
for Congress to be more explicit, yes, lest we have every 
election turn into a flipping on its side.
    Mr. Chenoweth. Congressman, can I speak just briefly to 
that?
    Mr. Issa. Of course.
    Mr. Chenoweth. So, the claim was made that getting Chevron 
deference will undermine regulatory stability. To your point, 
it's exactly the opposite. Chevron is what creates regulatory 
stability because the agencies are allowed to change the rules 
willy nilly. The rest of us can't, but the agencies can. So, 
that's creating the stability. If we get rid of Chevron 
deference, we'll have much more regulatory stability going 
forward.
    Mr. Issa. Now, from time-to-time Congress does turn 
rulemaking or Executive Orders into law by simply affirming 
them. Is there anyone that disagrees with the fact that 
Congress at any time can look at actual actions of the 
Administrative Branch, including Executive Orders, and simply 
codify them in law if we in fact concur with them?
    Mr. Chenoweth. You can do that.
    Mr. Issa. At that point the court is bound by them and 
Chevron is no longer a problem even if one might say they went 
outside the original intent.
    Mr. Chenoweth. Right, as long as they're within the bounds 
of the Constitution. If there wasn't statutory authority before 
but now Congress has said there is, then you've solved that 
problem.
    Mr. Issa. Is there anyone here that believes that Article 1 
gag orders, meaning agreements with the power of the government 
forcing someone to not disclose, other than on an ongoing case, 
those sorts of agreements, inherently is a heavy hand of 
government and that Congress should consider reducing or 
eliminating the authority to force the entry into those 
agreements?
    Mr. Chenoweth. NCLA would welcome that for sure.
    Mr. Issa. OK. Then my last one is I have heard, and I think 
I heard pretty well, that if you have Article 1 Judges and they 
are not appealed to Article 3, but rather they simply go to 
their commissions and those commissions can on a de novo basis 
re-look at it and reverse them, then in fact, an Article 1 is 
not the equivalent of an Article 3. That ultimately, if that is 
the case, like the Federal Trade Commission and others that 
routinely 90 percent or more reverse not guilties with 
guilties, then is there anyone who sees the harm in that 
situation of the defendant not going through double jeopardy 
and simply being able to say I want to go to Article 3 lest I 
go through the process of Article 1, win, and then have it 
reserved by the commission? Anyone see that as not able to be a 
legitimate out that we should grant as a body?
    Mr. Massie. If any witness wants to answer that briefly--
    Mr. Issa. Only those who object. Seeing none, I will take 
it as a yes. Thank you. I yield back.
    Mr. Massie. I thank the gentleman from California.
    Ms. Balint from Vermont is now recognized for five minutes.
    Ms. Balint. Thank you, Mr. Chair.
    I would like to bottom line it. I think the crux of this 
hearing for me is about freedom from harm. It is clear that we 
have a fundamental difference in vision with Republicans. My 
colleagues on the other side almost uniformly see bad intent in 
the actions of Federal regulators and rather than understanding 
these people as civil servants who are using their expertise to 
follow through on our directives in Congress, they are often 
cast as power hungry, malevolent actors, bent on taking away 
fundamental rights from the little guy, right? I think we all, 
whether you are Republicans or Democrats, right, we come here 
to fight for the little guy.
    It is really unfortunate because the public protections 
furthered by our agencies, including for the environment, for 
workers, for passengers, for Americans' personal finances, and 
public health really do benefit regular people in my home State 
of Vermont. Reasonable rules establish the basis of our economy 
and give people, like I said, ``freedom from harm.'' That is 
what drives me in my work. Freedom from by extension corporate 
greed, disease, fraud, and preventable accidents. The 
Administrative State fulfills a core role of government, which 
is protecting the public.
    Ms. Perryman, would you characterize the Administrative 
State as providing key public protections rather than about 
limiting personal freedoms?
    Ms. Perryman. I would characterize the work of this body as 
a body that is charged with passing laws that do the work of 
the American people. What our Federal agencies do, which many 
have formed--have said, called the Administrative State--but 
what our Federal agencies do is they implement those policies. 
They implement those laws in the form of regulations because 
this Congress can't do all of it.
    In doing that there are subject matter experts that have 
expertise that can help implement those laws faithfully in the 
way that Congress intended. Of course, there are checks on all 
the powers in our government, including in administrative 
agencies. That is how I would characterize it, as these are 
agencies that are meant to do the work of the people.
    Ms. Balint. How important is it from your perspective that 
agencies receive deference from the courts to implement the 
policy goals set by us, by Congress?
    Ms. Perryman. Right. Congress often delegates authority to 
the agencies to do just that. So, the question that is at the 
issue in some of these cases, including the Relentless and 
Loper Bright cases, is not about whether policies will be 
interpreted or policies will be implemented, but it's whether 
judges would substitute their views for the expertise of 
agencies in those cases where Congress has delegated the 
authority for that implementation and expects that some of that 
discretion would go to the agencies.
    Ms. Balint. I appreciate that. I am going to shift because 
I don't have much time to the issue of Social Security, 
something that is incredibly important to Vermonters. I am 
concerned that attacking and undermining the ALJs will make 
Americans less safe by making it harder for agencies to enforce 
the law against bad actors that violate regulatory protections.
    Congress has already thought the issue through and designed 
formal adjudication under the APA to ensure ALJ independence, 
neutrality, and to insulate them from public--excuse me, from 
political interference. If Congress or the courts upset this 
well-established framework, well-established framework, we are 
likely dealing with a wholesale paralysis of the Federal 
Government, which I sometimes fear is what the intent is all 
along.
    Ms. Perryman, can you explain how ALJs are crucial to 
strong and robust enforcement of the law and how this impacts 
folks who are dependent on the work of the Social Security 
Administration?
    Ms. Perryman. Well, certainly with respect to ALJs 
generally this is one of the concerns that led Congress to pass 
the Administrative Procedures Act, which allowed for that 
agency adjudication, and which of course was signed by 
President Truman.
    With respect to Social Security, more broadly there are a 
number of legal theories in cases on the court's docket that 
could undermine the ability of agencies to carry forward with 
those programs. There are some nuances with respect to 
particular types of Administrative Law Judges or adjudications 
that apply to certain programs, but overall threats to the 
independence of ALJs, which you do see in some of these cases 
where there are arguments where there are arguments, in 
general, both in special interest sort of publications to 
undermine our civil service, or in court to undermine removal 
protections--but undermining the independence of the agencies, 
but in particular adjudicatory--people that are adjudicatory 
bodies is highly concerning including for Social Security and a 
range of other programs.
    Ms. Balint. Thank you. I see I am out of time. I just want 
to say it is a particular concern for me. I don't want to see 
Social Security undermined or rolled back or harmed because we 
are rolling back ALJ independence. So, I thank you for your 
time.
    I thank all the witnesses for being here. I yield back.
    Mr. Massie. I thank the gentlelady from Vermont.
    I now recognize the gentleman from North Dakota, Mr. 
Armstrong for five minutes.
    Mr. Armstrong. Thank you, Mr. Chair.
    One of probably the best and most glaring examples of the 
bureaucracy and the growth of it, the Biden Administration's 
methane rule from the EPA was delayed until I think about March 
8th. One of the reasons was that this 1,690-page monstrosity 
kept jamming printers, so they couldn't get it printed in the 
Federal Register.
    James Madison said that Congress would fight to the death 
to protect his Article 1 authority, and I think that was true 
in James Madison's time. I have been here for five years and 
what I have learned is Congress will fight to the death to 
protect their membership in Congress. If that means delegating 
their authority to the agencies in making tough decisions and 
doing all those things, we have been more than willing to do 
that on a bipartisan basis for 50 years.
    We have spent a lot of time talking about the Chevron 
Doctrine, and rightfully so, and the growth of agencies and 
bureaucracies, but one of the benefits to rolling back the 
Chevron Doctrine is maybe it is going to force Congress to 
actually do the job. Maybe the people who elect people to 
represent them in government should actually take the tough 
votes instead of having 1,690-page bills that keep jamming 
printers and affect North Dakota energy producers, North Dakota 
AG producers, and everybody else in between.
    With that I would yield to my good friend from Wyoming.
    Ms. Hageman. Thank you, and that was an excellent 
summation.
    Mr. Chenoweth, we hear routinely from my colleagues across 
the aisle and even from Ms. Perryman today that Federal 
agencies are needed because they possess the relevant expertise 
and that this is a wasted effort because they are working 
efficiently for the American people. That is not my personal 
experience, and I have had a lot of personal experience with 
working with Federal agencies.
    Can you please explain using Lucia and Cochran to show how 
many of our ALJs are actually not legally prepared to handle 
these cases?
    Mr. Chenoweth. Absolutely. As you know, Congresswoman, my 
personal experience with administrative agencies started when I 
was an attorney at the Consumer Product Safety Commission. So, 
I wouldn't take second to anyone in my desire for safety, for 
protecting children, for doing the things that these agencies 
do. That's not what the ALJs are doing. That's not how the 
system--with all due respect to Ms. Balint, that's not the way 
the system is functioning right now. It might be the way that 
Congress meant for it to function, but it's not the way that 
it's functioning right now.
    You mentioned Ray Lucia. Ray Lucia fought for years and 
years and years in an administrative action in front of ALJ 
Cameron Elliot. I wouldn't ordinarily say a judge's name, but 
the reason that I'm saying Cameron Elliot's name is because he 
told everyone who appeared in front of him that he never sided 
with the agency. He told them that. He told them that because 
he wanted them all to settle. That's not the kind of thing that 
a judge should be doing. That's what ALJ Cameron Elliot did.
    That's why when Mr. Lucia got all the way to the Supreme 
Court and won his case the decision--unfortunately, the Court 
sent the case all the way back to be tried again in front of--
but they sent it back to be tried in front of a new ALJ. The 
Supreme Court didn't want the same ALJ to hear the case because 
even they were convinced at that point that he had been 
railroaded and gotten a raw deal from the original ALJ that he 
appeared in front of.
    I'm pleased to say that ALJ Cameron Elliot is no longer an 
ALJ at the SEC. Unfortunately, he got promoted to a different 
court.
    Ms. Hageman. Well, I guess I am terribly surprised today by 
my colleagues on the other side who are willing to admit in a 
public hearing that they are not qualified to do their jobs, 
because I believe that we are. In fact, I know that the people 
from Wyoming sent me here to do exactly what I am doing, which 
is reading bills, drafting legislation, and addressing the 
issues that are important to them. If we are not capable of 
that and if someone is not capable of doing it, I would 
encourage them not to run for Congress because perhaps they 
should be looking for another job.
    Mr. Chenoweth. Well, I know for sure that Members of 
Congress are every bit as smart as commissioners at these 
agencies because my boss at the Consumer Product Safety 
Commission was former Congresswoman Anne Northup.
    Mr. Massie. Good Kentuckian.
    Mr. Chenoweth. A good Kentuckian. Absolutely.
    Ms. Hageman. Mr. Alt, I want to just briefly address with 
you that it is my understanding that there--not only do we deal 
with the ALJs, but there are more than 10,000 non-ALJ agency 
adjudicators who also conduct evidentiary hearings. So, this 
isn't just a matter of the ALJs. We have an entire other layer 
of bureaucracy or adjudicatory power that has been somehow 
transferred to administrative agencies in violation of our 
Constitution.
    Mr. Alt. Yes, and I think this raises even more substantial 
questions associated with independents because these non-ALJs 
are not governed by the same restrictions under the APA. They 
tend to be more beholden to their agency heads. It raises even 
more serious concerns about whether or not you have a truly 
neutral decisionmaker as a defendant.
    Ms. Hageman. I wish we had several more hours to discuss 
this topic, but alas, I am out of time, and I want to thank all 
of you for being here today. It was an excellent discussion.
    Ms. Balint. Mr. Chair?
    Ms. Hageman. With that, I yield back.
    Ms. Balint. Mr. Chair?
    Mr. Massie. For what purpose does Ms. Balint seek to be 
recognized?
    Ms. Balint. Thank you. I would just ask unanimous consent 
to enter into the record an article by ProPublica called, ``We 
Don't Talk about Leonard: The Man Behind the Right's Supreme 
Court Supermajority.''
    Mr. Massie. Without objection, so ordered. For what purpose 
does the gentleman from California seek recognition?
    Mr. Correa. Mr. Chair, I would like unanimous consent to 
also submit for the record an statement by the Coalition for 
Sensible Safeguards that explains how maintaining the current 
robust system of agency adjudication is critical for efficient 
and effective enforcement of our Nation's protective status and 
statutes which help keep our workplace safe, for drinking water 
free of contaminants, and our hard-earned money from fraud.
    Mr. Massie. Without objection, so ordered.
    I now recognize the gentleman from Florida for five 
minutes, Mr. Gaetz.
    Mr. Gaetz. Yield to Mr. Massie.
    Mr. Massie. I thank the gentleman from Florida.
    I want to talk about two entrepreneurs and ask the 
witnesses questions about these. The first entrepreneur I want 
to talk about is Mr. Eric Flannery, who I think the Buckeye 
Institute has represented. Some might say this orthogonal to 
the hearing today, but I think it is on topic because his 
business, his sole proprietorship was the target of regulations 
here in Washington, DC, that really should have been the 
purview of Congress, if we were following the Constitution.
    Mr. Alt, can you talk about Eric Flannery's case and how 
he's been prosecuted?
    Mr. Alt. Thank you, Mr. Chair. Yes, the Buckeye Institute 
represents Eric Flannery who runs The Big Board here on Capitol 
Hill, a bar and restaurant. During the pandemic, he was subject 
to the long shutdown in Washington, DC, and was able to hold on 
throughout that only to see the city ultimately put in place a 
vaccine verification requirement for all bars operating in D.C.
    He would literally have to have someone at the front 
checking vaccine IDs. Mr. Flannery took the position that was 
not appropriate for him to do. So, he issued a tweet the day 
before the regulation went into place saying that everyone was 
welcome in his bar. For that, the full weight of the D.C. 
government was brought down on him.
    Four separate agencies engaged in pulling his licenses and 
closing his business. Pursuant to a series of emergency orders 
that had been issued and to your question, Congress has the 
authority to regulate the Federal District under Article 1, 
Section 8. They've delegated some portion of that authority to 
the D.C. government the Home Rule Act of 1973.
    They retained authority to themselves with regard to 
overseeing the government. Any piece of legislation that is 
passed by the D.C. government has to be subject to review under 
30 days. It can be repealed by Congress with one notable 
limited exception.
    The D.C. City Council can issue emergency orders which can 
only be in effect for, I believe, 45 days. D.C. government went 
ahead and stacked these emergency orders for a period of in 
excess of two years. It was pursuant to this authority that Mr. 
Flannery was fined and closed and subjected to multiple 
penalties. So, in our Federal lawsuit where we currently are 
pending before the D.C. Circuit, we have challenged the proper 
authority to do so and recognize that the D.C. government, in 
fact, usurped Congress' authority by denying Congress the 
ability reasonable oversight as is required by the 
Constitution.
    Mr. Massie. This man you're representing is somebody that 
I've met. He treats his customers like family. He treats his 
employees as if they were family.
    So, I reject the notion that was raised earlier that these 
agencies and these kinds of laws and administrative rulings is 
only used against big companies. Now, shifting my focus to 
another entrepreneur, I would argue the most successful living 
entrepreneur in the United States at the moment, I count FTC, 
SEC, NLRB, FCC, U.S. Fish and Wildlife, and FAA among the 
administrative agencies who've gone after this gentleman for 
having the temerity to say that he might not vote Democrat. For 
having the temerity to say that he was going to buy a social 
media company to make sure that free speech could be preserved.
    Also, for having the temerity to bring broadband to rural 
America after over a decade of government spoon-feeding cronies 
with the false promise that we would get broadband in rural 
America. He finally did it. For that, he's been brought before 
all these agencies. Mr. Chenoweth, do you want to talk about 
any one of those cases and how the administrative agencies have 
been used to weaponize against a successful entrepreneur.
    Mr. Chenoweth. Well, it's certainly very suspicious the way 
that all these agencies--and you might call it a whole of 
government effort to go after Mr. Musk since his purchase of 
Twitter. I don't think that there's an explanation for all this 
happening at the same time that isn't at least a little bit 
nefarious. In terms of rural broadband, I believe the contract 
that he got from FCC that was revoked was for under a billion 
dollars.
    It was 800-and-some million dollars. The replacement that's 
been proposed is something like 42 billion dollars instead. 
Just to avoid using Mr. Musk's satellites to provide the rural 
broadband, that doesn't seem like a good use of taxpayer money 
to me.
    From an Administrative Law standpoint, my concern with 
what's happening to him is that maybe the most successful 
entrepreneur in America, certainly one of the richest and most 
powerful entrepreneurs in America. If the Administrative State 
can do this to him, just imagine what it can do to Mr. and Ms. 
Smith on Main Street in your Congressional District. They just 
don't stand a chance against the full power of the Federal 
Government and these administrative agencies without an 
independent Federal judge standing between them and the Federal 
agency.
    Mr. Massie. I thank the gentleman, Mr. Chenoweth. My time 
is expired. I want to submit for the record a dissenting 
statement of FCC Commissioner Brendan Carr in that case against 
Starlink.
    It says, in part, today, the FCC adds itself to the growing 
list of administrative agencies that are taking action against 
Elon Musk's business. I am not the first to notice a pattern 
here. Two months ago, The Wall Street Journal editorial board 
wrote that the volume of government investigations into his 
business makes us wonder if the Biden Administration is 
targeting him for regulatory harassment.
    I certainly think so. If you find a turtle on a fencepost, 
it didn't get there by accident. If you find eight of them on a 
fencepost, something is going on.
    I ask unanimous consent to submit this for the record. OK. 
Without objection, so ordered. I now recognize Mr. Van Drew for 
five minutes from New Jersey.
    Mr. Van Drew. Thank you, Mr. Chair. I have to say I love 
the turtle analogy. It's pretty neat.
    Our Federal agencies have become emboldened in many ways 
and in many ways unchecked. Too often they abuse this power. 
We've seen it used in ways where we go after political 
opponents, forcing burdensome regulations on American industry, 
and pushing partisan politics on behalf of the Presidents.
    It is the practice of in-house adjudication where we have 
seen the system stray so unbelievably far. It's a world where 
agencies there's a prosecutor, a judge, and the executioner. 
It's unfair, and I believe it's un-American.
    The House has already passed legislation that will cut back 
on the expansion of Administrative State by passing the REINS 
Act and the Separation of Powers Restoration Act. It's clear 
there absolutely is more to do about this abuse of power. We 
simply cannot regulate the agencies back to where they should 
be.
    We can't regulate them to good behavior. We need to 
fundamentally rethink and restructure this framework. Mr. Alt, 
can you elaborate on how you believe the denial of the Seventh 
Amendment right to jury trials and administrative adjudications 
undermines the foundational principles of our legal system?
    Mr. Alt. Thank you, Mr. Van Drew. I think it really goes 
back to what's going on here is very reminiscent of what you 
saw in the founding era which is to say essentially the British 
Parliament went ahead and shifted authority to another 
tribunal, the Court of Admiralty, to be able to actually handle 
certain tax and other matters that would traditionally be 
handled by a court where there would be a right to jury. They 
did so to prevent that jury right from attaching.
    This, from the time of Magna Carta forward, has been 
understood to be a fundamental right to have access to these 
sorts of civil juries. Particularly, where you have these kinds 
of fines, the loss of property, life, liberty, or property 
potentially attaching. So, what you see actually in these 
administrative tribunals is painfully similar.
    We're shifting the adjudication to tribunals where you 
don't have those rights, where you're not actually--you don't 
have the opportunity to be heard by a neutral arbiter. Where 
again we've seen throughout the course of the hearing today, 
oftentimes quite frankly, the adjudicator may be someone who 
wears the hat of prosecutor on a different day. They may be 
someone who the prosecutors have had access to the computers.
    There's no genuine independence. This is not a peer whose 
being able to determine your rights. So, it creates a 
fundamentally unfair and nonindependent process.
    Mr. Van Drew. I agree with you. It is fundamentally unfair, 
it is wrong, and it is in no way, in no way, nobody should kid 
themselves, our founding fathers never, ever envisioned what is 
happening now with these agencies. It's also a great irony that 
while an agency has the freedom to take its case to regular 
court, the agency does, and it can even ask for a jury to 
decide, the people or businesses they're going after don't get 
to make that decision. How can that be right?
    Do you think letting these defendants choose to have their 
case heard outside the agency's own courtroom could fix this 
unfairness? If you do, how might that work? I'll address that 
to you first, Mr. Alt. Anybody else who would like to answer 
that question is welcome to as well.
    Mr. Alt. So, the answer is the less friction, the better. 
The earlier at the process the defendant would be able to 
remove an Article 3 Court, that would be a more sufficient 
remedy, shy of permitting--sort of requiring these actions to 
be brought in Article 3 Court to begin with. My concern in any 
of this is not putting barriers to the exercise of that right 
that could actually impair a defendant from being able to 
exercise it. So long as they're able to do so quickly, I think 
that would be a huge step in the right direction.
    Mr. Van Drew. Thank you. Professor?
    Ms. Mascott. I agree. I agree that the earlier at the point 
in the process, the better to remove. So, before a lot of the 
investigative power has been wielded and a lot of the 
incentives to force folks into settlement. If they can remove 
before that point, it'd be a lot more effective.
    Mr. Chenoweth. I agree with that. I also agree with what 
Mr. Alt said earlier which is that it's better for these things 
to be brought in a regular court to begin with rather than 
removal. These other things are second best alternatives. It's 
better to just have them in Article 3 Courts to begin with.
    Mr. Van Drew. I agree with you totally. I want to thank the 
Chair for having this hearing today. It's something we need to 
talk about. I know for the average American man and woman, it 
may seem a little dry or a little boring.
    The reality is it's very, very important. It goes to our 
fundamental rights as Americans. So, I appreciate your work. I 
yield back.
    Mr. Massie. I thank the gentleman from New Jersey. When the 
Chair of the Full Committee wanted me to Chair this 
Subcommittee, I initially rejected that notion. I'm not an 
attorney.
    He pointed out to me not only do we have jurisdiction over 
antitrust, we have jurisdiction over Administrative Law. I 
said, ``well, heck, that's 90 percent of government. I'll do 
it.''
    So, that's why I agreed to Chair that and that's why we're 
having this hearing today. There's so much of government that 
happens in these administrative agencies. One of the notions 
that came up today was that Congressmen don't possess the 
knowledge or the expertise to be making these decisions about 
what rules constituents should live under, that we should defer 
to experts in these agencies.
    Professor Mascott, isn't it true in Article 3 Courts--these 
courts decide whether somebody is going to go to prison for 
life. OK? They use DNA, for instance, as evidence. Isn't it 
true that a judge doesn't need to be an expert in the topic and 
that they can call expert witnesses in Article 3 Courts?
    Ms. Mascott. It's absolutely the case that Article 3 Judges 
are more experts in the law and not necessarily the facts of 
the cases that come before them. Also, we look to the 
institution of the jury as a piece of the democratic power in 
our system to be able to adjudicate factual innocence and guilt 
in the criminal context. So, it's certainly possible to craft a 
system where we don't have subject matter experts making the 
final determination.
    One other point is the unique function of Congress is that 
each of you are electorally responsive and this body every two 
years to the interest of the American people. That's not 
happening in the Executive Branch. There's one President at the 
top who represents the whole country. The agencies are often 
insulated from Presidential supervision, and they're not 
elected. If they are making the policy decisions, the interest 
of the American people cannot possibly be represented purely. 
Just one final point if I may.
    Mr. Massie. Let me comment on that. Doesn't that mean that 
elections don't matter if we have people in a Branch of 
Government that is elected, right? It's not the Judicial Branch 
which the founders recognized we needed to have life terms and 
independence. In the branch that's elected, if we wall off part 
of that branch and insulate them from elections, isn't that a 
bad thing?
    Ms. Mascott. Absolutely. The policy decisions need to be 
made here in the elected body. That's how the Constitution was 
designed. You're exactly right. When it shunted over to 
agencies, we lost the entire electoral foundation of our 
Federal system.
    Mr. Massie. Mr. Chenoweth, I think you have an interesting 
perspective having worked for a Congressperson and then working 
where you do now and the other roles. What would you say to the 
notion that Congressmen and women don't possess the knowledge 
to be making these walls that their constituents should live 
under?
    Mr. Chenoweth. I certainly don't think that was Congressman 
Pompeo's point of view. I think that he thought he was plenty 
smart enough to make these rules. I also think that in my 
experience, I have a lot more faith in Congress than apparently 
some of the Members who spoke today.
    Congress does craft very detailed legislation sometimes. 
It'll craft the Internal Revenue Code, criminal laws, and 
tariff schedule exemptions. Some of the things that I remember 
getting lobbied on, on Capitol Hill about certain Medicare/
Medicaid payments to rural hospitals, things like that. These 
things can get extraordinarily detailed.
    All those things are voted on by Congress. Mr. Van Drew 
mentioned the REINS Act. I think there's a simplified version 
of that.
    From the rulemaking side, if Congress is concerned about 
having the expertise to delve in and figure out exactly how to 
craft the regulations, then fine. Keep it somewhat the way it 
is. Tell these agencies your rules do not go into effect until 
we vote them up or down.
    Make it like a base realignment commission situation. Start 
with the rules that are 100 million dollars or more. If an 
agency has a rule like that, then it needs to propose it to 
Congress. It doesn't go into effect until Congress votes it up 
or down.
    If you were to do that, I guarantee you that the rules 
coming out of the agencies would be ten times better than they 
are right now because they wouldn't try to get away with the 
garbage that they're getting away with now if they knew that it 
had to go in front of Congress to get approved before it went 
into effect.
    Mr. Massie. In my last few seconds, I've got another 
question for you. In a democracy and where we're allowing the 
Administrative Branch to adjudicate certain things, what 
practical purpose does a gag order serve? How does that make 
our country function better?
    Mr. Chenoweth. I don't think it does make our country 
better. More speech, better speech, free speech is the way that 
we need to be thinking about this in our country. These gag 
orders are really just self-protection mechanism on the part of 
the agency and they need to go away.
    Mr. Massie. My time is expired, and I want to thank the 
witnesses for coming here today. Appreciate all four of you and 
what you've added to this discussion. It illuminated things 
that today we claimed that the American people don't know 
about.
    Well, they should know about it, and that's why we had this 
hearing. So, I appreciate the expertise that you bring to it. I 
want to thank my Ranking Member, Mr. Correa, from California.
    That concludes today's hearing. We thank the witnesses for 
appearing before the Committee today. Without objection, all 
Members will have five legislative days to submit additional 
written questions for the witnesses or additional materials for 
the record. Without objection, this hearing is adjourned.
    [Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]

    All materials submitted for the record by Members of the 
Subcommittee on the Administrative State, Regulatory Reform, 
and Antitrust can be found at: https://docs.house.gov/
Committee/Calendar/ByEvent.aspx?EventID=116992.

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