[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
CONGRESS IN A POST-CHEVRON WORLD
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
----------
JULY 23, 2024
----------
Printed for the use of the Committee on House Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.govinfo.gov
www.cha.house.gov
CONGRESS IN A POST-CHEVRON WORLD
CONGRESS IN A POST-CHEVRON WORLD
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JULY 23, 2024
__________
Printed for the use of the Committee on House Administration
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
www.govinfo.gov
www.cha.house.gov
------
U.S. GOVERNMENT PUBLISHING OFFICE
56-595 WASHINGTON : 2024
COMMITTEE ON HOUSE ADMINISTRATION
BRYAN STEIL, Wisconsin, Chairman
BARRY LOUDERMILK, Georgia JOSEPH MORELLE, New York,
H. MORGAN GRIFFITH, Virginia Ranking Member
GREG MURPHY, North Carolina TERRI A. SEWELL, Alabama
STEPHANIE BICE, Oklahoma NORMA TORRES, California
MIKE CAREY, Ohio DEREK KILMER, Washington
ANTHONY D'ESPOSITO, New York
LAUREL LEE, Florida
Mike Platt, Staff Director
Jamie Fleet, Minority Staff Director
C O N T E N T S
----------
Page
Opening Statements
Chairman Bryan Steil, Representative from the State of Wisconsin. 1
Prepared statement of Chairman Bryan Steil................... 3
Ranking Member Joseph Morelle, Representative from the State of
New York....................................................... 4
Prepared statement of Ranking Member Joseph Morelle.......... 6
Witnesses
Paul J. Ray, director, Thomas A. Roe Institute for Economic
Policy Studies................................................. 8
Prepared statement of Paul J. Ray............................ 11
Satya Thallam, senior vice president of government affairs,
Americans for Responsible Innovation........................... 21
Prepared statement of Satya Thallam.......................... 23
Kevin Kosar, Resident Senior Fellow, American Enterprise
Institute...................................................... 28
Prepared statement of Kevin Kosar............................ 30
Wayne Crews, Fred L. Smith Fellow in Regulatory Studies,
Competitive Enterprise Institute............................... 35
Prepared statement of Wayne Crews............................ 38
Josh Chafetz, Agnes Williams Sesquicentennial Professor of Law
and Politics, Georgetown University Law Center................. 49
Prepared statement of Josh Chafetz........................... 52
Submissions for the Record
Project 2025..................................................... 71
Written testimony of Doug Holtz-Eakin, president of the American
Action Forum................................................... 971
Written testimony of Marci Harris of PopVox...................... 976
Questions for the Record
Paul J. Ray answers to submitted questions....................... 980
Satya Thallam answers to submitted questions..................... 981
Kevin Kosar answers to submitted questions....................... 986
Wayne Crews answers to submitted questions....................... 990
Josh Chafetz answers to submitted questions...................... 999
CONGRESS IN A POST-CHEVRON WORLD
----------
July 23, 2024
Committee on House Administration,
House of Representatives,
Washington, D.C.
The Committee met, pursuant to notice, at 10:17 a.m., in
room 1310, Longworth House Office Building, Hon. Bryan Steil
[chairman of the Committee] presiding.
Present: Representatives Steil, Loudermilk, Griffith, Bice,
Carey, D'Esposito, Lee, Morelle, Sewell, and Torres.
Staff present: March Bell, Parliamentarian; Jackie Bossman,
Counsel; Annemarie Cake, Professional Staff and Deputy Clerk;
Rachel Collins, Deputy General Counsel; Kristen Monterroso,
Director of Operations and Legislative Clerk; Michael Platt,
Staff Director; Jordan Wilson, Director of Member Services;
Khalil Abboud, Minority Deputy Staff Director; Jamie Fleet,
Minority Staff Director; Kwame Newton, Minority Oversight
Counsel; Matt Schlesinger, Minority Senior Counsel; and Sean
Wright, Minority Chief Counsel.
OPENING STATEMENT OF HON. BRYAN STEIL, CHAIRMAN OF
THE COMMITTEE ON HOUSE ADMINISTRATION, A U.S. REP-
RESENTATIVE FROM WISCONSIN
Chairman Steil. The Committee on House Administration will
come to order. I note that a quorum is present.
Without objection, the chair may declare a recess at any
time. Also, without objection, the hearing record will remain
open for 5 legislative days so Members may submit any material
they wish to be included therein.
Thank you, Ranking Member Morelle, Members of the
Committee, and our witnesses, for participating in today's
panel.
When drafting the Constitution, the Founding Fathers
created the legislative branch under article I and created the
People's House.
Our Founders envisioned Congress to be the most powerful
branch of the Federal Government; yet, in recent years, we have
seen Congress become possibly the weakest of the three
branches.
Last month, the Supreme Court decided that must change.
In 1982, the Supreme Court made a mistake establishing the
Chevron doctrine. In Chevron v. NRDC, the Court established the
Chevron doctrine, concluding that the Court should defer to
unelected Federal bureaucrats for implicit statutory
interpretation.
For 40 years, Federal agencies have interpreted and
implemented laws based on their own definitions, sometimes
unaligned with congressional intent.
Under Chevron, executive branch agencies had the central
role in interpreting Federal statutes. In turn, it took power
away from Congress and allowed unelected Federal bureaucrats to
make decisions that impacted hundreds of millions of Americans.
Last month, the Supreme Court changed course. In the Loper
Bright case, the Court overturned the Chevron doctrine and
placed the lawmaking power back where it belongs--with us in
Congress.
The Justices agreed with many of the concerns we in
Congress have voiced for decades.
In his concurring opinion, Justice Thomas wrote, quote,
``By giving the force of law to agency pronouncements on
matters of private conduct as to which Congress did not
actually have an intent, Chevron permits a body other than
Congress to perform a function that requires an exercise of
legislative power.''
In his concurring opinion, Justice Gorsuch explained,
quote, ``Even its most ardent defenders have conceded, Chevron
deference rests upon a `fictionalized statement of legislative
desire,' namely, a judicial supposition that Congress
implicitly wishes judges to defer to executive agencies'
interpretations of the law even when it has said nothing of the
kind.''
The Supreme Court's decision in Loper Bright overturning
the Chevron doctrine correctly restores legislative power where
the Constitution actually assigns it--in the legislative
branch.
Now it is our opportunity to explore how we leverage the
Supreme Court's ruling.
Without action, we run the risk of continuing to grow the
administrative state. We must rein in the administrative state.
Let us look at the facts.
There are 439 executive branch agencies that have the
authority to issue and enforce Federal regulations. There are
2.2 million non-military executive branch employees. There are
over 200,000 pages in the Federal Code of Regulations. In fact,
the Biden administration published over 90,000 pages in the
Federal Register last year.
For context, the Bible is 1,200 pages. That means the Biden
administration has added roughly 80 Bibles worth of material in
just 1 year.
The Biden administration's regulations have cost taxpayers
an estimated $1.4 trillion since he took office.
How can Congress address the growing administrative state?
What are the first steps we should take?
Today, we will talk about how and when Congress should
engage in the rulemaking process, Congress' capacity to do so,
and more.
For decades, the model was simple--Congress established the
policies by passing laws and agencies provided technical
expertise through the rulemaking process. The agencies have
gone far beyond providing technical expertise.
Now that the Supreme Court has correctly overturned the
Chevron deference doctrine, we must begin restoring power to
the legislative branch.
This is our opportunity to ask important questions about
the structure of Congress now that our role in the rulemaking
process has been reestablished.
In the Loper Bright decision, the Supreme Court has
provided a real opportunity for Congress to restore itself to
the People's House once again.
I look forward to a robust discussion on the important
topic today.
[The prepared statement of Chairman Steil follows:]
PREPARED STATEMENT OF CHAIRMAN OF THE COMMITTEE
ON HOUSE ADMINISTRATION BRYAN STEIL
When drafting the Constitution, the Founding Fathers
created the legislative branch under article I and created the
People's House.
Our Founders envisioned Congress to be the most powerful
branch of the Federal Government; yet, in recent years, we have
seen Congress become possibly the weakest of the three
branches.
Last month, the Supreme Court decided that must change.
In 1982, the Supreme Court made a mistake establishing the
Chevron doctrine. In Chevron v. NRDC, the Court established the
Chevron doctrine, concluding that the Court should defer to
unelected Federal bureaucrats for implicit statutory
interpretation.
For 40 years, Federal agencies have interpreted and
implemented laws based on their own definitions, sometimes
unaligned with congressional intent.
Under Chevron, executive branch agencies had the central
role in interpreting Federal statutes. In turn, it took power
away from Congress and allowed unelected Federal bureaucrats to
make decisions that impacted hundreds of millions of Americans.
Last month, the Supreme Court changed course. In the Loper
Bright case, the Court overturned the Chevron doctrine and
placed the lawmaking power back where it belongs--with us in
Congress.
The Justices agreed with many of the concerns we in
Congress have voiced for decades.
In his concurring opinion, Justice Thomas wrote, quote,
``By giving the force of law to agency pronouncements on
matters of private conduct as to which Congress did not
actually have an intent, Chevron permits a body other than
Congress to perform a function that requires an exercise of
legislative power.''
In his concurring opinion, Justice Gorsuch explained,
quote, ``Even its most ardent defenders have conceded, Chevron
deference rests upon a `fictionalized statement of legislative
desire,' namely, a judicial supposition that Congress
implicitly wishes judges to defer to executive agencies'
interpretations of the law even when it has said nothing of the
kind.''
The Supreme Court's decision in Loper Bright overturning
the Chevron doctrine correctly restores legislative power where
the Constitution actually assigns it--in the legislative
branch.
Now it is our opportunity to explore how we leverage the
Supreme Court's ruling.
Without action, we run the risk of continuing to grow the
administrative state. We must rein in the administrative state.
Let us look at the facts.
There are 439 executive branch agencies that have the
authority to issue and enforce Federal regulations. There are
2.2 million non-military executive branch employees. There are
over 200,000 pages in the Federal Code of Regulations. In fact,
the Biden administration published over 90,000 pages in the
Federal Register last year.
For context, the Bible is 1,200 pages. That means the Biden
administration has added roughly 80 Bibles worth of material in
just 1 year.
The Biden administration's regulations have cost taxpayers
an estimated $1.4 trillion since he took office.
How can Congress address the growing administrative state?
What are the first steps we should take?
Today, we will talk about how and when Congress should
engage in the rulemaking process, Congress' capacity to do so,
and more.
For decades, the model was simple--Congress established the
policies by passing laws and agencies provided technical
expertise through the rulemaking process. The agencies have
gone far beyond providing technical expertise.
Now that the Supreme Court has correctly overturned the
Chevron deference doctrine, we must begin restoring power to
the legislative branch.
This is our opportunity to ask important questions about
the structure of Congress now that our role in the rulemaking
process has been reestablished.
In the Loper Bright decision, the Supreme Court has
provided a real opportunity for Congress to restore itself to
the People's House once again.
I look forward to a robust discussion on the important
topic today.
Chairman Steil. I am going to recognize Ranking Member
Morelle in just a second. We, obviously, have votes coming up.
Just in an operations standpoint, we are going to go until we
determine we have to head to the floor. We will take a brief
recess, and we will return.
Now I will recognize Ranking Member Morelle for 5 minutes
for the purpose of providing an opening statement.
OPENING STATEMENT OF HON. JOSEPH MORELLE, RANKING
MEMBER OF THE COMMITTEE ON HOUSE ADMINISTRATION,
A U.S. REPRESENTATIVE FROM NEW YORK
Mr. Morelle. Good morning.
Thank you, Chairman Steil.
Thank you to the witnesses for being here today.
Too frequently in recent years the conservative majority on
the U.S. Supreme Court has reversed longstanding legal
precedent. These decisions have harmed the American public.
Take, for example, the conservative majority's decision to
overturn Roe v. Wade and restrict reproductive freedom in
America; or, in another instance, this Court further eroded the
ability for Americans of color to cast a free, fair, and
meaningful ballot.
Most recently, the extreme conservatives on the Supreme
Court reversed the 1984 Chevron v. Natural Resources Defense
Council decision, which allowed the Government to implement
reasonable regulations within their expertise.
This decision is what we are here to discuss today.
Chevron stood for the common-sense proposition that
Congress and the executive branch should be the primary
policymakers in Government because they are accountable to the
people through the ballot box. The power rests with the people,
not an unelected court.
Congress empowers the executive branch to make certain
policy choices. These choices often involve scientific or
technical subjects about which agencies have greater expertise
than Congress and the courts.
In reversing Chevron, however, the Supreme Court makes it
more difficult for Congress to exercise its power. In an
instant, the conservative majority on the Supreme Court
substituted its policymaking judgment for the elected branches
of Government. The American people will suffer as a result.
Let us be crystal clear: This decision did not empower
Congress. I strongly disagree with my friend and chair, Mr.
Steil. It empowered the conservative majority on the Supreme
Court and a legion of Federalist Society-vetted lower court
judges to make extreme and ill-informed decisions impacting
every American's daily life.
Further, the decision is a tremendous gift to the wealthy
and to special interests. Corporations will bend over backward
to find cases to undo existing regulations protecting the food
and drugs our children consume, the quality of the air we all
breathe, and the cleanliness of the water our families drink.
Imagine weaker regulations on baby food and baby formula.
Imagine weaker regulations on brake pads for our cars. Imagine
weaker regulations for air travel and traffic control.
This decision will inhibit sensible regulation of
especially technical policy areas, including nuclear power,
artificial intelligence, climate and the climate crisis, and so
much more.
It is important to understand that this extreme decision
also plays into the MAGA Republicans' playbook. If Republicans
are successful this November, they will unleash Trump's Project
2025 on the American people. We know the harm Trump's Project
2025 will cause.
By mass firing civil servants, like the people who work
every day to ensure our produce is not rotting and our meat is
not putrid, Trump's Project 2025 will further threaten the
Government's expertise to address the most pressing issues of
our day.
Reversing Chevron and implementing Trump's Project 2025 are
interconnected. Look no further than today's hearing, which
includes a witness called by the Republican majority who was
recognized for, quote, ``devoting a significant amount of
valuable time to reviewing and editing Project 2025 and for
providing expert advice and insight on the project.''
Here we are. In Congress, we are left to deal with the
fallout. Even before the decision, as documented by the
bipartisan Select Committee on Modernization, led by our
colleague Representative Derek Kilmer in the previous Congress,
Congress desperately needed an infusion of resources, capacity,
and expertise. Now the need is more urgent.
If my colleagues on the other side of the aisle are serious
about preparing us for a post-Chevron existence, we need to
approve an adequate legislative branch appropriations bill. The
Republican majority embarrassingly failed to pass the
legislative appropriations bill last week because they refused
to work in a bipartisan manner to prioritize our constituents
and this article I institution.
Even after catering to extreme MAGA Republicans in the
legislative branch Subcommittee markup and then during
Committee at the full Committee, of which I am a Member, all
that pandering was for nothing.
Extreme MAGA Republicans defeated the appropriations bill
on the floor, which funds offices like the Office of
Legislative Counsel, the parliamentarian, the Congressional
Research Service, not because the bill did too little, but
because they believe it provides too much.
We know what we need to do because we have done it before.
I am proud of the recent improvements made during Democratic
control of the House to recruit and retain skilled staff
spearheaded by this Committee. That included imposing the
first-ever minimum pay rate for full-time House staff,
decoupling Member pay and staff pay, which allowed us to raise
the staff pay cap and retain subject matter experts and policy
drafters, expanding benefits like the Student Loan Repayment
Program, increasing resources for the Congressional Staff
Academy and the Coach program.
To meet the moment, we need to be clear-eyed about how
significant an investment is required. This Committee is well-
positioned to lead. I hope we can do so in a bipartisan
fashion.
With that, Mr. Chair, I yield back my time.
[The prepared statement of Ranking Member Morelle follows:]
PREPARED STATEMENT OF RANKING MEMBER OF THE
COMMITTEE ON HOUSE ADMINISTRATION JOSEPH MORELLE
Too frequently in recent years the conservative majority on
the U.S. Supreme Court has reversed longstanding legal
precedent. These decisions have harmed the American public.
Take, for example, the conservative majority's decision to
overturn Roe v. Wade and restrict reproductive freedom in
America; or, in another instance, this Court further eroded the
ability for Americans of color to cast a free, fair, and
meaningful ballot.
Most recently, the extreme conservatives on the Supreme
Court reversed the 1984 Chevron v. Natural Resources Defense
Council decision, which allowed the Government to implement
reasonable regulations within their expertise.
This decision is what we are here to discuss today.
Chevron stood for the common-sense proposition that
Congress and the executive branch should be the primary
policymakers in Government because they are accountable to the
people through the ballot box. The power rests with the people,
not an unelected court.
Congress empowers the executive branch to make certain
policy choices. These choices often involve scientific or
technical subjects about which agencies have greater expertise
than Congress and the courts.
In reversing Chevron, however, the Supreme Court makes it
more difficult for Congress to exercise its power. In an
instant, the conservative majority on the Supreme Court
substituted its policymaking judgment for the elected branches
of Government. The American people will suffer as a result.
Let us be crystal clear: This decision did not empower
Congress. I strongly disagree with my friend and chair, Mr.
Steil. It empowered the conservative majority on the Supreme
Court and a legion of Federalist Society-vetted lower court
judges to make extreme and ill-informed decisions impacting
every American's daily life.
Further, the decision is a tremendous gift to the wealthy
and to special interests. Corporations will bend over backward
to find cases to undo existing regulations protecting the food
and drugs our children consume, the quality of the air we all
breathe, and the cleanliness of the water our families drink.
Imagine weaker regulations on baby food and baby formula.
Imagine weaker regulations on brake pads for our cars. Imagine
weaker regulations for air travel and traffic control.
This decision will inhibit sensible regulation of
especially technical policy areas, including nuclear power,
artificial intelligence, climate and the climate crisis, and so
much more.
It is important to understand that this extreme decision
also plays into the MAGA Republicans' playbook. If Republicans
are successful this November, they will unleash Trump's Project
2025 on the American people. We know the harm Trump's Project
2025 will cause.
By mass firing civil servants, like the people who work
every day to ensure our produce is not rotting and our meat is
not putrid, Trump's Project 2025 will further threaten the
Government's expertise to address the most pressing issues of
our day.
Reversing Chevron and implementing Trump's Project 2025 are
interconnected. Look no further than today's hearing, which
includes a witness called by the Republican majority who was
recognized for, quote, ``devoting a significant amount of
valuable time to reviewing and editing Project 2025 and for
providing expert advice and insight on the project.''
Here we are. In Congress, we are left to deal with the
fallout. Even before the decision, as documented by the
bipartisan Select Committee on Modernization, led by our
colleague Representative Derek Kilmer in the previous Congress,
Congress desperately needed an infusion of resources, capacity,
and expertise. Now the need is more urgent.
If my colleagues on the other side of the aisle are serious
about preparing us for a post-Chevron existence, we need to
approve an adequate legislative branch appropriations bill. The
Republican majority embarrassingly failed to pass the
legislative appropriations bill last week because they refused
to work in a bipartisan manner to prioritize our constituents
and this article I institution.
Even after catering to extreme MAGA Republicans in the
legislative branch Subcommittee markup and then during
Committee at the full Committee, of which I am a Member, all
that pandering was for nothing.
Extreme MAGA Republicans defeated the appropriations bill
on the floor, which funds offices like the Office of
Legislative Counsel, the parliamentarian, the Congressional
Research Service, not because the bill did too little, but
because they believe it provides too much.
We know what we need to do because we have done it before.
I am proud of the recent improvements made during Democratic
control of the House to recruit and retain skilled staff
spearheaded by this Committee. That included imposing the
first-ever minimum pay rate for full-time House staff,
decoupling Member pay and staff pay, which allowed us to raise
the staff pay cap and retain subject matter experts and policy
drafters, expanding benefits like the Student Loan Repayment
Program, increasing resources for the Congressional Staff
Academy and the Coach program.
To meet the moment, we need to be clear-eyed about how
significant an investment is required. This Committee is well-
positioned to lead. I hope we can do so in a bipartisan
fashion.
Chairman Steil. The gentleman yields back.
Today we have a one witness panel.
The Honorable Paul J. Ray, former associate director of the
Office of Information and Regulatory Affairs that is housed
within the executive branch's Office of Management and Budget,
where he supervised and reviewed hundreds of regulations. He
now leads the Heritage Foundation's work on regulatory and
economic policy as director of the Thomas A. Roe Institute for
Economic Policy Studies.
Mr. Satya Thallam is a former senior advisor at OIRA and is
now the senior vice president of Government affairs for
Americans for Responsible Innovation. He is a policy expert and
advisor, having served in senior roles in the congressional and
executive branches, and is an executive at a biotechnology
startup.
Dr. Kevin Kosar is a resident senior fellow at the American
Enterprise Institute where he studies Congress, congressional
oversight, and the administrative state. Dr. Kosar has written
several books, spent more than a decade working for the
Congressional Research Service, and has previously testified
before our Modernization Subcommittee.
Mr. Wayne Crews is the Fred L. Smith Fellow in Regulatory
Studies at the Competitive Enterprise Institute. His work
explores the impact of Government regulation on free
enterprise. Mr. Crews has authored numerous works, such as the
annual report titled ``Ten Thousand Commandments: An Annual
Snapshot of the Federal Regulatory State.''
Professor Josh Chafetz is an Agnes Williams
Sesquicentennial Professor of Law and Politics at the
Georgetown University Law Center. Professor Chafetz has
multiple publications, including his book titled ``Congress's
Constitution: Legislative Authority and the Separation of
Powers.''
We appreciate you being with us today and look forward to
your testimony.
Pursuant to paragraph (b) of Committee Rule 6, the
witnesses will please stand and raise their right hands.
[Witnesses sworn.]
Chairman Steil. Let the record show that the witnesses all
answered in the affirmative.
You may be seated.
Let me remind the witnesses that we have read your written
statements, and they will appear in full in the hearing record.
Under Committee Rule 9, you are to limit your oral presentation
to a brief summary of your written remarks.
We are going to take a brief pause of the Committee before
we begin opening remarks. I would remind the Members they have
told us that they are going to gavel down the first vote at a
hard 20 minutes. We will see if that is the case. Following the
four votes, we will return promptly.
The Committee stands in recess.
[Recess.]
Chairman Steil. The Committee on House Administration will
reconvene and come to order where we left off.
I will now recognize Hon. Paul Ray for 5 minutes for the
purpose of giving an opening statement.
STATEMENTS OF PAUL J. RAY, DIRECTOR, THOMAS A. ROE IN-
STITUTE FOR ECONOMIC POLICY STUDIES; SATYA
THALLAM, SENIOR VICE PRESIDENT OF GOVERNMENT AF-
FAIRS, AMERICANS FOR RESPONSIBLE INNOVATION; KEVIN
KOSAR, RESIDENT SENIOR FELLOW, AMERICAN ENTER-
PRISE INSTITUTE; WAYNE CREWS, FRED L. SMITH FELLOW
IN REGULATORY STUDIES, COMPETITIVE ENTERPRISE IN-
STITUTE; AND JOSH CHAFETZ, AGNES WILLIAMS SESQUI-
CENTENNIAL PROFESSOR OF LAW AND POLITICS, GEORGE-
TOWN UNIVERSITY LAW CENTER
STATEMENT OF PAUL J. RAY
Mr. Ray. Chairman Steil, Ranking Member Morelle, and
distinguished Members of the Committee, it is an honor to
appear here today. Thank you for the invitation.
I direct the Heritage Foundation's Roe Institute for
Economic Policy Studies. From June 2018 through January 2021, I
served in the Office of Information and Regulatory Affairs
within OMB. For the last year of that period, I had the double
honor to serve as Administrator of OIRA and to work with Satya
here to my right.
While at OIRA, I had the chance to form views about many of
the ways our regulatory system succeeds and fails. The views I
express here are my own and should not be construed as
representing any official position of the Heritage Foundation.
Today's topic--the relationship of Congress to the
agencies--is a vast one. Every year many bills are introduced
to modify this relationship.
Today, I would like to offer some thoughts on the
overarching framework for evaluating such bills. I would like
to argue that the Founders intended Congress to provide not
just representation but a certain sort of representation, one
that imports into the legislative process certain qualities
that Congress and Congress alone can offer. Congress would
favor bills that inject these qualities into the administrative
process.
The Loper Bright and Relentless decisions have made it
easier for Congress to play its role successfully, though,
ultimately, that success has to come down to the actions of
Congress itself.
In 1788, Founding Father John Dickinson wrote that under
the newly proposed American Constitution, quote, ``the whole
people of the United States are to be trebly represented . . .
in three different modes of representation.'' Each branch of
the new Government would represent the people in its own unique
way. Congress was to channel the people's wisdom and justice;
the President, their energy; and the courts, their judgment.
The Constitution brings these three modes of representation
together in an arrangement that puts to use the qualities of
each.
The Founders intended Congress to offer qualities that the
President and the courts do not. Congress was meant to be the
people in miniature. In John Adams' words, it would think,
feel, reason, and act like the people.
Elections are, of course, one principal way of achieving
this goal, but there are others. The Founders believed it
crucial that Members of Congress feel the effects of their
legislation precisely the same way the people do. They
emphasized that Members of Congress would be subject to the
laws they enact just like the people and so would share a,
quote, ``communion of interests and sympathy of sentiments''
with the people, as the Federalist Papers put it.
The separation of powers preserves that communion, for by
barring Congress from enhancing its own powers through
legislation it prevents the distorting incentives to which such
a possibility would give rise.
These arrangements serve to channel the people's views into
legislation, but as the Founders discovered during the
turbulent first years of independence, the people is no
monolithic entity. It comprises a vast diversity of interest
and opinion groups, some of which are all too willing to use
State power to exploit their opponents.
The Founders' solution to this problem relied on these very
same diverse interest and opinion groups. To garner a majority
of votes, legislation must attract the support of many
disparate factions and so must appeal either to interests most
or all Americans share or to our common sense of justice.
While it is also possible for legislation to achieve
passage based on its appeal to a majority coalition of
factions, the multipolar legislative process was intended to
make the transaction costs of forging coalitions like this
prohibitively high.
Now, administrative agencies are not set up to offer the
benefits of legislative representation. There are two main
models of administration, which we can call bureaucratic and
Presidential.
On the bureaucratic side, agencies are supposed to operate
rather like policy courts. Indeed, early advocates analogized
the agencies to courts and argued they should receive the same
kinds of protections for their independence that courts enjoy.
The problem with the analogy is that statutes often leave
substantial policy discretion to the agencies. Agencies, unlike
courts, must set policy.
Article III-style representation is hopelessly ill-suited
to channel the people's policy views. For one thing, agency
officials are not elected, nor do they live under the
regulations they issue.
To the contrary, agencies can enhance their own powers
through their regulations, which can sometimes give them
interests that are opposite to the people's, notwithstanding
the best efforts of the agency staff.
Nor can Presidential administrations supply the qualities
of legislative representation. This is mainly because
Presidential unity exposes the Presidential decision-making
process to capture by interest and opinion groups, which can
obtain the executive action they want without persuading
representatives of many diverse factions, as they must under
article I.
Presidential supervision of administrative agencies has
much to be said for it, but one thing that cannot be said for
it is that it can substitute for Congress' own role.
Of currently pending legislation, the REINS Act would go
furthest toward reviving legislation representation in the
context of the administrative state. The Act would, in large
part, subject major regulations to the article I process with
its electoral responsiveness, separation of powers, antifaction
protections, and stability-promoting features.
More broadly, Congress' role with respect to the agencies
should be to inject into the process those qualities that
legislative representation was intended to provide. Loper
Bright and Relentless can help Congress to do so by lowering
the transaction costs of enacting legislative effects that
limit agency discretion.
Thank you.
[The prepared statement of Mr. Ray follows:]
PREPARED STATEMENT OF PAUL J. RAY
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much.
I now recognize you, Mr. Satya Thallam, for 5 minutes.
STATEMENT OF SATYA THALLAM
Mr. Thallam. Thank you, Chairman Steil, Ranking Member
Morelle, and Members of Committee. Thank you for the
opportunity to testify.
I will apologize up front. I lost my voice a couple days
ago. Now I am relegated to sounding like Wilford Brimley or
something or the coach from ``Major League.''
My name is Satya Thallam, senior VP at Americans for
Responsible Innovation, senior fellow at Foundation for
American Innovation, and perhaps most pertinent for this
hearing, for a number of years I was a senior staffer at the
Senate Committee that had primary jurisdiction over the
Administrative Procedure Act and all regulatory process-related
issues, and later worked at OIRA, which Paul mentioned.
In this testimony, I hope to make three basic points.
First, if you will pardon the slightly obtuse metaphor,
Federal policymaking follows something like the first law of
thermodynamics: Energy in a system can move between different
parts or change form, but it is neither created nor destroyed.
What this means is if one branch does not energetically
exploit its prerogative to make policy decisions, those policy
decisions will be made elsewhere by the other branches.
Like a balloon, squeezing on one part will simply move the
gas to another area. Ambition must be made to counteract
ambition, as Madison said, but apathy is not met with
symmetrical apathy.
What the Court has done is used its own prerogative to
reassert a new equilibrium, and, yes, this has the effect of
empowering the article I branch. This effect is not self-
executing. It is right now a kind of potential energy waiting
for a force to be applied turning it into kinetic energy, to
further torture my classical mechanics metaphor.
Second, let us remember that the original Chevron decision
itself ultimately permitted agency discretion in that case in
what most people agreed was a deregulatory direction. The APA
had wanted to permit more flexibility in regulatory compliance,
making the existing rule less constraining.
The Chevron decision, not the most recent decision but the
original Chevron decision and now Loper Bright, are neither,
quote, ``regulatory or deregulatory.'' This formulation makes
no sense.
Further on this point, the APA does not contemplate a thing
called a, quote, ``deregulation'' as something afforded a
deferential process. The APA defines rulemaking as, quote,
``agency process for formulating, amending, or appealing a
rule.'' In other words, everything, any change to the Code of
Federal Regulations, is similarly situated and is not tilted in
favor of one or the other.
Third point, and I believe at least some, if not all, of my
colleagues on this panel will agree with the need, maybe not
even limited to responding to this decision, to increase
congressional capacity.
As the sole branch of Government constitutionally vested
with legislative powers, it behooves Congress to be best
equipped to execute that responsibility. In naive terms,
Congress is worse off.
Since this decision, contrary to the hearing's title, it
has actually returned to the pre-Chevron regime.
Let us go back. In the 40 years since the decision, the
total number of congressional staff has actually decreased, has
actually gone down by a few percent. In the last 30 years, the
number of Committee staff has gone down by 40 percent.
Does anyone on the Committee believe Congress' work has
become less complicated, confusing, and therefore easier since
then?
Members of Congress may be wary of the self-aggrandizing
appearance of accumulating more staff, but human capital and
expertise are embodied in people, and this kind of a decrease
in intellectual capacity has only one result in terms of
productivity and effectiveness. This is, admittedly, a crude
measurement of congressional capacity, but I hope you get the
point.
Finally, an anecdote on this capacity on a slightly related
thing.
Many of you are familiar with the Congressional Review Act
and its requirement that a report be submitted to Congress for
review for every new rule. Well, in 2020, for obvious reasons,
the normal processes for submitting those reports, which at the
time were all done by hard copy, were severely challenged.
When I inquired with various offices to find a solution,
like submitting those reports electronically, therefore they
would have a time stamp of the receipt, and then follow up with
hard copies, I was told emphatically, ``We do not have the
capacity to set up such a system.''
I do not want to be too precious about this point, but if
Congress has not made even modest administrative updates of
fairly mundane processes, how can we believe Congress is
equipped to handle an increasingly complex, unpredictable, and
fast-moving 21st century?
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Thallam follows:]
PREPARED STATEMENT OF SATYA THALLAM
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much.
I now recognize you, Mr. Kevin Kosar, for 5 minutes.
STATEMENT OF KEVIN KOSAR
Mr. Kosar. All righty. Chairman, Ranking Member, and
Members of the Committee, thank you for having me in. I am
honored to be before you.
Well, I will limit myself to two points, the first of which
is evident, but there has been a lot of hyperbolic commentary
online and in the media.
The Court's decision in Loper Bright and the Relentless
cases did not end regulation. It did not slay the
administrative state. Agencies will continue to interpret the
law and to issue regulation and guidance and all those sorts of
documents to try to apply statutes.
This leads me to point No. 2, which my friend has well set
up: Congress does not really have an oversight apparatus to
ensure that when the executive branch engages in regulatory
actions, that their actions comport with the law.
article I of the Constitution, as has been said, confers
all legislative authority, all lawmaking authority, to this
institution, Congress.
article II says the President shall take care that the law
be faithfully executed. Well, how do you ensure that the law is
being faithfully executed?
Over the course of the last century, as the scope of
Federal activities has grown, Congress has made various ad hoc
investments in itself to do that. It, for example, 100 years
ago created the General Accounting Office, GAO, to follow the
money and ensure money was not being spent outside the bounds
set by appropriations acts.
It created inspectors general to keep an eye on agency
personnel----
Chairman Steil. Mr. Kosar, I am getting a note that it is a
little difficult to hear you on the stream. We can hear you in
the room just fine, but I know we have a lot of people
listening. If you just want to pull that microphone a little
closer, because I want to make sure everyone online can hear.
Mr. Kosar. Sure. How is that?
Chairman Steil. Thank you.
Mr. Kosar. All right. Thank you.
Yes, you also created inspectors general in order to keep
an eye on agency personnel and make sure they were not acting
outside of the law.
Nothing has been built to help you all oversee regulation
and ensure that it is being done in a way that is within the
bounds of the law. Today regulation is a massive part of
policymaking. As noted in your introductory statement, we have
439 agencies, and there are a few thousand rules being issued
every year, some small, some large. That is a lot of work, and
nobody is directly tasked with doing it.
I come to you, a conservative who believes in
constitutional Government, reviving federalism, smaller
Government, all those sort of traditional conservative values,
and I am saying, please create a congressional regulation
office. Whether it is a freestanding office, whether it is an
office you tuck inside the Congressional Budget Office is not
something that matters to me.
20 years in D.C., it has been my perception that if you
want something to get done you have to task somebody with doing
it. I see you all working frantically. I see your staffs
working especially frantically. Many things to do, so much to
oversee, so much coming at you. How you can fruitfully engage
regulatory actions at this point, I do not think you can. The
capacity is just not there.
Creating a corps of folks who have legal skills, policy
chops, but also statistical analysis skills who can look at the
executive branch as it moves through the regulatory process
from snout to tail and ensure that what they are doing is
within the law.
This is a corps of folks who could help maintain a dialog
for the Congress with the executive branch as it goes through
the process, as it works through these nettlesome, complicated
issues and deals with these unforeseen things that were
probably not even on your mind as you passed the bill.
With that, you know what, I have got 50 seconds left. I am
just going to give back my time and thank you for hearing me.
[The prepared statement of Mr. Kosar follows:]
PREPARED STATEMENT OF KEVIN KOSAR
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Unprecedented. The gentleman yields back.
[Laughter.]
Chairman Steil. Mr. Wayne Crews is recognized for 5
minutes.
STATEMENT OF WAYNE CREWS
Mr. Crews. Chairman Steil, Ranking Member Morelle, and
Members of the Committee, thank you for the opportunity to
testify on Congress' role in a post-Chevron world.
My name is Wayne Crews. I am the Fred L. Smith Fellow in
Regulatory Studies at the Competitive Enterprise Institute.
Federal spending hogs the spotlight, but the hidden tax of
regulation affects every aspect of our lives. The Code of
Federal Regulations tops 188,000 pages. Last year alone
agencies issued 3,000 rules compared to just 65 laws passed by
Congress.
Costs remain unaccounted for, notably those from
independent agencies now ascendent in whole-of-Government
pursuits like Net Zero Energy, AI, equity, and competition
policy.
Congress must reclaim its lawmaking authority from the
executive branch, but first and foremost it must restrain its
own interventionist appetites.
There are many elements to this in my written remarks, but
they all require that Congress--and this Committee in
particular--marshal appropriate resources and personnel to
perform rigorous regulatory oversight and disclosures,
replacing the eroded White House variant.
The end of Chevron deference marks an overdue reaffirmation
of separation of powers and a break on overdelegation. However,
it is crucial to recognize the extent to which regulatory
advocates will mobilize in response.
While extraordinary extensions of regulatory power occurred
during Chevron's reign, most of the leverageable administrative
apparatus was erected before then. Especially since COVID, the
problem is less about agency interpretation of the ambiguous
statutes at hand in Loper but agencies' implementation of
unambiguous statutes.
The Inflation and Infrastructure and CHIPS laws are
exceedingly regulatory even before administrators pick up a
pencil. Workarounds exist for regulatory advocates to exploit
in a post-Chevron world, including:
One, more coordination on potent, unambiguous, and purpose-
driven legislation, like the CARES Act and the TikTok ban.
Two, seducing the private sector with subsidies, grants,
and partnerships to embrace interventionist legislation and
cartelization.
Three, increasing Federal influence with hundreds of
billions in procurement and contracting.
Four, replacing notice and comment rules with guidance
documents and other forms of regulatory dark matter.
To prepare, an outstanding but neglected new GAO report
provides recommendations that this Committee should heed, up to
and including establishing a Congressional Office of Regulatory
Analysis.
Done correctly, a CORA could challenge mistaken
presumptions of agency expertise and avoid the faulty
presumption that market failure outweighs political failure.
To reinforce GAO, other needed steps include overturning
Biden's rewrite of OMB Circular A-4 and ensuring that
regulatory reform laws already in effect but disregarded get
enforced.
Next comes the pursuit of several new legislative reforms.
One, passing the REINS Act, ideally under its predecessor's
superior name, the Congressional Responsibility Act.
Two, taking up the Democrats on their marvelous regulatory
budgeting idea.
Three, creating a regulatory reduction commission.
Four, reinstating one-in, one-out policies and sunsetting
regulations.
Fifth, and most importantly, reforms in the use of agency
subregulatory guidance documents, including banning them.
Six, the low-hanging fruit should be the annual regulatory
reporting in the style of the Federal budget's historical
tables.
A generation ago, a slate of regulatory reforms benefiting
State and local government, small business, and consumers
passed with overwhelming bipartisan support. Today's fusion of
hyper spending and regulation, Government steers while the
market merely rose, as our founder Fred Smith puts it, the
costs of intervention compound even without writing notice and
comment rules.
Correcting overdelegation is vital, but the real challenge
is Congress' own disregard for enumerated powers. Response
requires decentralizations, federalism, and ending the abuse of
crises like happened with COVID and the financial meltdown.
By enhancing resources and fostering reforms, this
Committee could play a key role in limiting overregulation and
expanding jobs and wealth. You do not need to tell the grass to
grow, you just have to take the rocks off of it.
Thank you again, and I am happy to answer your questions.
[The prepared statement of Mr. Crews follows:]
PREPARED STATEMENT OF WAYNE CREWS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much, Mr. Crews.
Mr. Josh Chafetz, you are now recognized for 5 minutes.
STATEMENT OF JOSH CHAFETZ
Mr. Chafetz. Chairman Steil, Ranking Member Morelle, and
distinguished Members of the Committee, thank you for the
opportunity to testify today regarding the vitally important
topic of congressional responses to the Supreme Court's recent
Loper Bright decision, which ended the practice of according
Chevron deference to agencies' interpretations of the statutes
that they administer.
Let me begin with a few words about the likely effects of
Loper Bright.
First, it is likely to lead to more judicial policymaking.
The largest study of agency statutory interpretation cases in
the circuit courts found that use of Chevron deference
significantly reduced ideological decision making by judges. In
pre-Loper Bright cases where Chevron deference was not applied,
political preferences played a much larger role in case
outcomes.
One thing we can say about Loper Bright is it will very
likely free the hands of judges to dispense with regulations
that they dislike.
Indeed, we should see Loper Bright as part of a larger
project by the Roberts' Court of judicial self-aggrandizement
across administrative law and beyond.
In context, ranging from the removability of agency
officials to the availability of in-house agency adjudication
to the so-called major questions doctrine and more, the Court
has repeatedly undermined the regulatory regimes that Congress
has put in place. In their stead, the Court has substituted its
own preferences as to how Government should be constructed and
what policies it may enact.
Loper Bright ignores research demonstrating that Chevron
was the interpretive tool most familiar to congressional
drafters, far more so than canons relied upon by the Supreme
Court with some regularity.
Drafters were well aware that statutory ambiguity would be
interpreted as the delegation of interpretive authority to the
agency, and if they did not want that agency to have that
authority they attempted to draft with greater specificity.
Eliminating a doctrine in whose shadow Congress has drafted
for decades and replacing it with something significantly less
certain in its operation is not congressional empowerment. It
is judicial empowerment.
Agencies, seeing this posture by the courts, are likely to
respond by preemptively trimming their sails, issuing only
those regulations that they think are likely to meet with
judicial approval and refraining from altering old
interpretations even as new information and new technologies
become available.
The flexibility that is a hallmark of the administrative
state, the flexibility that Congress has designed into the
administrative state will be substantially undermined, all
under the flag of supposedly empowering Congress.
What can Congress do to respond to this judicial power
grab?
Well, first, in the realm of bill drafting, Congress can
write deference into individual bills empowering agencies, or
it could even draft a standalone bill reinstituting Chevron
deference.
Because Loper Bright claims to be an interpretation of the
Administrative Procedure Act, not a constitutional holding, it
can be reversed by statute.
Congress could also choose to draft in ways that clearly
indicate that it is vesting significant discretion in agencies,
using words like ``reasonable'' or ``appropriate.'' This, too,
would be consistent with the language of the Loper Bright
decision.
Of course, just because these drafting techniques would be
consistent with the facial reasoning of Loper Bright does not
mean that the Court would not find other ways to skirt them or
strike them down. The general anti-administrative posture of
the current Court should make us skeptical that it will allow
Congress to assert itself in these ways.
The other category of responses to Loper Bright falls under
the heading of congressional capacity building, and here is an
area in which I think possibly all of us on this panel agree.
If the Court is going to insist that Congress make policy
at ever more granular levels, then Congress will need to build
an institutional infrastructure mirroring that which currently
exists at the agencies. This means large increases in the
number of staffers and diversifying the experience of staffers,
including hiring many with graduate degrees in the social and
physical sciences and many more with security clearances.
It means paying those staffers well enough to retain them
and giving them access to resources like sophisticated
information technology databases and perhaps even in some cases
laboratories.
The proposals put forward by the Modernization Committee,
some of which have been adopted, would be a step in the right
direction, but only a step. Even a massive increase in
congressional capacity could never fully substitute for
administrative expertise.
There is a reason that no modern democratic system that I
am aware of has its legislature making policy at the level of
granularity at which agencies regulate.
Moreover, many governance decisions in the executive branch
are specific to circumstances that arise after implementation
has already begun. Asking Congress to resolve those issues ex
ante is unlikely to succeed.
In summary, the Supreme Court in Loper Bright, but also
more broadly across Roberts' Court administrative law
decisions, has made it harder and harder for agencies to pursue
the missions that Congress has assigned them. These decisions
taking power away from agencies do not, the claims of their
authors notwithstanding, empower Congress. Rather, they empower
the courts at the expense of both Congress and the agencies.
There are strategies available for Congress to respond,
including both bill-drafting techniques and institutional
capacity building, and these are absolutely worth pursuing. At
the end of the day, their impact will be limited.
As long as the judiciary has an anti-administrativist bent,
making pro-regulatory public policy will remain very much an
uphill climb.
Thank you.
[The prepared statement of Mr. Chafetz follows:]
PREPARED STATEMENT OF JOSH CHAFETZ
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Steil. Thank you very much. We thank all of our
witnesses.
I will begin with questions. We will then go to the Ranking
Member. We will alternate between sides.
I will recognize myself for 5 minutes for the purpose of
asking questions.
The Committee on House Administration, we oversee the
legislative branch and authorize Committee budgets. The Supreme
Court decision in Loper Bright sent a clear message that
lawmaking authority rests with Congress.
In the wake of that decision, this Committee has a real
opportunity to ensure that Congress leverages its resources
effectively.
Out of the gates question, I am going to come down the row,
starting with you, Mr. Ray, and we will come down.
As currently structured, is Congress set up to review the
rules coming out of the administrative state? Yes or no?
Mr. Ray. No.
Chairman Steil. Mr. Thallam?
Mr. Thallam. No.
Mr. Kosar. No.
Mr. Crews. No.
Mr. Chafetz. No.
Chairman Steil. No.
Then the question becomes, how do we restructure Congress
to take advantage of this opportunity that has been given to us
to reclaim authority and has been given to us by the Supreme
Court?
What I would love is just to go down the row. I am looking
for a short-term answer. What can we do in the near term? I
want to come through and ask, what can we do in the long term?
Short term first, something that is actually accomplishable
in the short term as we think about the structure of Congress.
Mr. Ray?
Mr. Ray. In the short term, hire more staff with relevant
subject matter expertise.
Chairman Steil. Mr. Thallam?
Mr. Thallam. Even easier than that, empower GAO, assign a
task force to look into doing a pilot project along these
lines.
Mr. Kosar. I would be inclined to say hire staff that can
work within CBO and who can kind of pilot this idea of
providing regulatory oversight support.
Mr. Crews. Most of the regulatory reform reports you are
supposed to be getting are overdue. You can quickly work with
Judiciary and OGR and get the annual, but it comes out every 3
years, cost-benefit report. You can get the Paperwork Reduction
Report. It is 16,000 human lives in paperwork hours every year.
Also, just making sure that the CRA, in particular, is
followed. If you look at the flow of rules at the GAO, not
every major rule is getting reported. I do not know how in the
world you would determine whether those rules are being
reported to you all. I do not think there is a single person
who can tell you that they are.
A little bit in the Congressional Record on communications
with the executive branch.
That is the quick stuff to scoop up.
Chairman Steil. Thank you.
Mr. Chafetz?
Mr. Chafetz. The Committee already has the obligation to
conduct oversight of all of the functions within their
jurisdiction. Beefing up Committee staff, and in particular
Committee staff with substantive expertise in the areas that
they are overseeing, would allow them to evaluate the
regulations coming out of the executive branch.
Chairman Steil. Thank you.
I am going to come back for slightly more of a longer-term
look as to how you think we should be thinking about the long-
term restructuring to reestablish congressional control over
the administrative state.
Mr. Ray?
Mr. Ray. I do not see a way for Congress to reestablish
control so long as it is in a fundamentally responsive posture
to the agencies and the executive branch generally.
The key, to my way of thinking, is for Congress to again
become the first mover it was intended to be under the
Constitution.
There are various ways to do that. One would be to pass
something like the REINS Act, which requires for some subset of
the most important regulations affirmative congressional
approval rather than congressional response.
Chairman Steil. Thank you.
Mr. Thallam?
Mr. Thallam. Similarly to how the White House has an
extensive budget office and Congress does as well, we do not
view that as duplicative. We find that those are both essential
elements, that Congress not rely on it.
I think it is appropriate to in the long-term determine how
to set up a regulatory office, given actually the scope of the
work, is something akin to maybe even larger than the budget
work.
Chairman Steil. Thank you.
Mr. Kosar. Precisely what he said.
Chairman Steil. You are concise, Mr. Kosar. I like it.
Mr. Crews. I support REINS and a congressional office like
this, too, but I would urge you all to look at each other and
what you worked on in the past.
The last time you had major regulatory reforms was a
generation ago when you did the unfunded mandates to small
business, the paperwork amendments, and even the CRA. It was
Harry Reid of Nevada leading the charge for the Congressional
Review Act. That would astound you now to think that.
What was happening at the time was unfunded mandates on
State and local governments and small business that got
everyone's attention in this room.
That is not happening now because those mandates are funded
through Infrastructure law, Inflation law, CHIPS law, and they
have got a lot of regulatory strings attached with regulatory
dark matter and so forth. Eventually that money dries up.
I would say a lot of the ideas that you have are
bipartisan. Longer term, regulatory budgeting, sunsetting,
oversight, that sort of thing. There is a lot of that stuff
that you all have worked together in the past and you can do
that again.
Chairman Steil. Very concisely, Mr. Chafetz.
Mr. Chafetz. I am a little more skeptical than some of my
colleagues of an office that is specifically designed to focus
on regulation. I think, again, I am not sure they would have
the substantive expertise to review regulations coming from all
the different parts of the administrative state.
Again, I would urge long-term capacity building in the
Committees that already exist.
Chairman Steil. Thank you very much.
I think we have a real unique opportunity here post end of
the Chevron doctrine to really reestablish Congress as the
primary maker of both law and an overview of the regulation. I
think the REINS Act would move us dramatically in that
direction.
I appreciate all of our witnesses for being here today.
I will now recognize the Ranking Member for 5 minutes for
the purpose of asking questions.
Mr. Morelle. Thank you again, Mr. Chair.
Thank you to the witnesses.
You know, I feel a little bit like I am watching--one of my
favorite programs on TV is ``Love It or List It.'' This is on
HGTV.
There is always in the couple one of them wants to sell the
house and one of them wants to buy--and one of them wants to
stay. The person who wants to move, when they say, ``Well, what
is your perfect house? How could we make this one better so you
would be inclined to stay?'' they say, ``Well . . .'' and then
they list about 45 things that would cost like a million
dollars. They say, ``What is the budget?'' ``Oh, 100,000.'' You
are set up to fail. You cannot actually do it.
While I appreciate the sincerity of the Members, I would
just note a couple things.
When it comes to hiring more staff or building the
legislative branch--which, believe me, I would go on record, I
would triple the House appropriation--the congressional
appropriation. I think we are woefully under-funded. I do agree
with you.
Just to note, the appropriations proposed by the House in
total, non-mandated appropriations proposed by the House right
now is $1.606 trillion. The amount proposed for the legislative
branch is $7 billion, or, for those of you who appreciate math,
four-tenths of 1 percent of the entire Federal non-mandated
spend proposed in this bill.
It failed on the House floor last week because it is too
expensive, too rich, so it could not get enough votes for
passage.
I feel again like that, yes, oh, yes, here, it would only
cost $3 million to do this thing, but you only have $100,000.
I, for the life of me, do not understand how this would work. I
appreciate you.
Which leads me--and I will ask you this, Mr. Chafetz--am I
pronouncing that right?
Mr. Chafetz. Chafetz, yes.
Mr. Morelle. Chafetz.
You had mentioned in your testimony that rather than
empowering Congress, Loper Bright empowers courts at the
expense of Congress. Can you just expand upon that a little
bit, how it degrades congressional authority over Federal
agencies? Is it purely because of what I just mentioned, the
lack of resources, or do you want to go beyond that in terms of
why it shifts the balance of power?
Mr. Chafetz. Sure.
When Congress--first of all, Congress has created these
agencies. Congress has passed their organic statutes. Congress
has delegated authority to these agencies. Since 1984, Congress
has done so in the shadow of Chevron deference.
This is not just a hypothetical. We have really solid
research showing that Chevron deference is the tool most
understood by congressional drafters, by staff in Leg Counsel
and by staff sort of elsewhere on the Hill. They understood
they were drafting these statutes in light of Chevron
deference, and they understood that if they did not want the
agencies to have interpretive freedom, that they should draft
with more specificity, and so they did.
What that means is that by taking this away, essentially,
the courts are saying this thing that Congress thought it was
delegating to agencies, which is this interpretive freedom, in
fact the agencies do not get to have that.
What replaces that is not power flowing back to this
institution. What replaces that is the courts giving their own
sort of de novo interpretations of these statutory regimes.
It is not passing from unaccountable bureaucrats to the
accountable Congress. It is passing from somewhat accountable
bureaucrats to even less accountable Federal judges.
Mr. Morelle. Thank you for that.
I want to shift just for a second.
Again, Professor, we are here to consider ways Congress can
better serve the American people. Americans agree Government
should use its power to protect health and well-being, grow the
economy, and grow the prosperity of all Americans.
I want to read something from Project 2025 that is
associated with former President Trump. It says that the
President has, quote, ``an existential need for aggressive use
of the vast powers of the executive branch. Success in meeting
that challenge will require boldness to bend or break the
bureaucracy to the Presidential will.''
Among the recommendations, the mass firing of civil
servants--many of whom, frankly, do the protection of health
and well-being that I mentioned.
A buzz saw that President--former President Trump's Project
2025 takes to civil service, keep Americans safe from the
dangers such as--you know, I mentioned things that the FDA
does, for instance, that our administrative system currently
protects.
Can you talk about what that impact could potentially have?
Mr. Chafetz. Sure.
For the entire 19th century, we did not have civil service
protections in this country, and we had what was known as the
spoils system, where every time a new administration came into
power, they would fire basically every Federal employee and
replace them with members of their own party.
This was widely regarded as one of the worst governance
systems in the world. You see criticisms. You know, you see
sort of scholars in Europe sort of laughing at this throughout
the 19th century.
Finally, as the American State sort of grows in
sophistication toward the very end of the 19th century and into
the 20th, it begins implementing civil service reforms,
becoming a sort of modern administrative nation.
Sort of undoing civil service protections, returning to a
spoils system, would sort of return us to a lot of the sort of
waste and abuse that really characterized 19th century American
politics.
Mr. Morelle. Thank you. I yield back, Mr. Chair.
Chairman Steil. The gentleman yields back.
Mr. Loudermilk is recognized for 5 minutes.
Mr. Loudermilk. Well, thank you, Mr. Chairman. It is very
interesting subject matter, something I have been working on
since I first came to Congress.
A little bit of follow up on what Mr. Chafetz was just
saying and the interaction there. We do have an issue within
the civil service system. There is such protection that it
takes up to 2 years to fire a bad employee. That is something
that has to be addressed.
This is a bipartisan issue. I first learned of this from
President Obama's head of--Secretary of Homeland Security, who
was begging for things to be changed because they are keeping
employees who had--who basically had committed crimes or had
disciplinary actions so bad that they could not remove them
from the--they could not remove them from the payroll.
They could not continue to do their job because they could
not keep a security clearance, but they had to keep them on the
payroll for a year. If they appealed, then it was another year.
He said we are paying people that are basically getting 2 years
of unpaid vacation with full benefits.
This has to change. This has to change.
I just wanted to bring that up, is it is not going back to
the old system. I do not know what is in Project 2025, but I
have legislation that would bring in sensible ways of
streamlining civil service and making sure that they are
productive and they are doing their jobs and they are just not
getting a free ride off the American taxpayer.
I do think we have to be intellectually honest as we talk
about these issues.
To the issue at hand, this is something that I have been
working on since I came to Congress. Myself, Senator Mike Lee,
and then-Congressman Jeb Hensarling put together the article I
Project, which is to re-balance the powers which the majority
are given to Congress. We saw at the time that there is an
extensive amount of power since World War II that had been
extended to the executive branch.
It was interesting. I was having dinner with Justice Scalia
one evening, and we were talking about this. I said, I asked
him, I said, ``What can we do to eliminate or to rein in the
executive branch from legislating via regulation and the courts
from legislating from the bench?'' His response was, ``Congress
needs to do its job. You need to write legislation with more
specificity.''
This is the type of thing--it is good timing. Chevron
deference was one of the issues that we were facing at the
time.
My understanding has always been that when an act of
Government can deprive citizens of property or liberty, it is
not a rule or regulation, it is a law, and only Congress can
enact those laws.
With those things on the table there, Mr. Ray, what
specific accountability measures should Congress adopt to
ensure that Federal agencies adhere strictly to legislative
intent in both the rulemaking duties and enforcement
activities?
Mr. Ray. I would say, first and foremost, specificity in
statutory text, as you just mentioned. Another helpful approach
is to specify the outcome that Congress is after. When agencies
are left great discretion, they can pick and choose among the
outcomes to optimize for.
When Congress specifies, ``We want the following outcomes
in this, say, in this particular order,'' then that constrains
agency discretion in a pretty serious way.
Mr. Loudermilk. Do you feel like, I mean, for us to give
specificity in legislation, which I think we should, sometimes
we are handcuffed because we do not necessarily have the
experts in the field that--I would make the argument at one
time they were there in the administrative--or in the executive
branch. I think in the past few decades political ideology has
taken over from expertise as who is appointed in these
positions.
Is there a way that you can--do you see that that handcuffs
Congress somewhat, not having experts in fields?
Mr. Ray. Two points in response to the question.
First of all, it would certainly be impossible for Congress
itself to address the topic of every rulemaking undertaken by
the executive branch. There are several hundred rulemakings
open for comment right now.
It could answer or resolve a number of the most important
rulemakings. It could. There are only a few hundred major
rulemakings per year, typically. It is conceivable that
Congress could itself take the initiative in a number of those
proceedings.
The second point I would make is that if Congress were to
narrow the scope of statutes, then States and other lawmaking
bodies across the country could take up some of the work for
Congress.
Mr. Loudermilk. Oh, I like the idea of federalism and that
plays into it.
Real quickly, last question, do you think there are any
mechanisms that we already have in place to do this work, or do
we just need a new system and new processes be created and
implemented?
Mr. Ray. Congress will not be able to exert effective
control as long as it is just responding to agencies. I think
there are some existing systems that could be used effectively
today, but really what is called for is a new approach.
Mr. Loudermilk. OK. Thank you. I yield back.
Chairman Steil. The gentleman yields back.
Ms. Sewell is recognized for 5 minutes.
Ms. Sewell. Thank you, Mr. Chairman.
I want to thank our witnesses for taking the time today to
testify.
On June 28, the Supreme Court of the United States
overturned 40 years of legal precedent by wiping out the
Chevron deference, a doctrine that required courts to defer to
subject matter experts when a question of law was ambiguous.
This decision will dramatically impact the way that the
three branches of Government function because it weakens the
way Federal agencies are able to weigh in on policies about the
environment, healthcare, food, work safety, and so much more.
Justice Kagan mentioned in her dissenting opinion that in
one fell swoop the majority, quote, ``gave exclusive power over
every open issue,'' close quote.
This egregious power grab by the Supreme Court is not by
happenstance, but rather a larger effort by right-wing
conservatives to roll out the Project 2025 agenda that will
fundamentally alter the way that Government functions.
Congress is a team sport, and we rely on staffers, legal
counsel, advocates, policy matter experts to create legislation
that will impact our constituents' daily lives. Congress lacks
the subject matter expertise it takes to govern our Nation
alone.
Policy matter experts at Federal agencies play a very
critical role on this team because they can break down the
intricate details of how certain regulatory programs and
statutes should be administered.
Professor Chafetz, it was Justice Stevens who wrote in the
original Chevron opinion, quote, ``Judges are not experts in
the field, and are not a part of either political branch of
Government. Courts must, in some ways, reconcile competing
political interests, but not on the basis of judges' personal
policy preferences.''
I would suspect that in 40 years, there were a lot of court
cases that have been decided using the Chevron deference. Can
you talk about how this will open the floodgates to further
litigation?
Mr. Chafetz. Sure. The litigation--I am not sure to what
extent it will--that Loper Bright on its own will increase the
amount of litigation, but it will change the results of some of
that litigation.
There is research showing that Chevron deference made a
significant difference in the outcome of circuit court cases.
That is, in cases where circuit courts applied Chevron
deference, the ideological dispositions of the judges on the
three-judge panel mattered less than in cases where it did not
apply Chevron deference.
Now that it has not allowed to apply Chevron deference, we
should expect to see sort of the ideology of the judges on
those three-judge panels mattering more in those cases.
I will also add that there is another case that came down 3
days after Loper Bright, which is the Corner Post decision.
Ms. Sewell. Yes.
Mr. Chafetz. Up until--so the Federal law says that there
is a 6-year statute of limitations for challenging agency
actions. It had always been thought that it was 6 years from
the time the agency action was finalized.
Ms. Sewell. Right.
Mr. Chafetz. In Corner Post, the Supreme Court says----
Ms. Sewell. Not when the person was injured.
Mr. Chafetz. In Corner Post, right, it says it is 6 years
from the time that that regulation was applied to that
regulated entity, which means that every regulation can now be
challenged indefinitely. There is no point at which a
regulation has exhausted the----
Ms. Sewell. What does that mean, coupled with the Chevron
deference case?
Mr. Chafetz. It means that--Corner Post means that there
are going to be just a flood of cases that would not have
previously been filed. Coupled with Chevron--coupled with Loper
Bright, in Loper Bright the majority claims that, well, cases
that relied on Chevron are still good law, we are not going to
reopen those.
Those are now available to be challenged again. If the
judges think that there is some error that goes beyond mere
reliance on Chevron, then even consistent with Loper Bright,
those longstanding agency interpretations would be open for
reevaluation by the courts.
Ms. Sewell. You said in your testimony that it would--that
even if Congress builds out our internal team, that it would
still be--not be able to replace the agencies.
How do you think that this will hurt potential
policymaking?
Mr. Chafetz. Well, it will make policymaking sort of less
robust, less responsive, less likely to sort of address the
problems that Congress and that the American people want to
address, and less responsive in adapting to changes in
scientific knowledge or in technology in order to sort of
adjust preexisting regulations.
Ms. Sewell. Thank you. I yield back the balance of my time.
Chairman Steil. The gentlewoman yields back.
Mrs. Torres is recognized for 5 minutes.
Mrs. Torres. Thank you, Chairman.
Thank you to the witnesses.
In recent time, we have seen this conservative, politically
motivated, and activist Supreme Court overturn settled law,
like Roe v. Wade, which protected women for more than--for
almost 50 years.
Today, we are discussing yet another dangerous Supreme
Court decision, which reversed the 40-year-old Chevron
doctrine, a doctrine that ensured experts in their field had a
say in determining complex questions specific to their
agencies. This is very dangerous.
Overlooked, ruling reverses all of that. The result now,
instead of experts weighing in on our Nation's regulations, we
will have unelected judges, who do not have policy expertise,
making decisions that impact our lives.
I want to share an example of how this will impact the
people that I represent.
My district is downwind from Los Angeles and that has one
of the worst air qualities in the Nation. According to the
American Lung Association, counties in the Inland Empire have
some of the worst year-round air quality pollution, and
children have far above average rates of asthma and long-term
lung problems.
Imagine now a world where judges with no background in
atmospheric science or lung health will make decisions about
what kind of pollutants companies should be allowed to put in
our air.
I would like to give some background on how we have come to
this, to the place where we are right now.
Mr. Ray, you were specifically thanked in the
acknowledgements of Trump's Project 2025, which says that you
devoted a significant amount of your valuable time to reviewing
and editing a lengthy manuscript and provided expert advice and
insight. Is that true?
Mr. Ray. I did make contributions to the ``Mandate for
Leadership,'' if that is the question.
Mrs. Torres. Yes.
Were you compensated in any way for your work in Project
2025 financially or otherwise? You cannot remember?
You are again thanked specifically for your work on chapter
2, titled the ``Executive Office of the President of the United
States,'' and that chapter says that a ``great challenge
confronting a conservative President is the existential need
for aggressive use of the vast powers of the executive branch .
. . to bend or break the bureaucracy to the Presidential
will.'' That is on page 44.
Were you involved in crafting these extreme proposals?
Mr. Ray. Congresswoman, I contributed paragraphs to that
chapter on OIRA review. I would be happy to talk about the
substance of those paragraphs, if you like.
Mrs. Torres. Yes.
Mr. Ray. Ma'am, those paragraphs are not about OIRA review.
I contributed paragraphs to that chapter----
Mrs. Torres. I cannot understand what you are saying, sir.
Yes or no?
Mr. Ray. I contributed paragraphs----
Mrs. Torres. You did. OK.
Mr. Ray [continuing]. to that chapter about OIRA review,
and those paragraphs are not about OIRA review.
Mrs. Torres. Trump's Project 2025 also contains efforts to
promote climate denialism within executive agencies. This
includes plans to downsize the Environmental Protection Agency
and the Department of Energy's focus on climate change and
break up and reduce the size of NOAA, which the project
describes as ``one of the main drivers of the climate change
alarm industry.'' That is on page 675.
By the way, colleagues, I am also a Member of the
Appropriations Committee. In the Republican budget, they have
included a 25 percent decrease to this very agency, eliminating
this agency.
There is no false alarm here. Dismantling NOAA and its
ability to address wildfires and other extreme climate weather
is a very real problem for constituents in my district and
communities across California.
Did you contribute to Project 2025's emphasis on climate
denialism and dismantling of the agency powers to combat the
very real issue of climate change, Mr. Ray?
Mr. Ray. Mrs. Torres, I contributed several paragraphs on
OIRA review. That was my principal substantive contribution to
the project.
Mrs. Torres. Your answer is yes.
Finally, Project 2025 recommends limiting women's access to
essential reproductive healthcare and reproductive freedom.
That is also on page 489. Did you contribute to these
recommendations?
Mr. Ray. Again, Congresswoman, my principal contribution to
the project in terms of text for the ``Mandate for
Leadership''----
Mrs. Torres. Mr. Chair, since the witness has a mouthful of
words and no real answers, I would like to request unanimous
consent to enter all 922 pages of Trump's Project 2025 into the
record so that the American people can see for themselves how
deeply terrifying this Trump authoritarian manifesto really is
and how it is going to impact----
Chairman Steil. Without objection.
Mrs. Torres [continuing]. the lives of every single man,
woman, and child in this country.
Chairman Steil. Without objection.
[Project 2025 referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mrs. Torres. Thank you.
Chairman Steil. We will now commence a second round of
questions, and I know we will have a couple other colleagues, I
think, joining in this process.
I want to take a second here and dive in.
Mr. Crews, you have done great work kind of walking through
the cost of a lot of the regulations that are put out.
I am going to jump, though. I want to ask Mr. Thallam and
Mr. Ray, pulling from your experience at OIRA, how should
Congress address major rules when they are already final but
the financial impact of the rule is not realized until years
after the regulation is final?
Mr. Ray. I would say Congress has already taken steps to
achieve that objective by requiring retrospective review.
Retrospective review could be enhanced quite significantly.
Under the Small Business Regulatory Flexibility Act,
agencies are required, with respect to major rules, to go back
several years after issuance of the rule and assess the impacts
and continued need for the regulation.
Agencies regularly skirt that requirement. Congress could
do much more to give teeth to the requirement and make the
agencies basically participate in that process more robustly.
Chairman Steil. Thank you.
Mr. Thallam?
Mr. Thallam. Along those lines, one proposal that I worked
on when I was in the Senate was a bipartisan proposal that
would require, as part of the rulemaking itself, a prospective
plan to look back within a fixed number of years and conduct
that retrospective review.
It is not just a future promise. It is actually part of the
rule itself has to contain this plan to say within, say, 5
years, the agency will look at the following data, these
indicators to determine to the degree to which the rule is
accomplishing both their goal and meeting the intent of
Congress.
I would also note that we get a little bogged down--I think
everyone--in that policymaking is Congress goes first, and then
there is agency action, then maybe there is a court action
later. It is actually circular, and it is actually a process,
and it is not just handing off one.
I spoke to a group of congressional staff on Friday about
what this means for their job. Congress, congressional staff
should be engaged from the beginning with the agency and not
waiting for a proposal to go public.
Chairman Steil. I am going to build on that.
Mr. Kosar, in your opening remarks you referenced kind of
building out the Congressional Research Office. I am thinking
of other ways that we can pull current staff into this work
rather than simply just throwing more money at the problem.
Give me a little more color on that idea, what that would
look like, or are there areas where we could pull from inside
the Federal employee group currently rather than simply
allocating additional resources and hiring more people?
Mr. Kosar. Boy, I wish I could point to some legislative
branch support agency personnel and say these folks are not
doing enough and they should be repurposed to this more
important thing--which is super, super important--but I just
cannot.
When I looked at the numbers, amongst the legislative
branch civil servants who help with policy or related matters,
the number of them has gone down since the 1980's, but the
Federal Government's expanse in the regulatory State has gone
up. I just cannot figure out how to repurpose.
Chairman Steil. Understood.
Does anyone else have an area where they might be able to
pull from? We have 2.2 million non-military Federal employees.
It seems like we should be thinking about an avenue. If not, I
would charge you to all sharpen our pens and to think about,
inside the rulemaking administrative state, whether or not we
can reallocate some of those resources back into the
congressional side.
Mr. Crews, I will give you very briefly, and then I will
yield.
Mr. Crews. Just quickly. You were talking about
retrospective review. One thing that would force that is if you
did some form of sunsetting, which has some bipartisan pedigree
that we talked about, and that would help you figure out where
you think you actually need to regulate things. You have got
economic, social, health and safety, paperwork costs, and
things like that. That would force you to look at some of those
things, perhaps, and then decide where you ought to regulate.
Then, remember, most regulations are not written yet,
unfortunately. One thing you can think about is what the
workloads are in the future. As Congress takes on more of the
authority with writing statutes that are directed the way you
want, that helps you, too, when thinking about what you do on
the retrospective basis.
Chairman Steil. Thank you very much.
I will now recognize the Ranking Member.
Mr. Morelle. Thank you, Mr. Chair.
I continue to be really concerned about the size and the
capacity of Congress to do it and particularly given the
environment we are in where we have not been able to pass a
legislative appropriation that is so small.
I wanted to, if I can, Professor Chafetz, one of the
things--prior to this decision, agencies were able to use
existing authorities to issue new rules related to emerging
challenges or technologies with relative ease.
I know that during the oral argument in Loper Bright,
Justice Kagan expressed that overturning Chevron would hinder
agencies' abilities to--I want to get the quote--``capture the
opportunities but also meet the challenges of regulating, for
instance, artificial intelligence,'' which, you know, Congress
gave the authority to agencies without even knowing what
artificial intelligence is.
In some ways how might the decision affect the ability of
agencies to respond quickly to advances in technology like
artificial intelligence or other challenges?
Mr. Chafetz. Well, I would like to begin by noting that
agencies can do almost nothing with relative ease. I suppose
you would have to emphasize ``relative'' a great deal. Most
agency rulemaking takes years.
The idea that this is something that agencies just sort of
pop off and create regulations all the time I think is somewhat
misleading. There is a lot of time and effort and conversations
that go into producing rulemaking in the first place.
One of the things that Loper Bright does is it says that if
agencies want to get any deference at all, even the lesser so-
called Skidmore deference--which is basically just sort of
respect for the agencies' expertise--if they want to take
advantage even of that, their interpretation has to remain
consistent over time. This is a problem because facts on the
ground change over time.
When I look back--for example, so Representative Loudermilk
was referring to Justice Scalia earlier. Justice Scalia was a
huge fan of the Chevron decision. When I look back to his major
essay praising the Chevron decision, one of the things he
praises is its ability to be responsive to changes over time
such that agencies do not get locked into their first
interpretation.
The Supreme Court has now done a 180 on that and said,
essentially, if you want even minimal respect for your
interpretation, you have to be locked into the first decision
you make.
AI is a great example. The agencies are just coming to
terms with AI now. Who knows what the state of AI will be in 5
or 10 years? It seems crazy to lock them into their initial
interpretations at this point.
Mr. Morelle. Just to continue along, even prior to the
overturning of Chevron, I think your work has highlighted the
recent pattern of what you referred to as judicial self-
aggrandizement.
This decision would continue that trend certainly. I wonder
if you could just talk about the broader patterns that you have
identified in that regard.
Mr. Chafetz. Sure. Well, I think you can see this across a
huge number of areas of law, whether we are talking about the
Supreme Court's cases on congressional oversight or on election
law.
Just within administrative law there are a huge number of
ways in which the Roberts Court has sort of taken it upon
itself to tell Congress that it is structuring the
administrative state wrong.
There have been a bunch of decisions in recent years saying
that the way that Congress has structured various agencies is
unconstitutional because it limits the removability of certain
officers.
There have been the major questions doctrine cases which
basically say that the most natural reading of a particular
statute will not be allowed to go into effect if the Supreme
Court decides that what the agency has done is major. Of course
it gives us no real way of determining whether or not something
counts as major.
There has been the Jarkesy case, where taking away the
ability that Congress had given to agencies to do internal
adjudication in some cases.
All of these are situations in which Congress tried to
create certain structures and forms in the administrative
state, and the Supreme Court has come in and said, ``No, we
know better. We are going to undo that. The administrative
state is going to be structured the way we, the Court, wants to
structure it.'' In my view, the best label for that is judicial
self-aggrandizement.
Mr. Morelle. Yes. If I can, one of the interesting things
about this in much of the conversation that you hear post-
Chevron is that, prior to this decision, that you could not
overturn an administrative ruling. You still had access to the
courts prior to Chevron.
Do you want to just talk about that just in the remaining
seconds we have?
Mr. Chafetz. Absolutely.
Chevron was a two-step test, and step one was, if Congress
has clearly expressed itself, that is the end of the story. If
Congress has clearly expressed itself, the agency has to do
what Congress says. Only if the statute is silent or ambiguous
under Chevron would there be any deference given by the courts.
Then, beyond that, the Administrative Procedure Act creates
a whole host of procedures that the agencies have to go through
in order to regulate, and if the courts did not think that the
agencies went through the correct procedures, they could also
vacate regulations.
It is not that there was unconstrained regulatory authority
in the agencies. They had procedural requirements. Of course if
Congress spoke to the issue, they had to do what Congress said.
It is only if they went through the correct procedures and
Congress had been silent or ambiguous that they got any
deference under Chevron.
Mr. Morelle. Very good.
I know I have exceeded my time. I yield back. Thank you.
Chairman Steil. The gentleman yields back.
Ms. Lee is recognized for 5 minutes.
Ms. Lee. Thank you, Mr. Chairman, for holding this
important hearing.
Thank you to all of our witnesses for appearing before the
Committee today.
The Supreme Court's recent decision in Loper corrects
decades of regulatory overreach by the executive branch and
rightfully reasserts the separation of powers as intended by
the Framers of the Constitution. It ensures that the will of
the American people is heard through laws written by their
elected Representatives.
As a former judge, I agree that the power and
responsibility of interpreting the law belongs to the courts,
not unelected Government bureaucrats. The clearer the law, the
easier it is for judges to faithfully and accurately apply and
interpret the law.
Congress therefore has a renewed call to assert its
legislative authority and write clear and precise laws.
Dr. Kosar, I would like to begin with you. You have written
extensively about Congress establishing a congressional
regulatory office which would likely be a longer-term project
for us to undertake for the interim or in the case where
Congress chooses not to establish a permanent office.
How can Congress strike a balance with its role in the
rulemaking process that leverages agency expertise while
maintaining strict legislative oversight and accountability?
Mr. Kosar. Well, in the short term, if you cannot get the
purse strings loose enough to do a little pilot, say, within
the CBO to test it out, particularly, say, within an issue area
of real concern, you can try to draw upon the existing
legislative branch folks more aggressively.
I spent 10 years at the Congressional Research Service. I
do not recall once in the thousands of requests I got a Member
saying to me, ``Hey, there is this proposed rule in your issue
area. What do you make of it? Can you at least write me a memo
and explain to me what this means and whether I should be
concerned about the extent of the regulation, whether it is
proper?''
That would be one means.
Ms. Lee. You just touched on what I really was interested
in as my next question, which is, how can we facilitate--how
can we better facilitate meaningful collaboration between
lawmakers, legislative staff, and then agency experts to really
draw upon all of that collective experience during the
legislative drafting process?
Mr. Kosar. Yes. The drafting process.
Well, I think the drafting process in many instances has
been bedeviled because there is not a regular order being
followed. Bills are being slapped together with a lot of other
bills. You guys are being called to the floor and told it is
time to vote on the rule and please line up by party and do not
scuttle things.
Reorienting, getting back to a more regular process where
Committees are in the seat and when Committees report out a
bill those things get preference on the calendar, would allow a
process by which you could be more deliberative and you could
draw more on the expertise that is already available to you and
get it in there.
Ms. Lee. Mr. Crews, as you know, in 2023 the Biden
administration released Executive Order 14094 which raises the
threshold for which regulations are considered highly
significant and drastically increase regulatory cost.
How would you compare the Biden administration's approach
to regulatory action with that of the previous administration?
Mr. Crews. Well, the Trump administration was defined by
basically a regulatory cost budget. The one-in, two-out
mechanism put that into place, and, according to the data
released, it worked.
You could say there was low-hanging fruit there, and once
you got rid of some low-hanging costly regulations, it was hard
to do others.
Things have changed with respect to Biden in the sense of
we used to consider a regulation economically significant if it
was $100 million.
That term has completely disappeared. If you go onto the
OIRA website now and go to the database of rules and
regulations in the Unified Agenda, the term is completely wiped
out and it is replaced with section 3(f)1 significant rules. It
is not as poetic anymore.
You can still find those $100 million major rules purely
thanks to the majorly bipartisan Congressional Review Act. You
guys still have something that you can sink your teeth into
with respect to tracking major rules and some of these other
projects you were indicating with respect to looking back.
I can tell you, the new Unified Agenda came out--late
again, as we were discussing earlier--the new Unified Agenda
came out, and you would expect that under--with the $200
million threshold that the numbers of rules would come down a
good bit that were section 3(f)1. You would expect that to
curve, but no.
In this current push the CRA gives an incentive to an
outgoing administration--or potentially outgoing
administration, because it is an election year--to jack up the
number of rules, and that is exactly what we saw.
In the new Unified Agenda, there is a big jump in $200
million rules above what you might have expected, but you still
need to monitor the ones that are beneath that level as well.
Ms. Lee. Thank you, Mr. Chairman, I yield back.
Chairman Steil. The gentlewoman yields back.
Mr. D'Esposito is recognized for 5 minutes.
Mr. D'Esposito. Thank you, Mr. Chairman.
Good morning--or, I guess, now good afternoon, everyone.
Something that Members do not regularly do is participate
in the formal comment period for a rule. Should Members of
Congress or the chairs and Ranking Members of Committees file
comments during the notice and comment period of a rule to
express their disagreement or even agreement with the contents
and direction of the rule? It is really open for all of you.
Mr. Thallam. I think this is an incredibly undervalued tool
for Members, and I, for the life of me, do not understand why
Members do not more frequently.
In my time on the Hill, I encouraged Members to participate
in the process. There was maybe--and I do not want to speak for
Members of Congress--but it felt like, ``That is for the
public, we are not the public, and so it is beneath us,''
maybe. I may be overstating that.
I do not think you should see that as the case. I mean,
this is the agency receiving all input.
By the way, courts would put a fair amount of deference to
what Members of Congress say--especially Members of a Committee
of jurisdiction--in saying this looks like what we asked you to
do, or this does not look like, or we hope you consider these
factors.
Mr. D'Esposito. Mr. Crews?
Mr. Crews. I would just say this is a little bit of a
chance to maybe squeak something in, because there has been a
lot of talk today about expertise. I would submit to you that
what agencies provide is not always expertise. A free market
does not just mean companies go out and do whatever they want.
You have got businesses, you have got upstream suppliers,
downstream business customers, media, advertisers, consumers,
all these forces that regulate, so to speak, businesses that
potentially misbehave. You do not want to just jump in with a
regulation if you are undermining the other kinds of
disciplines that emerge.
Companies do not operate in a vacuum. They have all of
those forces. Part of the free enterprise system is creating
not just the new product or service but also the disciplinary
measures that go alongside.
I would submit to you that a lot of expertise on AI is not
in agencies. The expertise with respect to allocating drone
traffic in airspace does not exist at agencies.
Part of your commentary, if you take up that kind of a
project, would be to challenge the notion of expertise, which
is also going to play into the notion of a congressional office
of regulatory analysis, too.
Mr. D'Esposito. Anybody else?
Mr. Kosar. Yes. I would just say that absolutely, I again
agree with this fellow. The real trick is being able--not just
able to send it in, but having the knowledge base to deal with
this stuff.
I mean, pull out the Federal Register, and you start
looking at these regs, and your eyes glaze over. Your head
hurts. I mean, there is just no way, unless you just happen to
have somebody in your office or working for your Committee,
that you can meaningfully comment on this.
This would take weeks and weeks and weeks to study. Like
this HUD rule that I am looking at here, 22 and 28 pages, just
the proposed notice.
Mr. D'Esposito. To that point, GAO has written about a
potential new legislative branch known as the Office of Legal
Counsel. Are you in favor of that? Do you think that that could
help with this process? I guess, could anybody explain what you
think that would look like?
Mr. Kosar. Sure. Briefly. Yes, I have read that report.
I guess it depends on how you view the challenge of
legislators meaningfully participating. If it is, well, we need
to draft better, we need to be more precise so we do not
inadvertently delegate authority away, yes, that could be quite
helpful.
When it comes to the substantive knowledge of the issue
area and the ability to double-check the numbers that executive
agencies give when they do the benefit-cost analysis and say,
``Hey, this reg is going to be wonderful for America,'' you do
not have anything. I am not sure that sort of knowledge would
rest in the Legislative Counsel Office.
Mr. Thallam. I would tag on to that just briefly. I would
generally support anything that increases congressional
capacity.
If I can reference the Ranking Member's comments about the
inability to add on appropriations and staff, and also his
penchant for ``Love It or List It,'' I am more of a ``Say Yes
to the Dress'' kind of guy.
The point of the show, I think, is that we look for
reasonable opportunities for improvement. GAO already has a
statutory role as part of the Congressional Review Act. CBO has
a number of analysts, and they have a mechanism for analyzing
specific proposals. Those things exist even short of a whole
new Committee or a whole new office or 2,000 new staff.
Mr. D'Esposito. My time has just about expired.
Mr. Chairman, I yield back.
Chairman Steil. The gentleman yields back.
This concludes our questions.
I thank all of our witnesses today. It has been a really
interesting conversation about how we prepare to structure
Congress in a post-Chevron doctrine world.
Members of the Committee may have some additional questions
for you, and we ask that you please respond to those questions
in writing.
I will also submit written testimony from Doug Holtz-Eakin,
president of the American Action Forum, and from Marci Harris
of PopVox into the record.
[The testimony referred to follows:]
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Chairman Steil. Without objection, each Member will have 5
legislative days to insert additional material into the record
or to revise and extend their remarks.
If there is no further business, I thank the Members for
their participation.
Without objection, the Committee stands adjourned.
[Whereupon, at 12:23 p.m., the Committee was adjourned.]
QUESTIONS FOR THE RECORD
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