[Congressional Record Volume 162, Number 175 (Tuesday, December 6, 2016)]
[House]
[Pages H7267-H7270]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       REFLECTIONS OF A FRESHMAN

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2015, the Chair recognizes the gentleman from Arkansas (Mr. 
Hill) for 30 minutes.
  Mr. HILL. Mr. Speaker, I thank the gentleman from Texas (Mr. 
Neugebauer) for his service and that of his spouse and family, for they 
made my welcome to Congress so agreeable and so appropriate, and I have 
enjoyed my service with Mr. Neugebauer on the House Financial Services 
Committee.
  You know, when I am home, one of the most frequent questions I get is 
to describe the major changes that I have seen in Washington since my 
previous work on Capitol Hill and in the executive branch. And yes, now 
it has been more than 24 years since I served in the administration of 
George H. W. Bush from 1989-1993, 24 years and three two-term 
Presidents--two Democrats, one Republican. Anyone familiar with life 
inside the beltway would certainly see that the city's traffic has 
become unbearable, and the number of places to eat has really been 
improved in those 24 years.
  But tonight I don't want to talk about the enrichment of life along 
The National Mall with new monuments to FDR and MLK and new visionary 
sites, such as the Native American Museum and now our African American 
Museum. Instead, it is not urbanization or nightlife that has happened 
that I noticed, that I talk about when I see my constituents, but it is 
really the changes I see in public policy as I wander back like Rip Van 
Winkle 20 years later to our Nation's Capital.
  The politics and productivity of the city are more stymied and less 
successful than in my experience in the executive branch, led by George 
H. W. Bush, or even in my service as a legislative aide on the Senate 
Banking Committee staff back during the days of the first term of 
President Reagan.
  Tonight I would like to outline my thoughts on those biggest 
differences I have seen in our Federal Government. These include the 
size and complexity and the unmanageable nature of the administrative 
state, the growth and unreformed nature of our mandatory spending 
programs, the failure of the Congress to meet its most fundamental 
constitutional responsibilities, that is, the oversight of the 
executive and the timely and thoughtful appropriations governed by the 
Appropriations Clause of our Constitution.

                              {time}  1945

  At the end of this ``Rip Van Winkle'' overview, I will offer 
suggestions as to possible solutions to these challenges that we face 
in Washington. While I am a realist, I understand consensus is 
difficult in this city, and, while sensitive, my remarks tonight will 
appeal, in my view, to both Democrats and Republicans about how do we 
have an effective Federal Government, one that honors our 
constitutional limitations, the best intentions of our Founders, and 
demonstrates to the American people that their legislative and 
executive branches can work together for the long-term common good and 
the general welfare of this Nation.
  Thomas Jefferson, author of the Declaration of Independence, does a 
splendid job in enumerating the significant grievances that the 
American colonists had against King George III. Among them, my favorite 
of the ``Facts . . . submitted to a candid world": ``He,'' the king, 
``has erected a multitude of New Offices, and sent hither swarms of 
officers to harass our people, and eat out their substance.''
  When I am visiting with our fellow citizens in the seven counties of 
the Second Congressional District of Arkansas, our doctors and hospital 
administrators, people who own small businesses, community bankers, 
high school and elementary schoolteachers, university administrators, 
highway contractors, small-town mayors, inevitably the size, scope, and 
complexity of the paperwork, micromanagement, and intrusion of the 
administrative state dominates that conversation.
  While other policy proposals from the tax and policy ideas to funding 
the need for our needed Federal programs, inevitably every conversation 
ultimately returns to how management and employees believe they are no 
longer focused on their missions to increase sales, produce profits, 
grow their business, educate kids, operate on patients, make loans to 
entrepreneurs and successful businesses, and help expand the American 
Dream.

[[Page H7268]]

  Instead, they are stuck in a world of three-ring binders, CYA 
activities, and a morass of paperwork and documentation--all possibly 
well-intentioned, but the bottom line is they take people away from 
their core mission and core values, drive up costs, reduce availability 
of credit to consumers, drive up prices for consumers, and, in many 
ways, cause Americans to be cynical about their government.
  In a 2015 article on New York City's broken bureaucracy, Phil Howard 
decried the red-tape jungle that doubles costs and postpones critical 
infrastructure projects in one of the greatest cities in the world. 
This is a fundamental issue today because President-elect Trump says we 
need to invest more in infrastructure. Look at the dollar per mile of 
road paved when you look at the costs added by the bureaucracy.
  In 1931, the construction of The Empire State Building was completed 
in 410 days, 12 days ahead of schedule. Today, just raising the roadway 
of the Bayonne Bridge in New York, besides absurd requirements to 
survey historic buildings within a 2-mile radius of an existing bridge 
that touched no buildings, it required 47 permits from 19 different 
agencies and a 5,000-page Federal environmental assessment and a city 
environmental review before a permit could even be issued. After 5 
years, the project was sued for inadequate environmental review. Now 
the $1.3 billion project is not expected to be completed until 2017. We 
are talking about years, decades to raise the deck on the bridge that 
will increase traffic to New York Harbor that in no way endangers the 
environment or any other aspect.
  Peggy Noonan has said that Washington is turning America into the 
paperwork nation at odds with the American character of inventors, 
builders, innovators, and pioneers.
  I have a message for our President-elect. When you are involved in 
partnering with us in draining the swamp, it is a worthy goal, how 
about draining America's inbox and just leave our American people alone 
to innovate, employ people, and help grow this economy.
  This is why the Founders struggled so mightily over the proper role 
of the Federal versus State prerogatives in designing our Constitution. 
It is the core of why they settled upon the enumerated powers in our 
Constitution and left those other powers not so designated to the 
Federal Government to our States or entrusted to the people. Over 
recent years, the administrative state has eroded that trust the people 
have to make their own good choices. It is critical that we restore 
this trust and allow our local and State governments to tackle social 
and economic challenges with our people close to the problems and 
create a commonsense approach.
  So your old friend, Rip Van Winkle, here tonight has returned to the 
banks of the Potomac to see a great leviathan draped across the 
landscape. Called the administrative state, this beast now reigns 
supreme, uncaring, tone deaf, and its tentacles dedicated to one-size-
fits-all edicts, and, in many ways, unresponsive even to the will of 
the people's representatives in the United States House and Senate.
  Phil Howard, who I referenced a few minutes ago, wrote two great 
books that I encourage everyone in our country to read: ``The Death of 
Common Sense'' and ``The Rule of Nobody,'' which succinctly outline the 
failures of this system that has been built up, calcified over the 
years, with no one in the system really responsible for asking: What is 
the right thing to do?
  Ultimately, then, no one is responsible for these failures of the 
administrative state.
  Instead, administrative officials have come to Capitol Hill and 
rarely offer testimony of value that adds to the debate, that informs 
the decisionmaking. A typical example can be seen in the 6 years of 
review and critique of the post-recession banking measure called the 
Dodd-Frank Act. Former Committee on Financial Services chair here in 
the House, Barney Frank, and author of this bill, principal architect, 
said that many things in this final act weren't right and required 
modifications, but a standard response from the Obama administration's 
financial officials at the Comptroller of the Currency, the FDIC, or 
the Federal Reserve, or even the SEC, our securities commission, can be 
paraphrased simply as: Congress passed the law, we are implementing the 
law, period, full stop.

  That is not the right answer nor is it the right question. Standing 
for orthodoxy instead of what will benefit the American people, that 
should be their obligation, to help Congress design policies that help 
the American Dream flourish.
  Jefferson, envisioning our nation divided into States, counties, and 
townships, said: ``It is not by the consolidation, or concentration of 
powers, but by their distribution, that good . . . is effected.''
  Abraham Lincoln reminded our citizens that ``the legitimate object of 
government is to do for a community of people whatever they need to 
have done, but cannot do at all . . . `'
  I place emphasis on the nature of ``community of people'' whereby we 
buy into this longstanding philosophical position of subsidiarity, 
whereby solutions to problems or challenges are best decided and left 
to the community and that, if necessary, the government closest to the 
people band together with families and local associations to take 
action, not punt every decision to the Federal Government.
  At one time, such dedication to self-reliance and common sense were 
lauded as virtues, essential to the character of our Nation and of our 
people. Edmund Burke referred to the ``middling'' associations for 
doing good in England, and Alex de Tocqueville spoke reverently of 
Americans' insatiable ability to problem solve through the formation of 
associations of all kinds, that Americans were always finding 
themselves producing an association to build inns, to raise churches, 
to distribute books, to send missionaries out, to help create 
hospitals, prisons, and schools, all local communities coming together 
to do these things for themselves.
  In my first 2 years in Congress, I have witnessed firsthand the 
overwhelming size of the administrative state when compared to my 
earlier service on Capitol Hill and in President Bush 41's White House. 
First let's consider the sheer volume of rules that have been issued, 
estimated to cost our economy $100 million or more in net cost.
  Just under President Obama, we have witnessed over 600 rulemakings 
that exceed $100 million in threshold. Some, like the Clean Power Plan, 
many, many times that amount. In fact, the Office of Management and 
Budget, as of November 15, just a few days ago, noted there were 98 
more midnight rules of the Obama administration; 17 of those hitting 
the $100 million mark of cost to our economy.
  The conservative American Action Forum has estimated that President 
Obama has imposed 40 percent more major rules than his predecessor and 
that the overall cost of the Obama administration's regulations on the 
American people stands at $813 billion.
  Likewise, consider the longer term. This chart illustrates the scope 
of these rulemakings as well as the long-term trend in publication of 
new rulemakings in the Federal Register, where all the government's 
actions are published for public dissemination and review. But still 
more than the sheer number and cost of these rulemakings is how 
intrusive they have become in daily lives or duplicative they are of 
another rule that was never repealed. That is why I found very 
appealing President-elect Trump said let's repeal rules before we make 
new ones. I wrote him recently, suggesting that he form a regulatory 
reform task force, like President Reagan did, and put Vice President 
Pence in charge of it to work with OMB and peel back this layer of 
duplicative costly regulation. These costs hurt consumers, and they 
hurt job creation.
  A mortgage application, a fundamental part of our American experience 
across this Nation for a first-time home buyer used to be about 100 
pages. Now it is about 500 pages. I would argue the consumer is not 
materially better informed or better off with these additional pages. 
Instead, we have just added duplicative paperwork because it looks 
better. But on reflection, is that consumer better off? Is our Nation 
better off for that cost? Shouldn't these kinds of things use common 
sense?
  In 1994, I served on The Heritage Foundation's Advisory Council on 
Regulatory Reform. Twenty years ago, your old Rip Van Winkle friend 
here

[[Page H7269]]

argued that the cost in 1994 of the Federal regulatory system was 
nearly $1.6 trillion annually. I compared it, then, to the personal 
income tax, what it raised, what we all contribute of about $1.2 
trillion in 1994 dollars.
  The everyday government involvement in hardworking Americans' lives 
has only grown over those past two decades, and the Competitive 
Enterprise Institute's across-the-board cost estimate now for Federal 
regulations, including the impact of the Obama administration is nearly 
at $1.9 trillion per year, exceeding the cost of the individual income 
tax system and corporate tax revenues and quickly approaching--are you 
seated?--quickly approaching the entire amount of corporate pretax 
profits.
  The regulatory regime of the Federal Government is not just vast and 
costly, it is unnecessarily intrusive. In Arkansas, we have seen agency 
regulations have devastating effects on our farmers, our small 
businesses, nonprofits, schools, colleges, universities, and State 
agencies. No one is immune from the leviathan's overreach.
  Also in recent years, one has noted the expansion of the executive 
branch authority by increasing staff at the White House that is not 
subject to the confirmation of the United States Senate. While 
President Reagan had appointed one czar to work on drugs in the White 
House, President Obama has appointed 44 czars, with 35 of those not 
requiring confirmation by the United States Senate.
  By using executive orders or executive memoranda to carry out 
policies that exceed existing statutory authority and properly belong 
to the first branch of government, the legislative branch, here, 
President Obama has hit new heights in what historian Arthur 
Schlesinger termed ``the imperial Presidency.''

                              {time}  2000

  It is critical to note that it is not the numbers of executive orders 
that are meaningful as to the directives themselves and how far-
reaching they are vis-a-vis that proper statutory authority.
  For example, if one utilizes data from the American Presidency 
Project and compares Reagan, Clinton, and Bush 43 with President 
Obama--all two-term Presidents--one finds President Reagan issued 381 
executive orders; President Clinton, 364 executive orders; President 
Bush 43, 291; and President Obama at an apparently in line 260. But 
that is not the end of the story. President Obama has utilized a new 
measure that dodges publicity, transparency, and these statistics of 
the American Presidency Project: the Presidential memorandum.
  By the end of 2015, this most imperial of Presidents had issued 219 
memoranda--these are just the ones that have been published in the 
Federal Register--and the White House memoranda tally at the end of 
2015 was 476, for a total of more than 600 executive orders and 
Presidential directives.
  It can certainly be argued that Obama's executive action has far 
exceeded the scope and breadth of previous administrations. Even The 
Washington Post editorial board noted that the President's executive 
action on immigration in 2014 had no precedent and flew in the face of 
congressional intent. Indeed.
  The Federal courts, too, have recognized the excess of this 
administration with their blocking of the President's 2014 executive 
order on immigration, nationwide injunctions on the Department of 
Labor's overtime rule, injunctions on the EPA's waters of the United 
States rule, and finally, the current legal battle over the Clean Power 
Plan.
  So, while I have certainly seen, in my two decades of being out of 
the Potomac arena, a growing trend in the administrative state by way 
of executive actions that skirt the Administrative Procedure Act and 
public comment, this administration has also aggressively attempted to 
avoid publicly vetted rulemaking by something even, in my judgment, 
more nefarious to our constitutional freedoms, and that is creating 
regulation by enforcement action.
  In my first 2 years in Congress, this has happened at the Securities 
and Exchange Commission and the Department of Justice and clearly 
skirts the statutory traditions of the United States and the role of 
the Administrative Procedure Act.
  One of the economically chilling issues related to this contains the 
use of settlement trust funds, whereby the Department of Justice or 
other agencies of government choose to settle Federal civil actions 
against companies or individuals through a settlement procedure, as 
opposed to going to trial, and then assess a major monetary penalty 
which, instead of being paid to the victims, is paid to politically 
favored interest groups.
  These activists, in turn, bring more lawsuits to feather their own 
nests. And if this isn't crony coercion, with its pernicious effect on 
the economy and a chilling effect on all innovation and economic 
growth, I don't know what is. It is certainly not in keeping with 70, 
80 years of tradition under the Administrative Procedure Act.
  My former colleague and White House counsel to President Bush 41, 
Ambassador C. Boyden Gray, stated in his testimony, before the House 
Financial Services Committee, about the dangers of an executive with 
access to the Treasury. That is clearly what these slush funds are. The 
need to ensure separation of powers and power of the purse are firmly 
in the hands of Congress, not the executive.
  Mr. Gray stated: ``Every other constitutional power runs into the 
appropriations power,'' and that throughout our history, ``presidents 
have `consistently endeavored to seize the appropriations powers from 
Congress.'''
  This is where you get into the intention that our Founders 
anticipated. Federalist 51: when one branch of government gets too big 
for their breeches, it needs to be countered by another branch of 
government. This overreach by the executive needs to be responded to by 
the first branch, the legislative branch, and make sure that we, in 
fact, consistently authorize our appropriations responsibly.
  To close this discussion of the administrative state, let's consider 
a primary example of growth of the state where Congress does not have 
an opportunity to safeguard its legislative and appropriation and 
oversight responsibility. People's exhibit A is the Consumer Financial 
Protection Bureau.
  In the Dodd-Frank Act, I mentioned a few minutes ago, in my view, the 
Congress mistakenly created a funding source for the CFPB not subject 
to the appropriations that are actually set aside. Instead, it is a 
fixed amount of income out of the Federal Reserve system hidden away 
from Congress' oversight that normally would be paid directly to the 
Treasury. Instead, it is diverted to the CFPB, and it gives an agency 
independence like you can't see anywhere else. It is a violation, in my 
view, of our appropriations responsibility. The Director can't be 
fired, so it is a violation of our oversight responsibility.
  I was pleased, this October, that the Court of Appeals for the 
District of Columbia unanimously ruled in the PHH mortgage case that 
the CFPB's sole Director position possesses unchecked ``unilateral 
power'' and calls the Director ``the single most powerful official in 
the entire United States Government.'' I am sorry, what? The single 
most powerful official in the United States Government. Gosh, I thought 
that was the President, the Speaker of the House. No, no, no. It is a 
guy at the CFPB. In fact, they acted in an unconstitutional manner.
  So I am with the District of Columbia court, and I have no doubt that 
the pending case, State National Bank of Big Spring, Texas, challenging 
the CFPB's unconstitutionality will be noted as well.
  So, Mr. Speaker, these are some of my observations about the growth 
of the administrative state. I have no doubt that, when I come back to 
this floor, I will continue this discussion and offer solutions about 
what we need to do in Congress, in the legislative branch, and in the 
executive branch to make sure that we are upholding our obligation to 
our voters, our citizens, the people who have elected us, who have sent 
us here to represent their interests--hardworking people like Randy 
Neugebauer that we lauded a few minutes ago for his extraordinary 
service to the 19th District of Texas. Our administrative state is 
unmanageable, and it deserves to be reined in.
  As a freshman, soon-to-be sophomore, a second-term Member of this 
body, I am going to fight for those

[[Page H7270]]

changes that return the power to the people's House and the people's 
Senate as it relates to oversight of the executive and the 
appropriations method.
  Mr. Speaker, I yield back the balance of my time.

                          ____________________