[House Report 118-282]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-282
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ENSURING ACCOUNTABILITY IN AGENCY RULEMAKING ACT
_______
November 29, 2023.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Jordan, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 357]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 357) to require the head of an agency to issue and
sign any rule issued by that agency, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Committee Estimate of Budgetary Effects.......................... 9
Duplication of Federal Programs.................................. 9
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 9
Federal Mandates Statement....................................... 9
Advisory Committee Statement..................................... 9
Applicability to Legislative Branch.............................. 10
Section-by-Section Analysis...................................... 10
Dissenting Views................................................. 10
The amendment is as follows:
Strike all that follows after the enacting clause and
insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ensuring Accountability in Agency
Rulemaking Act''.
SEC. 2. RULEMAKING REQUIREMENTS.
(a) Approval Required.--
(1) Rules promulgated by senate confirmed appointee.--Except
as provided in paragraph (3), any rule promulgated under
section 553 of title 5, United States Code, shall be issued and
signed by an individual appointed by the President, by and with
the advice and consent of the Senate.
(2) Initiation of rulemaking and regulatory agenda.--Except
as provided in paragraph (3), any rule initiated under section
553 of title 5, United States Code, shall be initiated by a
senior appointee.
(3) Exception.--Paragraph (1) or (2) does not apply if the
head of an agency--
(A) determines, on a nondelegable basis, that
compliance with the relevant paragraph would impede
public safety or security;
(B) submits to the Administrator a notification
disclosing the reasons for the exemption; and
(C) publishes such notification, consistent with
public safety, security, and privacy interests, in the
Federal Register.
(b) Oversight.--
(1) Agency compliance.--The head of each agency shall ensure
that the issuance of any agency rule promulgated under section
553 of title 5, United States Code, adheres to the requirements
of this section.
(2) OIRA guidance and compliance.--The Administrator shall
provide guidance on the implementation of and shall monitor
agency compliance with this section.
(c) Rules of Construction.--This section may not be construed to
impair or otherwise affect the functions of the Director of the Office
of Management and Budget relating to budgetary, administrative, or
legislative proposals.
(d) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB).
(2) Agency.--The term ``agency'' has the meaning given that
term under section 551 of title 5, United States Code.
(3) Rule.--The term ``rule'' has the meaning given that term
in section 551 of title 5, United States Code, and does not
include any rule of agency organization, procedure, or practice
that does not substantially affect the rights or obligations of
non-agency parties.
(4) Senior appointee.--The term ``senior appointee'' means an
individual appointed by the President, or performing the
functions and duties of an office that requires appointment by
the President, or a non-career member of the Senior Executive
Service (or equivalent agency system).
Purpose and Summary
H.R. 357, the Ensuring Accountability in Agency Rulemaking
Act, introduced by Rep. Ben Cline (R-VA), requires
presidentially nominated and Senate-confirmed appointees to
issue and sign agency rules, and codifies a limitation on
agency rulemaking authority established in Executive Order
13,979.
Background and Need for the Legislation
The Administrative Procedure Act and the Office of Information and
Regulatory Affairs
The Administrative Procedure Act (APA) provides standards
for agency rulemaking.\1\ Typically, agencies issue rules
through ``informal'' or notice-and-comment rulemaking by
publishing a ``notice of proposed rulemaking in the Federal
Register,'' providing an opportunity for public feedback
(normally through the submission of written comments), and
publishing the final rule at least thirty days before its
effective date.\2\
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\1\See, e.g., 5 U.S.C. Sec. 553.
\2\Administrative Conference of the United States & ABA Section of
Administrative Law and Regulatory Practice, Administrative Procedure
Act, Federal Administrative Procedure Sourcebook (May 25, 2022)
(cleaned up); see 5 U.S.C. Sec. 553.
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Congress established the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and
Budget (OMB) in 1980,\3\ and, in 1981, then-President Reagan
issued an executive order requiring federal agencies to submit
``major rules'' (including those with an annual effect on the
economy of at least $100 million) to OIRA for review.\4\ In
1993, then-President Clinton issued an executive order that
revoked President Reagan's executive order, but which continued
OIRA review of ``significant regulatory actions'' (including
those with an annual effect on the economy of at least $100
million).\5\ Subsequent presidential administrations have
retained OIRA regulatory review,\6\ which ``helps ensure that
agencies' rules reflect the President's policies and
priorities.''\7\
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\3\44 U.S.C. Sec. 3503(a).
\4\Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981); see
Jim Tozzi, The Center for Regulatory Effectiveness, The Iconic
Executive Order 12291: The Precedent for the Preservation of Critical
Executive Orders and Centralized Regulatory Review (Aug. 2018)
(``Executive Order 12291's landmark achievement was to require that
regulatory agencies perform benefit/cost analyses of regulations and to
submit them to OMB for review.'').
\5\Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993).
\6\See, e.g., Exec. Order No. 14,094, 88 Fed. Reg. 21,879 (Apr. 6,
2023).
\7\Maeve P. Carey & Curtis W. Copeland, Congressional Research
Service, Federal Rulemaking: The Role of the Office of Information and
Regulatory Affairs 1 (Mar. 21, 2011).
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The Administrative State and the Ensuring Accountability in Agency
Rulemaking Act
The administrative state exercises the legislative,
executive, and judicial powers of the federal government by
issuing rules carrying the force of law, enforcing those same
rules, and adjudicating disputes that arise under them.\8\ By
consolidating these constitutionally separate powers and making
rules through a process that is much less rigorous than what
the Constitution requires for legislation, while hiding behind
a lack of electoral accountability, the administrative state
has imposed a quantity and quality of policies that never could
have been passed into law by the House, the Senate, and the
President.\9\ For example, in 2021, Congress passed 143 laws
while federal agencies issued 3,257 rules.\10\ Such agency
rules bring with them an estimated annual cost of $1.927
trillion, the equivalent of $14,684 per U.S. household each
year.\11\
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\8\Michael Uhlmann, A Note on Administrative Agencies, The Heritage
Guide to the Constitution (2d ed. 2014).
\9\See U.S. Const. art. I Sec. 7.
\10\Clyde Wayne Crews, Jr., Competitive Enter. Inst., Ten Thousand
Commandments 7 (Oct. 26, 2022).
\11\Id. at 6.
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The problem of the administrative state usurping Congress's
constitutional legislative power has been exacerbated by some
agencies allowing career bureaucrats--rather than presidential
appointees--``to authorize, approve, and serve as the final
word on regulations.''\12\ For example, career employees and
inferior officials who were not confirmed by the Senate issued
2,094 of the 2,952 rules (more than 70%) issued by the
Department of Health and Human Services (HHS) from 2001 through
2017.\13\ Similarly, career employees issued 1,860 of the 1,891
rules (more than 98%) issued by the Food and Drug
Administration, an agency within HHS, during this same period--
and 385 of these rules (more than 20%) were signed by a single
career employee.\14\ In one particularly egregious example, a
``tenure-protected civil servant'' at the National Highway
Traffic Safety Administration ``grant[ed] exemptions to
automakers from a theft prevention regulation; issued notices
of proposed rulemakings concerning fuel economy calculations
and safety standards; and delayed, for a year or more, the
effective date of more rigorous safety regulations concerning
many auto parts.''\15\
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\12\Exec. Order No. 13,979, 86 Fed. Reg. 6,813 Sec. 1 (Jan. 18,
2021) [hereinafter EO 13,979].
\13\Angela C. Erickson & Thomas Berry, Pacific Legal Foundation,
But Who Rules The Rulemakers?: A Study of Illegally Issued Regulations
at HHS 18, 35 (Apr. 29, 2019).
\14\Id. at 3, 25, 35.
\15\Brian D. Feinstein & Jennifer Nou, Submerged Independent
Agencies, 171 U. Pa. L. Rev. 945, 950 (Apr. 2023) (footnotes omitted).
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As then-President Trump explained, the practice of
``allowing career officials to authorize, approve, and serve as
the final word on regulations . . . transfers the power to set
rules governing Americans' daily lives from the President,
acting through his executive subordinates, to officials
insulated from the accountability that national elections
bring,'' which ``undermines the power of the American people to
choose who governs them.''\16\ Accordingly, on January 18,
2021, then-President Trump issued Executive Order 13,979 to
address the problem of career bureaucrats imposing rules of
behalf of federal agencies.\17\ Specifically, Executive Order
13,979 required informal notice-and-comment rules to be
initiated and signed by senior appointees, subject to
exceptions for ``public safety or security.''\18\ The executive
order also provided for review of existing rules by agency
heads and the OIRA Administrator.\19\ However, President Biden
revoked this executive order on February 24, 2021, within weeks
of taking office.\20\
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\16\EO 13,979, supra note 12, Sec. 1.
\17\See id.
\18\Id. Sec. 2.
\19\Id. Sec. 4.
\20\Exec. Order No. 14,018, 86 Fed. Reg. 11,855 (Feb. 24, 2021).
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The Ensuring Accountability in Agency Rulemaking Act would
help to remedy the problem of career bureaucrats issuing agency
rules without electoral accountability. The bill would codify
the requirement of Executive Order 13,979 that only senior
appointees (presidential appointees, persons performing the
duties and functions of offices requiring presidential
appointment, and non-career members of the Senior Executive
Service and equivalent agency systems) initiate and sign
informal notice-and-comment rules, subject to exceptions for
``public safety or security.''\21\ The bill also would provide
for oversight of agency compliance with its requirements by the
head of each agency and by the OIRA Administrator.\22\ These
reforms would lessen the power of career bureaucrats within the
administrative state. They also would enhance political
accountability by ensuring that only agency officials who are
more directly accountable to the President may issue rules
carrying the force of law.
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\21\Compare Ensuring Accountability in Agency Rulemaking Act, H.R.
357, 118th Cong. Sec. 2(a) (2023), with EO 13,979, supra note 12,
Sec. 2.
\22\Ensuring Accountability in Agency Rulemaking Act, H.R. 357,
118th Cong. Sec. 2(b) (2023).
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Hearings
For the purposes of clause 3(c)(6)(A) of House rule XIII,
the following hearing was used to develop H.R. 357: ``Reining
in the Administrative State: Reclaiming Congress's Legislative
Power,'' a hearing held on March 10, 2023, before the
Subcommittee on the Administrative State, Regulatory Reform,
and Antitrust. The Committee heard testimony from the following
witnesses:
Allyson N. Ho, Partner and Co-Chair of
Appellate and Constitutional Law, Gibson, Dunn &
Crutcher LLP;
Jonathan Wolfson, Chief Legal Officer and
Policy Director, Cicero Institute;
Ryan Cleckner, Co-Founder, Gun University
LLC and Owner, Law office of Ryan M. Cleckner; and
Emily Hammond, Professor, George Washington
University Law School.
The hearing addressed the growth of the administrative
state and how it has consolidated the legislative, executive,
and judicial powers of the federal government.
Committee Consideration
On May 24, 2023, the Committee met in open session and
ordered the bill, H.R. 357, favorably reported with an
amendment in the nature of a substitute by a roll call vote of
17 to 9, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following roll call votes occurred during the Committee's
consideration of H.R. 357:
1. Vote on Amendment #1 to H.R. 357 ANS, offered by Ms.
Scanlon, failed 8-17
2. Vote on favorably reporting H.R. 357, as amended, passed
17 ayes to 9 nays.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to filing of the report
and is included in the report. Such a cost estimate is included
in this report.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the enclosed cost estimate for H.R. 357 from the
Director of the Congressional Budget Office:
H.R. 357 would require nearly all rules issued by federal
agencies to be initiated by a senior appointee and signed by a
person appointed by the President and confirmed by the Senate.
The Office of Information and Regulatory Affairs (OIRA) within
the Office of Management and Budget would issue guidance for
agencies to implement the new procedures.
Using information about the current regulatory processes
provided by the Congressional Research Service and selected
agencies, CBO estimates that the executive branch issues
between 3,000 and 4,000 final rules annually. CBO expects that
implementing the bill would increase administrative costs at
OIRA and for federal agencies to initiate and finalize
regulations. CBO estimates that costs for the government as a
whole would total about $2 million annually and $10 million
over the 2023-2028 period; any spending would be subject to the
availability of appropriated funds.
Enacting H.R. 357 could affect direct spending by some
agencies that are allowed to use fees, receipts from the sale
of goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
CBO also expects that enacting H.R. 357 could delay the
issuance of some rules and therefore their effective dates.
However, because of the number and variety of federal rules
issued each year, CBO cannot determine whether such delays
would result in costs or savings for the government. Thus, CBO
has no basis on which to estimate the budgetary effects of
those changes.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Committee Estimate of Budgetary Effects
With respect to the requirements of clause 3(d)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 357 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 357 would require presidentially
nominated and Senate-confirmed appointees to issue and sign
agency rules, and codifies a limitation on agency rulemaking
authority established in Executive Order 13,979.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 357
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House Rule XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).
Section-by-Section Analysis
Section 1. Short title. The ``Ensuring Accountability in
Agency Rulemaking Act.''
Section 2. Rulemaking requirements. The Act:
Requires informal notice-and-comment rules
to be initiated by senior appointees (presidential
appointees, persons performing the duties and functions
of offices requiring presidential appointment, and non-
career members of the Senior Executive Service and
equivalent agency systems) and to be issued and signed
by presidentially nominated and Senate-confirmed
appointees.
Contains an exception to these requirements
if the head of an agency determines that compliance
with them ``would impede public safety or security,''
submits ``a notification disclosing the reasons for the
exemption'' to the OIRA Administrator, and publishes
this notification in the Federal Register.
Provides for oversight of agency compliance
with these requirements by the head of each agency and
by the OIRA Administrator, who also is required to
provide guidance on implementing them.
Dissenting Views
I. INTRODUCTION
Like the Separation of Powers Restoration Act and the REINS
Act before it, H.R. 357, the so-called ``Ensuring
Accountability in Agency Rulemaking Act,'' is another effort by
the Majority to undermine agency rulemaking and grind modern
government to a halt.
This legislation would dramatically alter the
Administrative Procedure Act's notice and comment process by
requiring any rule promulgated under this process to be issued
and signed by someone who was appointed to their position by
the President and confirmed by the Senate. There is an
exception for rules that would ``impede public safety or
security'' from this requirement if the head of the agency
determines that the rule would impede safety or security,
provides notice, and publishes the notice in the Federal
Register, but this term is left vague and undefined.
By requiring a Senate-confirmed agency head to initiate and
sign any rules promulgated by the agency under the statutes
Congress entrusted them to execute, this bill would also serve
to further politicize the Senate confirmation process--a
process that is already plagued by division. Many agencies
operate without a Senate-confirmed agency head for months and
years at a time due to the already politicized confirmation
process. Furthermore, the bill uses vague and undefined
language that will only be clarified through burdensome
litigation that will clog the courts for years to come. If
passed, this bill would put Americans' health and safety at
risk by stalling and blocking necessary rules and would pose a
significant cost to the federal government by requiring
agencies to defend agency rulemaking processes in unnecessary
litigation.
II. CONCERNS
This bill, like the REINS Act, is another attempt by the
Majority to gum up the work of government. By requiring that
any rulemaking must be issued by and signed by a PAS official
(PAS serving as an acronym for Presidential Appointment with
Senate confirmation), the Majority is ensuring that the
rulemaking process will be slowed for many agencies, especially
during long appointment processes or presidential transitions.
In some cases, this bill would bar any rulemaking at all due to
the standing vacancy at the top.
While this bill, on its face, appears to insert more
political accountability into the rulemaking process, it is
unnecessary because Congress has many ways to exert control
over the rulemaking process. Furthermore, given the already
slow and torturous process that nominees are subject to, the
passage of this bill would likely only exacerbate the problem,
making political appointments even more contentious while
barring civil servants from continuing the work of the agency
in the absence of a confirmed head.
A. H.R. 357 Would Further Politicize and Delay Executive Branch
Appointments
1. Background on the Nomination and Senate Confirmation
Process
The Constitution grants the President and the Senate joint
responsibility for populating the highest positions in
executive branch agencies. The appointments clause (Article II,
Section 2) gives the President the power to nominate and, with
the advice and consent of the Senate, to appoint the principal
officers (``Officers of the United States'') in the executive
branch, as well as some lower-level ones. The Constitution
authorizes Congress to vest the appointment of ``inferior
Officers . . . in the President alone, in the Courts of Law, or
in the Heads of Departments. Therefore, some high-ranking
positions in the government can be filled through means beside
the appointment and confirmation process, and Congress has
created many positions that can be filled through this manner
in statute.\1\
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\1\For instance, several thousand folks in Senior Executive Service
are appointed by agency heads, as provided by law. Appointment and
Confirmation of Executive Branch Leadership: An Overview, Cong. Review
Serv. (Mar. 17, 2021), https://crsreports.congress.gov/product/pdf/R/
R44083.
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Officers of the United States are those individuals who are
``exercising significant authority pursuant to the laws of the
United States'' in a ```continuing' position established by
law.''\2\ There are approximately 1,200-1,400 positions\3\ that
require Presidential nomination and Senate confirmation, also
known as ``advice and consent positions'' or ``PAS
positions''.\4\
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\2\Lucia v. SEC, 138 S. Ct. 2044, 2051 (quoting United States v.
Germaine, 99 U.S. 508, 511-12 (1878)) (2018).
\3\``In response to an increasing perception among many Senators
that processing and confirming nominations to over 1,000 positions in
the executive branch was becoming too burdensome, a bipartisan effort
was undertaken in 2011 to address how the Senate processes nominations.
In August 2011, the Senate agreed to S. Res. 116, a resolution ``to
provide for expedited Senate consideration of certain nominees subject
to advice and consent. The procedure allows certain nominees to be
eligible for consideration by the full Senate without formal committee
action (unless any Senator requests committee referral),'' Appointment
and Confirmation of Executive Branch Leadership: An Overview, Cong.
Review Serv. (Mar. 17, 2021), https://crsreports.congress.gov/product/
pdf/R/R44083.
\4\Maeve P. Carey, Presidential Appointments, the Senate's
Confirmation process, and Changes Made in the 112th Congress, Cong.
Research Serv. (Oct. 9, 2012), https://sgp.fas.org/crs/misc/R41872.pdf.
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Presidents can influence agency priorities and actions
through their power to appoint heads for those bodies. However,
such power is constrained by the need for those nominees to
have the support of the Senate, which can influence the
President's choices for these positions or mean that their
picks will fail to get sufficient support to be confirmed. Many
appointees are confirmed routinely, while others are given
significant attention through hearings, investigations, and
floor debate. Most of the confirmation process occurs at the
Committee level, with Committees of jurisdiction voting on
nominees to the agencies they oversee.
Although the Senate has historically confirmed most
nominees to the executive branch, politics often intervenes,
resulting in a tumultuous and often stymied confirmation
process, especially when the President's party is in the
minority or holds only a slight majority in the Senate. If the
Senate fails to act on a nomination, the nominee must be re-
nominated by the President in the following session to be
considered.
Although the Constitution gives the President the power to
make limited-term appointments to fill a vacancy without Senate
confirmation when the Senate is in recess, this power is used
rarely in recent years. Recognizing the need to give agencies
leadership during possibly lengthy confirmation processes,
Congress has provided limited statutory authority to fill
vacant PAS positions on a temporary basis under the Vacancies
Act.\5\ Under this law, when an executive agency position
requiring confirmation becomes vacant, it may be filled
temporarily in one of three ways:
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\5\5 U.S.C. Sec. Sec. 3345-3349d.
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(a) The first assistant to the PAS position may
automatically assume the functions and duties of the
office;
(b) The President may direct any officer who is
occupying a position requiring Senate confirmation to
perform those tasks; or
(c) The President may select any officer or employee
of the subject agency who is occupying a position for
which the rate of pay is equal to or greater than the
rate of pay at the GS-15 level and who has been in that
position for at least 90 of the preceding 365 days.\6\
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\6\Appointment and Confirmation of Executive Branch Leadership: An
Overview, Cong. Review Serv. (Mar. 17, 2021), https://
crsreports.congress.gov/product/pdf/R/R44083.
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The temporary appointments made under the Vacancies Act is
limited to a 210 period from the date of the vacancy, but the
time periods for service are extended if the President submits
a nomination for the position.
When the limitations of the Vacancies Act have been
exhausted, past Administrations have arranged for the role of
the vacant position to be carried out indefinitely or for a
defined period by another individual in the agency, usually the
first assistant, pursuant to a delegation of authority by the
agency head. In these cases, the official carries out the
functions of the vacant position without assuming the full role
of the office (i.e., they can do most everything the office
requires except for a few duties that are statutorily vested in
the office, ``non-delegable duties'').\7\
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\7\Id.
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2. Delays in Executive Branch Appointments
As noted above, agency appointments are often stalled when
the President's party holds a slim majority in the Senate or
when the Senate is controlled by a different party than the
President's. Even outside of these issues, the Senate
confirmation process is a long and challenging one (a process
that has lengthened over time). For some agency appointments,
the process of confirmation can be so political that the role
remains unconfirmed for some time. A good example of this is
the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which
was without a Senate-confirmed Director for many years.\8\
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\8\See Josiah Bates, Why the Federal Firearms Agency Can't Find a
Permanent Director, TIME (Sept. 16, 2021), https://time.com/6097891/
aft-director-david-chipman-gun-control/.
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Presidents can also leave positions vacant for policy
reasons. For example, President Trump expressed a preference
for temporary appointees because of his perception that he had
more flexibility to move or reassign them.\9\ A recent study on
executive branch vacancies found that presidents are more
likely to use interim heads when the agency has a high capacity
of influencing public policy, thus allowing the Administration
to pursue its priorities while not involving the Senate. The
researcher, Christina Kinane, notes: ``My analysis shows that
temporary appointments don't happen by chance or as the
byproduct of an elaborate confirmation process. They are the
result of strategic decisions intended to advance a president's
policy agenda while circumventing the Senate's constitutional
prerogative of advice and consent.''\10\
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\9\Amanda Becker, Trump says acting Cabinet members give him `more
flexibility,' Reuters (Jan. 6, 2019), https://reut.rs/2VyaoAY.
\10\Mike Cummings, How presidents sidestep the Senate's `advice and
consent' on nominees, YaleNews (May 4, 2021), https://news.yale.edu/
2021/05/04/how-presidents-sidestep-senates-
advice-and-consent-nominees.
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The Trump Administration was criticized for relying on
interim heads and leaving key positions vacant. By late in
Trump's term (August 2020), 30% of the 757 key Senate-confirmed
positions were either vacant or filled by acting officials.\11\
As of the time of this writing, 11.1% of the 811 key-Senate-
confirmed positions in the Biden Administration are either
vacant or filled by an acting official.\12\
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\11\The Replacements, Partnership for Pub. Serv. (Sept. 2020),
https://ourpublicservice.org/wp-content/uploads/2020/09/The-
Replacements-1.pdf.
\12\Biden Political Appointee Tracker, Wash. Post, https://
www.washingtonpost.com/politics/interactive/2020/biden-appointee-
tracker/ (visited May 22nd, 2023).
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3. H.R. 357 Would Make the Senate Confirmation Process More
Political and Time Consuming
As mentioned, the Administrative Procedure Act and agency
authorizing statutes do not require a Senate confirmed agency
head to issue or sign any agency rules. If H.R. 357 were
passed, the Senate confirmation process would be more
politicized and make the process more time consuming--thus
gumming up the Senate's legislative calendar and delaying
necessary agency work.
B. H.R. 357 Is Based on a False Premise that Congress Needs More Ways
of Exercising Oversight of Agency Rulemaking
While H.R. 357 is unnecessary and vague, its most harmful
effect would be to delay and undermine the critical work of
agencies. Congress has entrusted agencies, which are made up of
mostly career experts and a handful of political staffers, to
execute statutes in an objective and apolitical fashion. If
Congress wishes to rein in Senate-confirmed heads of agencies
or disagrees with the rules promulgated by those agencies, they
can conduct oversight via hearings and investigations, pass new
laws changing the mission of those agencies, or use the blunt
tool of the Congressional Review Act to reverse any agency
rules recently issued.
Congress may also impose restrictions on agency rulemaking
through the appropriations process. These restrictions can take
a variety of forms, including restrictions on the finalization
of particular proposed rules, restrictions on regulatory
activity within certain areas, restrictions on implementation
or enforcement of certain rules, and conditional restrictions
that prevent a rule from taking effect until an agency takes
certain steps.\13\
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\13\See Curtis W. Copeland, Congressional Influence on Rulemaking
and Regulation Through Appropriations Restrictions (Aug. 5, 2008).
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III. CONCLUSION
H.R. 357 is an unnecessary and fatally vague bill that is
designed to undermine the critical work of agencies by
requiring a Senate-confirmed agency head to ``issue'' and
``sign'' any rules promulgated by the agency. The bill would
further politicize the Senate confirmation process, thus
gumming up the Senate legislative calendar and allow for more
corporate influence on the process. The Administrative
Procedure Act and executing statutes do not require an agency
head to be a critical part of the rulemaking process. And
indeed, many agencies operate without a confirmed head thanks
to the already political nature of the Senate's advice and
consent process. The bill is also poorly and vaguely written
and would therefore likely require agencies to spend precious
resources defending rules in court. Congress already has a
range of ways to exercise oversight and control over the
administrative state and rulemaking. If Republicans were
actually concerned about our administrative state, they would
join with Democrats to help ensure that the rulemaking process
cannot be gamed by corporate interests and allow for additional
ways for public feedback to influence the process.
For all of these reasons, I dissent and urge all of my
colleagues to oppose this legislation.
Jerrold Nadler,
Ranking Member.
[all]