[House Report 118-282]
[From the U.S. Government Publishing Office]


118th Congress }                                          { Report 
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                          { 118-282

======================================================================
 
             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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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]