[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, COMMERCIAL
AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
ON
H.R. 10
__________
MARCH 8, 2011
__________
Serial No. 112-26
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Commercial and Administrative Law
HOWARD COBLE, North Carolina, Chairman
TREY GOWDY, South Carolina, Vice-Chairman
ELTON GALLEGLY, California STEVE COHEN, Tennessee
TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
TOM REED, New York Georgia
DENNIS ROSS, Florida MELVIN L. WATT, North Carolina
MIKE QUIGLEY, Illinois
Daniel Flores, Chief Counsel
James Park, Minority Counsel
C O N T E N T S
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MARCH 8, 2011
Page
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Commercial and Administrative Law.............................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on Courts,
Commercial and Administrative Law.............................. 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
David Schoenbrod, Trustee Professor of Law, New York Law School
Oral Testimony................................................. 81
Prepared Statement............................................. 83
Eric R. Claeys, Professor of Law, George Mason University School
of Law
Oral Testimony................................................. 87
Prepared Statement............................................. 90
David Goldston, Director of Government Affairs, Natural Resources
Defense Council
Oral Testimony................................................. 122
Prepared Statement............................................. 124
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on Courts, Commercial and Administrative Law...... 4
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 7
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 139
REGULATIONS FROM THE EXECUTIVE IN NEED OF SCRUTINY ACT OF 2011
----------
TUESDAY, MARCH 8, 2011
House of Representatives,
Subcommittee on Courts,
Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4 p.m., in
room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Gowdy, Gallegly, Franks,
Reed, Ross, Cohen, Johnson, and Quigley.
Also Present: Representatives Conyers and Jackson Lee.
Staff Present: (Majority) Daniel Flores, Subcommittee Chief
Counsel; Ashley Lewis, Clerk; John Hilton, Counsel; and Allison
Rose, Professional Staff Member.
Mr. Coble. The Subcommittee will come to order.
As I stated in our January, 24, 2011, oversight hearing it
is no secret that our economy is still soft. Unnecessary or
unreasonable regulatory burdens will continue to drive business
investments to other countries, and the result will continue to
be too few American jobs and too little American prosperity.
Perhaps more than anything else is Congress' excessive
delegation of legislative decisions to Federal agencies that
has produced a flood of Federal regulation that burdens our
economy. When Congress makes the decisions, it is accountable
to the voters for the results. When agencies make the
decisions, they are not.
Not surprising, therefore, it is the unaccountable agencies
that churn out regulation after regulation, year after year,
whether needed or not. The cumulative weight of their
regulations contributes heavily to the difficulty of our
economic recovery. So does uncertainty over what regulations
will come next, particularly what $100 million or $1 billion
regulations are around the country.
The REINS Act is an important step, it seems to me, to turn
this state of affairs around. It returns to Congress the
decisions over whether the most costly regulations proposed by
Federal agencies will become effective. And by returning these
decisions to Congress, it ultimately will return the
decisionmaking authority to the voters.
At our January, 2011, oversight hearing on the REINS Act,
we considered at length the basic policy decision that the
REINS Act presents. We also began a discussion about the
constitutionality of the bill. At today's hearing, we will
continue our consideration of the REINS Act's
constitutionality. It is my view that the discussion must begin
from the premise that agencies have legislative rulemaking
authority only because the Congress has delegated it to them.
Therefore, when Congress seeks to reclaim some of its
legislative authorities, that would seem to be inherently
constitutional.
I am sure the witnesses will offer us their views on that
and on ways in which we may be able to improve the REINS Act
language. I look forward to hearing our witnesses' testimony,
and reserve the balance of my time, and I am pleased to
recognize the distinguished gentleman from Tennessee, the
Ranking Member on this Subcommittee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
Welcome to the witnesses. I appreciate your coming before
us.
Sometimes during a legislative hearing, a Committee will
examine the particulars of a bill at issue, including the
quality of its drafting, the need for additional provisions, or
whether it can be improved or tweaked to make it more
acceptable to the bill's opponents.
However, with respect to H.R. 10, the ``Regulations From
the Executive in Need of Scrutiny Act,'' or ``REINS Act,'' I do
not see the point of engaging in such a process because such a
bill is simply an ill-conceived notion, particularly because
the regulations--the title, Regulations From the Executive in
Need of Scrutiny, implies directly that the Executive is in
need of scrutiny. That Executive, of course, is the President
of the United States; not the president of the Democratic
Party, but the President of the United States, Barack Obama.
This act was not needed when George Bush was President,
apparently. He did not need scrutiny, although, in retrospect,
with the Nation coming close to falling into the Great
Depression, the second Great Depression we would have had, he
needed a lot of scrutiny. Putting us into a war where we didn't
have weapons of mass destruction, and squandering a trillion
dollars of our wealth and 4,500 people's lives and a whole lot
of our reputation around the world, he didn't need scrutiny.
Only when this man, this great man becomes President, is there
a need for--let me see the title of this again--executive
scrutiny. I think that is what it was. Executive in Need of
Scrutiny Act. Well, in itself I think you can see that it is
political and not a governmental decision.
In reviewing the written statements of the two majority
witnesses, it is clear the real purpose of this hearing is to
attack at its foundation the administrative system,
particularly this President. In fact, both witnesses seem to
take a strong issue with much of the 20th century. In fact,
this antecedes the President, but certainly his policies embody
much of the great policies of the last half of the 20th century
which are under attack in this Congress, this modern government
is.
Under H.R. 10, all major rules, that is, rules that have a
positive or negative economic effect of a hundred million
dollars or more, and there are increased prices for consumers,
industries, and government entities, or have significant
adverse economic impact must be approved by Congress before
they can take effect. Congress must do so by passing a joint
resolution of approval through both Chambers under expedited
process.
I do not believe the REINS Act is necessary for the
exercise of congressional control over the administrative
system. Congress already has a number of means at its disposal
to shape agency rulemaking. The most straightforward, of
course, is its power to determine the nature and scope of its
delegation of authority to an agency. If Congress deems the
delegation of authority was too broad, it is always free to
revisit that delegation and, if needed, retract or narrow the
scope of the agency's authority, always keeping in mind that we
have three separate and equal branches of government. And that
should be reminded to us as well as we read the Constitution in
the first week. And it talked about the three separate
branches, Article 1 and 2, et cetera.
Additionally, as it was demonstrated vividly just a few
weeks ago, Congress can use its power of the purse to stop
implementation of specific regulations it objects to. For
instance, no fewer than 19 out of the 67 amendments to H.R. 1,
the ``Full Year Continuing Appropriations Act 2011,'' or the
attack on the last half of the 20th century were aimed at
defunding the promulgation or implementation of existing and
proposed regulations. Congress can also conduct oversight,
whether through formal hearings or through less formal
interactions between agencies and individual Members or
Committees. Among the first phone calls that small business
people and other constituents make when they have concerns
about agency actions are to their Member of Congress, which in
turn prompts Members to act.
Finally, Congress has enacted statutes to shape the
administrative rulemaking process, including the Administrative
Procedure Act and the Regulatory Flexibility Act. Moreover,
through the reporting requirements through the Congressional
Review Act, Congress has kept informed about agency rulemaking
activity.
Congress is not shy about objecting to rules it finds
objectionable, and has the means to impose its will regarding
such matters. Moreover, each of these mechanisms ensures
democratic accountability over agency rulemaking. The REINS
Act, however, would force Congress to pass judgment on major
rules without the opportunity to make a well-informed decision
about their merits, leaving them wide open for special
interests to stifle such rules in Congress.
Under the bill, Congress has only 70 legislative days to
pass the joint resolution of approval through both Chambers,
and is limited to a total of 2 hours of debate in each House;
only 1 hour for each of those in favor and 1 for those opposed
to the joint resolution; certainly not enough time for a well-
informed and intellectual debate of the issues.
Committees of jurisdiction will only have 15 legislative or
session days to consider the merits of major rules under their
jurisdiction, after which a joint resolution of approval is
automatically discharged.
Under such a short-circuited process, is Congress really in
a position to second-guess the merits of rules that in many
cases took many years of vetting to produce? Instead, Members
would be bombarded with visits, phone calls, and talking points
from industry lobbyists who would no doubt take advantage of
this short-circuited process to shape Members' perspectives
about the recalls.
The REINS Act forces Congress to move too quickly while
pointlessly slowing down the agency rulemaking in a way that is
not improvement. The REINS Act also threatens to undermine
Congress' ability to consider other legislative business. For
example, in calendar year 2010 alone, there were 94 major rules
while there were only approximately 116 legislative days in the
House during the same period. We are having less time on the
floor, now that we have had a change in the 112th Congress in
how we meet. Even under expedited procedures, Congress would be
forced to delay important business, doing a further disservice
to the American people.
This is not the first time the idea of requiring
congressional approval has been proposed. It has been
considered and rejected in the past. Chief Justice John Roberts
criticized such legislation that was similar to the REINS Act
in 1983. In a memorandum he objected that such legislation
would ``hobble agency rulemaking by requiring affirmative
congressional consent to all major rules,'' and would ``seem to
impose excessive burdens on the regulatory agencies.''
We ought not let the political passions at the moment
produce such a radical change in how our government has worked
and worked well for more than a hundred years, recognizing the
three separate and equal branches of government.
The REINS Act is troubling for many reasons beyond the
obvious political reins that it tries to project, and I urge my
colleagues to oppose it.
I yield back the balance of my time.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Ranking Member, Subcommittee
on Courts, Commercial and Administrative Law
Sometimes during a legislative hearing, a committee will examine
the particulars of the bill at issue, including the quality of its
drafting, the need for additional provisions, or whether it can be
improved or tweaked to make it more acceptable to the bill's opponents.
With respect to H.R. 10, the ``Regulations From the Executive in
Need of Scrutiny Act'' or ``REINS Act,'' however, I do not see the
point of engaging in such a process because the bill is, simply put, an
ill-conceived idea.
In reviewing the written statements of the two Majority witnesses,
it is also clear that the real purpose of this hearing is to attack at
its foundation the administrative system. In fact, both witnesses seem
to take strong issue with much of the 20th Century, at least with
respect to the development of modern government.
Under H.R. 10, all major rules--that is, rules that have a positive
or negative economic effect of $100 million or more, increase prices
for consumers, industries, and government entities, or have a
significant adverse economic impact--must be approved by Congress
before they can take effect. Congress must do so by passing a joint
resolution of approval through both chambers under expedited
procedures.
I do not believe the REINS Act is necessary for exercising
Congressional control over the administrative system. Congress already
has a number of means at its disposal to shape agency rulemaking.
The most straightforward, of course, is its power to determine the
nature and scope of its delegation of authority to an agency. If
Congress deems that its delegation of authority was too broad, it is
always free to revisit that delegation and, if needed, retract or
narrow the scope of the agency's authority.
Additionally, as was demonstrated vividly just a few weeks ago,
Congress can use its power of the purse to stop implementation of
specific regulations that it objects to. For instance, no fewer than 19
out of the 67 amendments to H.R. 1, the ``Full-Year Continuing
Appropriations Act of 2011,'' were aimed at de-funding the promulgation
or implementation of existing and proposed regulations.
Congress also can conduct oversight, whether through formal
hearings or through less formal interactions between agencies and
individual Members or Committees. Among the first phone calls that
small businesspeople and other constituents make when they have
concerns about agency action is to their Member of Congress, which, in
turn, prompts Members to act.
Finally, Congress has enacted statutes that shape the
administrative rulemaking process, including the Administrative
Procedure Act and the Regulatory Flexibility Act. Moreover, through the
reporting requirements of the Congressional Review Act, Congress is
kept informed about agency rulemaking activity.
Congress is not shy about objecting to rules that it finds
objectionable and has the means to impose its will regarding such
matters. Moreover, each of these mechanisms ensures democratic
accountability over agency rulemaking.
The REINS Act, however, would force Congress to pass judgment on
major rules without the opportunity to make a well-informed decision
about their merits, leaving the door wide open for special interests to
stifle such rules in Congress.
Under the bill, Congress has only 70 legislative days to pass a
joint resolution of approval through both chambers and is limited to a
total of 2 hours of debate in each House--only 1 hour each for those in
favor and for those opposed to the joint resolution. Committees of
jurisdiction would have only 15 legislative or session days to consider
the merits of major rules under their jurisdiction, after which a joint
resolution of approval is automatically discharged.
Under such a short-circuited process, is Congress really in a
position to second-guess the merits of rules that, in many cases, took
years of vetting to produce?
Instead, Members would be bombarded with visits, phone calls, and
talking points from industry lobbyists, who would no doubt take
advantage of this short-circuited process to shape Member views about
the rule.
The REINS Act forces Congress to move too quickly while pointlessly
slowing down the agency rulemaking process in a way that does not
improve it.
The REINS Act also threatens to undermine Congress's ability to
consider other legislative business. For example, in calendar year 2010
alone, there were 94 major rules, while there were only approximately
116 legislative days in the House during that same time period. Even
under expedited procedures, Congress would be forced to ignore other
important business, doing a further disservice to the American people.
This is not the first time that the idea of requiring Congressional
approval of agency rules has been proposed. Such a proposal had been
considered and rejected by Congress in the past.
Interestingly, Chief Justice John Roberts criticized legislation
that was very similar to the REINS Act back in 1983. In a memorandum,
he objected that such legislation would ``hobbl[e] agency rulemaking by
requiring affirmative Congressional assent to all major rules'' and
would ``seem to impose excessive burdens on the regulatory agencies. .
. .''
We ought not let the political passions of the moment produce such
a radical change in how our government has worked--and worked well--for
more than 100 years. The REINS Act is troubling for many reasons, and I
urge my colleagues to oppose it.
__________
Mr. Coble. I thank the gentleman from Tennessee.
The Chair recognizes the former Chairman of the House
Judiciary Committee, the distinguished gentleman from Michigan,
for his opening statement.
Mr. Conyers. Thank you very much, Chairman Coble and
Ranking Member. I am very happy to be with you all today and to
also recognize, in addition to the distinguished witnesses, our
former colleague, Sherwood Boehlert of New York. We are
grateful that he is once again up on the Hill in this hearing
room.
But today we focus on H.R. 10. Now what does REINS stand
for? Regulations From the Executive in Need of Scrutiny. REINS.
This is the fourth time in this Subcommittee in less than a
month and a half that we considered the state of the Nation's
regulatory system. I want to thank Chairman Coble for having
this hearing. It was at my request. But I am raising the
question of this incredible amount of attention that is being
paid in a number of ways. I have one, two, three, four, five,
six, seven, eight, nine, ten different hearings in a number of
Committees in the House of Representatives, but four of them
come from this very Subcommittee.
We studied and had a hearing on this same bill on January
24. And then we had a hearing on the Regulatory Flexibility
Improvement Act on February 10. And then on February 28 we had
a hearing on the APA at 65: Is reform needed to create jobs,
promote economic growth, and reduce costs? And then, of course,
today we are having yet another hearing on Regulations From the
Executive in Need of Scrutiny.
Now, we have got some incredible comments coming in. And
what I would like to do, if I can, is make the point that there
must be some concern among ourselves as a Committee and the
witnesses, who should be very much interested in whether or not
this bill will threaten the health, the safety, and the welfare
of the citizens in our country.
From my experience, we are undeniably in a better place in
this country today than we were several decades ago, largely as
a result of regulations that have promoted worker safety,
improved the environment, and ensured the purity of our foods
and drugs. Within a generation we have restricted lead in
gasoline and paint, required autos to be equipped with seat
belts and air bags, reduced the number of carcinogens that
appear in our Nation's food, drugs, and cosmetics. We have
engineered startling health and safety advances, from catalytic
converters to scrubbers required on smoke stacks, and the
elimination of chemicals, among them freon and others, that
were actually burning a hole in the ozone layer. Yet, it is
unlikely that these health and safety gains we have enjoyed
would have been possible under the very legislative proposal,
H.R. 10, that we are considering.
This measure before us today for the fourth time would
effectively strip Federal agencies of the authority to
implement environmental public health and safety protections
unless a majority in both House and Senate approved the rules
and then they were signed by the President. I needn't tell you
how that would slow the process down, how it would complicate
the agencies from taking care of their responsibility. Things
move slowly enough in the congressional process now. We
certainly don't need to have the Congress now reviewing and
passing on agency regulations.
Some have gone as far as to suggest that the removal of
lead from gasoline in the seventies wasn't a result of the
Congress, that indeed I question if REINS were enacted, we
would never get anything done. And so my feeling is that giving
lawmakers a personal stake in updating statutes is totally the
wrong direction in which to go.
We have some new Members, the newest party in American
politics, the Tea Party. I always worry about their positions
on things as well. And we have had at least one Member before
the Committee on various regulatory subjects.
As has been demonstrated in every prior hearing of this
Subcommittee, we have repeatedly talked about the costs, but
apparently--I hope accidentally--ignored the benefits. And so
what I want to do is refer you not only to the Center for
Progressive Reform, which has recently released ``Setting the
Record Straight,'' the Crane and Crane report on regulatory
costs, as well as the Office of Management and Budget that
estimated that the benefits associated with major regulations
were between $126 billion to $663 billion--more than ten times
their cost. This is OMB.
I will submit the rest of my statement, Mr. Chairman, and
thank you for your indulgence.
Mr. Coble. Without objection.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Today's hearing, focuses on H.R. 10, the ``Regulations From the
Executive in Need of Scrutiny Act of 2011'' (otherwise known as the
``REINS Act''). This hearing marks the fourth time this Subcommittee--
in less than a month and a half--considers the state of the Nation's
regulatory system.
Unfortunately, my colleagues on the other side of the aisle appear
to be absolutely committed to pursuing a divisive partisan agenda that
has little prospect of creating jobs and improving the economy.
Nevertheless, I appreciate Chairman Coble's concurrence with my
request to hold a legislative hearing on H.R. 10 to follow-up on the
oversight hearing held on this legislation last January.
If anything, this second hearing on the REINS Act gives me yet
another opportunity to highlight this bill's numerous flaws.
In sum, the REINS Act, if enacted, would impose a drastic cost on
society.
It would dramatically change the way necessary and beneficial rules
are promulgated, by requiring all new major regulations to be
affirmatively approved by both Houses of Congress and the President
before they can take effect.
I am gravely concerned that this bill will threaten the health,
safety and welfare of our country.
We are undeniably in a much better place in this country today than
we were several decades ago largely as a result of regulations that
have promote worker safety, improve the environment, and to ensure the
purity of our food and drugs.
In the span of a generation, we have restricted lead in gasoline
and paint, required automobiles to be equipped with seatbelts and air
bags, and reduced the number of carcinogens that appear in our Nation's
food, drugs and cosmetics.
We have engineered startling health
and safety advances from catalytic converters to scrubbers on smoke
stacks and the elimination of chemicals like Freon that were burning a
hole in the ozone layer.
Yet, it is unlikely that any of the health and safety gains we have
enjoyed would have been possible under H.R. 10.
This bill would effectively strip federal agencies of the authority
to implement environmental, public health, and safety protections
unless a majority in both the House and the Senate approved the rules
and they were signed by the President.
Proponents of the REINS Act claim it will increase accountability
and transparency in the regulatory process.
For example, one of our witnesses today will argue that Congress is
no longer accountable to voters because it gives federal agencies the
responsibility to decide controversial issues.
He seems to suggest in his written testimony that members of
Congress cannot be trusted to make hard decisions. He cites the effort
to remove lead from gasoline in the 1970s.
Let's talk about lead and gasoline.
Professor Schoenbrod suggests in his written testimony that in
1970, Congress wasn't able to protect children from lead and gasoline.
He claims that Congress was stymied by competing demands: the
demand to protect children and voters' desire to keep gas cheap.
If that, indeed, was the case, I question why he would believe that
in 2011 or 2012, if the REINS Act were to be enacted, Congress would be
any less stymied?
Is there reason to believe that ``the past is no longer prologue''
with respect to Congress?
Professor Schoenbrod suggests twice in his written testimony that
the REINS Act would give lawmakers a ``personal stake'' in updating
statutes, and make Congress more accountable and responsible to the
people.
Professor Schoenbrod, I invite you to look around.
Do you really see a commitment to compromise, and to modulate
personal views for the greater good from our newest members of
Congress?
Do you honestly believe that our newest, Tea Party members of
Congress are interested in compromising for the greater good, in order
to update statutes?
I am afraid the answer is no. In reality, H.R. 10, will serve to
block essential public health, environmental, and safety protections.
As demonstrated at each of the three prior hearings on the state of
our Nation's regulatory system, my colleagues on the other side of the
aisle repeatedly cite the costs of regulations, but conveniently ignore
their benefits, which in most instances greatly exceed their costs.
We already discussed in the first hearing on H.R. 10 the flawed
economic analysis underlying these claims, and the fact that the key
study cited in support of this legislation fails to account for the
overwhelming benefits of regulation--including both cost-benefits and
benefits improving quality of life.
At the hearing this Subcommittee held on February 10, 2011 on H.R.
527, the Regulatory Flexibility Improvements Act of 2011, we entered
into the hearing record the report that clarifies this issue from the
Center for Progressive Reform entitled Setting the Record Straight: The
Crain and Crain Report on Regulatory Costs.
Also, I should remind my colleagues that the Office of Management
and Budget--during both the Bush and Obama Administrations--found that
the benefits of regulation overwhelmingly outweigh the costs.
Specifically, OMB estimated that the benefits associated with major
regulations were between $126 to $663 billion, that is, more than ten
times their cost!
Others have similarly agreed with this analysis and I expect these
reports will also be offered to be included in today's hearing record.
Another concern that H.R. 10 presents is that it will violate
fundamental separation of powers principles.
The bill goes well-beyond the careful balance of power envisioned
by the Constitution by giving Congress both the power to make the laws
and, in effect, to execute those laws, which would raise significant
separation of powers concerns.
As a result, H.R. 10 turns the constitutional process for amending
legislation on its head.
In effect, it would authorize either the House or Senate to void or
block enacted laws when those laws are executed by agencies through
implementing regulations.
Moreover, the bill threatens to create what would in effect be an
unconstitutional one-House legislative veto, because all it requires is
for one chamber to not act in order to veto a major rule.
By way of background, the legislative veto is a clause in a statute
that provides that a particular agency action will not take effect if
Congress nullifies it by resolution within a specified time period.\1\
The details of the legislative veto could vary from statute to statute,
but whatever the particulars, the legislative veto was the means by
which Congress reserved the power to nullify the executive branch's
exercise of delegated agency authority.\2\ The basic goal of the
legislative veto was to allow Congress an opportunity to oversee and
veto agency decisions, particularly when agencies acted under statutes
that gave them broad discretion that amounted to a form of
lawmaking.\3\ The legislative veto was incorporated into many
individual statutes rather than one overarching statute.
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\1\ Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, &
Matthew L. Spitzer, Administrative Law and Regulatory Policy, p. 80
(4th ed. 1999).
\2\ Id.
\3\ Id. at 81.
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In 1983, the United States Supreme Court held in Immigration &
Naturalization Serv. v. Chadha \4\ that the legislative veto was
unconstitutional Chadha was a foreign student who overstayed his
student visa and was, therefore, subject to deportation.\5\ When the
Immigration and Naturalization Service (INS) started deportation
proceedings against Chadha, he applied for a suspension of
deportation.\6\ Under the Immigration and Nationality Act, the INS had
the authority to suspend deportations for humanitarian reasons--
authority that Congress delegated to the Attorney General, who, in
turn, delegated it to the INS.\7\ The Act, however, contained a
legislative veto provision that required the Attorney General to report
to Congress all instances in which the INS suspended deportation and
allowed each House of Congress to pass a disapproval resolution within
a certain amount of time.\8\ If either House passed such a resolution,
the suspension of deportation was invalidated and the deportation had
to proceed.\9\ In Chadha's case, Congress exercised that veto and
Chadha challenged its constitutionality in court in response.\10\ The
Court concluded that the legislative veto provision violated the
Bicameralism and Presentment Clauses of Article I of the
Constitution.\11\ These Clauses required, respectively, that
legislation, including a resolution vetoing an agency action, must pass
both Houses of Congress and be presented to the President for his
approval or, if he disapproved, that the bill be re-passed by two-
thirds of both Houses of Congress.\12\
---------------------------------------------------------------------------
\4\ 462 U.S. 919 (1983).
\5\ Id. at 923.
\6\ Id. at 924.
\7\ Id. at 923-924.
\8\ Id. at 925.
\9\ Id.
\10\ Id. at 926-928.
\11\ Id. at 954-955, 959.
\12\ Id. at 946-951.
---------------------------------------------------------------------------
The Chadha decision had a profound impact on the administrative
system because at the time the decision was handed down, more than 200
statutes contained legislative veto provisions.\13\ The Chadha decision
invalidated all of them and Congress lost an important form of control
over many types of agency action.
---------------------------------------------------------------------------
\13\ Id. at 967 (White, J., dissenting).
---------------------------------------------------------------------------
While Congress continued to have the power to check agency behavior
through more limited delegations of authority, the appropriations
process, or oversight, Congress also explored a number of ways that it
could achieve the objectives of the legislative veto while comporting
with Article I's mandates after the Chadha decision. One response was
the Congressional Review Act (CRA), which was enacted with bipartisan
support in 1996 as part of then-Speaker Newt Gingrich's Contract with
America.\14\
---------------------------------------------------------------------------
\14\ Ben Geman, Top Republican Eyes Congressional Review Act
Challenge to EPA Rules, THE HILL, Jan. 2, 2011, available at http://
thehill.com/blogs/e2-wire/677-e2-wire/135595-upton-eyes-congressional-
review-act-challenge-to-epa-climate-rules.
---------------------------------------------------------------------------
The CRA requires an agency promulgating a rule \15\ to submit a
report to both Houses of Congress and to the Government Accountability
Office (GAO) containing: (1) a copy of the rule; (2) a concise general
statement describing the rule, including whether it is a major rule
(i.e., one that will likely have an annual effect on the economy of
$100 million or more, increases costs or prices for consumers,
industries or State and local governments, or have significant adverse
effects on the economy) \16\; and (3) the proposed effective date of
the rule.\17\
---------------------------------------------------------------------------
\15\ As used in the CRA, the term ``rule'' means ``the whole or
part of an agency statement of general . . . applicability and future
effect designed to implement, interpret, or prescribe law or policy. .
. .'' 5 U.S.C. Sec. 551 (2006). See also 5 U.S.C. Sec. 804(3) (2006)
(defining ``rule'' by reference to Sec. 551, with certain exceptions).
\16\ 5 U.S.C. Sec. 804(2).
\17\ Pub. L. No. 104-121, subtitle E, 110 Stat. 857-74 (1996)
(codified as 5 U.S.C. Sec. Sec. 801-808).
---------------------------------------------------------------------------
If the rule is a major rule, the agency must further submit to GAO
and each House of Congress: (1) a complete copy of any cost-benefit
analysis; (2) a description of the agency's actions pursuant to the
requirements of the Regulatory Flexibility Act \18\ and the Unfunded
Mandates Reform Act of 1995 \19\; and (3) any other relevant
information required under any other act or executive order.\20\
---------------------------------------------------------------------------
\18\ Pub. L. No. 96-353 (1980).
\19\ Pub. L. No. 104-4 (1995).
\20\ 5 U.S.C. Sec. 801(a)(1)(B).
---------------------------------------------------------------------------
The CRA authorizes Congress to disapprove an agency rule to which
it objects. Congress can do so by enacting a joint resolution of
disapproval.\21\ Such a joint resolution must be introduced within at
least 60 days of the rule's submission to Congress.\22\ For a joint
resolution of disapproval to take effect, it must pass both Houses of
Congress and be signed by the President (thereby meeting the
Bicameralism and Presentment Clauses' requirements, as required by the
Chadha decision.) \23\ If a joint resolution is enacted into law, the
disapproved rule is deemed not to have had any effect at any time.\24\
Additionally, the CRA prohibits an agency from reissuing a rule that is
substantially the same as a disapproved rule.\25\ The CRA prescribes
special expedited procedures for Senate consideration of a joint
resolution of disapproval, though it does not provide for similar
procedures in the House of Representatives.\26\
---------------------------------------------------------------------------
\21\ See 5 U.S.C. Sec. 802 (outlining congressional disapproval
procedure).
\22\ 5 U.S.C. Sec. 802(a).
\23\ U.S. Const. Art. I, Sec. 7, cl. 2, 3.
\24\ 5 U.S.C. Sec. 801(f).
\25\ 5 U.S.C. Sec. 801(b)(2).
\26\ 5 U.S.C. Sec. 802(c).
---------------------------------------------------------------------------
Barring congressional action, a major rule goes into effect on the
latest of three possible dates: (1) 60 calendar days after it has been
submitted to Congress or has been published in the Federal Register,
(2) 30 session days after a presidential veto of a joint resolution of
disapproval or earlier if either House of Congress votes and fails to
override such veto, or (3) the date on which the rule would otherwise
have gone into effect absent the CRA review requirement.\27\ A nonmajor
rule goes into effect as otherwise provided for by law.\28\ In either
case, Congress still has 60 legislative or session days to disapprove
the rule.
---------------------------------------------------------------------------
\27\ 5 U.S.C. Sec. 801(a)(3).
\28\ 5 U.S.C. Sec. 801(a)(4).
---------------------------------------------------------------------------
In addition to being unnecessary, because Congress already has
control over agency rulemaking through the Congressional Review Act,
the REINS Act is also dangerous.
This REINS Act would block or void federal laws protecting public
health, safety, welfare and the environment through fundamentally anti-
democratic, and arguably unconstitutional, means.
As I said during our last hearing, although Congress is charged
with making the laws, Constitution demands that the Executive Branch
``take care that the laws be faithfully executed.''
This fundamental notion of the separation of powers is the essence
of what our founding fathers envisioned in the Constitution of this
great Nation.
I am concerned that H.R. 10 ``unduly trammels on executive
authority'' under the separation of powers doctrine that the Supreme
Court upheld in the 1988 case, Morrison v. Olson.
A group of sixty-five law professors from across this nation has
written a letter opposing the REINS Act for legal and policy reasons. I
would request unanimous consent to enter that letter into the record
now.
In addition to the foregoing, I would also like to observe that
H.R. 10 is not necessary.
I agree that we can and should ensure that we regulate American
businesses only when necessary to meet broader societal objectives like
limiting harmful pollution or preventing worker
injuries or reducing motor vehicle deaths, and that regulations do
not needlessly burden regulated industries.
But H.R. 10 is not necessary to achieve that balance, nor is it the
appropriate way to do so.
We already have checks in place to ensure regulations meet these
objectives.
For example, the Executive Branch only has the power to regulate
when Congress passes laws that confer regulatory authority.
As a further protection against unwarranted regulation, the
Congressional Review Act allows Congress to disapprove of any
regulations that a majority in both Houses deem unacceptable.
Congress also retains its authority to limit funding for regulatory
programs and to enact new laws if it believes regulatory protections
are no longer necessary.
In recognition of the critical role federal regulations play, most
rules are subject to a very lengthy vetting process involving the
agency, the Administration and the public, through notice and public
participation processes.
The REINS Act is simply unnecessary, and inappropriate policy.
I look forward to discussing more of these issues and hearing from
the witnesses today.
Thank you.
ATTACHMENT
__________
Mr. Coble. Without objection, additional opening statements
from other Members will be made a part of the record.
We welcome our panel today. Let me give you some
background. David Schoenbrod is a Trustees Professor of Law at
the New York School of Law and a Visiting Scholar at the
American Enterprise Institute. He is the co-director of the
project, ``Breaking the Logjam: An Environmental Law for the
21st Century.'' The project is a call for bipartisan action for
smarter, more flexible regulatory programs to protect the
environment, encourage green technology, and stimulate the
economy. Professor Schoenbrod is a frequent contributor to the
Wall Street Journal and the New York Times editorial pages. He
has been an attorney at the Natural Resources Defense Council,
published several books, and held faculty positions at Yale
School of Law and the New York University School of Law.
At NRDC Professor Schoenbrod has served as codirector of
the Council's Project on Urban Transportation with Professor
Sandler. Professor Schoenbrod is a nationally recognized expert
on injunctions, congressional relations with regulatory
agencies, and environmental law. He was graduated magna cum
laude from Yale and was a Marshall Scholar at Oxford.
Eric Claeys is our second witness. He is a professor at the
George Mason University School of law. Professor Claeys has
also taught at the St. Louis University School of Law and the
University of Chicago School of Law. Prior to teaching,
Professor Claeys practiced appellate and tort litigation at
Kirkland & Ellis, and clerked for the Honorable Chief Justice
William Rehnquist and the Honorable Melvin Brunetti. Professor
Claeys' scholarship focus is on American property and
constitutional law, and particularly on the influence of
American natural law/natural rights theory on the law. He was
graduated from Princeton University and received his J.D. From
the University of Southern California.
Our third and final witness is Mr. David Goldston, who I
believe is a good friend of yours, Mr. Boehlert, our colleague
from New York. Mr. Goldston is the Director of Government
Affairs at the Natural Resources Defense Council. As director,
Mr. Goldston oversees the development and implementation of
NRDC strategies for interacting with Congress and the Obama
administration. Mr. Goldston is a former chief of staff of the
U.S. House Committee on Science, where he served under Chairman
Boehlert for 6 years. Mr. Goldston left Capitol Hill in 2006,
and since then has taught at Princeton and Harvard. He also has
written a monthly column, ``Party of One,'' on science policy
for the journal Nature. Mr. Goldston graduated magna cum laude
from Cornell University and was awarded his Ph.D. From the
University of Pennsylvania.
Gentlemen, it is good to have all three of you with us. I
would ask you, if you could, we try to comply with the 5-minute
rule. When the amber light appears, this will be your warning
that the red light is imminent. And the red light usually calls
for conclusion, if you will, shortly after that.
Mr. Coble. Professor Schoenbrod, good to have you with us.
If you will kick us off.
TESTIMONY OF DAVID SCHOENBROD, TRUSTEE PROFESSOR OF LAW, NEW
YORK LAW SCHOOL
Mr. Schoenbrod. Chairman Coble, Ranking Member Cohen,
Members of the Subcommittee, thank you for the opportunity to
testify. My experience at the Natural Resources Defense
Council, heading the campaign to protect children from lead, is
the reason I am here today to support the REINS Act.
In the Clean Air Act of 1970, Congress took responsibility
for a rule requiring cars made from 1975 on, to use unleaded
gasoline. That was the easy choice. It was easy because lead
would ruin the pollution control devices required on these
cars. But this easy choice would do nothing to reduce lead in
gasoline for 5 years; and even after that 5 years, there would
be a hundred million cars on the road still burning lead. What
to do about those cars, that lead, that was the hard choice.
Voters wanted to ``GET THE LEAD OUT.'' That is what the bumper
sticker said. But they also wanted cheap gasoline.
Congress avoided this hard choice by ordering EPA to set a
health goal for lead pollution and achieve it by 1976, thereby
claiming credit for the benefit of protecting health and
avoiding blame for any possible increase in gas prices. EPA,
understandably, went into a stall. We sued EPA and won many
victories in court. But EPA accomplished very little at the gas
station.
If Congress could not have avoided responsibility for the
hard choices in 1970, it would have adopted a rule to eliminate
at least half of the lead in gasoline in the early 1970's.
After all, Congress told the auto manufacturers to reduce their
pollution from their new cars over the same period by 90
percent.
The result of Congress avoiding responsibility is that many
children died or suffered permanent brain injury, especially in
inner cities. Using EPA data, I estimate that the deaths and
injuries to be on the scale of American casualties in the war
in Vietnam. And I set it all out in a book called ``Saving our
Environment from Washington'' (Yale University Press, 2005).
Lead is no aberration. The biggest successes on air
pollution have come when Congress did take responsibility, and
the biggest failures have come when Congress avoided it. This,
too, is documented in another book coauthored with the former
chairman of the Environmental Defense Fund. The book is called
``Breaking the Logjam'' (Yale University Press, 2010).
This experience with the Clean Air Act led me when I became
an academic to search for ways to help Congress to take
responsibility. And I wrote another book (``Power Without
Responsibility'' Yale University Press, 1993)). In it, I quote
James Landis, the New Deal's sage of administrative law, who
urged in 1938 that agency regulations be presented to Congress
for approval: ``It is an act of political wisdom to put back
upon the shoulders of Congress responsibility for controversial
choices.'' REINS would do that,
thereby making regulation more effective and efficient.
Consider environmental regulations again. It suffers from
polarized politics--the swinging pendulum in Congress left to
right, right to left. REINS would help by inducing EPA to talk
to centrist legislators. Both parties would find they must
adopt a modulated position or voters will punish them at the
polls, as voters have punished both parties at various times in
the past. This is how we should get the sensible results in a
democracy, not by elected lawmakers hiding behind unelected
agency officials.
REINS would also induce changes in how Congress delegates
to agencies. Knowing that the big decisions would come back to
it, Congress would order the agency to shape their rules to
achieve compromise standards rather than telling agencies to
achieve the best of everything for everyone.
Finally, environmental regulation also suffers from
obsolete statutes. Congress has not passed a major
environmental statute for 20 years. Most of the statutes on the
book owe their basic structures to the early 1970's or late
1970's. The reason that Congress does not update the obsolete
statutes is that the problems that they create for the
environment and for the economy are not problems for
legislators who, after all, can blame these problems on EPA.
REINS, by bringing the rules back to Congress, would give
legislators a reason to reexamine their handiwork from the
1970's.
Thank you again for the opportunity to testify today. I
look forward to answering your questions.
Mr. Coble. Professor, thank you as well.
[The prepared statement of Mr. Schoenbrod follows:]
__________
Mr. Coble. Professor Claeys, you are recognized for 5
minutes.
TESTIMONY OF ERIC R. CLAEYS, PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY SCHOOL OF LAW
Mr. Claeys. Chairman Coble, Ranking Member Cohen, and
Members of the Subcommittee, thank you very much for inviting
me to testify. I would like to restate my written testimony as
three points:
First, Congress has constitutional authority to enact the
REINS Act. The power to promulgate legislative rules becomes an
executive power if, to the extent, and under whatever
constitutionally proper conditions Congress establishes on the
agency, using the necessary and proper clause.
Even if the pros of legislative rulemaking sometimes
outweigh the cons, legislative rulemaking does have cons.
Executive-ordered rules can jeopardize the liberties of
citizens, seem politically illegitimate, or undermine ordinary
political accountability. This Congress may reasonably decide
that these cons outweigh rulemaking's pros when $100 million or
more is on the line. This Congress may reasonably decide that
executive rulemaking is unnecessary and improper for executing
Congress' constitutionally enumerated powers without a prior
congressional approval.
The testimony on January 24 raised two other issues that I
would be happy to discuss in question and answer.
Now, for my other two points, I am grateful to Mr. Goldston
to offer his testimony because the difference between his
testimony and my testimony illustrates and
highlights some important issues of principles for this
Committee to consider. I would like to restate my other two
highlights in relation to that testimony.
First, Mr. Goldston states that the REINS Act threatens to
replace a process based on expertise, rationale, and openness
with one based on political maneuvering, economic clout, and
secrecy.
My second point: That contrast states a false choice. In
reality, in one process the federalist theory of government,
the process is openly political and it makes legislators write
laws and be accountable for bad laws at the voting booth. In
the other, which my testimony calls the Progressive New Deal
theory of government, the process is covertly political. Agency
experts claim that all the political choices have been settled.
They then use agency policymaking powers to impose their
choices with less accountability to voters at the voting booth.
For example, last Congress, cap-and-trade legislation
failed. And last November, some cap-and-trade supporters were
voted out of office. Right now, however, the EPA is going ahead
with rulemakings on greenhouse gas standards for petroleum
refineries and fossil fuel power plants. In response, this
House's Commerce Committee is a considering a bill more drastic
than the REINS Act to eliminate the EPA's jurisdiction to make
rules on greenhouse gases.
Some of the EPA supporters are criticizing that bill on the
grounds the bill defies the scientific consensus. They are
using rulemaking and the authority of science to cover over
difficult tradeoffs between clean air and the technology that
is available to make clean air, and the economics. If the EPA
does this, then it avoids having--it undoes the settlement that
happened by legislation, by elections last year.
Separately, Mr. Goldston defends executive branch
rulemaking on the grounds that some kind of decisions
require deep technical expertise somewhat insulated from
political horse trading and power plays. Progressive and New
Deal political theorists believe this. By contrast, the
federalists disagreed on the ground that the latent causes of
faction are sown in the nature of man.
Recent economic and political science scholarship has
confirmed the federalist portrait as the product of extremely
complicated coalitions between Baptists and bootleggers. And
here I apologize to both Baptists in real life and to
bootleggers in real life.
An example from my testimony. For the last 16 years, the
Consumer Product Safety Commission has been working on a
rulemaking petition to order manufacturers to make a furniture
that won't ignite if a cigarette that is lit is sitting on it.
On both sides of the dispute,
bootleggers--regulated industries--are coopting
Baptists--agencies in seemingly idealistic advocacy
groups--to fight one another.
The rulemaking was petitioned by the National Association
of Fire Marshals. The fire marshals had received considerable
financial assistance from and were getting free lobbying from
cigarette companies, which tried to head off proposals to have
the CPSC order them to make self-extinguishing cigarettes.
On the other side of the table, furniture companies slowed
down the rulemaking by citing health and environmental
concerns. They persuaded Congress to order the rulemaking
delayed until the Federal Government could fund medical studies
on the impact of the retardant chemicals.
Mr. Goldston portrays regulation as all Baptist, all the
time. With James Madison, I believe the bootleggers divert the
right regulatory process fairly often.
Members of the Subcommittee, I am sure you have more
experience and familiarity than I do to decide which of the two
of us is describing the regulatory process more accurately. If
you agree that it is impossible to take all of the politics out
of regulation, it would be better if we all admitted as much
and forced agencies to seek permission from Congress. Deeply
political choices will be made more transparently and your
constituents will know who is accountable for the choices. And
the REINS Act does this--and only for regulations where $100
million or more are on the line.
Thank you. I would be happy to answer questions.
Mr. Coble. Thank you Mr. Claeys.
[The prepared statement of Mr. Claeys follows:]
__________
Mr. Coble. Mr. Goldston, you are recognized for 5 minutes.
TESTIMONY OF DAVID GOLDSTON, DIRECTOR OF GOVERNMENT AFFAIRS,
NATURAL RESOURCES DEFENSE COUNCIL
Mr. Goldston. Thank you. Chairman Coble, Mr. Cohen, Members
of the Subcommittee, thanks for having me here today, though it
is a little odd to be sitting on this side of the dais.
I am here today to testify in opposition to the REINS Act,
a bill that I think itself cannot withstand scrutiny on either
practical or theoretical grounds. And I look forward during the
Q&A to engaging with Professor Claeys on some of the points
that he referenced.
Let me start with the practical problems. This bill would
basically amend virtually every health and environmental law
currently on the books, along with other laws, hampering their
implementation. Its clear purpose is to place roadblocks in the
way of protecting the public and to privilege the complaints of
any industry.
How would the bill work in practice? Congress would be put
in a position of quickly second-guessing decisions that are
often based on years of technical analysis and policy
deliberation. In response, industry lobbyists would inundate
Congress both with campaign contributions and to evaluate
technical and economical claims. Congress would have little
choice but to fall back on political calculations, logrolling,
and dealmaking, that might have little to do with the merit of
the arguments before them. Industry would no longer have an
incentive to cooperate with agency rulemaking processes and the
regulatory process would likely become more random and less
predictable. The Executive's ability to carry out the laws as
they are written would be curtailed and the courts would be
limited in their ability to enforce them.
All this is totally unnecessary. The rationale for
delegating some decisions to agencies is as valid now as it was
100 years ago. Congress is not the best venue for reaching
detailed, technically based decisions regarding every issue.
And I would add that the issue is whether the REINS Act would
make the situation better or worse, not whether there are any
problems at all with current rulemaking procedures.
Congress does not lack the tools it needs to guide the
regulatory process. It writes the laws which govern the
regulations and it can intervene to change those laws or to
block individual regulations anytime it chooses. It also has
vast informal powers to influence the Executive. The concern
the bill's sponsors have with the current system seems not to
be that the current system doesn't work, but that it does. The
public is protected, yet agencies are constrained by courts and
the political context. The benefits of regulations outstrip the
costs. The complaint is, rather, that those on the right end of
the political spectrum don't always win under the current
system. This bill is an effort to rewrite the rules of
governance and reverse longstanding practices to make it easier
for one ideological fashion to triumph.
Mr. Coble. Mr. Goldston, if you would suspend. We were late
starting your clock so the red light does not bar you right
now. You have got a couple of minutes to go. That was our
mistake here.
Mr. Goldston. I think we would be well advised to stick to
a system based on long experience and constitutional principles
that has yielded public protections while allowing for economic
growth. Thank you.
[The prepared statement of Mr. Goldston follows:]
__________
Mr. Coble. Thank you all, gentlemen.
Gentlemen, we try to apply the 5-minute rule to us as well.
So if you all could respond tersely, that would be of benefit
to us.
Professor Schoenbrod, let me ask you this question. Does
the REINS Act preclude congressional consideration of the
expertise that agencies have brought to the development of a
given regulation?
Mr. Schoenbrod. No, it does not. The agencies would
investigate. The agencies would analyze. Congress' job would be
to render a judgment and to be accountable.
Mr. Coble. Professor Claeys.
Mr. Claeys. Yes, Mr. Chairman.
Mr. Coble. Critics of the REINS Act allege that it has
constitutional flaws in light of the Supreme Court's rulings in
INS v. Chada and Morrison v. Olson. Summarize, if you will,
your views of this criticism.
Mr. Claeys. Mr. Chairman, neither of those criticisms has
merit. As a background matter, agencies have no power to
promulgate legislative rules unless it is given to them by
Congress. So the Morrison argument runs off of the assumption
that there is some core inherent prerogative of the President
in relation to legislative rulemaking that is threatened by the
REINS Act. However, if all of executive branch agencies'
rulemakings powers must come from Congress, there can't be any
such core Article 2 prerogative.
Maybe the most helpful precedent here would be Youngstown
Sheet and Tube v. Sawyer, a 1952 case. President Truman tried
to order a seizure of the steel mills and he didn't have an act
of Congress to support it. The Court held that in the absence
of that statute--such a statute or other kind of authorization
from Congress--that the President had no authority.
So as for the Chada ruling, once it is accepted that--as it
is under controlling practice and precedent--that agencies may
receive delegations from Congress of Executive power to
promulgate legislative rules, then trickier issues
arise about whether and in what circumstances Congress may
put strings or conditions on an executive branch agency's
exercise of that Executive power.
The Chada decision doesn't rule out the possibility that
Congress may ever attach strings. It merely states if Congress
does attach such a string, Congress must do so by a genuine
bona fide legislative act that is passed by the House and the
Senate and then either signed by the President or passed by
two-thirds supermajority in both Houses.
The REINS Act specifies that a major rule is promulgated
pursuant to valid enabling statute and there is valid Executive
authority, except that the rule may not take the force of law
until this Congress passes a joint resolution of approval. If
that joint resolution satisfies bicameralism at presentment, it
satisfies Chada.
Mr. Coble. Professor Claeys, let me come back to you. There
has been some criticism directed against the REINS Act on the
charge that it is biased against public interest and public
protection. What say you to that?
Mr. Claeys. Mr. Chairman, I taught food and drug law for 3
years. I haven't taught it recently, but I have taught it. And
one of the things that struck me was that some of the FDA's
biggest successes and the legal mandates that it enforced the
most successfully were ones acting in response to an
implementing statute passed by Congress.
When there was a thalidomide scare, there were other
significant medical scares, the FDA staff recommended to
Congress that a bill be passed. And Congress took the agency's
expertise and implemented and enacted the law.
I don't understand why, if a similar problem were to arise
today, this Congress would not respect the agency's arguments,
look at the factual record the agency put together, and look at
all interpretive and other policy questions the agency needed
to consider. And if Congress was satisfied, this Congress could
then say, We approve of the Executive's proposed legislation
and we are not going to stay in the way of its going forward.
Mr. Coble. Thank you, sir.
Mr. Goldston, none of us is perfect. So Federal agencies
from time to time do get things wrong. If they do, then why
shouldn't their biggest and most important decisions be placed
before the Members of Congress for a vote?
Mr. Goldston. Well, I think there certainly should be an
ability for Members of Congress and the public to have recourse
in terms of Federal regulations. Congress has that ability
right now: The Congressional Review Act. The House just passed
the continuing resolution the other day that had at least 19
examples of places where Congress used its spending authority
to block regulations. We didn't think that was a good idea, but
it certainly was within their authority. Congress could rewrite
the statutes.
Congress, as Professor Claeys mentioned, the House is right
now thinking of considering legislation to change EPA's
authority regarding greenhouse gases. Congress has all the
tools it needs to do exactly what you asked about. The question
is, What would be the impact of reversing the entire system
that has grown up; who would be likely to benefit; would the
solution be worse than the disease? I would argue that it would
be.
Mr. Coble. I see the red light is illuminated, therefore
barring me from further questioning. I recognize the
distinguished gentleman from Tennessee, Mr. Cohen, for 5
minutes.
Mr. Cohen. Thank you, sir.
Mr. Goldston, do you see constitutional problems with the
separation of powers here?
Mr. Goldston. I am really not an expert on the
constitutional question. I would say that one concern, though,
is that--there are two concerns with the bill that at least
raise issues relating to the Constitution, whether they are
constitutional or legal issues.
One is, I agree with Professor Claeys that Congress is the
one that has the authority to delegate to agencies and it has
the choice whether to do that. What this bill does is it
continues to delegate, but then doesn't allow the agency to
carry out the delegated authority. This is sort of a halfway
measure where Congress isn't taking the authority back but it
is not leaving it with the agency either. I think that is a
peculiar situation and can result in a situation where the law
is not able to be carried out and there is no recourse for
anybody in the courts or elsewhere. So that is one issue.
The other is that regardless of whether it violates Chada
or not, this bill does create a situation where the failure--
where failure to act by one House will kill an Executive
action, with again, no recourse to the other body or the
President. Whether that is technically a constitutional issue
in terms of the law, I leave to Constitution experts. But it
certainly raises practical problems that the Constitution tried
to avoid.
Mr. Cohen. It does raise that issue. Bills have to be
passed by both Houses. And that is something we have done for a
long time. In this circumstance, the Senate would have to--
could on its own not pass something--and it takes 60 folks to
do anything over there. It really takes more than 60. Sixty. So
41 people could stymie the entire United States Government.
Pretty strange veto power they would then have over the
Executive. It is something that I don't think is envisioned
anywhere.
Professor Schoenbrod, you are familiar with Morrison v.
Olson, I guess.
Mr. Schoenbrod. Yes.
Mr. Cohen. How do you reconcile that case where Chief
Justice Rehnquist said that the test for evaluating a statutory
scheme under the separation of powers doctrine to see whether
it can stand. It says the statute is suspect if it is an
attempt by Congress to increase its own powers at the expense
of the Executive branch. This indeed would be an attempt by
Congress to increase its powers. How would you reconcile the
REINS Act with Justice Rehnquist's ruling in Morrison v. Olson?
Mr. Schoenbrod. There are cases going back to the framing
of the Constitution which describe law as rules of conduct. The
regulations that agencies promulgate are rules of Conduct. And
in fact, courts talk about these regulations all the time as
``legislative rules.'' So we are not talking here about
Executive power fundamentally; we are talking here about
legislative power. So it is a question of Congress reclaiming
some of its legislative powers. So, therefore, Morrison v.
Olson is not implicated.
Mr. Cohen. Well, the regulatory agencies, commissions, do
you consider them executive or legislative?
Mr. Schoenbrod. Well, they can't be legislative. They are
not part of the legislative branch, but they are exercising
legislative-type powers. And when courts talk about
``legislative rules'' as opposed to ``interpretive rules,''
they are recognizing the fact that these agencies make law.
Mr. Cohen. But the agencies are executive--under the
Executive.
Mr. Schoenbrod. That is right.
Mr. Cohen. So it is taking away from the executive branch.
That is the executive branch. They may be legislating, they may
be rulemaking. Presidents make decisions, Vice Presidents.
Secretary Clinton makes a decision. Her committees make a
decision. But that doesn't make them part of the legislature.
They are part of the executive.
Mr. Schoenbrod. Pardon me, Congressman. Congress has
delegated to the agencies the power to make these legislative
rules. Congress could take that back or condition it.
Mr. Cohen. Right. Congress could just make all the rules
themselves. Why couldn't we just under this theory, which makes
more sense to me, just make all the rules ourselves; have some
Committees make the rules. Since they are not going to go into
effect until we approve them, why shouldn't we have the
Committees pass and approve all of the rules and then just let
the agencies administer them? Would that make for sense to you?
Mr. Schoenbrod. I think not. I mean, I think there are
problems given the volumes of rules that our country has. It
seems to me what the REINS Act attempts to do is to draw a line
and to have the more important ones come back to Congress for
consideration.
Mr. Cohen. Well, what if we just did the more important
ones? The fact is, we couldn't even amend the law. You have got
an hour to talk about it. You talk about post offices. And we
passed 70 post offices. That is a simple thing; voice vote,
nobody cares. Fine and dandy. It is done. These are things that
should be policy issues and people are going to want to debate
them and have differences of opinion. From your testimony, and
I appreciate your scholarly background, you don't have a real
good impression of Congress, or attitude about it, do you?
Mr. Schoenbrod. Well, it seems to me that I am here
suggesting how it would make sense to move forward. And
whatever my private opinions are, they are my private opinions.
I think this bill is a good bill. And whatever my impressions
are of any branch of government is really my private point of
view.
Mr. Cohen. Mr. Chairman, if I could just have 30 seconds to
finish.
Mr. Gowdy. [presiding.] Without objection.
Mr. Cohen. Thank you.
Mr. Schoenbrod. I am sorry. I worked in Congress for
Senator and Vice President Hubert Humphrey, going back to the
sixties, and I do have a lot of respect for the institution. I
do think, however, that the system as a whole sometimes fails
the people. It is not Congress as a whole.
Mr. Cohen. Mr. Chairman, I will say, reading the testimony,
it is obvious that your opinion of Congress is not particularly
good. You think that we don't want to take decisions and make
decisions that are difficult; that we take easy, easy things
like naming post offices--and I forget; I am trying to find the
page and how you refer to that--we don't like to take a stand.
The fact is, with the passage of this you can't guarantee
that Congress will do any more about lead poisoning that was
the beginning of the basis of your discussion. That doesn't
mean Congress is going to belly up to the bar and do the right
thing or approve some regulation or not. You might have no lead
regulation at all and more children die.
So I submit to you, whether you are right or not, unless
maybe you change the people, it is not the institution, and you
are trying to change the institution.
Mr. Schoenbrod. I think Congress has done many excellent
things in regard to air pollution. It was Congress that passed
the rule to reduce auto emissions 90 percent. It was Congress
who decided to eliminate ozone-destroying chemicals. It was
Congress that had the effective action on lead and gasoline. It
was Congress that decided to reduce acid rain 50 percent. I
think Congress is capable of doing many wonderful things. And I
think Congress works best when it is most accountable.
Mr. Cohen. Thank you, sir. Thank you Mr. Chairman.
Mr. Gowdy. Mr. Goldston, I want you to assume
hypothetically that Congress were contemplating a piece of
legislation--and hypothetically let's assume it was called the
PATRIOT Act. Would you agree or disagree that Congress could
pass a broad piece of legislation called the PATRIOT Act and
then let the FBI fill in the details?
Mr. Goldston. Yes. I think, again, the courts have limited
how much delegation authority Congress has, but it is very
broad. So yes, creating broad policy I think is the role of
Congress. And then it could leave to the agencies the
particulars of how to implement it with, again, always the
ability to come back under current procedures.
Mr. Gowdy. So you would let the Bureau promulgate
regulations that the Bureau would then interpret and enforce.
Mr. Goldston. In this hypothetical, sure. I think it would
behoove Congress--and I agree with Professor Schoenbrod on
this--to give as much direction to the agency as possible. But
if there were kinds of issues that raised either particular
kinds of technical questions or that involve complicated
deliberations that needed some
quasi-judicial look, then yes; I would not be inherently
opposed to the agency being able to figure out the specifics of
that.
Mr. Gowdy. Currently there are regulations which constitute
evidence of negligence; in fact, in some instances, evidence of
negligence per se in civil cases. Correct?
Mr. Goldston. I am not an attorney, but yes.
Mr. Gowdy. Don't go bragging. What about--well, let me ask
you if--and if I am asking a question that is not fair, then I
will withdraw it. Would you disagree with me that there are
criminal sanctions for the violations of certain regulations?
Mr. Goldston. Absolutely.
Mr. Gowdy. And would you not agree with me further that it
really is best for Congress to pass regulations or rules that
carry with it criminal sanctions?
Mr. Goldston. Yes. And I think that is generally what
happens. Congress is the one that decides that if you are going
to put an effluent into the water or a pollutant into the air,
that that would constitute under certain circumstances a
criminal violation. The specific level which involves, among
others things, technical decisionmaking, figuring out which
pollutant, and so forth, that is what was left to the agency.
The agency on its own can't decide that something is a criminal
violation.
Mr. Gowdy. You mentioned expertise. Are you familiar or can
you give me examples where the ``expertise'' failed?
Mr. Goldston. Not offhand, but I have no doubt that there
are many. I am not arguing--my argument is not that agencies
are never wrong or should be beyond the law. My argument is
that the solution of the REINS Act would make worse every
situation that it aims to clear up.
Mr. Gowdy. Do you challenge the constitutionality of the
REINS Act?
Mr. Goldston. I don't have a position on constitutionality.
As I said, I think it does some things that are
constitutionally suspect in sort of the way that it will leave,
for example, a situation where the law could remain on the
books but be unenforceable in court or elsewhere because the
court couldn't get Congress to approve a regulation that would
be required by the statute which would remain in effect.
Whether that would be technically unconstitutional or not, I am
not qualified to say.
Mr. Gowdy. Professor Claeys, can you think of any examples
where the expertise fails? Because it strikes me that that is
the argument in favor of the status quo, is that there are
experts at these executive agencies, whereas Congress is bereft
of expertise. In some instances, that may be correct. Can you
cite examples where the ``expertise'' failed?
Mr. Claeys. I hope this is answering your question. It may
be an answer to a different question. I can cite and did cite
in my testimony examples where the claims made on behalf of
expertise couldn't justify the regulation that was being put
forward. So, for instance, back in 1980 the Supreme Court
considered a challenge to a rule to impose bending standards to
put in a one-part-per-million restriction on the amount of
benzene in the workplace. And the Occupational Safety Health
Administration had three or four pieces of data. Some was about
studies done of workers in Turkey who made shoes and were
exposed to benzene and some of them contracted leukemia. Some
had to do with people who made glue in Italy and they
contributed leukemia. Some had to do with general medical data
and people who contracted blood deficiencies. But the exposures
to which all those people were subjected were 150 parts per
million up to 650 parts per million for leukemia or 25 parts
per million for the people who suffered the blood deficiencies.
There are laboratory tests on mice and rats that suggested that
other chemicals caused health problems at one part per million,
but not benzene.
The point of my testimony is just to show in a situation
like that, there is a tremendous amount of extrapolation that
the agency needs to take from the three or four data points to
say that there is a safety problem at one part per million.
In a situation like that, there are two or three really
political choices. First, how do you interpret three or four
pieces of data? Second, assuming that you think it creates some
possibilities of a health risk, does the agency think the
technology exists to impose the standard? And, third, what are
the cost-benefits economically?
And if you put the three of those together, it is just
simply not expertise that is justifying the extension of this
data into a rule. There are three political choices being made,
and it would be better, more accountable, if Congress took
ownership of those choices by embracing a joint resolution of
approval.
Mr. Gowdy. All right. Thank you.
I have run into a red light, and the Committee would
recognize the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
This is an astounding hearing to me.
Are you aware, Professor, that 66 law professors, plus a
former California Supreme Court justice, have all sent in a
letter to us giving 5 reasons why they express their opposition
to the passage of the REINS Act?
Mr. Schoenbrod. No, I am not. Put it this way: I have been
a law professor a long time, and I never cease to be astounded
by what law professors conclude.
Mr. Conyers. Well, I noticed. I have been listening to you
all afternoon, and I never--I am always astounded by some of
your comments. So I accept your remark.
Now, let me ask Professor Claeys, are you familiar with
this letter dated February 8th, 2011, from--I am going to put
it in the record, by the way--66 law professors, including a
former Supreme Court justice, stating 5 reasons why they oppose
the passage of the REINS Act?
Mr. Claeys. No, Congressman Conyers, I am not.
Mr. Conyers. All right.
Let me ask you--you are not a professor, Mr. David
Goldston?
Mr. Goldston. Not currently. I have been.
Mr. Conyers. Well, are you aware of the letter that I have
been asking about?
Mr. Goldston. Yes, I am.
Mr. Conyers. So the two professors are not aware of the
letter, and the one former professor is aware of the letter.
Well, I ask unanimous consent to enter the letter from the
66 law professors into the record, Mr. Chairman.
Mr. Gowdy. Without objection.
[The information referred to follows:]
__________
Mr. Conyers. Now, let me ask you, Mr. Goldston--you are on
the Natural Resources Defense Council--do you believe that
there is quite sufficient process that already exists for us to
deal with this problem of how we get rulemaking agencies to
determine their own rules?
Number five in the letter I just introduced into the record
follows this sentence: ``The regulatory process is accountable
even though regulators are not elected,'' and that they have--
that the agencies develop regulations to implement laws. They
solicit comment from the affected parties and the public. The
White House and the Regulatory Affairs goes through drafts of
significant regulatory proposals. The agencies issue final
regulations, but Congress has a fast-track opportunity to block
them, and sometimes this happens.
Can you comment on the lack of necessity for us to bring in
this incredible notion that we are going to regulate executive
decisions from the White House because we feel that they are
questionable?
Mr. Goldston. Yes. There are, I think, at least three ways
in which the theory behind this, in terms of what is missing
now, is misguided. Two of them are discussed in the part of the
letter you just mentioned.
So, first is that the agencies are constrained by law and
by politics, actually, because they operate in a political
context. So I think the agencies do not have carte blanche, or
I think in Professor Claeys' testimony at one point he said a
blank check. I don't think that is the case. And, in fact,
Professor Schoenbrod mentioned NRDC lawsuits against agencies
that he was involved in. Those are only possible because there
is a statute that allows it. So that is one way in which there
is accountability now, to some degree.
The second is--and I think more relevant to this--is that
Congress, itself, has a huge number of tools at its disposal,
formal and informal, to intervene in the regulatory process,
including the ability to block individual regulations, wisely
or otherwise.
But the third issue is, the matter seems to be whether
there is any electoral accountability. We just went through an
election, in fact, an election that gave new life to this
proposal, where Members felt that they got elected because the
public didn't like the regulatory regime that we have now. This
seems----
Mr. Gowdy. Mr. Goldston, I hate to interrupt you. Let me
ask you if you could summarize it in just a couple more
sentences. We have run into the stop sign.
Mr. Goldston. Sure. Absolutely.
So I think there is--the recent elections shows there is
accountability. I think some of the most controversial
regulations that have been brought up will feature in future
elections. And so, the notion that there is no political
accountability, in addition to the other kinds of
accountability we are talking about, I think is hard to
maintain.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much.
Mr. Gowdy. Thank you, Mr. Conyers.
The Chair would now recognize the distinguished gentleman
from Florida, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman.
Gentlemen, interesting, a couple of months ago, I was
talking to an elementary class about American government and,
of course, talked about the three branches of government. And
since we have had, as the distinguished gentleman from Michigan
pointed out, had several hearings here lately on the regulatory
process, I think I now have to amend my talk about the fourth
branch of government called the regulatory agencies.
And I say that somewhat in jest, of course, because I think
that the regulatory environment has been good. I think it has
provided a good platform of a delegation of duties by the
Congress to make sure that we have the proper health, safety,
and welfare of the American citizens addressed. But I also
think that we are here today on the REINS Act because of what I
consider to be regulations gone wild.
And my concern has to do with the appellate review process.
And I would like to ask the two professors specifically. If you
could just summarize briefly, if I have an adverse ruling, how
long does it take to have that brought to resolution?
Professor Schoenbrod?
Mr. Schoenbrod. Well, at least the year in the court of
appeals, often a couple of years. And then if the Supreme
Court--then one could petition for certiorari to the Supreme
Court. And if the Supreme Court takes jurisdiction, then it
could be another couple--you know, a long time after that. So
it is a very prolonged process. And even, you could add to that
rehearings, that kind of thing. And the 70 days that--so that
means that, really, by the time that the judicial review
process is just getting under way, the whole REINS process is
over.
Mr. Ross. Exactly. I mean, this is an expedient way of
appellate review, is it not, by the people or the body that
empowers those to make the regulations?
Mr. Schoenbrod. Yes.
Mr. Ross. And, Professor Claeys, I mean, has it been your
experience, in dealing with the Administrative Procedures Act
and the regulatory environment, that the recourse out there is
so prohibitive that those that are affected by it stand nothing
to gain by challenging it?
Mr. Claeys. Congressman, I wouldn't say that litigants have
nothing to gain. It happens fairly often that people can win
victories using an APA lawsuit. But an APA lawsuit is very
costly. And, also, there is a tremendous amount of loss of
stability or security to have one's affairs be suspended for 18
months or longer while wading through a suit. And so those
costs do deter people, yes.
Mr. Ross. And so, Professor Claeys, would you say, under
the REINS Act now, if the agency gets it wrong and Congress
disapproves it, would it not be a way of sending a message back
to that agency to go and get it right and come back with a
different regulatory rule or action?
Mr. Claeys. Congressman, I would want to be careful here
because the REINS Act is very specific to reserve to parties
all APA challenges that they would have, whether or not the
rules were approved.
So the REINS Act adds another check, and that check is to
say that there was not the substantial consensus that you need
in two branches of the House--or, sorry, the two parts to the
Congress and the President to let the rule go forward
politically, but then the litigant does reserve all rights to
bring a suit afterwards.
Mr. Ross. And let me clarify that a little bit. What I am
suggesting to you is that, if the REINS Act were law, it would
not foreclose agency action on a particular issue. It would
merely mean that Congress has spoken and has now instructed
that agency to go back and revisit it, and they could and
address it in a different fashion.
Mr. Claeys. That is right. If Congress does not act, it is
a signal to the agency that the agency did not come forward
with the justification that seemed legitimate enough to an
encompassing majority, as proven by surviving bicameralism and
presentment. And if it does do its homework, it will pass, and
then things can go forward.
Mr. Ross. Mr. Goldston, I know that you are with the
Natural Resources Defense Council. Has that organization ever
had any officials be appointed to any agency that might oversee
or interpret regulatory rules?
Mr. Goldston. Do you mean, have NRDC former staff become
Federal officials? Yes.
Mr. Ross. Right, right.
And with regard to a blog that I think that you do and one
that I think was just done yesterday, you indicate, ``As I
mentioned last week on my blog, one of the most destructive
aspects of the House spending bill for the rest of this year is
that it contains 19 anti-environmental riders. The list of
anti-environmental riders compiled by NRDC is here. Note these
riders do not change the amount of Federal spending by 1 cent.
They just block public protections that are otherwise required
by law.''
And you list as one of those a particular amendment offered
by the gentleman from Florida, Representative Rooney, that
would block a plan to clean up Florida waterways. Specifically,
that was the Numeric Nutrient Water Criteria deal, wasn't it?
Mr. Goldston. Right.
Mr. Ross. Now, as a native of Florida and a member of the
Florida--past member of the Florida legislature, I take to
heart how we handle the waterways in Florida. It is how we make
a living. It is what we rely on not only for our industry but
also for our tourism.
And, actually, that Numeric Nutrient Water Criteria
standard has not yet--while it has been promulgated, it has not
been implemented. Is that correct?
Mr. Goldston. That is my understanding.
Mr. Ross. So, in effect, what you have said there is not
really true because it is not an existing law and it did not
impact the environment because it has not been implemented yet.
But be that as it may, that particular rule would require
over a billion dollars in expense by industry just to
implement. It would cost over 1,400 jobs.
It seems to me that a cost-benefit analysis is absolutely
necessary if we are going to determine the effectiveness of any
particular regulatory rule. Wouldn't you agree?
Mr. Goldston. Some laws allow for that, and some don't.
But, under Executive order, there is usually a cost-benefit
analysis done.
Again, the point of that blog was to talk about whether it
was the right decision for the House to use the spending bill
to block implementation of these particular pending rules. But
there is no question that Congress has the legal authority to
do that, which is one of the tools that they have which seems
to make the REINS Act seem both unwise and redundant.
The other thing, if I might, Mr. Ross, you talked about
Congress sending back a rule to an agency to be reworked, but
the REINS Act actually prevents the agency from coming back for
a year, no matter how simple the change would be.
Mr. Ross. Thank you. I think my time is up.
Mr. Gowdy. Thank you, Mr. Ross.
The Chair would now recognize the distinguished gentleman
from Georgia, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Professors, I know a lot of professors pay attention to
United States Supreme Court rulings as they come down. Are you
two also students of the U.S. Supreme Court and the various
rulings that come down?
Mr. Schoenbrod. I concentrate more on environmental law,
though I read some of the Supreme Court opinions.
Mr. Johnson. Uh-huh. Okay.
Mr. Claeys. I concentrate on political theory and on
property law. I try to read the major court opinions as they
come down----
Mr. Johnson. Uh-huh.
Mr. Claeys [continuing]. Especially constitutional
opinions.
Mr. Johnson. Yeah. Did you consider the constitutional
opinion rendered by the Supreme Court in the case of Citizens
United, which implicated the First Amendment? Did you,
Professor Claeys, consider that to be a very important case and
ruling?
Mr. Claeys. No, Congressman, I didn't because----
Mr. Johnson. All right, okay, all right.
Well, how about you, Professor Schoenbrod?
Mr. Schoenbrod. No, I have not studied that case.
Mr. Johnson. Okay. So neither one of you would be prepared
to venture an opinion as to how the ruling in Citizens United
would impact, on the ground, as things work, the REINS Act, if
it were passed? You would not be able to comment about the
ruling in Citizens United, the effect that it would have the on
rulemaking process if the REINS Act passed?
Mr. Claeys. If I could clarify, I want to give you two
different answers.
Mr. Johnson. Okay. Well, I want you to keep it short.
Mr. Claeys. As a lawyer, I don't think the opinion is
applicable.
The other part of your question asked of the political
consequences, and on that I have not speculated. I don't have
the expertise to speculate.
Mr. Johnson. Okay. All right.
And you either? You would be the same way?
Mr. Schoenbrod. Well, I have not read the opinion. I think
what may be behind your question, Congressman----
Mr. Johnson. Well, let me just tell you. If a corporation
is recognized as a person for the purpose of a First Amendment
right, and if a corporation can invest huge sums of money to
control an election and that money can elect the legislators
whom business favors, and as Congress does its business and
lobbyists come forward to the Congresspeople and start to tell
them about the effects of various rules pursuant to legislation
that has passed, the effect of these rules on the corporate
bottom line, I believe that that could be influential in terms
of the rulemaking process.
And, certainly, politicians would be accountable for
rulings so made. But is that what we really want to do, take
our rulemaking away from one based on, as in your testimony,
Dr. Goldston, is based on expertise, rationality, and openness
and replace it with a process that is strictly political?
Whoever has the most economic clout can cause whatever rules
that benefit them to be the ones that are implemented? Is that
what we really want here in America?
And I find it, Professor Schoenbrod, instructive that your
book, ``Saving Our Environment From Congress,'' deals with the
impact of environmental regulations. And, also, you mention
something about health regulations. These are the things that
are under attack now by the interests that elected this new
Congress. And so I find it interesting that you would be in
support of the REINS Act.
But what do you have to say, Professor Claeys?
Mr. Claeys. Congressman Johnson, I want to bracket a few
different issues. I am not competent to talk about the ways in
which corporations lobby at a real specific level. What I tried
to do, though, in my testimony was to restate and to provide to
this Subcommittee some of the findings in economic and
political-science scholarship about how businesses try to
influence regulation. And there is a well-developed body of
economic and political-science scholarship under the rubric of
the theory of economic regulation.
And maybe, to put it in a sentence, the main lesson from
that scholarship is that corporations pressure both Congress
and the regulators. And when trying to figure out the way in
which a certain regulatory system is going to generate
outcomes, you have to anticipate that possibility and their
costs all around.
Mr. Johnson. Thank you, sir.
Thank you, Professor.
And I am sorry I didn't get to you, Mr. Goldston.
Thank you.
Mr. Gowdy. Thank you, Mr. Johnson.
The Chair would now recognize the distinguished gentleman
from Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Gentlemen, thank you for being here.
My first question would be for you, Professor Claeys. You
know, the obstensible purpose for the REINS Act here is to try
to, obviously, reassert congressional authority so that we
might make the final legislative calls in an effort to help our
regulatory system better conform to the Constitution itself. At
least, that is the goal.
And would you take issue with that?
Mr. Claeys. A little. There is a--let me put it this way.
Current precedent in institutional practice allows Congress to
delegate considerable discretion to agencies. This bill does
not reclaim all of that discretion. It leaves executive branch
agencies with that discretion. It adds for significant exercise
of rulemaking power a check, a permission slip.
So that formally does not reclaim the power, but it does
have the effect politically of making agencies go back to
Congress and making Congress take ownership of the hard, kind
of, political conflicts I talked about, in terms of evidence
and science and technology and economics.
Mr. Franks. Well, I actually agree with you completely.
Now, you would probably agree that critics who allege that
the REINS Act is biassed against the public interest and public
protection--I mean, that is essentially their argument, that
somehow the REINS Act is antithetical to the public interest.
And I am just wondering if you agree with that or place any
credibility in that in any way.
Mr. Claeys. Congressman Franks, one of the important points
of my testimony was to provide a polite warning that there is
some truth to that--there is--it is true that regulation can
be--in the absence of regulation, the public interest can be
heard. But it is equally true that the public interest can be
heard if there is too much regulation.
And one of the things I was trying to impress in my
testimony is simply that you have to be--want us to be careful
that regulations may be against the public interest. And in
those cases in which the regulations might be in the public
interest, quite often I think it likely that Members of
Congress, if they don't see a compelling argument against the
regulation, will endorse the joint resolution of approval.
So, to me, the burden lies on people who oppose the REINS
Act to explain precisely why Members of Congress won't endorse,
embrace a joint resolution of approval for a bill that seems to
be in the public interest.
Mr. Franks. Well, I guess my point here is that it seems
like the critics of the REINS Act suggest that giving
constitutional or giving congressional signoff is biased
against the public interest. That is, at least, their
suggestion. And they would go further and suggest that--some of
us would say that the regulatory agencies seem to be biased in
exactly the opposite direction.
What do you think is the reason for that understanding on
the part of both sides? Do you think it is accurate? And why
does that dynamic seem to--I mean, it seems to me there is
something to that dynamic. It seems like a bureaucracy or a
regulatory agency seems to have a tendency, a momentum to go
overboard, sometimes antithetically, to the public interest,
whereas, if you have people that are voted into office, it
seems like the public interest is more carefully considered.
Mr. Claeys. And here, Congressman, I go back to a
fundamental choice as stated in my opening testimony, in my
written testimony. There is a dispute in this country about the
proper relationship between freedom and regulation. And one
political tradition is most notably in Federalist 51. It says
that government is needed for men because men are somewhere
between angels and beasts.
And if you take that view, you presume in favor of liberty.
And there will be times when law is needed, but you want to
have a system where people who want to co-opt and capture the
law have to make a convincing argument to the lawgiver that it
is a good law. And the Constitution can't institute that
perfectly, but it can use the fact that a law has to pass
through the House and the Senate and be signed by the President
as indirect proof that it really is in the public interest.
There is another theory about the relationship between
freedom and government that says that people aren't
meaningfully free unless government is very active. And the
progressives and New Dealers laid this out. I think that, in
contemporary life, some agencies act to empire-build, but many
do not. But many of the regulators who do not, make assumptions
about the relationship between freedom and regulations similar
to those of the New Dealers. And they, however well-
intentioned, think that government is better if the regulations
are presumptively valid unless knocked out by an APA lawsuit.
And it is perfectly legitimate for them to believe this,
and there are many parts of contemporary practice that allow
them to do so. But that choice is a political choice. And if
this Congress wants to make a different choice and take things
in a different direction, the Necessary and Proper Clause in
this Congress' legislative power allow it to do so, as it is
considering doing for major rules.
Mr. Franks. Mr. Chairman, I think that is well-said, and
the red light prevents me from asking Mr. Goldston my
questions. Thank you.
Mr. Gowdy. Thank you, Mr. Franks.
On behalf of all of us, we would like to--the Chair would
recognize the gentlelady from Texas, Ms. Jackson Lee, is
present and has been present for the majority of the testimony
and the questioning. And we thank you for your presence.
Ms. Jackson Lee. And a Member of the full Committee.
Mr. Gowdy. And a Member of the full Committee, yes, ma'am.
With that, let me thank, on behalf of all of us, the panel
for your professionalism, your collegiality toward one another
and during the question-and-answer session. We have all
benefitted from your testimony and the Q&A.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond to as promptly as they can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that, again, on behalf of all of us, thank you for
your testimony and your questions and answers. This meeting is
adjourned.
[Whereupon, at 5:23 p.m., the Subcommittee was adjourned.]