Oversight Hearing on the "10th Anniversary of the Congressional Review Act."

2006 10TH ANNIVERSARY OF THE CONGRESSIONAL REVIEW ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 30, 2006

Serial No. 109–97

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman HENRY J. HYDE, Illinois HOWARD COBLE, North Carolina LAMAR SMITH, Texas ELTON GALLEGLY, California BOB GOODLATTE, Virginia STEVE CHABOT, Ohio DANIEL E. LUNGREN, California WILLIAM L. JENKINS, Tennessee CHRIS CANNON, Utah SPENCER BACHUS, Alabama BOB INGLIS, South Carolina JOHN N. HOSTETTLER, Indiana MARK GREEN, Wisconsin RIC KELLER, Florida DARRELL ISSA, California JEFF FLAKE, Arizona MIKE PENCE, Indiana J. RANDY FORBES, Virginia STEVE KING, Iowa

Page 2      PREV PAGE       TOP OF DOC TOM FEENEY, Florida TRENT FRANKS, Arizona LOUIE GOHMERT, Texas

JOHN CONYERS, Jr., Michigan HOWARD L. BERMAN, California RICK BOUCHER, Virginia JERROLD NADLER, New York ROBERT C. SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California MARTIN T. MEEHAN, Massachusetts WILLIAM D. DELAHUNT, Massachusetts ROBERT WEXLER, Florida ANTHONY D. WEINER, New York ADAM B. SCHIFF, California LINDA T. SÁNCHEZ, California CHRIS VAN HOLLEN, Maryland DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, Chief of Staff-General Counsel PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Commercial and Administrative Law

CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina TRENT FRANKS, Arizona STEVE CHABOT, Ohio MARK GREEN, Wisconsin RANDY J. FORBES, Virginia LOUIE GOHMERT, Texas

MELVIN L. WATT, North Carolina WILLIAM D. DELAHUNT, Massachusetts CHRIS VAN HOLLEN, Maryland JERROLD NADLER, New York DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel SUSAN A. JENSEN, Counsel BRENDA HANKINS, Counsel MIKE LENN, Full Committee Counsel STEPHANIE MOORE, Minority Counsel

C O N T E N T S

Page 5      PREV PAGE       TOP OF DOC MARCH 30, 2006

OPENING STATEMENT The Honorable Chris Cannon, a Representative in Congress from the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law

WITNESSES

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, U.S. Government Accountability Office, Washington, D.C. Oral Testimony Prepared Statement

Mr. Morton Rosenberg, Esq., Specialist in American Public Law, American Law Division of the Congressional Research Service, Library of Congress, Washington, D.C. Oral Testimony Prepared Statement

Mr. Todd F. Gaziano, Esq., Senior Fellow in Legal Studies, and Director, Center for Legal and Judicial Studies, The Heritage Foundation, Washington, D.C. Oral Testimony Prepared Statement

Mr. John V. Sullivan, Esq., Parliamentarian, Office of the Parliamentarian, U.S. House of Representatives, Washington, D.C.

Oral Testimony Prepared Statement

APPENDIX

Material Submitted for the Hearing Record

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, U.S. Government Accountability Office, Washington, D.C.: Letter dated May 12, 2006, response to question from the Subcommittee

CRS Report for Congress by Mr. Morton Rosenberg Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act After Ten Years

10TH ANNIVERSARY OF THE CONGRESSIONAL REVIEW ACT

THURSDAY, MARCH 30, 2006

House of Representatives, Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:43 p.m., in Room 2141, Rayburn House Office Building, the Honorable Chris Cannon (Chairman of the Subcommittee) presiding.

Mr. CANNON. I'd like to call the Subcommittee to order.

We're here to—by the way, thank you, Howard. Thank you for being here. I want to thank Mr. Coble for being with us to start the hearing.

We're here today to look at the Congressional Review Act, a law passed to provide Congress with a tool in the oversight of administrative rulemaking. In the last 10 years, more than 41,828 rules have been reported to Congress under the Congressional Review Act.

When Congress passes complex legislation, it often leaves many details to the agencies authorized to enforce the laws, and this body must remain vigilant over those details and how they are filled in by the agencies through congressional oversight.

The Congressional Review Act established a mechanism for Congress to review and disapprove Federal agency rules through an expedited legislative process. It requires agencies to report to Congress and to the Comptroller General with information to help us assess the merits of the rules.

Now, today, we have a panel of experts who are here, who are going to be discussing this process in greater detail. As our panel of expert witnesses will attest, there are some areas of the CRA that could be changed to make it a more effective tool for Congress.

Today's hearing is part of the Administrative Law Process and Procedure Project that our Subcommittee is spearheading. The objective of the project is to conduct a nonpartisan, academic analysis of the Federal rulemaking process.

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Scholars and experts from academic and legal institutions and organizations across the Nation are involved in this project. The project will conclude with a detailed report, including recommendations for legislative proposals and suggested areas for further research and analysis to be considered by the Administrative Conference of the United States.

As you may recall, my legislation reauthorizing ACUS was signed into law in the fall of 2004. The Administrative Conference is a nonpartisan public think tank—public-private think tank that proposes recommendations, which, historically, have improved administrative aspects of regulatory law and practice.

ACUS served as an independent agency charged with studying the efficiency, adequacy, and the fairness of the administrative procedure used by Federal agencies. Most of the recommendations made by ACUS were implemented and, in turn, helped save taxpayers millions of dollars.

Unfortunately, ACUS has yet to receive appropriated funds. The Congress must fund ACUS so that it can continue to provide valuable recommendations for improving the administrative law process.

Justice Breyer, in his testimony to the Subcommittee, noted that the conference's recommendations resulted in huge savings to the public. Let's work to bring that savings back into reality.

Page 9      PREV PAGE       TOP OF DOC I look forward to testimony from our witnesses.

[The statement of Mr. Cannon follows:]

PREPARED STATEMENT OF OPENING STATEMENT OF THE HONORABLE CHRIS CANNON, CHAIR, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW, FOR THE OVERSIGHT HEARING ON THE 10TH ANNIVERSARY OF THE CONGRESSIONAL REVIEW ACT

We are here today to look at the Congressional Review Act, a law passed to provide Congress with a tool in the oversight of administrative rulemaking. In the last ten years, more than 41,828 rules have been reported to Congress under the Congressional Review Act.

When Congress passes complex legislation, it often leaves many of the details to the agencies authorized to enforce the laws. This body must remain vigilant over those details and how they are filled in by the agencies through congressional oversight.

The Congressional Review Act established a mechanism for Congress to review and disapprove federal agency rules through an expedited legislative process. It requires agencies to report to Congress and the Comptroller General with information to help us assess the merits of the rules.

Today we have a panel of experts here who are going to be discussing this process in greater detail. As our panel of expert witnesses will attest, there are some areas of the CRA that could be changed to make it a more effective tool for Congress.

Page 10      PREV PAGE       TOP OF DOC Today's hearing is part of the Administrative Law, Process and Procedure Project that our Subcommittee is spearheading. The objective of the Project is to conduct a nonpartisan, academic analysis of the federal rulemaking process.

Scholars and experts from academic and legal institutions and organizations across the nation are involved in this Project.

The Project will conclude with a detailed report, including recommendations for legislative proposals and suggested areas for further research and analysis to be considered by the Administrative Conference of the United States.

As you may recall, my legislation reauthorizing ACUS was signed into law in the fall of 2004. ACUS is a nonpartisan public-private think tank that proposes recommendations which, historically, improved administrative aspects of regulatory law and practice. ACUS served as an independent agency charged with studying the efficiency, adequacy, and fairness of the administrative procedure used by federal agencies.

Most of the recommendations made by ACUS were implemented, and, in turn, helped save taxpayers millions of dollars. Unfortunately, ACUS has yet to receive appropriated funds. The Congress must fund ACUS so that it can continue to provide valuable recommendations for improving the administrative law process. Justice Breyer, in his testimony to the Subcommittee, noted that the Conference's recommendations resulted in a huge savings to the public. Let's work to bring that savings back into reality.

I look forward to the testimony from our witnesses.

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Mr. CANNON. When Mr. Watt arrives, we'll recognize him for an opening statement, if he would like to do that.

And at this point, without objection, all Members may place their statements in the record. Hearing no objection, so ordered.

Mr. CANNON. Without objection, the Chair will be authorized to declare recesses of the hearing at any point. Hearing none, so ordered.

Oh, and at this point, we'd like to recognize Mr. Coble for an opening statement.

Mr. COBLE. Mr. Chairman, I will not give an opening statement. I will commend you for having assembled a very distinguished panel, and I look forward to hearing from them.

I have another meeting, however, simultaneously scheduled. So I will probably be in and out.

But I thank you, Mr. Chairman.

Mr. CANNON. I thank the gentleman.

I ask unanimous consent that Members have 5 legislative days to submit written statements for inclusion in today's hearing record. Without objection, so ordered.

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I am now pleased and honored to introduce the witnesses for today's hearing.

Our first witness is Chris Mihm, who is the managing director of GAO's Strategic Issues Team, which focuses on government-wide issues with the goal of promoting a more results-oriented and accountable——

[Pause.]

Mr. CANNON. We would certainly not like this Committee to be interrupted by what happens on the floor of the House.

We were talking about the Strategic Issues Team, which focuses on government-wide issues with the goal of promoting a more results-oriented and accountable Federal Government. The Strategic Issues Team has examined such matters as Federal agency transformations, budgetary aspects of the Nation's long-term fiscal outlook, and civil service reform.

Mr. Mihm is a fellow of the National Academy of Public Administration, and he received his undergraduate degree from Georgetown University.

Our second witness is Mort Rosenberg, a specialist in American public law in the American Law Division of the Congressional Research Service. In all matters dealing with administrative law, Mort has been the Judiciary Committee's right hand. For more than 25 years, he has been associated with CRS and has appeared before this Committee a number of times.

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In addition to these endeavors, Mort has written extensively on the subject of administrative law. He obtained his undergraduate degree from New York University and his law degree from Harvard Law School. And we welcome you back Mr. Rosenberg.

Todd Gaziano is our third witness. He is a senior fellow in legal studies and the director of the Center for Legal and Judicial Studies at The Heritage Foundation. Mr. Gaziano has served in all three branches of government.

In the executive branch, he worked at the U.S. Department of Justice in the Office of Legal Counsel during the Reagan, Bush, and Clinton administrations. In the judicial branch, he was a law clerk in the 5th Circuit Court of Appeals for the Honorable Edith Jones.

And between 1995 and 1997, he was the chief counsel to the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs. During that time, he was involved in regulatory reform legislation, including the Congressional Review Act of 1996. Mr. Gaziano graduated from the University of Chicago Law School.

Our fourth witness is Mr. John Sullivan, the Parliamentarian for the U.S. House of Representatives. This is an interesting experience to actually testify, isn't it?

Mr. Sullivan has served in the House of Representatives since 1984 as a counsel for the House Armed Services Committee, then as Assistant Parliamentarian and Deputy Parliamentarian before he was appointed as the Parliamentarian by the Speaker during the 108th Congress.

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Prior to coming to the Hill, Mr. Sullivan served 10 years in the Air Force. He's a graduate of the U.S. Air Force Academy and earned his law degree from the Indiana University School of Law.

This is only the second time that a sitting Parliamentarian has testified in front of a House Committee. The first was on the same subject a year after the Congressional Review Act was passed. We truly appreciate your testimony today and your taking time out to do this.

Just as a side note, I understand, Mr. Sullivan, that your grandfather was Lefty Sullivan, one of the pitchers for the 1919 White Sox's. I had no idea, thank you. I am guessing that he would have been very happy with the White Sox season last year? That's great.

I extend to each of you my appreciation for your willingness to participate in today's hearing. Because your written statements will be included in the record, I request that you limit your oral remarks to 5 minutes. Accordingly, please feel free to summarize or highlight the salient points of your testimony.

You will note that we have a lighting system. Green means 4 minutes, yellow means 1 minute, and red means you're out of time. Generally, we're pretty loose with that, and depending on whether we have people here to ask questions, we may be more or less loose. But, I want to let you know that it's a travel day for some folks, and so we'd like to pay some attention to that.

Page 15      PREV PAGE       TOP OF DOC After you've presented your remarks, the Subcommittee Members, in the order they arrive, will ask questions of the witnesses, and they'll be subject to the 5-minute limit. And, we're going to be quite strict with that one.

I ask unanimous consent that Members have 5 legislative days to submit additional questions for the witnesses. Hearing no objection, so ordered.

Pursuant to the directive of the Chairman of the Judiciary Committee, I ask the witnesses to please stand and raise your right hand to take the oath.

[Witnesses sworn.]

Mr. CANNON. The record should reflect that all of the witnesses answered in the affirmative. You may be seated.

Mr. Mihm, would you please go ahead with your testimony?

TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR FOR STRATEGIC ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C.

Mr. MIHM. Thank you, Mr. Chairman. Mr. Chairman, Mr. Coble, it's indeed, a great honor to appear before you today to discuss the Congressional Review Act.

As you mentioned in your opening statement, Mr. Chairman, the CRA was enacted to ensure that Congress has an opportunity to review and possibly reject rules issued by executive agencies before they become effective. Under the CRA, two types of rules, major and nonmajor, must be submitted to both houses of Congress and GAO before they can be implemented.

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Taking your guidance, Mr. Chairman, I'll limit my comments to discussing GAO's role under CRA and the role that the CRA plays in the broader regulatory context. First, on the first point—GAO's primary role under the CRA is to assess and to report to Congress, on each major rule, the relevant agency's compliance with certain prescribed procedural steps.

These requirements include preparation of a cost-benefit analysis when that is required, compliance with the Regulatory Flexibility Act, the Unfunded Mandates Reform Act—commonly known as UMRA, the Administrative Procedures Act, Paperwork Reduction Act, and relevant executive orders, including 12866.

GAO's report must be sent to the congressional committees of jurisdiction within 15 calendar days of the publication of the rule or submission of the rule by the agency, whichever is later.

While the CRA is silent in regard to GAO's role concerning nonmajor rules, we found that the basic information about those rules should also be collected in a manner that can be useful to Congress and the public. Specifically, since the CRA was enacted in 1996, we have received and submitted reports on 610 major rules and entered over 41,000 nonmajor rules into a database that we created and maintain.

To compile information on all of the rules—that is, major and nonmajor—submitted to us under the CRA, we established this database, available to the public through the Internet. Our database gathers basic information about the 15 to 20 major and nonmajor rules that we typically receive each day, including the title, the agency, the type of rule, proposed effective date, date published in the Federal Register, other pertinent information, and any joint resolutions of disapproval that may have been introduced.

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Each year, we also seek to determine whether all final rules covered by the CRA and published in the Federal Register have been filed with both Congress and us. We do this review to both verify the accuracy of our database and to determine if agencies are complying with the CRA.

We forward a list of unfulfilled rules to OMB for their handling, and in the past, they have disseminated the list to the agencies, most of which file the rules or offer an explanation of why they do not believe the rule is covered by the CRA.

In the 10 years since the CRA was enacted, all major rules have been filed with us in a timely fashion. For nonmajor rules, the degree of compliance has remained fairly constant, but not as high, with roughly 200 nonmajor rules per year not filed with our office. And, they're the ones that we have to go after and go back to OIRA on.

One major area of noncompliance with the CRA's requirements has been that agencies have not always delayed the effective date of the major rules for the required 60 days. More specifically, agencies did not delay the effective date for 71 of the 610 major rules filed with our office.

My written statement contains the agencies' explanation for that, and as I note in the statement, we don't view those as valid explanations.

My second broad point this afternoon is that agencies and GAO have provided Congress a considerable amount of information about the forthcoming rules in response to the CRA. The limited number of joint Congressional resolutions might suggest that this information generates little additional oversight of rulemaking.

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However, as we have found in our review of the information generated on Federal mandates under UMRA, the benefits of compiling and making information available on potential Federal actions should not be underestimated. Further, as we've also found regarding UMRA, the availability of procedures for congressional disapproval may have some deterrent effect.

My good CRS colleague Mort Rosenberg has reported that several rules have been affected by the presence of the review mechanism, suggesting that the CRA review scheme does have some influence in helping Congress maintain some transparency and oversight of the regulatory process.

Let me add my statement at that point, Mr. Chairman, and I am happy to take any questions that you or any other Members of the Subcommittee may have.

[The prepared statement of Mr. Mihm follows:]

PREPARED STATEMENT OF J. CHRISTOPHER MIHM

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Mr. CANNON. Thank you.

Mr. Rosenberg.

TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN AMERICAN PUBLIC LAW, AMERICAN LAW DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, WASHINGTON, D.C.

Page 20      PREV PAGE       TOP OF DOC Mr. ROSENBERG. Thank you very much, Mr. Chairman and Mr. Coble.

I'm pleased to be here again, dealing with an important issue involved in our administrative law project. I have submitted a report of the 10 years of action under the CRA and also my statement for the record. Let me just make certain points, as quickly as I'm able to. As you know, I'm verbose.

Point one is that when the House and Senate passed this legislation, they understood that they were addressing a fundamental institutional concern. That institutional concern involved the development of the administrative state, the fact that there is tremendous amount of delegation of rulemaking and law-making authority to the agencies, that those delegations are broad and vague, and that they're absolutely necessary.

Point two is that Congress, over the years, has been criticized as abdicating its responsibility with respect to oversight of those delegated authorities. The sponsors of the legislation said, and I quote, ''In many cases, this criticism is well founded. Our constitutional scheme creates a delicate balance between the appropriate roles of Congress in enacting laws and the executive branch in implementing those laws. This legislation will help address the balance, reclaiming for Congress some of its policymaking authority without at the same time requiring Congress to become a super regulatory agency.''

Well, the statistics that have been compiled by GAO and reflected in their testimony and in my report indicate that those hopes seem to have been dashed. That, indeed, the anticipation that the agencies, because of the existence of the CRA, become a factor in the rule development process—a key factor—and level the playing field and provide the kind of regulatory accountability to Congress and the responsibility of Congress for overseeing it, appear to have been dashed.

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And indeed, events over the last decade have exacerbated very much the CRA, in addition to the flaws of the CRA. Some of the flaws—and the major ones, that I would pick out, the two major ones are the lack of a screening device for Congress to be able to identify particularly the rules that need to be looked at by Congress and the abense of an expedited procedure in the House for House consideration of a joint resolution of disapproval that is, you know, concurrent with and complementary to the Senate's procedure.

Again, as I said, compounding the problem of a flawed mechanism is the development of a strong presidential review process. That started with President Reagan's establishment of the Office of Information and Regulatory Affairs as the clearinghouse for all rules during the—in the first month of the Reagan administration.

Those executive orders were very, very effective, and Congress was well aware during the '80's and the—and the '90's of how effective those executive orders were in sensitizing the agencies to the President's agenda and diverting it from Congress' agenda and Congress' intent in delegating authority with respect to certain kinds of rulemakings.

Those executive orders and that concept of what has been called the new presidentialism have been continued—were continued during the Clinton administration and has continued today in the Bush administration. The administration of John Graham of OIRA has been even more effective than it was during the Reagan administration.

Congress passed the CRA with that in mind and with the understanding that even during the Reagan administration, there was strong congressional opposition to presidential controls that were being developed at that particular time.

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More recently, what we have seen is what I would call a denigration by the Executive Branch of Congress' abilities and Congress' role in the law-making process and in the oversight process. In a very widely cited article, the current dean of the Harvard Law School posits the notions of the new presidentialism, and suggests that when Congress delegates administrative and law-making power specifically to a department or agency head, it is at the same time making a delegation of those authorities to the President himself, unless the legislative delegation specifically states otherwise.

From this, she asserts, flows the President's constitutional prerogative to supervise, direct, and control the discretionary actions of all agency officials. The author states that, and I quote, A Republican Congress proved feckless in rebuffing Clinton's novel use of directive power, just as an earlier Democratic Congress, no less rhetorically inclined, had proved incapable of thwarting Reagan's use of a newly strengthened regulatory process.

And she goes on to explain that, ''The reasons for this failure are rooted in the nature of Congress and the law-making process. The partisan and constituency interests of individual Members of Congress usually prevent them from acting collectively to preserve congressional power or, what is the same thing, to deny authority to other branches of the Government.''

She then goes on to effectively deride the ability of Congress to restrain a President—a presidential intent on controlling the administration of the laws. She states, ''Because Congress rarely is held accountable for agency decisions, its interest in overseeing much administrative action is uncertain. And because Congress' most potent tools of oversight require collective action and presidential agreement, its capacity to control agency discretion is restricted. But viewed from the simplest perspective, presidential control and legislative control of administration did not present an either/or choice. Presidential involvement instead superimposes an added level of political control onto the congressional oversight system. That, taken on its own and for the reasons just given, has notable holes.''

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Dean Kagan's observations were like a blueprint for what has been occurring during the Bush administration.

Let me conclude by saying that the CRA reflects a recognition of the need to enhance the political accountability of Congress and the perception of legitimacy and competence of the administrative rulemaking process. It also rests on an understanding that broad delegations of rulemaking authority to agencies are necessary and appropriate and will continue for the indefinite future.

The Supreme Court's most recent decision, rejection of an attempted revival of the nondelegation doctrine, adds impetus for Congress to consider several facets and ambiguities of the current mechanism. Absent review, current trends of avoidance of notice and comment rulemaking, the lack of full reporting of covered rules under the CRA, limited judicial review, and what I've just pointed out, an increasing presidential control over the rulemaking process, is likely to continue.

As I said, there are two major things that I think should be done to help ameliorate this. One is a screening mechanism, and the second is expedited procedures. One might say that, you know, putting them in legislation would be subject to presidential veto. But I believe that you could accomplish this by the action of Congress alone without presidential veto, and that would be utilizing Congress' rulemaking authority.

A joint committee that has power to screen and recommend with respect to—to the jurisdictional committees and send to the jurisdictional committees in the House and the Senate recommendations for disapproval resolutions can be established by concurrent resolution.

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An expedited procedure in the House needs only a resolution of the House to establish. And I think in determining whether—what the next step to do is it may be too politically difficult to pass a law, this might be a way to go.

Thank you.

[The prepared statement of Mr. Rosenberg follows:]

PREPARED STATEMENT OF MORTON ROSENBERG, ESQ.

Mr. Chairman and Members of the Subcommittee,

I am very pleased to be before you again, this time to discuss a statute, The Congressional Review Act (CRA), that I have closely monitored since its enactment ten years ago yesterday. Your commencement of oversight of this important piece of legislation is opportune and perhaps propitious.

As my CRS Report on the decade of experience under the CRA details, we know enough now to conclude that it has not worked well to achieve its original objectives: to set in place an effective mechanism to keep Congress informed about the rulemaking activities of federal agencies and to allow for expeditious congressional review, and possible nullification of particular rules. The House and Senate sponsors of the legislation made clear the fundamental institutional concerns that they were addressing by the Act:

Page 25      PREV PAGE       TOP OF DOC As the number and complexity of federal statutory programs has increased over the last fifty years, Congress has come to depend more and more upon Executive Branch agencies to fill out the details of the programs it enacts. As complex as some statutory schemes passed by Congress are, the implementing regulations are often more complex by several orders of magnitude. As more and more of Congress' legislative functions have been delegated to federal regulatory agencies, many have complained that Congress has effectively abdicated its constitutional role as the national legislature in allowing federal agencies so much latitude in implementing and interpreting congressional enactments.

In many cases, this criticism is well founded. Our constitutional scheme creates a delicate balance between the appropriate roles of the Congress in enacting laws, and the Executive Branch in implementing those laws. This legislation will help to redress the balance, reclaiming for Congress some of its policymaking authority, without at the same time requiring Congress to become a super regulatory agency.

The numbers accumulated over the past ten years are telling. Almost 42,000 rules were reported to Congress over that period, including 610 major rules, and only one, the Labor Department's ergonomics standard, was disapproved in March 2001. Thirty-seven disapproval resolutions, directed at 28 rules, have been introduced during that period, and only three, including the ergonomics rule, passed the Senate. Many analysts believe the negation of the ergonomics rule was a singular event not likely to soon be repeated. Furthermore not nearly all the rules defined by the statute as covered are reported for review. That number is probably at least double those actually submitted for review. Federal appellate courts in that period have negated all or parts of 60 rules, a number, while significant in some respects, is comparatively small in relation to the number of rules issued in that period.

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It was anticipated that the effective utilization of the new reporting and review mechanism would draw the attention of the rulemaking agencies and that its presence would become an important factor in the rule development process. Congress was well aware at the time of enactment of the effectiveness of President Reagan's executive orders centralizing review of agency rulemaking, from initial development to final promulgation, in the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) in the face of aggressive challenges of congressional committees. The Clinton Administration, with a somewhat modified executive order, but with an aggressive posture of intervention into and direction of rulemaking proceedings, continued a program of central control of administration.(see footnote 1) The expectation was that Congress, through the CRA, would again become a major player influencing agency decisionmaking.

The ineffectiveness of the CRA review mechanism, however, soon became readily apparent to observers. The lack of a screening mechanism to identify rules that warranted review and an expedited consideration process in the House that complemented the Senate's procedures, and numerous interpretative uncertainties of key statutory provisions, may have detered its use. By 2001, one commentator opined that if the perception of a rulemaking agency is that the possibility of congressional review is remote, it will discount the likelihood of congressional intervention because of the uncertainty about where Congress might stand on that rule when it is promulgated years down the road, an attitude that is reinforced so long as [the agency] believes that the president will support its rules.(see footnote 2)

Compounding such a perception that Congress would not likely intervene in rulemaking, particularly after 2001, has been the emergence of what has been called by one scholar as the New Presidentialism,(see footnote 3) that has become a profound influence in administrative and structural constitutional law. It is a combination of constitutional and pragmatic argumentation that holds that most of the government's regulatory enterprise represents the exercise of executive power which, under Article II, can legitimately take place only under the control and direction of the President; and the claim that the President is uniquely situated to bring to the expansive sprawl of regulatory programs the necessary qualities of coordination, technocratic efficiency, managerial rationality, and democratic legitimacy (because he alone is elected by the entire nation). One of the consequences of this presidentially centered theory of governance is that it diminishes the other important actors in our collaborative constitutional enterprise. Were it maintained that the Congress is constitutionally and structurally unfit for running democratic responsiveness, public-regardedness, managerial efficiency and technocratic rationality, this scholar's suggested response is: why bother talking with Congress about what is the best way to improve the practice of regulatory government?

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In a widely cited 2001 article,(see footnote 4) the current dean of the Harvard Law School, posits the foregoing notions and suggests that when Congress delegates administrative and lawmaking power specifically to department and agency heads, it is at the same time making a delegation of those authorities to the President, unless the legislative delegation specifically states otherwise. From this flows, she asserts, the President's constitutional prerogative to supervise, direct and control the discretionary actions of all agency officials. The author states that a Republican Congress proved feckless in rebuffing Clinton's novel use of directive power—just as an earlier Democratic Congress, no less rhetorically inclined, had proved incapable of thwarting Reagan's use of a newly strengthened regulatory review process.(see footnote 5) She explains that ''[t]he reasons for this failure are rooted in the nature of Congress and the lawmaking process. The partisan and constituency interests of individual members of Congress usually prevent them from acting collectively to preserve congressional power—or, what is the same thing, to deny authority to other branches of government.''(see footnote 6) She goes on to effectively deride the ability of Congress to restrain a President intent on controlling the administration of the laws:

Presidential control of administration in no way precludes Congress from conducting independent oversight activity. With or without significant presidential role, Congress can hold the same hearings, engage in the same harassment, and threaten the same sanctions in order to influence administrative action. Congress, of course, always faces disincentives and constraints in its oversight capacity as this Article earlier has noted. Because Congress rarely is held accountable for agency decisions, its interest is in overseeing much administrative action is uncertain; and because Congress's most potent tools of oversight require collective action (and presidential agreement), its capacity to control agency discretion is restricted. But viewed from the simplest perspective, presidential control and legislative control of administration do not present an either/or choice. Presidential involvement instead superimposes an added level of political control onto a congressional oversight system that, taken on its own and for the reasons just given, has notable holes.(see footnote 7)

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Dean Kagan's observations and theories appear to have been almost a blueprint for the presidential actions and posture toward Congress of the current Administration.(see footnote 8)

The CRA reflects a recognition of the need to enhance the political accountability of Congress and the perception of legitimacy and competence of the administrative rulemaking process. It also rests on the understanding that broad delegations of rulemaking authority to agencies are necessary and appropriate, and will continue for the indefinite future. The Supreme Court's most recent rejection of an attempted revival of the nondelegation doctrine(see footnote 9) adds impetus for Congress to consider several facets and ambiguities of the current mechanism. Absent review, current trends of avoidance of notice and comment rulemaking, lack of full reporting of covered rules under the CRA, judicial review, and increasing presidential control over the rulemaking process will likely continue.

There have been a number of proposals for CRA reform introduced in the 109th Congress that address more effective utilization of the review mechanism, most importantly a screening mechanism and an expedited consideration procedure in the House of Representatives. Two such bills, H.R. 3148, introduced by Rep. Ginny Brown-Waite, and H.R. 576, filed by Rep. Robert Ney, both provide for the creation of joint committees to screen rules and for expedited House consideration procedures. H.R. 3148 also suggests a modification of the CRA provision that withdraws authority from an agency to promulgate future rules in the area in which a disapproval resolution has been passed with the enactment by Congress of a new authorization. That provision has been seen as a key impediment to the review process. Both proposals are expected to receive further consideration.

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Mr. CANNON. You're always provocative, and I really enjoyed that testimony. We'll come back in just a few minutes. But those are very good points.

Mr. Gaziano, you're recognized for 5 minutes.

TESTIMONY OF TODD F. GAZIANO, ESQ., SENIOR FELLOW IN LEGAL STUDIES, AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, D.C.

Mr. GAZIANO. Good afternoon, Mr. Chairman.

Thank you for inviting me to talk about the operation of a law that too often is neglected.

In my written testimony, I talk about some of the democratic and separation of powers theory that supports this legislation. But I'm going to try to confine my oral testimony to more practical concerns.

I want to first turn to an evaluation of the effectiveness of the CRA, and I want to talk about the three purposes of the CRA. And the first is, as Mr. Mihm has suggested, is to advance public record-keeping of agency rulemaking.

The CRA's legislative history makes clear that the broad definition of a rule was chosen for several reasons; one of them was to help Congress and its supporting agencies better catalogue the corpus of agency rules that affect the public.

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I am somewhat disappointed that compliance has not been complete, and I actually think that the incidence of noncompliance may be higher than that which GAO has been able to record. Anecdotal evidence and investigation by other Committees of this House has suggested as much.

Nevertheless, the catalogue of nearly 42,000 rules and the public database that GAO has set up, together with the required reports, is no doubt a very valuable resource for Congress and for scholars of the regulatory process.

The second purpose of the Congressional Review Act is to change agency rulemaking behavior. Now it's true that the CRA has not been invoked as often as its sponsors and early commentators expected. But as opposed to the glass is half empty conclusion that Mort talked about, I think that it is not wise to conclude that it's necessary that it's had no impact on agency behavior and legislative accountability.

In fact, there is anecdotal evidence that when Congress invokes the CRA, particularly during the rulemaking process, it can have an effect. What that evidence suggests to me, Mr. Chairman, is that it can be a tool to increase Congress' leverage when Members choose to use it.

Now some point to the ergonomics rulemaking and say the only time that we can enact a law is when a rule is issued, unpopular rule is issued at the end of an Administration that isn't supported by the incoming Administration.

Page 31      PREV PAGE       TOP OF DOC In my written testimony, I explain why I'm not sure that that is the case. But even if that is one limitation to the rule, that's an important use of the CRA: to put a stop to such midnight regulations.

But I do want to address one other limitation that I think has been exaggerated, and that is the assumption that Presidents will veto any resolution of disapproval for rules that come out of their Administrations. Certainly, it is the case that Presidents might consider such vetoes. But in my written testimony, I mention three reasons why a President might not veto such resolutions of disapproval.

But even if a President does veto such resolutions of disapproval, let me suggest two positive outcomes from the standpoint of democratic theory. The first is that the President would be more directly accountable for the regulation—both he and his Administration would not be able to hide behind the ''Congress made me do it. We had no discretion, but to issue this particular regulation'' excuse.

The second benefit, even of a presidential veto, of course, that isn't immediately overridden is that once Congress expresses its will in that way, it usually can get its—have its will enacted in some other way, by adding a rider to a different piece of legislation or through other means. Creative minds, of course, can certainly influence the enforcement of a particular rule and change its operation in the future.

The third major purpose of the Congressional Review Act is to enhance legislative accountability for agency rulemaking. And I submit to you that by its action or inaction, Congress is now more accountable for agency rules. I think that the CRA was designed by its sponsors and does make it harder for both the President and Congress to evade their particular share of responsibility.

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To the extent that the CRA does have some limitations, I certainly believe Congress should make further reforms. But Congress is, ultimately, responsible.

In my remaining time, I just want to mention one interpretive issue and three possible reforms, just almost by name. The first interpretive issue is that that the courts have somewhat disagreed on, and that's the scope of the limitation on judicial review that's contained in section 805.

The key question is this. May a court consider whether a rule that has never been submitted to a Congress is in effect? And I submit that the better interpretation of the statute is that the courts can properly pass on that issue.

But I'm requesting this Committee or suggesting to this Subcommittee, respectfully, that this issue merits special attention in the future. No matter what the courts decide about this issue, I suggest that this Subcommittee should ensure that there's at least limited judicial review of that triggering mechanism in the future, even if it requires future legislative amendment.

The other matters that I would commend to this Subcommittee's further consideration is I do think that there is a desperate need for an OIRA-like organization in Congress. I feel somewhat presumptuous—it would be somewhat presumptuous of me to suggest exactly what that is, but I also think that it makes no sense from a separation of powers standpoint for you to be so seriously outmanned in the regulatory review. So I think the Committees of jurisdiction also need to significantly increase their staff.

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The two other, more dramatic proposals that I would suggest are that Congress consider requiring congressional approval of major rules. Not make them subject to disapproval, but actually require affirmative congressional approval.

And the final reform that I certainly think is justified is to prevent the proliferation of crimes from being defined in regulations. I think that if it is worthy to criminalize, Congress ought to define the contours of crimes.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Gaziano follows:]

PREPARED STATEMENT OF TODD F. GAZIANO

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Mr. CANNON. Thank you.

Mr. Sullivan, you're recognized for 5 minutes.

TESTIMONY OF JOHN V. SULLIVAN, ESQ., PARLIAMENTARIAN, OFFICE OF THE PARLIAMENTARIAN, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C.

Mr. SULLIVAN. Thank you, Mr. Chairman.

May it please the Committee, thank you for the welcome and for the kind words about the Office of the Parliamentarian, most especially for the gracious acknowledgment of Lefty Sullivan, who I'm told in his Major League career lost but one game.

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My predecessor, Charlie Johnson, was with you in 1997, and he assured me that this was a very pleasant experience. So I'm pleased to be here.

I am glad for the opportunity to help illuminate maybe one part of the factual predicate on which the Committee might decide whether to adjust the CRA or whether it's currently optimized to meet its desired ends.

As I indicate graphically in my written testimony, the CRA has engendered a tripling of the executive communications traffic to the Speaker. This flow of paper poses a significant increment of workload in the institution of the House. But, of course, this paperwork, mass though it may be, does serve a purpose.

When I read the testimony of my learned colleagues about a desirable deterrent effect of the act, it rings true to me. But I'm also reminded of the last 10 or 15 years of the Cold War, when we saw the key to our own nuclear deterrent shift dramatically away from megatonnage and in favor of accuracy.

I think that the Committee may want to assess whether a lesser volume of communications traffic might better optimize the oversight of the regulatory Committees of the rulemaking process, dwelling greater attention on a more selective universe of rulemaking actions.

I note that the act already differentiates among rulemaking actions on the basis of certain hallmarks of salience, and it might be time to consider whether additional discriminators might be sensible to constrict the flow and dwell stronger focus on the remaining stream.

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Certainly, the Office of the Parliamentarian would be pleased to work with the Committee and with the staff on trying to identify ways to avoid any duplication of effort or any undue weight of paper.

I won't reiterate the rest of the written testimony, brief though it may be. I'm pleased to be here and happy to engage any questions you might have.

[The prepared statement of Mr. Sullivan follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN V. SULLIVAN

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Mr. CANNON. Thank you, Mr. Sullivan.

If I might, Mr. Sullivan, I have just a couple of questions. Then we have a series of questions that we'll probably send you all that you can use to help us understand a little more about what we're doing here.

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But if I might, Mr. Sullivan, you talked about Committees of jurisdiction, meaning I suppose authorizing Committees. And so, when you're talking about this amazing—and I just looked at your chart—this tripling of communications. And of course, we're organized by Committees now and have some more and less vague Committee jurisdictions. We have Government Reform, for instance, which would have some role here.

But if you—so when talking about the rules of jurisdiction and whether or not it makes sense, I think Mr. Rosenberg was talking about a Committee or Committees, would it make sense to have a Committee that is fairly heavily staffed deal with these issues of CRA? And that way, you don't put limiters or, I forget the term you used for it, but some way to describe the importance of this, but rather you have a Committee that is in place that reviews all of it, and we go through a—maybe a Committee process?

So instead of all the Committees of jurisdiction who would have a person assigned, does it make sense to have a Committee, for instance, obviously, I think this Committee, which oversees these activities generally, would have staff to review and deal with the paperwork and then focus, as is appropriate, politically on what some of these regulations are and, therefore, make the determination of importance based upon a single Committee overseeing the complex process?

Do you have any thoughts on that?

Mr. SULLIVAN. That sounds worthy of your consideration, Mr. Chairman.

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As I understand it right now, until such time as the Speaker refers the communication to the Committee of jurisdiction over the enabling statute for the rulemaking, the only filtering that occurs really is by the words of the statute. The discriminators that exist under the status quo are just textually recited in the statute.

And as I understand Mr. Rosenberg's idea, it would be to achieve a higher level of granularity in that filtering process by having live experts applying their notions of discrimination, their own discriminatory sense to rulemakings as they come in.

And that certainly is one way to refine the flow to the regulatory Committees so that when they do hit the Committee of jurisdiction over the Clean Water Act, the counsel who specialize in that area will be able to bring the full force of their more concentrated expertise on it.

Any kind of filtering process I think is worthy of consideration. And as I said, right now, the filter is just the text of the statute, it might be worth considering putting an organ there.

Mr. CANNON. What I'm wondering is—I've spent a lot of my life doing administrative procedure, rulemaking stuff. I worked in the Reagan administration on coal mining and really created a third-tier of coal mine reclamation regulations. It was an amazing process early in my career.

But I'm wondering if—two things, Mr. Sullivan. First of all, what would the rules have to—how would they have to be changed for the House to do what I'm about to suggest? And then how would it actually, as a practical matter, work?

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As I understand, you have communications now coming to the Speaker from the Administration, and those have increased significantly. Would it not be fairly simple, and I'm wondering about the effectiveness of the process to take those communications from the Speaker and then send them to a Committee, and that Committee would tend to look at all regulations? And to the degree that you needed the expertise of an authorizing Committee, there could be some sort of joint procedure.

Now that has to be done in a way that there is actually an appropriate use of discretion. But at some point, you have to say this is not worth something, and somebody has to—a Chairman has to say, This is not worth it, this is worth it, and then follow up on that.

It would seem to me that that Committee would also require a lot of expertise over time, and we have a rule currently that term limits chairmen. So I'm giving you sort of an amorphous question.

But just wondering, given the rules today, could we take a pathway where you take all of these communications. They go through a well staffed process, but a political process that then works its will with the majority and minority and also works with other Committees, authorizing Committees that have the specific or special area expertise and possibly also with the appropriating Committees.

What changes would you see that would have to be made to do that? And does it make sense to even pursue that idea?

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Mr. SULLIVAN. I think that that sort of thing could be pursued without touching the statute, although it would be in the jurisdiction of the Committee on Rules. The House could ordain a 21st standing Committee and confer on it, call it the Committee on Filtering Rulemakings.

Mr. CANNON. Let me just say that it would seem to me that making a 21st Committee, maybe it would justify it. But what you would have in that Committee, it would not—let me just ask you this.

If you took a sitting Committee, either Government Reform would be possibly appropriate or Judiciary, where I think it actually is appropriate, and expanded one of the Subcommittees, and maybe you got rid of term limits or something like that. So you could have somebody who actually liked doing it, would do it over a longer period of time and add some continuity. It would seem to me that that makes some sense as opposed to creating a new Committee. So I realize we're now dealing with some pretty big things here.

Mr. SULLIVAN. Conceptually, it's exactly the same thing. The House could just add a new element to the subject matter jurisdiction of the Judiciary Committee or of the Government Reform Committee that said review of executive rulemaking actions and tell that Committee to have one of its Subcommittees or a new Subcommittee become expert at filtering and at ushering recommendations to the Committees of regulatory jurisdiction.

Mr. CANNON. And would the House need a rule change—part of that rule change would be and so communications to the Speaker would then be delegated to that Committee?

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Mr. SULLIVAN. If Rule X said that that was the Committee that had jurisdiction over executive tenders of rulemaking actions under the CRA, then the Speaker would refer them to that new jurisdiction instead of his current practice of referring them to the sundry Committees who have enacted the enabling statutes for these rulemaking powers.

Mr. CANNON. Do you have a recommendation in mind? Your job—I don't mean to put you in an uncomfortable position, but your job is to figure out how the rules work, and we're now suggesting a new context rule.

Would you put jurisdiction in all of the authorizing Committees to review regulations, or would you see it better working through either a new Committee or as a new Subcommittee of one of the existing Committees?

Mr. SULLIVAN. I think that's too substantive a question for a proceduralist like me.

Mr. CANNON. But procedurally, we don't have a problem doing that if we decide to do something like that?

Mr. SULLIVAN. No. And the basic philosophy of the Committee system is to develop and apply expertise in compartments, and maybe this is a compartment in which the House would like to develop and apply expertise on a special basis.

Mr. CANNON. And what we have now is just untenable, as your charts show. We have this massive communication with no—we haven't changed how we operate in the context of this massive communication, and then we get back to what Mr. Rosenberg called our dashed hopes or the dashed hopes of people who wanted to see a little more of this happening. So there is some high inconsistency here.

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Let me just say, anybody else want to comment on how we should do this? That is, a new Committee or using existing Committees and having a new Subcommittee or as opposed to using the current—the authorizing Committees?

Sorry, Morton?

Mr. ROSENBERG. I could comment on that, just to be provocative.

What we have here is a congressional process. You know, in order to do what the framers of this legislation wanted to do, they had two houses involved. And what they—what wasn't thought through or didn't realize the problems at the time is that in order to—there are so many authorizing Committees, jurisdictional Committees out there, as you're pointing out, what might be a solution is not simply a special Committee, but a joint Committee, which has only the authority to recommend with respect to who will screen, has staff enough to make some analyses of rules that come over, pick out the particular ones that appear to be appropriate for congressional review.

There would be House Members and Senate Members. And the recommendations would be sent to the jurisdictional Committees of each House with a recommendation, if it's such, that they exercise their authority and issue a—you know, file a resolution of disapproval.

It has a lot of benefits, it seems to me, because, one, it provides the screening mechanism necessary, it provides some necesary expertise, and it also may take care of the political problem of taking away jurisdiction from current jurisdictional Committees.

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What happens is those Committees have recommendations, and those recommendations are up to the jurisdictional Committees to go to the expedited procedures, you know, to formulate that.

I think that while your Committee would be a good one with regard to looking at this, it would probably be very difficult to get everybody to agree, even a House resolution, you know, of vesting you with all that authority. It's a problem that we see with the House Homeland Security Committee.

Mr. CANNON. I'm hoping most people think this is boring and not worthy of their attention. [Laughter.]

Mr. ROSENBERG. Just one idea. I'm for a separate Committee, and I'm much more for a joint Committee that helps both houses do the job.

Mr. CANNON. Thank you.

Mr. GAZIANO. In my written testimony, I said that I'm reluctant to say too much about this because the perfect sometimes is the enemy of the good in reform. And I think that the imperative is that you do something, that you create some sort of structure and increase staff to help with this.

But I—but I do think I know why, and here I may be stepping out of my—you know, into my personal memory versus the public record—why the parliamentarian was given the task of making referrals because: that was who everyone could agree with. That's the parliamentarian's traditional job.

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I think there was an understanding that it would significantly increase their office workload. But let me suggest a couple of possibilities. One certainly is that Congress recognize that the parliamentarian's office at least needs sufficient increased manpower and staff or an adjunct or whatever to help with those referrals.

There is a concern by the authorizers that any other Committee but their Committee wouldn't have the expertise to know when the rulemaking is a good or bad rulemaking. So I think that you want to avoid the perfect being the enemy of the good.

Another possibility is to create more expertise somewhere else in Congress, whether it then advises the parliamentarian's office or the individual Committees. But I think part of what the permanent structure of that Committee would be is expertise in cost-benefit analysis and some cost-cutting expertise about the rulemaking process.

So there would be some permanent staff like the OIRA staff. And beyond that, you know, I think that there are these other issues and concerns that might come up. I would love for this Committee or any Committee to retain the jurisdiction, but I would fear that your below the radar screen approach might not go unnoticed as the legislation moved forward.

Mr. CANNON. And here I thought you were a person of great historical perspective. Given the attention these matters have had, I'm fairly sure the radar screen is not so sensitive.

I'd like to apologize for Mr. Watt, who—we had late votes and then an emergency meeting, and so he was not able to get down here and join us.

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And I have just one other question sort of following up on this question and going back, I think, really to Mr. Mihm and Mr. Rosenberg talking about dashed hopes or talking about the number of reviews and these sorts of things.

What if you changed the premise of CRA away from a disapproval and to a requirement that Congress affirmatively act. Now that changes the nature of this discussion about what Committee it would go through. What it would mean, as a practical matter, is that we pass a lot of legislation all at a time, but it would—it would meet many of the criticisms we've had of the CRA.

Assume for a moment, it's politically possible. Does that make sense? And I think that most of you all would have some comment on that.

Do you want to start? Go ahead, Mort. Sure.

Mr. ROSENBERG. Seven years ago I suggested that in an article in the Administrative Law Review, That the most effective way of controlling administrative regulations is through a process whereby there has to be affirmative approval of regulations.

This creates some problems. If you have all rules that are subject to it, you have an enormous volume of rules that are going to come across. But I think that problem could be solved, and I addressed that in the article that I wrote in 1999. I believe that a screening committee that would deal with this could use a deeming process and take care of about 99.9 percent of the rules.

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That is, deeming that rules that are sent over passed on a particular day, a CRA Wednesday that takes place each month, and you wouldn't have more than a 30- or a 60-day delay for 99.9 percent of the rules. And those that are pinpointed as needing more reviewwould then go through a more rigorous approval process.

I think it could be created. I think it's constitutional. And assuming it's politically possible, I think that is the most viable way to go and the most effective way from Congress' institutional point of view.

Mr. CANNON. Would you get us a copy of the article you referred to for the record

Mr. ROSENBERG. Certainly.

Mr. CANNON. I'd appreciate that.

Chris?

Mr. MIHM. Mr. Chairman, we haven't looked at this issue directly, but I'd offer just two kind of broad observations on this.

One is that in response to your earlier question and some of Mr. Sullivan's charts, we talked about the enormous increase in workload and burden on the Congress that was required to review these things after the fact. It probably, that would be augmented several fold perhaps if Congress wanted to review them before implementation, that is, to pass on them.

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Again, it's Congress' judgment as to whether or not it wants to go down that road. But I would just observe that it would probably entail quite a bit of additional work on behalf of the Congress, even taking, I think, context, some point that you could just focus on the major rules which would be the 610 or so.

The second thing that I would just observe, and this gets back to the broader agenda of this Subcommittee and in particular the hearing that you held last November, is that the Congress may want to spend more time looking more at the back end of the regulatory process.

That is, you know, one of the things that's really flown below the radar screen is after regulations are put in place, we almost never go back and say, Gee, did we get what was promised as a result of this? You know, we were promised either savings or better health or increased, you know, safety or whatever the case may be.

And in many cases, that probably plays out, but I'm willing to bet in some cases it does not. And we never go back and look at that. And so, a kind of a more retrospective analysis or focus on retrospective analysis we think would be very beneficial.

Mr. CANNON. Does that mean like a 3-year sunset? So suppose for a moment you had a joint Committee or each house had a Committee, and we had an expedited process. So something worked here. Would it make sense then to add a sunset to regulations so they came up automatically for political/congressional review?

Page 48      PREV PAGE       TOP OF DOC Mr. MIHM. I'm not sure that I can go so far—I mean, we haven't done the work to justify whether or not there would be sunset. But certainly, it would be beneficial to require at least a periodic re-examination and perhaps in a report to the Congress. And that's something that we could be helpful in, in GAO, and we've tried to be in the past. To look at this, are we actually getting from a particular rule that was promised when we promulgated it, especially some of these major rules?

Mr. GAZIANO. Mr. Chairman, 10 years ago almost, last month, the House was set to vote on H.R. 994, the Sunset and Review Act, which, by the way, is maybe something you want to look at again, which would have sunsetted regulations in the congressional—in the CFR by part. So that's one option.

As far as the major rule, I think that what Mort has suggested is one approach. I think that this Subcommittee held a hearing about 9 years ago where the alternative to require major rules to receive affirmative authorization was discussed. I know that the sponsors of the CRA 10 years ago anticipated that, and that's why they created in the statute that distinction between major and nonmajor rules.

That did not exist in the statute at the time. It was only a function of executive order, and they codified that distinction so that some future Congress could make that. That would be roughly 61 rules a year divided between all the relevant authorizing Committees.

And it was understood by those who hoped that that would some day be considered by Congress that, of course, it wouldn't—it doesn't take as much legislative record to decide whether a rule should be enacted into law or not. That's already received the agency's attention. So it would not—let's say if a given Committee had five or so a year, it would not take the same level of attention as passing five other pieces of legislation.

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But the democratic theory was major rules have bigger impact on the American economy than most laws Congress passes, at least if it's in a major rule. Maybe you could define it in some other way. But at least if it's a major rule, Congress ought to enact it into law.

Mr. ROSENBERG. There's a problem here that can be overcome perhaps. Right now, under the CRA, a major rule is defined as major by OIRA, the OIRA Administrator. Who is going to do this differentiating between major and nonmajor rules? Congress can't do it on a piecemeal basis. That would probably be Chadha and be a problem.

That's why I struggled with that in writing the article about how you could do this. I've often thought of a tiered kind of structure where, but who would designate what it is? Could you write a definition that would cover all the rules that you want to come over?

There are some rules that nobody's going to think of as major until they explode upon you or they're looked at. So that's a problem that has to be addressed from a constitutional point of view, as well as a pragmatic point.

Mr. CANNON. Which is why you focus on a joint Committee. Personally, I'm not sure that works as well as two Committees that would have responsibility.

Mr. ROSENBERG. Well, you don't have a joint Committee if you have——

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Mr. CANNON. But you have a single——

Mr. ROSENBERG Joint Resolution of approval, then you don't need a joint Committee. But you still have——

Mr. CANNON. You have the underlying problem?

Mr. ROSENBERG. Yes.

Mr. CANNON. Which means you don't—it doesn't work through all the—the authorizing Committees because there's no way to have coherence.

Mr. ROSENBERG. But there can be a process whereby there can be a screening of all rules that come over as proposed rules. Then there can be a deeming process which gets rid of most of them and puts them into law after 30 or 60 days.

Mr. GAZIANO. I don't know that some people would like the effect of 42,000 laws, and courts having to interpret them. But there are—but Mort is right about the problem. There are two other possible solutions. Right now, there is no—Congress, in its wisdom for various reasons of expediency, decided not to make the OIRA determination subject to judicial review.

The two alternatives, if you were going to enact this, I think, very important reform, would be to make the OIRA determination subject to judicial review. So there is some risk, and that does avoid the Chadha problem. And that's why all regulations still have to come to Congress so that circumvention can be dealt with.

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So that—and then you still need, I think, these other Committees because major rules are the minimum that Congress should be enacting into law. But then you make the nonmajor ones subject to—still subject to disapproval, but more effectively.

Mr. CANNON. Let me ask, John, suppose you had a single Committee of jurisdiction without the subject matter expertise. Is it possible to have a rule that allows or requires the joint Committee or the single Committee to work with other Committees? You know, we do that currently with the concurrent jurisdiction in Committees on some matters.

Is there a way to do that with a Committee that handles all of them and then somehow coordinates with Committees of expertise?

Mr. SULLIVAN. Yes, Mr. Chairman.

For example, you could contemplate that this panel would report not to the House, but to its sister Committees. It would make recommendations to the Committees that enacted the enabling statutes in the first instance.

Mr. CANNON. So serial jurisdiction?

Mr. SULLIVAN. Yes, sir.

Mr. CANNON. Interesting. All right.

Page 52      PREV PAGE       TOP OF DOC Can I ask one other question? This is sort of technical, but if we had reports submitted electronically, is it possible to speed up this process, from your perspective as the parliamentarian, so that you take and delegate electronically some of this material? Would that speed up the referral process out of your office?

Mr. SULLIVAN. It might speed up the referral process. It certainly would make more efficient the movement of the paper and the tracking of submittal dates and so forth, the things that the clerk's office has to do with the flow.

The parliamentarian would still have to examine the substance of the rulemakings to discern the Committee jurisdictions in them, but I think it would materially assist the Legislative Resource Center and the others who have to move this paper.

Mr. CANNON. So do we need to do something to establish a requirement by the Administration to in some consistent manner submit these things electronically?

Mr. SULLIVAN. I assume that that might require that you visit the statutory text. I'm personally leery about going virtual on anything. Committees frequently want to teleconference instead of meet together face to face, or poll their Members instead of having them in the same room and voting, we constantly try to impress on them notion of Jeffersonian collegiality and the importance of Members being together in the flesh. So crossing the threshold of a virtual submission I would want to be very cautious about that.

But in terms of batch processing, if the comptroller bundled communications and had a covering electronic submission that could manage the submittal dates and the tracking and that sort of thing, I think that would be very helpful.

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Mr. CANNON. Great. Thank you.

Obviously, this is a panel of experts who've been here before, and you all have given very thoughtful, insightful testimony on this issue. We appreciate your involvement in the broader APA review.

And with that, we will stand adjourned.

[Whereupon, at 3:43 p.m., the Subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record

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C.eps

(Footnote 1 return) See, Christopher Yoo, Steven G. Calabresi, and Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945–2004, 90 Iowa L. Rev. 601, 690–729 (2005) (detailing the history of presidential control of administrative actions of departments and agencies in the Reagan, Bush I, Clinton and Bush II administrations) (Yoo).

(Footnote 2 return) Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 Duke L.J. 1059, 1090 (2001).

(Footnote 3 return) Cynthia R. Farina, Undoing The New Deal Through The New Presidentialism, 22 Harv. J. of Law and Policy 227 (1998).

(Footnote 4 return) Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2246 (2001) (Kagan).

(Footnote 5 return) Kagan at 2314.

(Footnote 6 return) Id.

(Footnote 7 return) Kagan at 2347.

(Footnote 8 return) See Yoo at 722–30.

(Footnote 9 return) Whitman v. American Trucking Assn's, 531 U.S. 457 (2001).