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REINS ACT—PROMOTING JOBS AND EXPANDING 

FREEDOM BY REDUCING NEEDLESS REGULATIONS 

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 

JANUARY 24, 2011 

Serial No. 112–7 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

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 

TRENT FRANKS, Arizona 

TOM REED, New York 

DENNIS ROSS, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

JANUARY 24, 2011 

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 ...................................................................................... 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

WITNESSES 

The Honorable David McIntosh, Mayer Brown LLP 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Jonathan Adler, Professor, Case Western Reserve University School of Law, 

Director, Center for Business Law and Regulation 

Oral Testimony ..................................................................................................... 76 

Prepared Statement ............................................................................................. 78 

Sally Katzen, Visiting Professor, New York University School of Law, Senior 

Advisor, Podesta Group 

Oral Testimony ..................................................................................................... 86 

Prepared Statement ............................................................................................. 88 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 8 

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 .............................................. 13 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 16 

Prepared Statement of the Honorable Mike Quigley, a Representative in 

Congress from the State of Illinois, and Member, Subcommittee on Courts, 

Commercial and Administrative Law ................................................................. 19 

Prepared Statement of the Honorable Trey Gowdy, a Representative in Congress from the State of South Carolina, and Member, Subcommittee on 

Courts, Commercial and Administrative Law ................................................... 102 

CRS Report submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 117 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Responses to Post-Hearing Questions from Sally Katzen, Visiting Professor, 

New York University School of Law, Senior Advisor, Podesta Group ............. 140 

Report from the Center for Progressive Reform (CPR) ........................................ 142 

(1) 

REINS ACT—PROMOTING JOBS AND EXPANDING FREEDOM BY REDUCING NEEDLESS 

REGULATIONS 

MONDAY, JANUARY 24, 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, Smith, Gowdy, Gallegly, Franks, 

Reed, Ross, Cohen, Conyers, Johnson, Watt, and Quigley. 

Staff present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Olivia Lee, Clerk; and Carol Chodroff, Minority Counsel. 

Mr. COBLE. The Subcommittee will come to order. I was going to 

welcome all the new Members to the Subcommittee, but Mr. Cohen 

and I appear to be it. So good to have you on board, Mr. Cohen, 

and Mr. Gowdy on my right. 

Ground rules, folks. I like to start on time, and I like to end on 

time. I hope that is agreeable with everybody. You are familiar perhaps with the 5-minute rule. And the 5-minute rule, folks, is not 

done in any way to frustrate debate but rather to facilitate the 

process. Our jurisdictional bounds are broad, indeed, and we will 

hustle along and do the best we can. So when you see that red light 

appear, that will be your signal that your 5 minutes have elapsed. 

And Mr. Cohen and I will not call in the U.S. Marshal on you then, 

but you need to wrap up. The 5-minute rule also applies to Members of the Subcommittee. We will try to adhere to that as well. 

I want to give my opening statement, and I will recognize Mr. 

Cohen for his opening statement. Other opening statements will be 

made part of the record at the conclusion. Is that agreeable with 

everybody? 

Today marks the first hearing of the newly constituted Subcommittee on Courts, Commercial and Administrative Law. And I 

think we are going to have Mr. Smith with us, but he is not 

hereyet. Chairman Smith has provided our Subcommittee with jurisdiction over a number of important matters that I hope our Subcommittee will address during the 112th Congress. 

2 

In my view, one of the most important matters is to fine tune our 

regulatory process; hence, the introductory oversight hearing on 

the REINS Act. 

Many in the private sector have alleged that the Obama administration has cast a cloud of regulatory uncertainty over some parts 

of the economy. While it is no secret that our economy is still soft, 

perhaps even dismal, unnecessary or unreasonable regulatory burdens will continue to drive business investments, in my way of 

thinking, abroad. 

Examples of the need for improvement are prevalent in virtually 

every sector of government regulation. For instance, the Department of Health and Human Services’ implementation of President 

Obama’s health care reform, the financial agency’s implementation 

of the Dodd-Frank financial reform bill, the EPA’s campaign 

against carbon dioxide, the FDA’s approach to herbicide, and the 

Federal Communication Commission’s drive to regulate the Internet and allocate spectrum. 

I only mention these examples because they are widely recognized, and the fact of the matter is that fine-tuning is needed 

across the entire regulatory horizon. 

Our current regulatory regime has deep historic roots. Since the 

days of the New Deal, and especially during the 1960’s and 1970’s, 

Congress has delegated more and more of its legislative authority 

to Federal agencies. This has been done through broad and vaguely 

stated laws that allow Congress to claim credit for addressing problems but leaves it to the various agencies to fill in the crucial details through regulations. The final risk of the wrong decision thus 

falls on the agencies and, of course, the economy and America’s job 

creators. Congress too often escapes both responsibility and accountability. 

The Republican majority that came to Congress in 1994 attempted to address this problem through the Congressional Review 

Act. That act, you may recall, gave the Congress greater tools to 

disapprove agency regulations that harm the economy, destroy jobs, 

or otherwise were counterproductive. Over its history, however, the 

Congressional Review Act has not fulfilled its potential. 

During the 108th and 109th Congresses, the Subcommittee on 

Commercial and Administrative Law examined ways to improve 

the Congressional Review Act and better assert Congress’s authority over legislative regulations. One of the leading ideas for reform 

was to amend the Act to preclude regulations from going into effect 

until Congress actually approve them. That is precisely what the 

REINS Act does for the biggest regulations Federal agencies issue, 

those imposing $100 million or more in costs on our economy. 

Today, more than ever, we must consider and enact reforms that 

vindicate Congress’s authority over the laws. The REINS Act is 

front and center among those reforms. 

Before reserving the balance of my time, I would like to extend 

a warm welcome to our former colleague, Congressman David 

McIntosh—it is good to have you back on the Hill—as well as the 

other witnesses. 

And Mr. Cohen, I said this before our other colleagues came in, 

but it is good to have all Members, Republican and Democrat alike, 

on this Subcommittee. And now I am pleased to recognize the disVerDate Aug 31 2005 13:08 Apr 01, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\012411\63872.000 HJUD1 PsN: 63872
3 

tinguished gentleman from Tennessee, Memphis to be specific, Mr. 

Cohen. 

Mr. COHEN. Thank you, Mr. Chair. And I appreciate that. As you 

know, Tennessee was originally North Carolina, so, in some ways, 

we are colleagues beyond being colleagues here. 

And I would like to first pay specific attention to, for the new 

Members and others, to my Ranking Member of the Committee, 

the distinguished, the venerable, the honorable, the legendary John 

Conyers. Nice to be with you. 

And Chairman Smith and all the other Members, I look forward 

to serving with each of you as well, who is not legendary yet, but 

he is honorable and a few of those other things that we will incorporate by reference. 

Mr. COBLE. Would the gentleman yield just a moment. I didn’t 

realize that Chairman Smith had come in. I didn’t mean to ignore 

you, Lamar. 

Is Mr. Conyers here as well? Good to see you again. 

Mr. COHEN. I would like to start by offering my congratulations 

to Mr. Coble, who assumed the Chairmanship of the Committee. 

And when I was Chairman, he was as nice as anybody was to me. 

Everybody was nice, but he was particularly nice, and I was always 

appreciative of that. 

You are a gentleman, and I look forward to working with you. 

Mr. Franks was an outstanding Ranking Member, and we 

worked together nicely, and I look forward to serving with him. 

I am honored to be working as Ranking Member, although I 

would rather be working as Chairman, but that is this Congress. 

Today’s hearing provides us with the opportunity to debate the 

merits of H.R. 10, the ‘‘Regulations from the Executive In Need of 

Scrutiny Act,’’ or REINS. It also gives us a chance to discuss the 

appropriate role of Federal regulations in American life, a conversation I suspect we will continue to have in this Subcommittee 

in the 112th Congress. 

Although they do not explicitly say, proponents of the REINS Act 

appear to believe that almost all regulations are bad. All their arguments focus on the purported costs that regulations impose on 

society. Based on this premise, we have heard rhetoric about job 

killing regulation that will stifle economic growth and impair personal freedom. 

What such arguments do not seem to fully appreciate is regulations can also benefit the economy by policing reckless private-sector behavior that could undermine the Nation’s economic wellbeing, and came very, very close to doing it in 2008. Lack of regulations and the economy of the world was on a precipice, pulled off 

by President Bush and bipartisan Members of the Congress in 

passing the TARP and successive legislation with the Stimulus Act. 

We learned that the hard way in the 2008 financial crisis and the 

problems that ensued there from. 

We can look back to the Great Depression, when there was even 

more independence from regulations and lack of regulation, and see 

what followed there, the Great Depression. 

Regulations can facilitate economic activity by providing clarity 

for regulated industries where the applicable statutory language 

4 

may be too broad or too vague and lead to unnecessary confusion 

or even litigation. 

Regulations can also serve societal values that may outweigh economic growth. 

Most importantly, regulations help protect the health and safety 

of everyday Americans, including our children, our neighbors, our 

colleagues, our grandparents, and ourselves and the public at large. 

The fact is that Federal regulations help ensure the safety of the 

food that we eat, the air that we breathe, the water that we drink, 

the products we buy, the medications we use, the cars we drive, the 

planes we fly in, and the places we work. Indeed, most Americans 

are able to take for granted the safety of these things assured because of the existence of Federal regulations. 

The REINS Act threatens to make it harder for such beneficial 

regulations to be implemented. Under the Act, Congress must approve a major rule, one having an economic impact of $100 million 

or more, by passing a joint resolution of approval through both 

Houses of Congress within 90—70 legislative days after the rule is 

submitted to Congress. The President must then sign the joint resolution of approval before the rule can go into effect. 

At the most practical level, I question whether the REINS Act 

could work. I have been in Congress long enough to understand 

that the crush of business before us will more often than not prevent us from giving due consideration and approval to the many 

rules that may be beneficial and even ultimately enjoy widespread 

support if we were to implement the REINS Act. 

As with the Congressional Review Act, the underlying statute 

that the REINS Act seeks to amend, this idea may seem better in 

the abstract than it will be in practice. 

Of course, I am not ready to say the REINS Act is a good idea 

even in the abstract. While I appreciate the attempt to reassert 

some congressional control over agency rulemaking, there are separation of powers that I think were spoken to Members of Congress 

about recently, and Justice Scalia I think led that talk. And there 

could certainly be constitutional objections with separation of powers to the REINS Act, which we will hear from our witnesses. 

There is a role for us. There is a role for the executive. There is 

a role for the judiciary. 

I look forward to our witnesses testimony. I look forward to 

working with Chairman Coble and my other colleagues on the Subcommittee for hopefully a meaningful 112th Congress. 

I yield back the remainder of my time. 

Mr. COBLE. Mr. Cohen, I thank you. 

And I thank you as well for your generous remarks at the opening. I appreciate that. 

Statements of all Members will be made a part of the record, 

without objection. 

And I am told that Mr. Smith and Mr. Conyers would like to 

make opening statements, and I recognize the distinguished gentleman from Texas, the Chairman of the full Committee, Mr. 

Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

5 

And, Mr. Chairman, thank you for chairing this particular hearing, which I think is going to be one of the most important of the 

year. 

As you said, I also welcome our former colleague David 

McIntosh. 

And, David, I hope we get to talk a little bit more later on, but 

appreciate your being here, too. 

Mr. Chairman, the American people in November voted for real 

change in Washington. One change they want is to stop the flood 

of regulations that cost jobs and smothers job creation. Yet, another 

is to make Washington and Congress more accountable. The 

REINS Act makes that change a reality. 

Unelected Federal officials for too long have imposed huge costs 

on the economy and the American people through burdensome regulations. Today, these regulatory costs are estimated to be a nearly 

incomprehensible $1.75 trillion dollars, roughly $16,000 per household. 

Because the officials who authorize these regulations are not 

elected, they cannot be held accountable by the American people. 

The REINS Act reins in the costly overreach of Federal agencies 

that stifles job creation and slows economic growth. It restores the 

authority to impose regulations to those who are accountable to the 

voters, their elected Representatives in Congress. 

The Obama administration has under consideration at least 183 

regulations that each would impose costs of $100 million or more 

on the economy. And when businesses have to spend these vast 

sums to comply with these massive regulations, they have less 

money to invest to stay competitive in the global economy and to 

hire new employees. These costs get passed on to the American 

consumers. In effect, these regulations amount to stiff but unseen 

taxes on every American. 

Last week, in a new Executive Order, President Obama reiterated the existing authority of agencies to cull outdated rules from 

the books and consider impacts on jobs when regulations are written. This order sounded encouraging but added little to the rules 

that already guide the process of regulations. In the Executive 

Order, ‘‘distributive impacts’’ and ‘‘equity’’ are specifically identified 

among benefits to be maximized. Job creation is not. 

The Executive Order is specifically written not to include regulations issued to implement the Administration’s health care legislation, and it carves out independent agencies charged to implement 

the Dodd-Frank financial reform legislation. And it won’t halt the 

Environmental Protection Agency’s drive to exercise authority it 

was never granted. So the most burdensome and costly regulations 

are exempted. 

The Executive Order, I hope not, may have been all style and no 

substance. Until the Executive Order produces real results, it is 

just a string of empty words. We must watch what the Administration does, not what it says. 

In 1994, Congress passed the Congressional Review Act to reassert Congress’s authority over the relentless regulation of the 

Federal Government. The act has been used just one time to disapprove of regulation. The regulatory tide continues and rises even 

higher. The REINS Act is needed to reduce the cost of the flood of 

6 

regulations, free up businesses to create jobs, and make the Federal Government more accountable. Thank you, Mr. Chairman. 

Mr. Chairman, before I yield back entirely, I would like to recognize my colleague sitting back of the room, Geoff Davis, who has 

been absolutely instrumental in promoting, advancing, and writing 

this legislation that we are discussing today. 

Mr. COBLE. I thank the gentleman. 

The Chair is pleased to recognize the distinguished gentleman 

from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Coble. 

I join in welcoming our former colleague, Mr. McIntosh, back 

here. It is very important. And I ask unanimous consent that the 

author of the bill, Representative Davis, come forward. I think he 

should be able to make a couple comments about the bill. I would 

welcome his sitting at the table. Since there are only three people 

there anyway, there is plenty of room. 

Mr. COBLE. Mr. Conyers, I would be pleased indeed to have Mr. 

Davis come forward. I don’t believe, though, he would be eligible 

to comment. But we would be glad for him to come forward to the 

table if he would like. 

Mr. CONYERS. You say he can’t comment on his own bill in the 

Judiciary Committee, the keeper of the Constitution? 

Mr. COBLE. Well, Mr. Conyers, he was not called as a witness. 

And that is why I made that statement. 

Mr. CONYERS. Okay. 

Well, I have got a few questions I would like to ask him after 

the hearing, then, if I can. I will be looking forward to doing that. 

I have got a statement that I will put in the record so we can 

get to our witnesses. But the most important part of my statement 

is that I think we have a constitutional problem on our hands, and 

our former colleague alluded to it himself in his statement. And it 

is found in article II, section 1, that I refer all of the distinguished 

lawyers on this Committee to. And I am sure we will have enough 

time to go into this. 

The second consideration I would like us to keep in mind as we 

go through this important hearing is that the REINS Act may not 

be tailored to the problems that it is supposed to address. We have 

got some big problems with whether this is feasible. The feasibility 

of this act is—well, let’s put it like this. This would affect every law 

on the books. It is not prospective, but it would involve every law 

that is on the books currently. 

Now, I don’t want to suggest that the Congress isn’t up to its 

work, but do you know how much time that that would take to go 

through all of the laws to get them, the regulations to the laws, 

okayed by the House and the other body, as we delicately refer to 

them? It doesn’t seem very probable that that could happen. 

So when you consider the fact that we don’t have the author of 

the bill testifying—and we are glad he is here, of course—but we 

also don’t have the Administration testifying. Why isn’t somebody 

from the Administration here? I mean, how can we be doing this? 

And I have been told by staff that we are going to try to report this 

bill next week sometime. 

7 

So, Chairman Coble, I would like to, with all due respect, ask an 

opportunity to discuss with you the possibility of an additional 

hearing on this matter. 

Mr. COBLE. Well, if the gentleman would yield. This is an oversight hearing, and there will be a legislative hearing subsequently. 

Mr. CONYERS. Okay. Well, that is consoling. I am glad to find 

out. 

Now, this is a great new process of order. We do the oversight 

hearing first, and then we have a hearing on the bill. That makes 

a lot of sense. Why don’t we have a hearing on the bill first? Oh, 

we are oversighting the condition that has caused the bill to be created. Is that right? 

Mr. COBLE. This is the oversight hearing. As I say, the legislative 

hearing will be scheduled. 

Mr. CONYERS. Okay. All right. Well, then I don’t have to ask for 

another hearing. There is going to be another hearing on the bill. 

So I am glad to know that, because I have got a witness or two 

in mind that I would like to have partake with all the other distinguished friends of ours that are here with us today. 

So I thank you very much, Chairman Coble. And I yield back the 

balance of my time and ask my statement be included in the 

record. 

[The prepared statement of Mr. Conyers follows:] 

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Mr. COBLE. And all statements of the Members of the Subcommittee will be made a part of the record, without objection. 

[The prepared statement of Mr. Cohen follows:] 


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[The prepared statement of Mr. Quigley follows:] 


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Mr. COBLE. We are pleased to have our panel of three witnesses 

with us today. 

As has been mentioned previously, Mr. McIntosh, it is good to 

have you back on the Hill. Mr. McIntosh now practices at Mayer 

Brown LLP in Washington focusing on issues before Congress and 

the executive branch. He is a graduate of the University of Chicago 

School of Law and a cum laude graduate of Yale University. 


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Professor Jonathan Adler teaches at the Case Western Reserve 

School of Law, where he is the director of Case Western Center for 

Business Law and Regulation. 

Professor Sally Katzen is a visiting professor at New York University School of Law, and Professor Katzen also serves as senior 

adviser to the Podesta Group. 

It is good to have each of you with us. 

And we will start with Mr. McIntosh, and we recognize you, sir, 

for 5 minutes. 

TESTIMONY OF THE HONORABLE DAVID McINTOSH, 

MAYER BROWN LLP 

Mr. MCINTOSH. Thank you. It is a pleasure to be back. 

And thank you, Mr. Cohen and Mr. Conyers, for your remarks. 

Let me commend the Committee for taking up this question in 

the oversight hearing of the regulatory process and the urgency for 

looking at, are there ways of making it work better to reduce the 

cost of regulations? 

And I want to commend Representative Davis for his work in introducing the REINS Act. 

When I was a Member, the Speaker asked me to Chair a Subcommittee on oversight just on regulations in the Government Reform Committee, and we looked at a lot of the different regulatory 

programs, looked at the overall costs on the economy. And I have 

to say, as I was preparing for the testimony today after I received 

the invitation, I was startled at the magnitude of the cost of Federal regulations: $1.75 trillion annually of costs imposed on the 

economy, about $15,000 per household; and, in particular, on jobs, 

where for large businesses, it costs $7,700 per employee to hire a 

new employee to follow the regulatory dictates of the various Federal programs. And for small businesses, it is even more. It is over 

$10,000 per employee. 

As Mr. Cohen pointed out, those are the costs. You need to look 

at the benefits of regulations when you are making policy decisions, 

and Congress does that as it passes the laws, and the agencies are 

required to do that under longstanding executive orders. But the 

problem that I see that has happened, and we worked on the Congressional Review Act as a way of addressing that, is that balancing act of the particular type of mandatory requirements that 

get set in a regulation versus the benefits doesn’t come back to 

Congress for review once the legislation has been enacted and the 

regulatory agency has been empowered to act. 

We passed in 1995 the Congressional Review Act as one way to 

increase that formally, but as was pointed out earlier, it has only 

been used one time. And it is difficult for the political configuration 

to work where typically you have got to have a resolution of disapproval go through both the House and the Senate and signed by 

the President. I think the only time it did work was when President Clinton’s administration proposed a rule and Congress acted 

and presented a bill to President Bush about that regulation. And 

so you saw the political baton being handed from one party to the 

other and willingness for Congress and the President to act. 

The REINS Act strikes me as an excellent way of really strengthening that effort. It is not applied to all regulations. It is carefully 

22 

tailored to major regulations that have a significant and major impact on the economy. It, in many ways, addresses some of the constitutional questions that come up from time to time in the various 

regulatory programs; specifically, whether Congress has delegated 

too much authority to the regulatory agency and needs to retain 

some of that authority in the legislative branch in order to perform 

its article I duties. 

And also, as I point out in the testimony, there are some enhancements for Presidential authority under article II that Mr. 

Conyers mentioned, article II, section 1, where you have a unified 

Executive, because the bill applies to both regular agencies in the 

executive branch but also the so-called independent agencies, 

which the President would have some greater authority over as a 

result of the REINS Act. 

It is also carefully tailored to fit into what this Committee is an 

expert at, and that is thinking about the processes that should be 

used for Federal regulations. It merely says Congress is going to 

withhold part of its delegation and gives itself an option to approve 

the final result before that has the force of law. It is an addition 

to the Administrative Procedures Act and carefully written to be 

narrowly tailored to fit into that procedural change. The parties 

still have their rights under the Administrative Procedures Act for 

other problems that may come up. 

So I commend the Committee for taking this up. I urge Congress 

to favorably consider the REINS Act and will be glad to answer 

any questions when you need me to. 

[The prepared statement of Mr. McIntosh follows:] 

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Mr. COBLE. Mr. Adler. 

TESTIMONY OF JONATHAN ADLER, PROFESSOR, CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW, DIRECTOR, 

CENTER FOR BUSINESS LAW AND REGULATION 

Mr. ADLER. I thank you, Mr. Chairman and Members of the Subcommittee, for the invitation to testify today. I appreciate the opportunity to appear before this Subcommittee to discuss measures 

Congress may take to enhance regulatory accountability. 

This is a tremendously important issue. Federal regulation has 

been accumulating at a rapid pace for decades. In 2009 alone, Federal agencies finalized over 3,500 new Federal regulations. 

The growth of Federal regulation has imposed significant costs 

on American consumers and businesses. According to estimates, as 

has been mentioned several times already, the total cost of Federal 

regulation exceeds $1 trillion and approaches $2 trillion per year. 

This is substantially more than Americans pay each year in individual income tax. 

Insofar as regulations impose a substantial cost, they operate 

like a hidden tax. Just like taxes, regulations may be necessary. 

They may be important to address public ills or provide public benefits, and these benefits may be important, and it may be worthwhile to have many of these regulations. But that doesn’t mean 

that they are free. 

The fact that regulations, like taxes, can both impose substantial 

costs and generate substantial benefits makes it that much more 

important that there be political accountability for Federal regulatory decisions. 

The increase in the scope of Federal regulation has been facilitated by the legislative practice of delegating substantial amounts 

of regulatory authority and policy discretion to administrative 

agencies. All administrative agency authority to issue regulations 

comes from Congress. Such delegation may be expedient or even 

necessary at times, but it also has costs. Excessive delegation can 

undermine political accountability for regulatory decisions and 

allow regulatory agencies to adopt policies that do not align with 

congressional intent or public concern. 

All too often, Federal regulatory agencies use their statutory authority to pursue policies that are unpopular or unwarranted, and 

all too often, Congress is unable or unwilling to do something about 

it. 

This problem is magnified by the fact that agencies are often exercising authority granted years, if not decades, ago. Take one example that has certainly been discussed already today: The EPA is 

currently implementing regulations to control greenhouse gases 

under the Clean Air Act, even though Congress has never explicitly 

voted to support such regulation. Rather, the EPA is utilizing authority enacted decades ago. The Clean Air Act’s basic architecture 

was enacted in 1970, and the Act has been not significantly modified since 1990. If greenhouse gas regulation is warranted, this is 

a decision that should be made by Congress, not an executive agency acting alone. 

The REINS Act offers a promising mechanism for disciplining 

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ability for Federal regulatory decisions. Requiring congressional approval before economically significant rules may take effect ensures 

that Congress takes responsibility for that handful of regulations, 

usually only several dozen per year, that impose major costs and 

hopefully also provide major economic benefits. 

Adopting an expedited legislative process much like that which 

is used for Fast Track Trade Authority, ensures transparency and 

prevents a congressional review process from unduly delaying 

needed regulatory initiative. Such an approach can enhance political accountability without sacrificing the benefits of agency expertise and specialization. Requiring regulation to be approved by a 

joint resolution that will be presented to the President also satisfies the constitutional requirements of bicameralism and presentment. 

The central provisions of the REINS Act is similar to a proposal 

made by then Judge Stephen Breyer in a 1984 lecture. He noted 

that a congressional authorization requirement is a constitutional 

way to replicate the function of a one-House legislative veto. Requiring congressional approval for the adoption of new regulatory 

initiatives, as Breyer noted, imposes on Congress a degree of visible 

responsibility. 

The REINS Act provides a means of curbing excessive or unwarranted regulation, but it is not an obstacle to needed regulatory 

measures supported by the public. If the agencies are generally discharging their obligations in a sensible manner, the REINS Act 

will have little effect. If the public supports specific regulatory initiatives, the Act will not stand in the way. Indeed, it would enhance the legitimacy of those regulations Congress approves by 

making it clear that such initiatives command the support of both 

the Legislative and the executive branches. Above all else, the 

REINS Act provides a means of enhancing political accountability 

for regulatory decisions. 

Thank you again for the invitation to testify. And I am certainly 

open to any questions you may have. 

[The prepared statement of Mr. Adler follows:] 

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Mr. COBLE. And you beat the red light being illuminated, Professor. I commend you for that. 

Professor Katzen, you are recognized for 5 minutes. 


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TESTIMONY OF SALLY KATZEN, VISITING PROFESSOR, NEW 

YORK UNIVERSITY SCHOOL OF LAW, SENIOR ADVISOR, PODESTA GROUP 

Ms. KATZEN. Thank you Chairman Coble, Ranking Member 

Cohen, Members of the Subcommittee, I appreciate the opportunity 

to testify today. 

As is clear from my written statement, I am not a fan of H.R. 

10. 

It is presented as necessary and desirable to combat an out-ofcontrol regulatory process, but the bill, in my view, is not tailored 

to the problem that it is intending to solve. It is not well-founded, 

and it will have serious adverse unintended consequences, including fundamentally changing our constitutional structure of government. 

Now, we have had heard a lot this afternoon about the costs of 

regulation. Everyone is citing $1.75 trillion, which is the high end 

of an extremely controversial estimate. Very few have talked about 

the benefits in monetized form. 

As someone who does cost-benefit analysis, and I was a former 

administrator of OIRA during the Clinton administration, you look 

at both sides of the equation. And OMB, during both the Obama 

administration and the Bush administration, filed reports to Congress in which it quantified and monetized the costs and the benefits, and consistently over time, the monetized benefits exceeded 

the costs by a substantial amount, consistently producing net benefits for our economy and our society. We cut back the rules, we lose 

the benefits. 

Second, not all rules, not even all major rules, are alike. H.R. 10, 

in its infinite wisdom, exempts the migratory bird quota rule, because without that rule, which is a major rule, you can’t shoot the 

birds as they fly to and from Canada. But there are lots of other 

rules that industry, the regulated entities, want and need, rules 

that provide guidance, rules that provide predictability or certainty 

for their operation. I give in my written statement a number of 

these. 

There are rules that give life to programs, programs like agricultural subsidies, small business loan guarantees, or medical reimbursement. Without the eligibility and accountability provisions, 

which come in the form of rules, major rules, you don’t have a program, even though Congress has authorized it or modified it. No 

rules, no program.s 

Other major rules may be good because they reduce burdens. The 

OSHA rule, the infamous OSHA that everybody scorns, passed a 

rule on cranes and derricks which reduced burdens. It minimized 

the costs. Industry had asked OSHA for a negotiated rulemaking 

and supported the clarification. Yet all of these rules would be 

caught by the H.R. 10 net. 

Now, the supporters say, as Mr. Adler did, well, there won’t be 

any effect. They will all go through. With respect, our experience 

during the 111th Congress at least with the Senate suggests that 

it is not easy. The drafters of H.R. 10 changed H.R. 3765, its predecessor, from allowing 10 hours of debate on the debatable issues to 

2 hours of debate. But you still have a quorum call. You still have 

87 

the vote, and you have nondebatable motions, which easily could 

exceed 4 to 5 hours. 

For the 65 to 95 major rules each year, the Senate is not going 

to find that time. It has been unable, with due respect, to find 

blocks of time to process nominations of Administration officials or 

even judges. And so the result is that good rules, meritorious rules, 

important rules, will not take effect even though months, in fact 

years, have been spent with enormous resources devoted to sorting 

out the science and technical difficulties, with public participation, 

with analyses of all sorts of issues, with numerous checks throughout the agency, with numerous checks throughout the Administration, and subject to judicial review. 

What happens if the Senate doesn’t get to them? Is all the time 

and effort and resources to go for naught? The same rule cannot 

be modified once it is final agency action without starting a rulemaking process over again. To say there is no effect is not to understand the administrative process. 

At a minimum, H.R. 10 introduces additional delay and uncertainty to an already lengthy and complicated process. 

And, finally, for the reasons I set forth in my paper, I believe 

there are serious constitutional issues that are raised that fundamentally challenge the separation of powers, principles our 

Founding Fathers incorporated in the Constitution. 

I sketch out some of the arguments. I hear people referring to 

Justice Breyer’s speech. Since 1983 in his response to Chadha, 

there has been a lot of law in the Supreme Court. And the Morrison v. Olson test is really critical. 

I know that I have only 5 minutes. My light is red. I thank you, 

Mr. Chairman, but I do hope somebody will pursue this during the 

questions so we can look at some of the existing law and practice 

in this field. Thank you very much. 

[The prepared statement of Ms. Katzen follows:] 

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Mr. COBLE. I thank the witnesses for their testimony. 

We will now have Members questioning the witnesses, and we 

will apply the 5-minute rule to ourselves as well. 

I recognize myself for 5 minutes. 

Mr. McIntosh, in your view, what current regulatory efforts most 

highlight the need for reforms like those in the REINS Act and 

why? 

Mr. MCINTOSH. One, Mr. Adler mentioned the regulation of carbon dioxide. And my memory there was Mr. Dingell and I tried to 

present to the previous EPAs the full legislative history of the 

Clean Air Act amendment that made it very clear carbon was not 

to be regulated. And there was a lot of back and forth, and ultimately, the courts have forced their hand. But, to me, that shows 

an example of where, if Congress had a procedure in place, they 

could reassert that intent, even when the courts are driving the 

agencyin a direction that perhaps the agency itself wasn’t initially 

intending to go down. 

A second one would be the net neutrality regulations that the 

FCC has proposed. I think there will be a lot of litigation about the 

agency exceeding its statutory authority. I think if Congress had a 

procedure in place where they could easily pass that bill, and I 

think you could get bipartisan support for a bill nullifying that regulation under the REINS Act procedure, I think that would save 

a lot of time and expense and uncertainty in the private sector as 

that litigation ultimately goes forward. And I think, and in talking 

to my partners who specialize in the FCC Act, that that very likely 

could be thrown out, that it once again would be a great example 

of how Congress could effectively ensure there is economic progress 

that is made by paying attention to and having a part to play in 

that regulation. 

Mr. COBLE. I thank you, sir. 

Professor Adler, in improving upon the Congressional Review 

Act, is not requiring Congress to approve at least some agency 

rules the next logical step? And in taking that step, what are the 

keys to ensuring that the REINS Act or any similar reform remains constitutional under the rule of INS v. Chadha? 

Mr. ADLER. I do think it is the next logical step. I think a mechanism that forces Congress to actually say yea or nay to substantial 

regulatory proposal is the next logical step to ensure that there is 

political accountability for major regulatory decisions. 

In terms of the constitutional questions, I think INS v. Chadha 

is very clear that all that is required is bicameral presentment. The 

Supreme Court has said explicitly time and again that it is axiomatic, that is their word, that all authority for a Federal agency 

to adopt legislative type regulation comes from Congress, and that 

agencies have no such authority absent congressional enactment. 

So, unlike a case like Morrison v. Olson, where you are dealing 

with enforcement authority or arguably, at least in some context, 

there is some residual of inherent executive authority or some inherent authority that executive agencies may have, there is no inherent authority in any Federal agency to issue regulatory type 

rules absent a congressional delegation. 

And if Congress wants to delegate less, if Congress wants to put 

conditions on the exercise of that delegated authority, it surely can. 

99 

And not only did then Judge Breyer note that in his 1984 lecture 

or Larry Tribe, the noted constitutional law professor at Harvard 

who was, until very recently, an official in the Obama Justice Department, who likewise said that a requirement of this sort would 

be purely constitutional. 

The last point I will just make very quickly, Mr. Chairman, is 

that we have seen this already in areas that are far more sensitive 

in regulation, in the trade context, using this sort of process for 

Fast Track Trade Authority is arguably a far more—a far greater 

intrusion on executive authority than anything regarding domestic 

regulation because trade implicates the Foreign Affairs Authority. 

And I don’t think many people argue that Fast Track Trade Authority—— 

Mr. COBLE. I want to kind of beat the red light with Professor 

Katzen, if I may. 

Pardon me for cutting you off, Mr. Adler. 

Professor Katzen, you indicate that executive orders already constrain agency discretion to promulgate too many rules. But those 

orders haven’t prevented a flood of regulation, and they can be 

withdrawn by the President, can they not? 

Ms. KATZEN. Mr. Chairman, an executive order can be withdrawn by the President or his successor. But 12866 has been in existence since 1993, September 1993. And while there may be a 

flood, in your terms, of rules that have been issued, as I said, OMB 

has documented, during the Bush administration as well, that the 

benefits exceed the costs consistently over time. 

And I would just mention that Mr. Smith mentioned last week 

President Obama reaffirmed the Executive Order in his own Executive Order. And in fact, the very first sentence says that, in order 

to promote the public health, safety, and the environment while 

protecting economic growth, innovation, and job creation—it was 

the first sentence of his Executive Order. So I think the record 

should be clear. 

Mr. COBLE. My time has expired. 

I recognize the distinguished gentleman from Tennessee, Mr. 

Cohen. 

Mr. COHEN. Thank you, Mr. Chairman. I appreciate it. 

Let me ask one question. I may not understand this fully. As I 

understand it, Mr. Davis introduced this in the 111th and the 

112th Congress. Was it introduced, either to your knowledge or to 

anybody’s knowledge, before that? 

Ms. KATZEN. Last year as H.R. 30765. 

Mr. COHEN. In the 111th. But before the 111th, was it introduced? 

Was it, Mr. Adler? 

Mr. ADLER. I don’t know if it is the exact same language, but 

similar types proposals have been proposed at various times. 

Mr. COHEN. That required a positive approval by the Congress? 

Mr. ADLER. Yes. 

Mr. COHEN. When? 

Mr. ADLER. In the 1984 article that—— 

Mr. COHEN. Forget 1984. Let’s come back to recent history. 

Mr. ADLER. I don’t know, prior to last Congress, when the last 

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gressman Nick Smith from Michigan had an article about legislation. 

Mr. COHEN. When was that? 

Mr. ADLER. I want to say 1996, maybe 1997. I am not exactly 

sure. 

Mr. COHEN. And how about you, Mr. McIntosh? Do you know of 

anything? 

Mr. MCINTOSH. I am not aware of—— 

Mr. COHEN. So, basically, during the Bush years, it was all like 

wonderful, and nobody even thought about this, and the executive 

authority was great, and we didn’t need this. It is only since Mr. 

Obama was elected President that we need to do this. That seems 

to be the situation. For 8 years, it was wonderful with Mr. Bush, 

and the executive did everything great. 

Let me ask you this question. You said—I think it was Mr. 

Adler—you said this isn’t going to present a problem, that Congress can do it. Do you understand in the Senate that they have 

held up like 50 or 60 judges? And you know—what is it called? A 

blue slip? Do you know what a blue slip is? Can you imagine the 

Senators? I mean, that is the last ‘‘don’t ask, don’t tell.’’ You don’t 

ask what you are going to get for it, and you don’t tell what you 

get for your blue slip. They still have that in the Senate. How is 

that going to work? All these regulations, they do a blue slip. I 

need a park in my district. Done. Don’t you think that is going to 

invite basically what I would think some nefarious type—one Senator can hold it up. 

Mr. Adler, is that right? One Senator under the rules we know 

today can hold up appointments, can hold up rules and regulations? 

Mr. ADLER. Yes. Under the way the rules are typically applied, 

they can. But blue slips are a courtesy afforded to home State Senators for nominations. They are not applied to legislation. And my 

read of the bill would not allow holds of joint resolutions—— 

Mr. COHEN. Mr. Adler, are you suggesting that we can write a 

bill over here that is going to restrict or change the Senate rules? 

Mr. ADLER. I think that if the House and the Senate both passed 

a bill that is signed into law by the President that codifies changes 

to the rules for both Chambers, as has been done for the Base Closure Commission, for the Fast Track Trade Authority, for—— 

Mr. COHEN. You understand that one Senator can hold up a bill? 

Mr. ADLER. If the rules allow for it, yes. But I also know that 

there are probably about a dozen examples of the House and Senate passing legislation limiting the rules to prevent those sorts of 

holds by limiting debate and by requiring votes to occur on a scheduled basis. And the two most prominent examples are with the 

Base Closures Commission and with the Fast Track Trade Authority. 

Mr. COHEN. Thank you, sir. 

Ms. Katzen, let me ask you a question. You were here when we 

read the Constitution. Did you watch us read the Constitution from 

the floor of the well? 

Ms. KATZEN. Actually, I did. 

Mr. COHEN. You did. 

101 

And did you hear—I don’t know who read it; I am sure it was 

somebody—the article II, section 1, something about all power 

being vested in the executive to carry out the laws. Tell us a little 

primer of what that means about the executive. And can they have 

the ability to execute our laws without rules? Could they do it 

without having any rules? 

Ms. KATZEN. I think that is a serious problem, because section 

1 of article II vests all executive power in the President. That 

power includes the power to take care that the laws be faithfully 

executed. That is a quote from the Constitution. That means that 

when Congress passes the law, it is up to the President and the 

subsequent President and the subsequent President after that, 

whether they agreed with that law or not, to carry out the law. 

Now, for over a century, administrative agencies have been implementing or carrying out the law by issuing regulations. That is 

how it is done. And so for that reason, I believe that an attempt 

by Congress to strip the President of that authority with respect 

to major rules is tantamount to an act of Congress—I am using 

Chief Justice Rehnquist’s words from Morrison v. Olson—of one 

branch self-aggrandizing at the expense of another branch. Or, 

again using Chief Justice Rehnquist’s words, an act of Congress 

which would impermissibly interfere with the President’s exercise 

of his constitutionally appointed functions. These are serious questions. 

I wouldn’t be so presumptuous as to say that I know how the Supreme Court would rule, but if they want to invoke Justice Breyer, 

I would refer them respectfully to Justice Scalia as well, who has 

been, among all the Justices, the guardian of the President’s powers. 

Mr. COHEN. Thank you. 

Mr. Chairman, I yield back the remainder of my time beyond the 

red light. 

Mr. COBLE. You didn’t violate it too badly. 

The Chair recognizes the gentleman from South Carolina, Mr. 

Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Chairman, I would like to make my opening statement be 

part of the record, with your consent. 

I want to thank all three of our panelists. 

Mr. McIntosh, I will start with you. 

Mr. COBLE. Without objection. 

[The prepared statement of Mr. Gowdy follows:] 

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PREPARED STATEMENT OF THE HONORABLE TREY GOWDY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA, AND MEMBER, SUBCOMMITTEE ON

COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

Mr. GOWDY. Thank you, Mr. Chairman. 


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What, in your judgment, is the proper balance between the executive branch and the legislative branch when it comes to rulemaking and enforcement? 

Mr. MCINTOSH. Let me point out that the Administrative Procedure Act also constrains how the executive branch writes its regulations, the processes it must use before they can have the force of 

law. So there is a long tradition in our modern history of Congress 

asserting constraints over how the President and the executive 

branch can issue regulations. It is fully compatible with that for 

Congress to say, Before this regulation that you are proposing, Mr. 

President, or the agency, it has to come back to Congress and sit 

there for Congress to give its approval of the content of that regulation. 

I think it is fully within Congress’s power to do that. I would 

point out that for the century prior to the last century, there were 

no regulatory authorities or bodies, and the President was fully capable of exercising his duty under the Constitution to take care 

that the laws were faithfully executed. 

So I think this act, perhaps it would be hubris to say that it goes 

as far as to restrain the President’s executive authority because it 

simply doesn’t do that. There are ways you can argue that, in fact, 

it enhances it, as I mentioned earlier, vis-a-vis the so-called independent agencies, because his signature on the bill approving the 

regulation gives him control over those agencies and the policies 

that they develop. 

Mr. GOWDY. Mr. Adler, I may have heard you incorrectly. And 

if I did, I want to give you a chance to correct. I wrote down that 

you said there have been 3,500 regulations promulgated in the 

past? 

Mr. ADLER. In 2009, I think the exact number is 3,503. And, of 

those, I don’t remember the exact number, but several dozen of 

those were major. But the 3,500 number was all regulations in, I 

believe, 2009. 

Mr. GOWDY. All right. I am just a prosecutor, so forgive me for 

not knowing much about civil law. But would the violation of a 

Federal regulation be evidence of negligence in a civil suit? 

Mr. ADLER. It depends. 

Mr. GOWDY. It depends on what? 

Mr. ADLER. I mean, it depends on the nature of the regulation; 

it depends on what is at issue. But, I mean, there are instances in 

which that could be evidence of that. It would depend. I guess it 

would really depend on a lot of factors, including what the State 

laws are. 

Mr. GOWDY. Are there any criminal penalties connected with violations of Federal regulations? 

Mr. ADLER. There often are criminal penalties associated with 

violating—— 

Mr. GOWDY. How can Congress abdicate its responsibility for 

criminal enforcement to a nonelected entity? 

Mr. ADLER. Well, I think you have hit on the key issue here, is 

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looked is that it is ultimately Congress that is responsible for that 

authority. 

And especially when you have rules that are going to carry criminal sanctions or, as in the case of the REINS Act, rules that are 

estimated to have a substantial effect on the economy, which is a 

rough proxy for a really major policy decision that will affect a 

large part of the country, I think it is certainly reasonable to say 

that we should make sure the people who are the source of the legislative power in the first place, Congress, where all legislative 

power is vested under article 1 of the Constitution, is accountable 

for that decision and that members of the public know whether or 

not their representatives believe that imposing that sort of rule is 

or is not a good idea. 

Mr. GOWDY. Ms. Katzen, you do not challenge the constitutionality of congressional oversight, correct? 

Ms. KATZEN. Not at all. 

Mr. GOWDY. You don’t even challenge the wisdom of congressional oversight. 

Ms. KATZEN. I endorse it wholeheartedly. 

Mr. GOWDY. So when you mentioned that there are constitutional 

infirmities in this bill, which, as I read it, is Congress reclaiming 

its responsibility/authority for oversight, what do you mean by 

‘‘constitutional infirmities?’’ 

Ms. KATZEN. I think the REINS Act goes well beyond oversight. 

And the Chairman talked about, in his opening statement, finetuning the regulatory system. I think the REINS Act is a blunt instrument that goes well beyond oversight. What it says is that Congress must affirmatively approve an action that it has already delegated and on which a lot of work, effort, and resources have been 

spent in refining and developing and issuing a rule. 

Mr. GOWDY. But you would agree with me, Congress could reclaim that delegation in the first place, right? 

Ms. KATZEN. Absolutely. And that is through—the Congressional 

Review Act does exactly that, because it satisfies the bicameral and 

presentment part of Chadha, and it says Congress is saying: You 

can’t do that. That is very different from saying: Before you do anything in this area, you must come back, even though we have already delegated it to you, you must come back and get our permission. 

Mr. GOWDY. What is the constitutional distinction between doing 

the two? 

Mr. COBLE. The gentleman’s time is expired. 

Ms. KATZEN. I think there is a significant—— 

Mr. GOWDY. I apologize, Mr. Chairman. 

Mr. COBLE. You may answer that quickly, Ms. Katzen. 

Ms. KATZEN. I think there is a significant difference between the 

two. And that is why the Congressional Review Act was originally 

crafted as it was, to be a change of the law, not a filter before 

which implementing a pre-existing law can go forward. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Mr. Gowdy. 

Mr. Conyers? 

Mr. CONYERS. Thank you, Chairman Coble. 

105 

My ex-prosecutor colleague asked why the Congress doesn’t enforce the laws. Well, as McIntosh and Davis and I know, we pass 

the laws, we oversight the laws, we do not enforce the laws. There 

is a little Federal agency called the Department of Justice that enforces the laws. So that is my criminal justice lesson for the day. Now, this $1.75 trillion annually that has been raised here, I 

would like to ask Ms. Katzen, how does that comport with the 

issues of the Congressional Budget Office, which has a different set 

of figures here? OMB said that major regulations promulgated over 

the 10-year period between 1998 and 2008 are estimated to have 

cost between $51 billion and $60 billion. 

Ms. KATZEN. I would love to answer the question, but I know the 

red light will go off before I even get halfway there. 

The 1.75 comes from a study that was presented in the mid1990’s that immediately raised all sorts of flags, both as to the assumptions, the methodology, et cetera. CRS did a very careful analysis, which I would commend to you, that shows the different problems that exist. 

Now, Congress ordered OMB to do the same thing, to do a real 

study. And what OMB did was to come up with the numbers that 

you had. They are very large numbers, but they are much smaller 

than the 1.75 trillion numbers. 

Congress, in its wisdom, said, determine the costs and determine 

the benefits. So, as you talk about the $43 billion to $55 billion in 

costs, they found $128 billion to $616 billion in benefits. So even 

if you use the highest end of the costs and the lowest end of the 

benefits, you still have net benefits of $73 billion. 

Mr. CONYERS. All right. Let me ask you this. Who was it that 

made this authoritative statement, allegedly, about over a trillion 

dollars? Do you know? 

Ms. KATZEN. It originally came from a Tom Hopkins study and 

then a gentleman whose name I—— 

Mr. CONYERS. Mr. Adler, do you know? 

Mr. ADLER. I don’t know off the top of my head. 

But I would just note that the OMB numbers that have been referenced exclude independent agencies and exclude non-major rules, 

which are over 90 percent of the regulations that are finalized each 

year. So to compare the OMB numbers with the other estimates is 

not—— 

Mr. CONYERS. Mr. McIntosh, do you know? 

Mr. MCINTOSH. Unconstitutional is the subject that Ms. Katzen 

has referred to—— 

Mr. CONYERS. But who—— 

Mr. MCINTOSH. And lots of people in the literature have cited 

that as they have discussed the cost of Federal regulation. 

Mr. CONYERS. So everybody says that somebody said it once and 

it is in a study somewhere, and so that is about it, huh? 

Ms. Katzen, did you want to add anything to this? 

Ms. KATZEN. Someone just handed me something which uses the 

name Mark Crain and Thomas Hopkins, and I think they are the 

co-authors of this $1.75 trillion—whatever. 

Mr. CONYERS. All right. Let me ask this question. If this REINS 

Act, which is high up on the list of our new leadership’s agenda— 

it is the fourth piece of legislation introduced—what would this do 

106 

to health-care reform? How would you take an enormous piece of 

legislation like this—and I think ‘‘ObamaCare’’ is going to be a congratulatory remark in history—how would this affect it? Wouldn’t 

it just stop it in its tracks? 

Mr. ADLER. It depends on what Members of Congress feel about 

it. If the majority of those in both houses of Congress support the 

regulations that are necessary to implement that law, then it 

would go on as before. 

The only thing that would stop it, under the REINS Act, would 

be is if the majorities of Congress don’t support those regulations. 

It ensures, essentially, that the American people get the sort of regulatory policy that the American people want. And I would think 

that that is a step toward greater political accountability and—— 

Mr. CONYERS. Now, well, wait a minute. The majority of the Congress already passed the bill, and the President signed it into law. 

Mr. ADLER. But congressional opinions change. Congress repeals 

statutes, revokes statutes, alters statutes. 

Mr. CONYERS. Well, that is—— 

Mr. ADLER. And one of the problems is you don’t really have legislation that was enacted last year—— 

Mr. CONYERS. Can I ask unanimous consent for 1 additional 

minute? 

Mr. COBLE. Certainly. 

Mr. CONYERS. Thank you, sir. 

Now, look, gentlemen and lady, you all know that any one of us, 

to challenge a regulation, all they have to do is walk into the nearest Federal district court and sue away. And we have regulations 

that get reviewed and modified or kicked out. What is wrong with 

that? 

Mr. ADLER. Nothing. But courts don’t want to review the policy 

merits of regulation. Courts don’t ask, is this regulation a good 

idea? Are the costs worth the benefits? Is this something the American people support? 

What courts look at is the nonpolicy questions: Were the rules 

followed? Was there—and those are two separate questions. This 

body is responsible for the policy questions. 

Mr. CONYERS. But, look, we just passed health care months ago. 

You mean we got to go back and look at it again? 

Mr. ADLER. I think that when you have major legislation and 

agencies are implementing that legislation, it is a good idea for 

Congress to—— 

Mr. CONYERS. Do you know what this sounds like to me now? It 

sounds like a backdoor way of legislating again, when they are 

charged with actually just making the rules to implement a bill already signed into law. 

Mr. COBLE. Mr. Conyers, your minute is over. 

Mr. CONYERS. Thank you very much, Mr. Chairman, for your 

generosity. 

Mr. COBLE. Mr. Reed? Mr. Reed is up next for 5 minutes. 

Mr. REED. Oh, thank you, Chairman. 

I would like to follow up on the comment that was just made by 

Mr. Conyers, when he said the individual, whoever is objecting to 

the rule, can sue away. Who pays for that? Who is the person who 

107 

has to bring that lawsuit? Usually, it is the small-business owner. 

Is it a farmer, is it a gentleman who is objecting to that regulation? 

I will ask Mr. McIntosh that question. 

Mr. MCINTOSH. Yes, sir, you are exactly right. It is the private 

party that has been affected by the regulation. 

And their recourse is, in fact, very limited, in they have to argue 

that the agency failed to follow its own procedures or acted arbitrarily and capriciously, not that they disagree with or they feel it 

is unfair that the regulation imposes burdens, say, on wheat farmers but not on corn farmers. 

And the law says to the agency, the Department of Agriculture, 

you go and allocate what should be planted on the land and, you 

know, do it in a way that maximizes the return for agriculture. 

Well, if the farmer who is adversely affected by that wants his day 

in court, all he can say is, ‘‘Well, sure, they allocated it, but they 

didn’t give me my allocation.’’ The courts say, ‘‘Sorry, you lose. 

They had to make that decision.’’ 

And I think Mr. Conyers’s later remark reflects correctly that 

what the REINS Act would do is say that decision, who gets which 

allocation for what crops to do, should actually be a legislative decision. And so, in many ways, what the bill does is correct a constitutional deficiency that is inherent in the regulatory program, where 

the accountability for legislative decisions like those never comes 

back to Congress. 

Mr. REED. Then correct me if I am wrong, Mr. McIntosh. That 

bureaucrat who is creating that rule, he is not an elected official, 

correct? 

Mr. MCINTOSH. No. He would be typically a civil servant or assigned by a person appointed by the President. 

Mr. REED. So when I go talk to my small-business constituent or 

my farmer in my district and he objects to the policy, I can’t go to 

him, ‘‘Well, we will vote that guy out the next time around because 

we disagree with that policy.’’ He is essentially stuck with that 

rule, other than the courts that are available to him. Is that a fair 

assessment? 

Mr. MCINTOSH. His political recourse would be to join others to 

vote enough Members of Congress to change the law or to vote a 

new President who would change the regulation, direct his agency. 

Mr. REED. Okay. I appreciate that. 

There has been a lot of objection that I am hearing in this testimony that one of the problems is the workload that would be put 

on Congress, finding the time to go through and develop that. 

Wouldn’t we face that same problem if we went through the enabling legislation and amended the enabling legislation? Wouldn’t 

that be a tremendous workload on Congress, to go back? 

No one objects to the fact that Congress would have that authority to do it, do you? We could go back through each of the pieces 

of legislation, change the enabling authority and clarify our intent 

as to what we meant from Congress. No one objects to that, correct? 

Mr. MCINTOSH. No. 

Mr. ADLER. Right. 

108 

Mr. REED. So that burden on Congress would be bigger, I would 

argue. Am I farfetched on that conclusion, that that would be a 

huge burden on Congress? 

Mr. MCINTOSH. Yes, it would. I mean, back in 1995, we thought 

about doing that to address a lot of the regulatory problems, and 

some of them got dealt with and others didn’t. 

Let me take, though, 2 seconds to—— 

Mr. REED. Please. 

Mr. MCINTOSH [continuing]. Brag about you all. I actually think 

Congress can handle that burden. Now, the Senate continues to 

mystify me, but the people who are—— 

Mr. REED. You are not alone. 

Mr. MCINTOSH [continuing]. In that body say they get things 

done by unanimous consent, ultimately. But I think it can be done. 

Mr. REED. Thank you. 

I yield the balance of my time. 

Mr. COBLE. I thank the gentleman. 

The gentleman from Georgia, Mr. Johnson, is recognized. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Adler, isn’t it correct that regulations that pertain to clean 

air, these are the regulations that you are speaking of being able 

to stop? 

Mr. ADLER. Well, any regulations that—— 

Mr. JOHNSON. Yeah. Air quality, water quality? 

Mr. ADLER. The examples I gave there weren’t—— 

Mr. JOHNSON. Well, no, no, no, no. I just want you to answer my 

questions. Now, water quality, air quality, correct? 

Mr. ADLER. Yes. Congress should be held accountable for those. 

Mr. JOHNSON. What about food safety? 

Mr. ADLER. I think Members of Congress should be willing to 

vote to be held accountable. 

Mr. JOHNSON. What about drug safety? 

Mr. ADLER. I think Members of Congress should be held accountable by voting on whether or not those regulations are a good idea. 

Mr. JOHNSON. What about financial reform? 

Mr. ADLER. Again, Congressman, I don’t think Members of Congress—— 

Mr. JOHNSON. I mean, that is covered under—these are regulations that are brought to bear on big business and industry—— 

Mr. ADLER. Yes. 

Mr. JOHNSON [continuing]. Primarily. 

Mr. ADLER. Primarily. And I think—— 

Mr. JOHNSON. All right. And so—— 

Mr. ADLER.—Members of Congress should be held more accountable—— 

Mr. JOHNSON. So things like the health and safety of workers, do 

you want to be able to stop those kinds of regulations from becoming the force of law? 

Mr. ADLER. No. I want my Member of Congress to have to vote 

on that decision. I want to know if my Member of Congress supports it. 

Mr. JOHNSON. Well, tell me now. You contend that, what, $1 trillion per year is what all of these regulations cost? How many new 

109 

regulations are promulgated yearly that have that economic significance? 

Mr. ADLER. That is the aggregate effect. Between 2000 and 2009, 

the number of major rules that would be affected by the REINS Act 

has been between 50 and 80 per year. 

Mr. JOHNSON. Okay. And you are familiar with the attributes of 

the Senate—— 

Mr. ADLER. Yes. 

Mr. JOHNSON [continuing]. In terms of them doing their work. 

Mr. ADLER. Yes. And that is why the REINS Act—— 

Mr. JOHNSON. And you are aware of the fact that one of those 

attributes is not the ability to move quickly, is that correct? 

Mr. ADLER. I think that the REINS Act addresses that. 

Mr. JOHNSON. You heard that before, and you know that to be 

a fact. Isn’t that correct? 

Mr. ADLER. It is correct. 

Mr. JOHNSON. That the Senate does not move quickly? 

Mr. ADLER. The Senate has to be forced to move quickly, and I 

think the REINS Act accomplishes that. 

Mr. JOHNSON. And so an obscure regulation, you think, would be 

enough to cause them to set aside all of their judicial appointments 

and other important—treaties that need to be ratified, all of the 

legislation that Mr. McIntosh gives us credit for for producing here 

in the House, but, because of an obscure regulation, they would 

suddenly spring into action. Is that what you want us to believe? 

Mr. ADLER. I don’t believe regulations dealing with clean air or 

clean water or financial services or some of the examples you gave 

that cost more than $100 million a year, by the executive branch’s 

own estimates, is an obscure regulation. 

Mr. JOHNSON. Well, let’s talk about obscure regulations. Who 

would decide—or, how would it be decided that a regulation should 

be subjected to the congressional review under the REINS Act? 

Mr. ADLER. The executive branch’s cost estimates would determine that. 

Mr. JOHNSON. Okay. Who would bring that to the attention of 

Congress? 

Mr. ADLER. The REINS Act has a procedure where that information is automatically transmitted to both houses of Congress with 

the regulation once it is finalized. 

Mr. JOHNSON. Who would do that? 

Mr. ADLER. I would have to check. I think both—— 

Mr. JOHNSON.Would it be the U.S. Chamber of Commerce? 

Mr. ADLER. The agency does it, and I believe the comptroller general that heads the Government Accountability Office is responsible 

for submitting that to both houses. And then, within 3 days, legislation is automatically introduced, or the joint resolution is automatically introduced in both houses. The last draft that I recall 

reading in legislation—— 

Mr. JOHNSON. So there is some ability for politics to infect the 

process of actually producing the legislation then. 

Mr. ADLER. Actually, no. The way the REINS Act is drafted, 

there is no amendment—— 

Mr. JOHNSON. Well, it would be a government bureaucrat that 

would do that? 

110 

Mr. ADLER. I spend a lot of time doing regulatory policy and—— 

Mr. JOHNSON. How do we get—— 

Mr. ADLER [continuing]. Much worried about the backroom deals 

in regulatory agencies than any up-or-down votes on the floor of 

the body of the whole. 

Mr. JOHNSON. How will we get politics, Mr. Adler, out of the 

rule-making process? 

Mr. ADLER. We—— 

Mr. JOHNSON. And aren’t we, by subjecting the rule-making process to congressional dictates, aren’t we, by the very nature of what 

we do here in the House, subjecting these rules to politics—— 

Mr. ADLER. Well, rules—— 

Mr. JOHNSON [continuing]. And influence, political influence, 

with campaign contributions and whatnot? 

Mr. ADLER. Rules that govern private behavior are things that 

political officials should be held accountable for. And I believe that 

sunlight is the best disinfectant, and requiring all Members of Congress to vote up or down in the body of the whole is far less subject 

to special-interest manipulation than leaving things in the halls of 

regulatory agencies. Your small-business man, your small homeowner isn’t spending time at the FCC or the EPA or the USDA lobbying on regulations. I really deserve to know how Members of 

Congress feel and then vote. 

Mr. JOHNSON. We just want to remove all regulatory action here 

in Congress—less government. Let’s cut government, let’s cut regulation, and let’s allow the members of the U.S. Chamber of Commerce and other large businesses that traditionally shut out small 

business—— 

Mr. COBLE. The gentleman’s time is expired. 

Mr. JOHNSON [continuing]. Just to run roughshod over society, 

and whatever will be will be. 

I appreciate it. Thank you, sir. 

Mr. COBLE. The Chair recognizes the gentleman from Arizona, 

Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And thank all of you for being here today. 

I guess, Mr. McIntosh, my first question will be to you, sir. It occurs to me that not only the process here but the mindset in which 

agencies write their regulations could be one of the most significant 

advantages of this legislation. Because, you know, if I were the director of an agency and I were writing regulations and I knew that 

it was going to be subjected to the scrutiny and oversight of Congress, that Congress is going to have to prove it, I would be pretty 

careful how I wrote that. I would make sure that it was a regulation that would comport with a lot of common sense and that could 

withstand the rigors of the legislative process itself. 

So, with that, since it only requires Congress to approve major 

rules but it could affect and change the culture of the agency, in 

what way do you think that that would improve all rule-making? 

Or do you think I am just all wet here? 

Mr. MCINTOSH. No, I think you are exactly right, that the prospect of having the work product that the agency does in developing 

a regulation be scrutinized in a debate in Congress and voted up 

or down will have, as it does on every other decision the agency 

111 

makes where Congress has expressed an interest, has an impact on 

their thinking and their calculation about it. And that provides 

more accountability, provides more accountability ultimately to the 

citizens, who vote on Members of Congress. 

That same accountability, by the way, is also in the Congressional Review Act. It is more attenuated. But you can still, by having a discharge position in the House to stop a rule, rather than 

the presumption of it—with the presumption being that it goes forward, or 30 Members of the Senate can have a discharge position, 

the mere prospect of a debate, even if everyone assumes that won’t 

pass, I think, can also have a salutatory effect on the agencies and 

their deliberations. So I am encouraging Members of Congress, 

while you are deliberating the REINS Act, to use your authority 

under the Congressional Review Act, as well. 

But, again, it comes down to sunshine, which Mr. Adler mentioned. Bringing things out into the public debate has a tremendous benefit on all of the actors involved. 

Mr. FRANKS. Well, thank you, sir. 

You know, I know there is going to be, as already manifest here, 

some debate as to the constitutionality of the legislation. I, for one, 

am fundamentally convinced that it is constitutional, but I want to, 

you know, be open to potential dissent here. 

Those who cite article 2, section 1 of the Constitution obviously 

are citing that Executive power should be vested in the President. 

And, of course, some of us would cite article 1, section 1, that the 

legislative power is vested in the Congress. And it seems to me 

that regulation certainly has a lot of the same characteristics as 

legislation, so if you are going to make that case, it is important 

to consider. 

But in constitutional terms, Mr. Adler, is there any critical substantive difference between the REINS Act and a statute that 

treats new regulations as simply proposed recommendations to 

Congress for legislative action? 

Mr. ADLER. No, I don’t think there is any significant difference, 

and I think both are clearly constitutional under existing precedent. 

Mr. FRANKS. I am going to give Ms. Katzen an opportunity, actually, here in a moment. But I wanted to find out, what is your— 

why do you postulate that this is constitutional? Is there anything 

that you would point out in particular? 

Mr. ADLER. Well, a couple things. I mean, the bicameral and presentment requirements have to be satisfied. Both would satisfy 

that. 

I think that the Supreme Court has made clear, repeatedly, in 

numerous opinions, as have lower courts, that all authority to issue 

regulations must be expressly granted. There is no residual authority to issue regulations that comes with other grants of authority 

of agencies. It is not something that is seen as inherently Executive. It is something that, for the most part, the majority of Federal 

agencies did not enjoy until the 1970’s. There were some exemptions. 

And the presumption had been that, unless agencies are expressly granted the authority to issue legislative-type rules, that is 

an authority they lack. And Congress is not obligated to delegate 

112 

that authority. And if Congress wants to restrain that authority in 

some way, such as it does here, there is no constitutional problem. 

And it doesn’t create the sorts of concerns that might be raised if, 

for example, Congress sought to impose similar limits on the exercise of, say, prosecutorial discretion or other things that are closer 

to the court—— 

Mr. FRANKS. I understand. No, that is a good answer. 

Quickly then, Ms. Katzen, Justice Breyer and Professor Tribe of 

Harvard have both published articles supporting a view that the 

REINS Act is constitutional. And I know you know that. But could 

you specify for us why you think Mr. Adler is wrong or why Justice 

Breyer or Professor Tribe are wrong? And do you think there is any 

merit to their views whatsoever? 

Ms. KATZEN. Well, thank you for that open invitation. And the 

light is red, but if I may answer? 

Mr. COBLE. Briefly, if you will, Professor. 

Ms. KATZEN. I will try. 

I think Justice Breyer, who was then a judge, not a justice, was 

engaging in what he often does, which is extremely creative, moretheoretical-than-practical analysis in this article, which I have read 

very carefully. 

And I think one of the most important things is that he sees it 

as a replacement for the one-house veto, which was invalidated in 

Chadha. And he saw it as a case by case, going through each of 

the statutes, rather than an across-the-board, blanket provision. 

But, most importantly, when he finishes, he makes it very clear 

that it is neither practical nor desirable. He questions the wisdom 

of it. And if you read the entire article, it is a, ‘‘Well, we could do 

this kind of stuff, and we could think about these kinds of—’’ 

Mr. FRANKS. So, in other words, he thinks it is stupid but constitutional? 

Ms. KATZEN. He thinks that it is—— 

Mr. COBLE. The gentleman’s time has expired. 

Ms. KATZEN. But this was before the last several decades of Supreme Court decisions—in Morrison v. Olson, Mistretta, a few other 

cases—in which the Court has been very clear that separation of 

powers has a life beyond. They are looking at it on a functional 

basis—— 

Mr. COBLE. The time has expired, Professor. If you will wrap it 

up. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. COBLE. The time has expired. 

Ms. KATZEN. Yes, sir. 

Mr. COBLE. The gentleman from Illinois. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

You know, I am still relatively new here, but I learn something 

new every day. Today I learned that it is not good when someone 

who is not elected is enforcing our laws, especially criminal ones. 

So the next time a police officer stops me, I am going to say, ‘‘Who 

elected you?’’ Or FBI agents or State’s attorneys or—just go on 

down the line. 

In the end, the only person who is elected in the executive 

branch is the Executive. At the county level, I suppose that is the 

113 

State’s attorney. But in the end, there is some delegation. This isn’t 

1776. It is a far more complicated world. 

And, ladies and gentlemen, I would respectfully suggest or defy 

you to say, I am not going to think about regulation today. When 

I get on this commuter airliner, I am not going to wonder or worry 

about how many hours’ sleep that pilot got last night. When you 

come to my hometown in Chicago, the morbidity and mortality capital of the United States for asthma, don’t think about regulation. 

Or if you drink our tap water in Chicago, which has chromium levels—not in the lake, but in the drinking water—three times higher 

than the new—I know it is a bad word—regulation proposed in 

California. It is the Erin Brockovich chemical, if you will recall. 

So you can decide now or you can decide when you have your 

eggs in the morning—a million cases of salmonella last year. I understand, we all understand, that the President was trying to 

strike a balance here. That over-200-year friction between the executive branch and the legislative branch. And it gnaws on you when 

you don’t like what they do, so you want to change the rules when 

it bothers you. 

So I looked at it. And I talk about the President striking a balance. Mr. McIntosh, Mr. Adler, how many rules do you think this 

President’s EPA has proposed or finalized in his first 21 months? 

Just a guess, if you want. 

Mr. ADLER. Major rules or all rules? 

Mr. QUIGLEY. All rules. EPA only, Clean Air Act. 

Mr. ADLER. Just under the Clean Air Act? 

Mr. QUIGLEY. Yeah. 

Mr. ADLER. My guess would be, just under the Clean Air Act, 

probably under a dozen. 

Mr. QUIGLEY. It is much higher. It is 87. And I was appalled. I 

couldn’t believe it. And I thought, well, who could be more liberal 

than—maybe the Clinton administration. The first 2 years, what 

do you think his numbers were? A hundred and fifteen. It just 

shows a trend here. I looked further. George W. Bush, first 2 years, 

146—146. 

So, Mr. McIntosh, you used the expression, I believe—and I don’t 

want to misquote you, former Member—that the courts ‘‘forced 

their hand’’ on carbon. Does that mean you just disagreed with 

them? 

Mr. MCINTOSH. No. What I meant by that was the Court, I think, 

incorrectly interpreted the bill. 

Mr. QUIGLEY. But isn’t that—go back to the Constitution. Now 

you are disagreeing with two out of three branches. Didn’t the Constitution say that the executive enforces and then the Supreme 

Court interprets, and they interpreted. So you are upset with both 

of them now. 

Mr. MCINTOSH. Well, at the time, the executive branch didn’t 

share the Court’s interpretation. And I think there was a fair 

amount of evidence in the legislative history that Congress didn’t 

intend that when they passed the Clean Air Act amendments. 

Mr. QUIGLEY. Well, just, if I could, sir, please, let me just read 

you the language that you had a problem with, section 202(a)(1): 

‘‘which, in its judgment, causes’’—we are talking about carbon here, 

that you don’t have a problem with—‘‘which, in its judgment, 

114 

causes or contributes to air pollution which may reasonably be anticipated to endanger public health or welfare.’’ 

So we were talking generalities before, but now we are talking 

specifics. You don’t think that language implies that there could be 

a problem that someone in the EPA could reasonably interpret to 

endanger the public health or safety? 

Mr. MCINTOSH. No. That section of the Clean Air Act was intended to give EPA the authority to regulate when substances that 

were, at the time that bill was passed, not known to be problematic 

for the health become known to them. 

But, at the time, people knew of carbon dioxide. And I would recommend you check with John Dingell, who was the author of it. 

They did not intend for that provision of the Clean Air Act to give 

authority for EPA to regulate carbon dioxide. They talked about it 

in other parts of the bill, decided not to give that authority. 

But let me—the language you cited I think is also a really important point for another issue that is very key to this whole debate. 

And that is, how specific should Congress be when it delegates the 

legislative authority to the regulatory agencies? And there has always been a debate back and forth about whether general language, like the language you cited, is appropriate. The consensus 

is that it has been in the Clean Air Act, in the language cited 

there. 

But I would point you to an article that I referred to in my testimony by a professor at Boston University, Gary Lawson, where he 

points out that, if you had the ‘‘Goodness and Niceness Act’’ and 

said to the regulatory agency, ‘‘Promulgate rules for goodness and 

niceness, and figure out what the punishment should be,’’ that that 

would be too broad a delegation. 

So somewhere in there, there is a spectrum. And the Constitution says, no, the legislature can’t delegate all of its legislative authority to the agencies. The REINS Act gives you the benefit of protecting against that, because for major regulations they come back 

to Congress and then there is a vote. 

Mr. QUIGLEY. Only if you disagree. 

Mr. GOWDY. [presiding.] Mr. McIntosh, I apologize, but the gentleman’s time is expired. 

The Chair would recognize the gentleman from Florida, Mr. 

Ross. 

Mr. ROSS. Thank you, Mr. Chairman. 

You know, it is interesting when we talk about the regulatory environment. And, as a businessman, one of the things I have learned 

is that, if I want to be profitable, if I want to make sure that I have 

the right environment, I try to manage my risks. And the risks I 

look at, of course, are, you know, there are some insurance risks, 

there is the market risk, there is my resource risk. But one of the 

things I have learned is the regulatory risk that exists is almost 

not manageable. And the reason it is not manageable is because 

there are no trends. There is no way you can anticipate what the 

regulatory environment is ever going to be if you want to start or 

operate a business. 

And, in my particular State, there is a numeric nutrient water 

criteria that the EPA is trying to impose, coincidentally just on 

Florida, that my ag industry has indicated that it will cost over 

115 

14,000 full- and part-time jobs, lost over $1 billion annually, cost 

my phosphate and fertilizer industry $1.6 billion in capital costs 

and $59 billion in operating costs. 

It would seem to me that this act, this REINS Act, would allow 

at least some sense of risk management over the regulatory environment. Wouldn’t you agree, Mr. Adler? 

Mr. ADLER. Oh, certainly. 

Mr. ROSS. And with regard to even more imposition of regulatory 

schemes, I am reminded back years ago when I was in the legislature—and this is on a smaller scale—but I was active in a Boy 

Scout group that had a summer camp. And they had had this property for 50 years. But they wanted to put an outhouse on there for 

the summer camp. But what they found out is that, even though 

they had no running water and no electricity, they had to go get 

architectural drawings, engineer-designed approved plans. The 

DEP had to do a soil sampling. And by the time they were able to 

even get anything in order to meet with the regulatory system, 

summer camp was over. 

And what it taught me, though, was that logic and reason isn’t 

always there. Now, I know that H.R. 10 exempts camping, hunting, 

and fishing. But without logic and reason, I think you also lack accountability. 

And one of the things—I want to ask you this, Ms. Katzen. 

Would not the REINS Act allow for a greater sense of accountability to where it should belong, and that is in the congressional 

oversight of the regulatory environment? 

Ms. KATZEN. As I said earlier, Mr. Ross, I strongly endorse the 

notion of congressional oversight. I have no qualms whatsoever 

with your Committees calling up the—you call them bureaucrats; 

I would call them committed, career civil servants and political appointees at the agencies—and ask them, what are you doing and 

why are you doing it and what is the support for it? I think that 

is wholly appropriate. 

But I would answer your earlier question to Mr. Adler differently. If you are worried about no trend, his answers to Mr. 

Quigley’s question, was that there is no trend. Last year Congress 

passed a health-care bill. This year, it is going to be implemented, 

but it is going to come back up. And if one, not both, but just one 

house decides they don’t like it, then it is not going to happen. And 

in 2 years, there will be another election, and maybe the other 

chamber will feel differently. 

And the ability to predict what each election—and elections do 

have consequences, I do believe that, and I agree with that. But are 

you going to change, then, every 2 years the possibility that the 

rule is on, the rule is off, the rule is on, the rule is off, the rule 

is on, the rule is off? I think that leads to more uncertainty, less 

predictability. And—— 

Mr. ROSS. So you would suggest that the status quo is more certain, in terms of assessing the regulatory risk? 

Ms. KATZEN. The regularity of process. You pass a bill; you then 

turn it over to the executive branch to faithfully carry out the laws 

and to issue the regulations. I agree with Mr. Adler, an agency is 

not a free agent, cannot do whatever it likes. It can only do what 

Congress has said. But if Congress says, set the limits at this level, 

116 

and the agency does that, it is faithfully carrying out the decision 

that Congress enacted. 

Mr. ROSS. But wouldn’t you agree that, in terms of accountability, that you have a greater degree of accountability where you 

have elected representation? 

Ms. KATZEN. Yes. And the initial statute that was passed that 

authorizes the agencies is one that is fully accountable because it 

was bicameral and presentment. It was passed by both houses of 

Congress, and it was signed by the President. 

And the fact that now one house may think differently about it 

does not lead to greater accountability. What about the other 

house, which may like the idea? You have gridlock, you have problems. And I think those problems create greater uncertainty for 

businesses. 

Mr. ROSS. But with regard to gridlock—and, again, just to point 

out something real quickly here—in terms of the bill, the content 

of the bill says that, within 3 days of the regulatory rule, that Senate shall introduce their joint resolution. So there would not be— 

there would be an expedited fashion. So I take issue with you, 

there being gridlock there. 

But I see my time has expired. Thank you. 

Mr. GOWDY. Thank you. 

On behalf of all of us, we would like to thank our witnesses for 

their testimony today. 

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 as promptly as they can so their answers may be part of the record. 

Without objection, all Members will have 5—— 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to enter 

into the record the CRS report on total costs and benefits of rules. 

Mr. GOWDY. Without objection. 

Mr. CONYERS. Thank you. 

[The information referred to follows:] 

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Mr. GOWDY. Without objection, all Members will have 5 legislative days to submit any additional materials for inclusion into the 

record. 

With that, on behalf of all of us, thank you for your expertise, 

for your time, and your participation. 

This hearing is adjourned. 

[Whereupon, at 5:35 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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RESPONSES TO POST-HEARING QUESTIONS FROM SALLY KATZEN, VISITING PROFESSOR, 

NEW YORK UNIVERSITY SCHOOL OF LAW, SENIOR ADVISOR, PODESTA GROUP


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f 


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REPORT FROM THE CENTER FOR PROGRESSIVE REFORM (CPR) 


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Æ 


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