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[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

 RULEMAKERS MUST FOLLOW THE RULES, TOO: OVERSIGHT OF AGENCY COMPLIANCE 
                   WITH THE CONGRESSIONAL REVIEW ACT

=======================================================================

                                HEARING

                               BEFORE THE
                            SUBCOMMITTEE ON
                           REGULATORY REFORM,
                      COMMERCIAL AND ANTITRUST LAW

                                 OF THE
                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 28, 2017

                               __________

                           Serial No. 115-25

                               __________

         Printed for the use of the Committee on the Judiciary

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
          SHELLEY HUSBAND, Chief of Staff and General Counsel
       PERRY APELBAUM, Minority Staff Director and Chief Counsel
                                 ------                                

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                   TOM MARINO, Pennsylvania, Chairman
                 BLAKE FARENTHOLD, Texas, Vice-Chairman
DARRELL E. ISSA, California          DAVID CICILLINE, Rhode Island
DOUG COLLINS, Georgia                HENRY C. ``HANK'' JOHNSON, Jr., 
KEN BUCK, Colorado                       Georgia
JOHN RATCLIFFE, Texas                ERIC SWALWELL, California
MATT GAETZ, Florida                  PRAMILA JAYAPAL, Washington
                                     BRAD SCHNEIDER, Illinois
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                                     
                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 28, 2017

                           OPENING STATEMENTS

                                                                   Page
The Honorable Darrell Issa, California, Chaiman, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     1
The Honorable David Cicilline, Rhode Island, Ranking Member, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust 
  Law, Committee on the Judiciary................................     2

                               WITNESSES

Mr. Paul J. Larkin Jr., Esq., Senior Legal Research Fellow, 
  Institute for Constitutional Government, The Heritage 
  Foundation
    Oral Statement...............................................     4
Mr. Todd F. Gaziano, Esq., Executive Director, Pacific Legal 
  Foundation DC Center
    Oral Statement...............................................     6
Mr. Jason H. Carter, Executive Director, Virginia Cattlemens 
  Association
    Oral Statement...............................................     8
Prof. Rena Steinzor, Esq., Edward M. Robertson Professor of Law, 
  University of Maryland Francis King Carey School of Law
    Oral Statement...............................................     9

              Additional Material Submitted for the Record

Article submitted by the John Conyers Jr., Michigan, Ranking 
  Member, Committee on the Judiciary. This material is available 
  at the Committee and can be accessed on the Committee 
  Repository at:
    http://docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-
      115-JU05-20170928-SD001.pdf

 
 RULEMAKERS MUST FOLLOW THE RULES, TOO: OVERSIGHT OF AGENCY COMPLIANCE 
                   WITH THE CONGRESSIONAL REVIEW ACT

                              ----------                              

                      THURSDAY, SEPTEMBER 28, 2017

                        House of Representatives

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 9:30 a.m., in 
room 2141, Rayburn House Office Building, Hon. Darrell Issa 
presiding.
    Present: Representatives Issa, Collins, Buck, Handel, 
Cicilline, Conyers, and Schneider.
    Staff Present: Dan Huff, Counsel; Andrea Woodard, Clerk, 
and Slade Bond, Minority Counsel.
    Mr. Issa. Good morning.
    The Committee will come to order. And the Subcommittee on 
Regulatory Reform, Commercial and Antitrust Law meets today, 
and without objection, the Chair is authorized to declare a 
recess at any time.
    We welcome everyone here today for a hearing on 
``Rulemakers Must Follow the Rules, Too: Oversight of Agency 
Compliance with the Congressional Review Act.''
    And now, I recognize myself for a short opening statement, 
which the title of this hearing was pretty much an opening 
statement.
    Two things are clear. First, the Congressional Review Act, 
or CRA, requires agencies to submit new rules to Congress, 
underlined, before they can take effect.
    Second, in too many cases agencies have not complied with 
the submission requirement. The question is, what will we do 
about it? Thousands of existing rules were never submitted to 
Congress, some may be noncontroversial and require little 
special attention. Some are major rules. Certainly, these major 
rules could now be submitted for approval or disapproval, and 
many of them are not submitted because they are known that they 
would be disapproved of.
    Many have fiscal consideration, and we, Congress, are 
paying the price, and our economy is paying the price. Consider 
the sum cost of compliance. Industries in some cases, State and 
local agencies, may already have spent huge sums complying to 
otherwise--implementing rules which are in fact not really 
rules. Disapproving these rules now would serve little purpose 
since the compliance has already occurred, and in many case, 
the sum cost is most of the cost of compliance. On the other 
hand, we are likely to be--there are likely to be newer and 
particularly burdensome rules that warrant disapproval and need 
to be eliminated now.
    I am eager to hear the witnesses and their views on whether 
or not my opening statement was accurate, whether or not they 
believe that compliance has been substantially complied with. 
And particularly, I would like to hear things about Section 805 
of the law, which states, determination, finding, action, or 
omission under the chapter shall be subject to judicial review. 
Others maintain that 805 only focuses on judicial review of 
Congress's action. And that is a particular question for today.
    In closing, one of the challenges we face is that agencies' 
power to intimidate is undeniable. What they will call not a 
rule, but if you don't comply with, you stand in peril of other 
actions, is undeniable.
    I will close by saying, we are just now, after years of 
seeing something called Operation Chokepoint, the cut-off 
making relationships with thousands of lawful businesses, 
simply because banks were afraid and intimidated by regulators 
without ever the proposal of a rule, and only a letter that 
served to intimidate the banks. We know the power of 
regulators. In the case of banking, they can take away your 
very business.
    So with that, I will recognize the Ranking Member for his 
opening statement.
    Mr. Cicilline. Thank you, Mr. Chairman. And welcome to our 
witnesses, thank you for being here this morning.
    Today's hearing concerns agencies compliance with the 
Congressional Review Act. Enacted in 1996, this law requires 
agencies to physically submit every legislative and non-
legislative rule, about 4,000 to 5,000 per year, to the House, 
the Senate, and the Government Accountability Office. Although 
this reporting requirement may have made sense in the age of 
dial-up Internet, it would be charitable to refer to it as 
government waste today.
    It is painfully obvious that requiring agencies to 
physically submit thousands of rules each year, in triplicate 
by courier no less, is a waste of American taxpayers' hard-
earned money. The House parliamentarian has previously 
testified in support of narrowing this requirement, observing 
that this, quote, mass of paperwork, end quote, may not be 
optimal for Congressional oversight.
    Moreover, agencies are already required to publish the text 
and legal authority of every rule in the Code of Federal 
Regulations, which is also online and easily accessible. But 
this is only the tip of the iceberg when it comes to my 
concerns of the Congressional Review Act. This outdated law has 
been a failed experiment in Congressional oversight, and an 
unmitigated disaster for the economic security and safety of 
hardworking American families.
    For more than 20 years, only one rule has been disapproved 
under the Congressional Review Act. But in the past several 
months, the Republican Congress has used the Congressional 
Review Act to undue 14 critical protections for hardworking 
Americans with little notice or debate. For example, earlier 
this year, President Trump nullified a landmark privacy 
protection for consumers through this process. This essential 
rule would have simply required that Internet providers must 
get permission from consumers before selling their personal 
information, such as their browsing history and geolocation. 
How many jobs were created by abolishing this requirement? 
None, of course.
    When asked if repealing the privacy rule would create jobs 
or stimulate the economy, the White House Director of 
Legislative Affairs conceded that, and I quote, ``Not each one 
of these can you look at and say it is necessarily a job 
creator.'' End quote. So if not to create jobs, stimulate the 
economy, or help working families, why eliminate this 
commonsense rule?
    Special interest groups have spent more than a billion 
dollars in lobbying and campaign expenditures in opposition to 
these rules, according to a report by Public Citizen. There can 
be no mistake that this for-profit President has no interest in 
putting Americans ahead of corporations and special interests. 
And now the Trump administration wants to use the Congressional 
Review Act to take away Americans' right to a day in court.
    This week the Senate is considering a resolution to 
disapprove the consumer financial protection bureau's 
arbitration rule, which restores consumers' rights to use the 
justice system to hold corporations accountable for predatory 
conduct. Backed by the deep pockets of the financial industry, 
the Trump administration has out waged the claim that taking 
away this right would protect consumer choices. As if losing 
your day in court, thanks to the fine print of take it or leave 
it contracts, is any choice at all. But it should be no 
surprise that President Trump is siding with the banks against 
the American consumers.
    President Trump's top banking regulator is the same 
attorney who represented Wells Fargo and other banks that 
defrauded their own customers. And when these megabanks aren't 
too busy opening fake checking accounts and draining their own 
customers' bank account through manipulated overdraft fees, 
they are cutting checks to upend protections against forced 
arbitration.
    What is more, once these rules are abolished through the 
CRA process, agencies are expressly prohibited from adopting 
these rules again in substantially the same form, absent a 
Congressional override. And that is why I have introduced the 
Sunset, the CRA, and Restore American Protections Act, or the 
SCRAP Act, to address this blatant abuse of process, and to 
immediately restore these rights.
    The Congress must be committed to a legislative process 
that is accountable, transparent, and open. While, Congress may 
pass new laws following a change in administration, it is 
imperative that we debate these proposals in hearings and 
markups. We cannot run roughshod over a regular order by 
vacating rules that have gone through years of notice and 
comment through a politicized vote.
    In closing, I hope my colleagues will join me in supporting 
the SCRAP Act. I thank the witnesses for appearing here today, 
and yield back the balance of my time.
    Mr. Issa. Thank you. And I would note that as I read the 
opening statement, and I apologize, I didn't have a chance to 
read it beforehand. Apparently, I did not say no before 
determination, which explains looks on some people's faces, 
understandably.
    Mr. Issa. We now introduce our distinguished panel. The 
witnesses have submitted written statements, which will be 
entered into the record in their entirety. And I ask that you 
please use 5 minutes or so to summarize or to extend those 
written statements.
    To help us stay within the time, we will use a light system 
that we all understand. Green means you may keep going. Yellow 
means go really fast. And red, of course, we know, means you 
will get a ticket from the Chairman.
    Pursuant to the rules, I would ask all four of you to 
please rise to take the oath.
    Do you solemnly swear or affirm that the testimony you are 
about the give will be the truth, the whole truth, and nothing 
but the truth?
    Please be seated. Let the record reflect that all witnesses 
answered in the affirmative.
    We now introduce our distinguished panel, Mr. Paul Larkin, 
Senior Legal Research Fellow at the Institute for 
Constitutional Government/The Heritage Foundation.
    Mr. Todd Gaziano, the Executive Director of the Pacific 
Legal Foundation Center here in D.C.
    Mr. Jason Carter, Executive Director of Virginia 
Cattlemen's Association.
    And Ms. Rena Steinzor, at the Edward M. Robertson, 
Profession of Law, at the University of Maryland Francis King 
Carey School of Law.
    Welcome. And we are now even. My script was wrong once, and 
I misread it once, so we are tied. With that, we will go down 
the row. Mr. Larkin.

 TESTIMONY OF PAUL J. LARKIN JR., ESQ., SENIOR LEGAL RESEARCH 
 FELLOW, INSTITUTE FOR CONSTITUTIONAL GOVERNMENT, THE HERITAGE 
FOUNDATION; TODD F. GAZIANO, ESQ., EXECUTIVE DIRECTOR, PACIFIC 
   LEGAL FOUNDATION'S DC CENTER; JASON H. CARTER, EXECUTIVE 
 DIRECTOR, VIRGINIA CATTLEMENS ASSOCIATION; AND PROFESSOR RENA 
     STEINZOR, ESQ., EDWARD M. ROBERTSON PROFESSOR OF LAW, 
    UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW

             TESTIMONY OF PAUL J. LARKIN JR., ESQ.

    Mr. Larkin. Mr. Chairman, Ranking Member, members of the 
Subcommittee, I want to thank you for the opportunity to appear 
and testify today.
    I do appear only in my own behalf, not on behalf of the 
Heritage Foundation. I had a few brief points I wanted to make, 
just discussing the breadth of the Act, but I think I will make 
just one, and then respond directly to the questions that the 
Chair and the Ranking Member have--or at least the concerns 
they had.
    The basic point is that Congress wrote the CRA as a 
substitute, as close as possible, for the old practice of the 
legislative veto. Congress found that that was one of the 
valuable ways of gaining oversight and restraining 
administrative agencies. They are necessary.
    Congress could not decide all of the issues that agencies 
have to decide, whether a particular drug should be approved, 
or a particular substance is hazardous waste and the like. But 
whenever you delegate power to someone else there is a risk 
they will go too far, or they will make mistakes or abuse it, 
whatever. So the legislative veto was a chance to rein that in. 
And then when the Supreme Court held that unconstitutional, 
Congress passed the Congressional Review Act to make it as 
close as possible to the legislative veto. But there were 
hundreds of legislative vetoes, and there is only one 
Congressional Review Act.
    So to make sure that the Act could substitute adequately, 
it had to be written in extremely broad language. For example, 
the term rule covers virtually anything that an agency says 
about the law or policy, because otherwise you would have only 
a narrow range of issues before the Congress to consider. So 
that is an extremely broad term, and the statute itself works 
in an extremely broad and sometimes strict manner to make sure 
that Congress can review these points.
    Now, I know the Chair asked about the judicial review 
provision. The judicial review provision makes it clear that 
certain types of actions and decisions are not subject to 
judicial review, but it doesn't make clear by whom those 
actions or decisions must be made.
    Now, there are several parties that play tertiary roles in 
this process, the GAO, the Chairmen of Committees, individual 
chambers of Congress. But the three most important bodies are, 
Congress, the President, and the rule issuing agency. It is 
clear that Congress did not want its own actions to be subject 
to judicial review. They are not subject to judicial review 
under the Administrative Procedure Act, and they weren't added 
in back in the CRA.
    The President is also not subject to judicial review under 
the Administrative Procedure Act, and Congress did not add him 
back in either. That leaves the rule issuing agency. And the 
oddity about excluding the rule issuing agency from compliance 
with the CRA, and immunizing them against judicial review, 
makes that an utterly reasonable interpretation. That was the 
focus of what Congress wanted to do. It wanted to be able to 
veto, if you will, the agencies' actions. And so it wanted to 
have that opportunity. But private parties should, too, and 
here is why.
    An agency must act according to law. And not acting 
according to law, acting in a lawless manner, essentially 
raises a constitutional claim because it violates the due 
process clause. It is quite clear, the Supreme Court has very 
strictly interpreted statutes that purport to prevent people 
from raising constitutional claims, and nothing in the text of 
this statute indicates that it sought to prevent a private 
party from going to Federal Court and saying the agency's law 
is not in effect because they did not comply with the CRA, and 
therefore, for them to apply it against me would render what 
they are doing unconstitutional.
    Now, I know the Ranking Member was concerned about the 
written submission requirement, and that is an easy fix. Just 
tell the agencies to send it by email. There is nothing in the 
statute that requires only transmission via hard documents. So 
you can send it by email. That can be done in a rather easy 
manner.
    The Ranking Member questioned whether the Act was useful 
because it only had, prior to this Congress, been used once. 
But prior to this Congress, there wasn't really an opportunity 
to use it. It is most valuable at the beginning of an 
administration when you have a President that succeeds a 
President from a different party, and when you have a majority 
of the incoming President's party in that office--in Congress, 
because then they have a chance to look back and decide whether 
old rules should be thrown out, or rules that were never even 
submitted should be thrown out.
    So you had that in the beginning of the Bush 
administration, but given what happened in 9/11, everything got 
focused on terrorism. Plus, he wasn't committed in the same way 
the current President is to regulatory reform. President Obama 
was not either. So this really is the first chance for the CRA 
to be used effectively. And the fact that it hasn't before, 
therefore, shouldn't take away from any force that it may have.
    I will save the rest of my points for whatever questions I 
am asked, and I am glad to answer any questions you may have. 
Thank you.
    Mr. Larkin's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-115-JU05-
Wstate-LarkinP-20170928.pdf
    Mr. Issa. Thank you. Mr. Gaziano.

               TESTIMONY OF TODD F. GAZIANO, ESQ.

    Mr. Gaziano. Good morning distinguished members of the 
Subcommittee. And thank you for allowing me to testify as well.
    Like my good and learned friend, Paul, I am just going to 
try to summarize a few of the most important points from my 
written testimony, and end with the same answer to the 
Chairman's question.
    Point one. The number of rules that were wrongly not sent 
to Congress is very difficult to quantify exactly. But all the 
relevant evidence does suggest that it is a very significant 
problem that OMB and others should try to nail down. There were 
three government studies that all concluded that there were 
either hundreds or thousands of rules per year that were 
published in the Federal Register alone that weren't submitted 
to Congress.
    Now, as the Chairman indicated, many of these are 
inconsequential, but the number of economically significant 
rules that weren't submitted is a surprising number, even if 
that is the tip of the iceberg. A Brookings Institution study 
this year concluded there were at least 348 economically 
significant rules that were published in the Federal Register, 
that were not--apparently not delivered to Congress.
    But the Brookings study grossly underestimates the number, 
and here is why. There were many very important, crucial rules, 
life-changing rules that were published in the Federal Register 
that the Brookings study didn't try to quantify. Also, there 
are many economically significant and non-economically 
significant rules that are never published in the Federal 
Register. I have provided some powerful examples of these 
significant or important guidance documents that were never 
published in the Federal Register, and to my knowledge, no one 
has attempted to count them.
    Point two. The significance of the noncompliance problem is 
grave, regardless of the exact numbers. As the Chairman 
indicated, rules not submitted to Congress are not lawfully in 
effect, even if they have been published. And yet, regulatory 
agencies regularly invoke them and use them to open 
investigations, enforcement proceedings, and even criminal 
prosecutions.
    Now, it isn't responsive to that injustice to say, ``oh 
well, we don't need to worry about guidance documents,'' as 
some scholars have said, because this administration or some 
future administration can change them easily. Here is the 
truth: It was unjust and unlawful to apply them in the past, 
and it is even more unjust and unlawful to apply them currently 
to current enforcement proceedings.
    Beyond that, the rules got no input from the general 
public, and the Congress has still been denied an opportunity 
to review them.
    Point three. OMB is in the best position to direct an 
orderly review by the agencies to find their own rules that 
weren't delivered to Congress. OMB should provide better 
instruction than in the past as to what rules really are 
covered by the CRA. And OMB can also provide instruction on how 
that orderly review should be prioritized and take place. This 
will also help solve the compliance problem going forward.
    Point number four. When agencies do find rules that were 
never submitted to Congress, they should consult their 
enforcement official and DOJ about whether ongoing enforcement 
actions can proceed, and that is because, even if these rules 
are belatedly sent to Congress, they weren't in effect during 
the conduct that is being investigated. Very few, if any, rules 
can be applied retroactively to past conduct.
    Point Number five. And it may be my last. The agencies, 
when they discover rules that weren't submitted to Congress, 
should go back to OMB and get some advice. Now, with advice 
from OMB and direction, they essentially will have four 
options.
    Option number one is to send a bunch of them to Congress to 
finally lawfully go into effect, if necessary, with an 
instruction that the President stands behind them.
    Option two is to deliver at least some rules to Congress 
with the recommendation that Congress disapprove them, with a 
statement, hopefully, that the President will sign such a 
disapproval. There won't be very many in this category, and for 
good reasons I explain in my written testimony, but mostly 
because the administration should take care of most bad rules 
themselves rather than flooding Congress with them. But there 
are some reasons why they may want to send some that I have 
explained.
    Option number three is that they post a notice that rules 
are being reconsidered that were never sent to Congress, but 
are not in effect until that review is finished, and unless and 
until they are delivered to Congress, because that is what the 
law requires.
    And the final option is for them to post a notice, maybe 
after some review, that certain of the rules are being modified 
and terminated. Now, the process to do that will vary depending 
on the type of rule.
    Those are my prepared points, but I want to second the 
statement of my colleague, because the legislative history also 
makes this distinction he talked about (the legislative history 
of the CRA): that Congress' determination and OMB and the White 
House's determination are not subject to judicial review, but 
of course, the courts remain open to hear a due process 
constitutional challenge that rules that were invalid are being 
unlawfully enforced against them. And although I have always 
known that was true, it is the brilliant scholarship of my 
friend, Paul Larkin, that I think has explained in detail why 
that is so.
    Mr. Gazino's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-115-JU05-
Wstate-GazianoT-20170928.pdf
    Mr. Issa. Thank you. Mr. Carter.

                  TESTIMONY OF JASON H. CARTER

    Mr. Carter. Good morning. My name is Jason Carter, I am 
from a multigenerational cattle, row crop, and tobacco family 
in central Virginia, and I studied animal science at Virginia 
Tech. I am currently the Executive Director of Virginia 
Cattlemen's Association, and prior to joining VCA, I worked for 
Virginia Tech as an animal science extension agent.
    Currently, I serve on advisory boards for the Virginia 
Department of Environmental Quality, and participate in the 
stakeholder group invested in the progress of the Chesapeake 
Bay program. Thank you Subcommittee Member Issa and Ranking 
Member Cicilline for allowing me to testify today.
    American cattle producers own and manage more land than any 
other segment of agriculture or any other industry for that 
matter. Since our livelihood is made on the land, being good 
stewards not only makes good environmental sense, it is 
fundamental for our industry to remain strong. We strive to 
maintain environmentally friendly operations, and work closely 
with local and State regulators to implement practices that 
improve water quality for our farms and families.
    The Congressional Review Act enacted to prevent agencies 
from overstepping their roles. It provides Congress the chance 
to consider whether an agency's actions align with 
Congressional intent. This is a vital tool in maintaining our 
democratic system of checks and balances, but it was not used 
in the EPA's 2010 Chesapeake Bay TMDL determination.
    When the EPA assesses a water to be impaired, TMDLs are 
developed to determine the total amount of pollutant that can 
be released while improving overall water quality. TMDLs allow 
States to effectively monitor the status of the impaired water 
body and assess its condition, then develop and implement Best 
Management Practices to improve water quality over time.
    The effectiveness of TMDL programs depends entirely on each 
States' ability to efficiently monitor and assess waterbodies, 
then develop and implement BMPs. The EPA's Chesapeake Bay TMDL 
program is the largest of its kind, and it is unique, in 
addition, to setting watershed limits for nitrogen, phosphorus, 
and sediment. The EPA established multiphased Watershed 
Implementation Plans, or WIPs. By requiring WIPs, EPA's 
position in the regulatory process, in many aspects, has 
supplanted the role of State government.
    While, in theory, the TMDL program should allow States 
autonomy to address impaired waterbodies, the EPA has created a 
federally mandated program that threatens State authority. Lack 
of certainty in the TMDL program keeps State regulators on edge 
because EPA can change compliance standards with little notice.
    For example, the State of Virginia currently implements 
programs to comply with Phase II of the Chesapeake Bay WIP, 
which set goals for nitrogen, phosphorus, and sediment 
reduction. By EPA's own scorecard, the State has met or 
exceeded these expectations. However, despite our good 
scorecard, we don't know what is coming in the next phase of 
the Chesapeake Bay WIP, and this creates an uncertainty in our 
industry. Without a clear and achievable path to the finish 
line, producers are again put in a predicament. Additionally, 
without knowing Phase III goals, we could potentially lack the 
resources necessary to meet those demands.
    Not only does the Chesapeake Bay TMDL, as currently 
implemented, present significant Federalism issues, but it does 
so in a wholly inefficient manner. The State-specific design 
TMDL programs allow State regulators to tailor BMPs so they are 
effective. Applying the same standards to the six-State 
Chesapeake Bay region does simply not achieve the goal 
efficiently.
    For example, in Virginia, operations are encouraged to 
fence cattle out of streams through 100 percent cost share 
programs. This means that because the fences are our Best 
Management Practice, the costs have been fully reimbursed with 
taxpayer dollars. While there are many cases in which these 
fences contribute significantly to improving water quality, 
there is tremendous pressure on State and local regulatory 
agencies to fund projects with the most linear feet of stream 
exposure, regardless of a project's overall impact.
    Among the worst examples of taxpayer waste that I have 
witnessed was a fencing project that cost over $100,000 that 
was designed to keep less than 12 cows out of a stream. How 
does that make sense, especially in a time when our Nation is 
trillions of dollars in debt and looking for ways to reduce 
cost? I am confident that had Congress had the chance to review 
this action, it would have determined that the EPA's Chesapeake 
Bay TMDL, along with its watershed implementation plan, placed 
an undue burden on all stakeholders.
    Putting States in the driver's seat for the Chesapeake Bay 
improvement is vital to ensure long-term program success. An 
one-size fits all approach that accompanies top-down regulation 
simply does not work in the agricultural industry.
    I appreciate the opportunity to visit with you today, and 
thank you for your time.
    Mr. Carter's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-115-JU05-
Wstate-CarterJ-20170928.pdf
    Mr. Issa. Thank you. Ms. Steinzor.

                TESTIMONY OF RENA STEINZOR, ESQ.

    Ms. Steinzor. Thank you for inviting me. My fellow 
panelists are all great fans of the Congressional Review Act, I 
am cast in the role of the skunk at the picnic. In fact, I urge 
you to consider repealing the law. That option represents a 
golden opportunity for Congress to demonstrate a renewed 
commitment to its authority and responsibility for overseeing 
the regulatory state.
    Wait just a minute, my fellow panelists are thinking, the 
woman has everything backward. The whole point of the CRA is 
for Congress to demonstrate its oversight chops. Didn't the 
House and Senate just finish choke-chaining the wanton over-
regulation committed by the Obama administration? I agree that 
the 115th Congress demonstrated rapid decision-making by 
killing 14 rules in a period of just a few weeks. But that 
rapid fire state of activity attracted more negative publicity 
than regulatory issues have achieved in many years.
    The story line of the coverage most media outlets was that, 
at the behest of special interest lobbyists, Congress killed 
rules that seem to make a lot of sense. The impression left was 
that Congress is controlled by money, not rational well-
researched debate on the issue. That impression has an 
extraordinarily negative effect on our democracy. According to 
real clear politics, 14.3 percent of Americans approve of the 
Congress, and 73.8 percent disapprove.
    The repeal rules included prohibitions on very bad conduct. 
That conduct makes no sense to the average American, but it 
will now be perfectly legal because the rules were repealed. It 
includes--the conduct includes bribing foreign governments in 
the developing world to win drilling rights for offshore oil; 
allowing severely disturbed people, disabled by their mental 
illness, to buy guns; shearing the tops off mountains and 
dumping the debris in streams that serve as the drinking water 
source for numerous Appalachian communities; giving employers 
with egregious labor violations unfettered access to government 
contracts; depriving Internet users of privacy online, as 
Ranking Member Cicilline mentioned; sanctioning the continued 
use of inhumane hunting practices for predators that inhabit 
public lands in Alaska.
    Judging from American history and the first-among-equals 
placed the Framers assigned Congress in Article One of the 
Constitution, measures and enhance our great national 
legislature's ability to make the laws cannot be easily 
dismissed, especially at a time when the public frustration 
with Congress is disturbingly low. But as many knowledgeable 
commentators, most recently, Senator John McCain, have pointed 
out on a bipartisan basis, Congress was, has been, and will be 
great again only when it returns to the regular order, a phrase 
connoting the use of all the tried and true mechanisms created 
over two centuries, including public oversight, where Members 
take the time to discuss the issues at hearings in committee 
and on the floor.
    My fellow panelists will probably spend most of their time, 
they just did, excoriating agencies for failing to file reports 
as required by this CRA. A very small cottage industry has 
emerged that extolls the possibility that Congress could claw 
back rules and guidance documents that have been in effect for 
years. The business community has greeted these suggestions 
with a deafening silence.
    Although, companies may appreciate the opportunity to wipe 
rules off the books before they have started to comply with 
such requirements, those same dynamics do not apply to rules 
and guidance that everyone has learned to live with. Advocates 
of the claw back have very few examples to offer of rules that 
were not sent to Congress, and yet were important enough to 
trigger enforcement action. The only reliable study of the 
number done by Curtis Copeland, a long time expert in 
regulatory affairs, who used to work for you in the 
Congressional Research Service, found a very small number of 
rules that were not noticed correctly.
    Thank you, again, for the opportunity to testify today. I 
would be pleased to answer any questions.
    Ms. Steinzor's written statement is available at the 
Committee or on the Committee Repository at: http://
docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-115-JU05-
Wstate-SteinzorR-20170928.pdf
    Mr. Issa. Thank you. I recognize myself. And I will go in 
reverse order. Professor, you are not the skunk at the picnic. 
It is important to have those who would not agree with us 
represented, and I commend the Chairman for making sure that we 
always have that.
    Ms. Steinzor. Thank you.
    Mr. Issa. You mentioned regular order. Now, in 200 years, 
230 years of creating it, but in fact, when our founding 
fathers began, they didn't use rulemaking per se, they would 
consider things from the executive branch, and they would in 
fact pass laws, they would create regulations.
    So, in a purist sense, it is Congress' obligation, which 
perhaps our low approval rating is that we don't do that, but 
rather we send it over to the executive branch so that so many 
problems, perceived or real, are solved by the executive branch 
because we have not done so.
    Is that a fair statement?
    Ms. Steinzor. Yes.
    Mr. Issa. So if that is the case and we determine that a 
rule is inconsistent by a majority of the House, majority of 
the Senate, and the signature of the President, from a historic 
standpoint, that is completely regular order to wipe it away. 
And a hearing to wipe away a law is different than a hearing to 
create a law.
    Wouldn't you agree that the founding fathers believed that 
to limit somebody's liberty, which regulations inherently do, 
is not a difficult question--or is a difficult question, while 
not to inhibit is a fairly easy question. Isn't that sort of a 
principle of history and law?
    Ms. Steinzor. What troubles me about the Congressional 
Review Act is that the rules are brought to you by K Street 
lobbyists.
    Mr. Issa. Okay. And I am going to cut you off. And I 
apologize, but I didn't see any rules that I was brought to by 
K Street lobbyist. But I will mention that K Street lobbyist 
work for companies who are affected by rules or individuals. 
And we have two organization which are not K Street lobbyists, 
but they are think tanks that often bring to us what they think 
are bad rules.
    Mr. Carter, I guess, you don't live on K Street, but I 
guess you are a K Street lobbyist in that sense. But they are 
brought to us by people, or their representatives, that find a 
rule objectionable. And we are talking about CRA, but we are 
really not talking about CRA. We are talking about rules that 
were never presented.
    Mr. Carter is talking about implementation of things under 
guidance, which means they have never gone through the process 
of regular order to create a law, because a rule is just a law. 
And the process of creating a law by the executive branch was 
set by Congress when we passed the underlying law and gave the 
agency authority.
    And so I think, Mr. Larkin, since you were the senior 
person here for a second. When we give the authority to make a 
law to the executive branch, and we describe regular order, 
which the professor was very good to say she wanted regular 
order, and they don't comply with every aspect of that set of 
rules we set up, then it is they who have not complied with 
regular order. Wouldn't that be the case?
    Mr. Larkin. Yes. Absolutely true.
    Mr. Issa. Okay. We are dealing with guidance--I want to ask 
one quick question. There has been a lot to-do about the 14 
overturned regulations. Weren't all 14 of those midnight rules, 
rules that in an 8-year term were passed in the last 60 days of 
the last administration?
    Mr. Larkin. Not entirely. There were some that went back to 
June. So----
    Mr. Issa. But that was 60 legislative days. That is the 
law.
    Mr. Larkin. Oh, yes. Yeah. Not calendar days.
    Mr. Issa. They weren't calendar days, but they were 
pursuant to this procedure under the CRA for midnight rules.
    So none of the work of the first seven and a half years of 
the Obama administration was second-guessed, only the ones that 
waited effectively until, for the most part, after the 
Presidential election, certainly after his last midterm. 
Correct.
    Mr. Larkin. Correct. But to clarify and make sure you 
understand. If a rule was not submitted, you can go back beyond 
that period.
    Mr. Issa. No, I understand that. Let me just ask you a 
question for each of you on the panel.
    If, in fact, the executive branch has not complied with the 
law and has what they would call a rule in which the law does 
not recognize as a rule because they have not complied with the 
right requirement, is it reasonable for this body to insist the 
Department of Justice not use those in any pleadings or in any 
other way in order to bring enforcement.
    In other words, if Congress is thinking about a law and 
thinks it passed it, but it never actually had the vote, we 
couldn't--they couldn't enforce that law, they can't enforce 
what we are thinking about. Is it fair to say that this 
Department of Justice should in fact stop using any regulation 
or guidance which in fact has not gone through the process to 
make it a law under the laws that we gave to the executive 
branch?
    Mr. Gaziano. Yes. I have explained in my written testimony 
in more detail, but you are absolutely right. It is unjust even 
if they then belatedly submit that to you, because there are 
ongoing investigations and any proceedings that are looking at 
conduct that happened in the past. And it is also a violation 
of due process to try to retroactively apply an invalid law.
    Mr. Issa. Yours is a yes, and they can't correct it.
    Mr. Gaziano. Well, they can correct it prospectively, going 
forward, and give you a chance to change behavior, but not 
retrospectively.
    Mr. Issa. Mr. Carter.
    Mr. Carter. I would agree that looking at the context of 
the implementation of the rule now would need to be weighed 
heavily in the process, but yes.
    Mr. Issa. Professor?
    Ms. Steinzor. I am not aware of any final significant rules 
that have been brought as the basis--used as the basis of an 
enforcement action that were not noticed.
    Mr. Issa. Okay. So--wait a minute. Not noticed. You mean 
not noticed to Congress?
    Ms. Steinzor. Yes.
    Mr. Issa. Okay. So it is your view that the answer to my 
question could be yes, but you don't know of any examples, is 
that correct? Because my question was, should they stop using 
them? And you are saying they have never used them.
    Ms. Steinzor. I believe that this is a solution in search 
of a problem, and that what we are mostly talking about here is 
guidance documents. Guidance documents can be changed with a 
stroke of a pen.
    Mr. Issa. No, I understand.
    Ms. Steinzor. The Justice Department can change 
prosecutorial policy.
    Mr. Issa. No, no, no, actually, the Justice Department is 
bound to enforce the law. My question, and I want to be narrow 
about it, Professor, so that you can answer it, which I think 
you tried to, is, if in fact something is not the law because 
they have not in fact complied with the requirements to make a 
regulation law, which would include all guidance. Should, for 
example, guidance be allowed to be part of a prosecution?
    I think you answered that it never has.
    Ms. Steinzor. Right.
    Mr. Issa. So if it never has, the question still remains, 
should it ever?
    Ms. Steinzor. I do not think that guidance documents alone 
would justify a prosecution.
    Mr. Issa. Okay.
    Ms. Steinzor. You would have to have a statutory authority 
or a regulatory authority, not a guidance document.
    Mr. Issa. Okay. So I am going to summarize quickly. Only 
statutory authority or regulations which have been submitted to 
Congress pursuant to the law should ever be used as part of a 
prosecution, thus Mr. Carter and his cohorts that actually try 
to feed us, would in fact be limited in their defenses to that 
which they have been properly noticed, either by Congress' 
action or by a rulemaking process pursuant to Congress?
    Ms. Steinzor. I certainly agree that Mr. Carter should 
receive notice through a rule-making process.
    Mr. Issa. Thank you both. Mr. Cicilline.
    Mr. Cicilline. Thank you. Mr. Gaziano, you said in your 
written testimony that the CRA requires physical submission of 
every rule, and without this requirement, ``that CRA would be 
unworkable.'' Why is the physical reporting of rules necessary, 
and why does the omission of that make the CRA unworkable? 
Isn't that requirement a complete waste of taxpayer money?
    I don't want to spend time a lot of time on this. A 
reporting requirement--let me just finish. I am going to spend 
very little time on this reporting requirement because I 
actually think there is a much more fundamental challenge at 
this hearing--presents the idea that we are focused on this, 
what I consider to be an arcane reporting requirement is 
mystifying me.
    But you say without it, it is unworkable. On what basis 
would it be unworkable without a physical reporting 
requirement?
    Mr. Gaziano. I appreciate the question, but you are wrong 
about my testimony. I never said that a physical delivery is 
required. The word ``physical'' will not appear in my 
testimony. What I say is that delivery is required, but not 
physical. I agree with Mr. Larkin, the physical delivery 
requirement is not in the statute.
    You can search for the statute; it is not there. It has 
been an administrative process between the House and the White 
House. When you receive a treaties and when you receive 
nominations, you receive them in a certain way. That can be 
changed, but I have actually looked at the current procedures. 
They actually allow a facsimile delivery. That was the 
electronic delivery of 1996. You could have your computer and 
your printer receive a fax delivery. And so, it is in effect, 
in certain circumstances, but that could be expanded. And I 
agree with Paul that it would be an easy administrative fix. 
They should expand that electronic delivery requirement.
    And I am so glad that you have given me an opportunity to 
correct the record that physical delivery is not required in 
the statute. And in my view, it should not be. The delivery 
itself----
    Mr. Cicilline. Thank you. I have limited time. Thank you. 
In 2008 and in 2009, we in fact passed a bipartisan bill, the 
Congressional Review Act--Improvement Act by voice vote under 
suspension of the rules that would have repealed the CRA's 
physical submission requirement and designated the GAO as the 
recipient of the rule. So I think there is an--I not asking you 
a question, I am making a statement I think there is an easy 
fix to this. What I like to spend the balance of my time on is 
what Professor Steinzor really referenced, is the very damaging 
impact of the current use of the CRA. And so, Professor, I 
would ask you if you could begin. This has been something which 
has not been used--was used a single time up until the Trump 
administration, the Republicans took over the House and the 
Senate in this most recent period.
    Why do you think it has become so prevalent that this is 
being used? What do you think are the long term consequences of 
that? And do you think it undermines, not only confidence in 
the Congress, but undermines a process that values 
transparency, and thoughtfulness, and deliberation, that we 
hold up as hallmarks of the legislative process?
    Ms. Steinzor. Thank you for asking that question, which is 
a very good one.
    I think that the rules that were repealed, vetoed, had all 
be years in the making. I am absolutely confident that Mr. 
Carter, who I agree is an American businessman and entitled to 
respect, had representation in all the rules that affect him 
and that concern him.
    So the solution for Congress, if it doesn't want to trust 
the agencies anymore, is to take back all that work and spend 
as many hours and years of careful research, deliberation, 
proposal, comment, revision, negotiation, more comments, and 
finally, issuance of a final rule and litigation of that rule, 
all of that work that is now being done by the civil service, 
by experts, is being done that way because Congress asked them 
to do it.
    And the opportunity for the public to comment, for any 
stakeholder who is affected is quite extensive. The problem 
with the CRA is that with the snap of a finger, without even 
any discussion on the floor, the rule hits the trash can. And 
there are people that have invested a lot of time in figuring 
out how to comply with the rule. There are competitors who may 
have already started to comply with the rule.
    And what the CRA upends that entire process. And the reason 
it is happening during the Trump administration is that this 
President is more hostile to the idea of regulations than any 
President I have watched in 45 years in Washington. He is 
just--he is exceptional.
    Mr. Cicilline. Thank you. And I thank you for the example 
that you provided, which I think, sadly, shows this direct sort 
of response to corporate powerful, well-financed special 
interests, who are sort of being rewarded for their 
participation in the Senate electoral activities. And I think 
the other thing that is worth noting is those things--those 
rules that were undone, were specifically to protect the 
health, safety, privacy, and well-being of the American people.
    And I will take issue with my good friend, the Chairman of 
this Committee, who said regulations inhibit your liberty, 
inherently. That is exactly reversed. Regulations protect you. 
They protect your freedom to enjoy safe clean drinking water. 
They protect your freedom to be protected from dangerous 
products.
    So this notion that regulations inhibit your freedom, which 
seem to form the basis of this use of this CRA, it is just the 
reverse.
    Regulations, when done properly, protect the health, 
safety, and well-being of the American people. And I think we 
saw in the coverage, as you indicated, the coverage of those 14 
CRA actions where you can draw a direct line between the hugely 
powerful corporate special interests on one side and the well-
being of the American people on the other, and sadly, in the 
dark of night, on an expedited calendar with no hearings, no 
debate, or a teeny bit of debate, I should say, 5 minutes, I 
think, those actions were reversed that were very often the 
result of months and months and sometimes years of thoughtful 
deliberations, receipt of evidence and testimony. That does 
not, it seems to me--it seems to me, that does not speak well 
of the Congress of the United States.
    And I thank you for your testimony. I yield back.
    Mr. Issa. And if my gentleman Ranking Member would engage 
in a colloquy quickly, I do not disagree for a moment that 
regulations provide for safety, attempts to cure inequities, 
and they are important.
    What I attempted to say, and hopefully we can come to a 
common ground, is that we in Congress are always weighing 
safety, security, through government action, versus the basic 
freedom of a complete laissez-faire. And that we, as 
government, have to balance these two, people's liberties, 
which are inherent, and then Government's role to protect the 
people from damages that those liberties to an extreme might 
cause.
    So I was not attempting to say that somehow that all 
regulations are bad. But, hopefully, we all look at that 
balancing act. May not always agree on where the balance is, 
but that is truly the balancing act that we are asked to do. 
Wouldn't you agree?
    Mr. Cicilline. I would agree, Mr. Chairman. And that is why 
I think the best forum to do that very difficult balancing is 
in the context of a full deliberative legislative process, that 
includes hearings and testimony and evidence, and not using the 
CRA to summarily reverse months and sometimes years of exactly 
that.
    You are right, we do have to strike the right balance. So 
let's do it in a forum where that is likely to happen 
successfully and properly, and the CRA does just the opposite.
    Mr. Issa. I thank the gentleman for the colloquy. With 
that, we go to the gentlelady from Georgia, Mrs. Handel.
    Mrs. Handel. Thank you, Mr. Chairman. You know, in Georgia 
we were one of the States--the State with the highest bank 
closures during that crisis. And what I observed was an 
extraordinarily punitive perspective from the regulators, with 
no desire, no willingness, to work with banks that had been 
long time community banks. Individuals lost everything. They 
not only lost their livelihood, their lives were destroyed.
    I agree with my esteemed colleagues that we need to find 
the balance, when it comes to the regulatory climate, but I 
would submit that there was an overreach on that over the past 
8 years.
    A couple of questions. So, Professor Steinzor, your central 
criticism of the CRA is that it--that its time limits force a 
rush Congressional action. Yet, you also, in your testimony, 
bemoaned the gridlock and how long it takes Congress to do 
anything. So I find a little contradiction there.
    So I wonder would you support extending this CRA's 60-day 
period for introducing disapproval resolutions to something 
longer, perhaps 120 days, to allow for that greater 
deliberation, without continuing the state of gridlock that you 
so eloquently focused on in your testimony?
    Ms. Steinzor. I would not support that. I think that the 
CRA is an invitation to repeal rules without considering what 
the problem is that they are intended to address, and the best 
way to do that would be to look at the statutes that authorizes 
the rule. And there are many solutions to Congressional 
gridlock. I don't think the CRA is one of them.
    Mrs. Handel. Thank you. Mr. Gaziano, you testified about 
the vast number of rules that went without proper notice and 
proper review or submittal to Congress that had vast and 
significant economic consequence, yet, Profession Steinzor 
expressed a decidedly different point of view.
    Could you give us a couple of additional examples of that?
    Mr. Gaziano. Yes. Thank you very much, Your Honor, for the 
question. And in my testimony I talk about certain of the 
guidance documents and other rules that weren't submitted that 
are probably decisive in the cases that Pacific Legal 
Foundation is bringing. One of them that I described in my 
written testimony is the Alaska Supplement to the 1987 EPA and 
Army Corps Wetlands Manual. And that supplement declared 
Alaskan permafrost to be a navigable water of the United 
States, that is likely to be subject to its jurisdiction. And 
it requires our client, the tin cup company, to go to them hat 
in hand with hundreds of thousands of dollars and either seek a 
permit or go through years of evaluation over whether frozen 
earth is a navigable water of the United States, under threat 
of criminal penalties and civil penalties.
    And that particular guidance is going to be the decisive 
weight, because the Clean Water Act language would not allow--
our client would have no notice that frozen ground is 
potentially navigable water because it is ridiculous. It is 
not. But we still are litigating. And we just got a District 
Court judgment. We are going to have to go up to the Court of 
Appeals, but that is just one of the three or four other 
ridiculous examples.
    So we had another case that had to do with a Rapanos 
guidance that misinterpreted a case Pacific Legal Foundation 
won in the Supreme Court, but it was also never delivered to 
Congress. So in a trial that we finally settled last summer, we 
filed a motion with the judge to not consider the Rapanos 
guidance, because our client would have won without that. And 
the DOJ opposed that motion. Do you know why? They said, well, 
that guidance wasn't a rule enough to send to Congress, but 
that our client and the judge had to defer to it. That is an 
example of what is going on.
    Mrs. Handel. Thank you for that. One last question, and 
quickly, for Mr. Larkin. There has been some talk today about 
the fact that the CRA has only been used one other time 
previously. I guess I was raised that just because something 
was never done or it was only done once, that didn't completely 
make it irrelevant.
    So I would like to hear your perspective on whether or not 
the fact that it has only been used once is relevant or not.
    Mr. Larkin. It is not.
    Mrs. Handel. Perfect. Thank you. Because my time is up.
    Mr. Chairman, I yield back.
    Mr. Issa. You shocked me. The answer was so succinct, I 
wasn't ready to be given back time. I thank the gentlelady. 
With that, we go to the Ranking Member of the full Committee, 
the distinguished leader from Detroit, Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman Issa. And I welcome the 
gentlemen on the panel. And I am going to ask unanimous consent 
to put into the record the article authored by myself, our 
ranking colleague, Mr. Cicilline, and Hank Johnson.
    Mr. Issa. Such a distinguished document would always be 
placed without objection.
    This material is available at the Committee or on the 
Committee Repository at:
    http://docs.house.gov/meetings/JU/JU05/20170928/106432/
HHRG-115-JU05-20170928-SD001.pdf
    Mr. Conyers. Thank you. The title is Serious Risks 
Presented by the Anti-Regulatory Agenda of the 115th Congress 
and the Trump administration. Just to give you a little clue as 
to where it is going. I thank you.
    Mr. Issa. Just for the record, this was published in the 
Harvard Journal?
    Mr. Conyers. Yeah. The Harvard Journal on Legislation.
    Mr. Issa. I don't know if that impresses you, but it 
impresses me.
    Mr. Conyers. I don't remember how many articles I have had 
in the Harvard anything. But this was a very important one, and 
it is very much related to the subject matter that brings us 
here today.
    Professor Steinzor, I would like to raise this with you. 
Mr. Larkin and Mr. Gaziano argue that if a rule was not 
properly submitted to Congress, even as far back as 1996, 
Congress may still use the Congressional Review 
Administration--still use the CRA's expedited procedures to 
repeal it.
    What is your take on that position?
    Ms. Steinzor. I disagree with it. I think it is a very bad 
idea. I have heard from virtually every industry person that I 
have ever discussed these issues with that certainty and 
stability of the regulatory system is critical. So if you now 
have a situation where, through some administrative oversight, 
in a very small number of cases, you can take a rule and kill 
it, even though everybody has spent all the effort and the 
money to comply. I think it would be the antithesis of the 
certainty and stability that business interests tell us they 
need.
    I also want to say that, again, Curtis Copeland, who is a 
renowned student of and expert in the regulatory process, found 
that, of 1,000 rules, at most 50 had been omitted from notice. 
Significant rules. And in many cases, notice had been provided, 
and someone had lost it in the agencies that received it.
    So I think the Brookings' study is problematic. It is now 
being peer-reviewed by people at Harvard, of all places. So I 
think that this idea that there are a lot of these rules sort 
of lurking around, persecuting people, that Congress never had 
an opportunity to veto is drastically overstated. And I 
appreciate----
    Mr. Conyers. So what would this kind of sweeping 
interpretation have on businesses that have already complied 
with rules that have been in effect for years?
    Ms. Steinzor. It would be very unfair to the people that 
behave the best, the businesses that made the effort to comply. 
It would reward, in essence, scofflaws, if there were 
significant rules that I have not heard about.
    I mean, the example that Mr. Gaziano gave about the so-
called WOTUS rule, that rule is being reevaluated as we speak 
by Administrator Pruitt at EPA. I don't agree with what he is 
doing, but I don't challenge his authority to go through the 
process and change that document.
    Mr. Conyers. Now, some have suggested that as many as 800 
rules have not been received by either the House of Congress or 
the GAO. Do you think this is an overstatement, or what do you 
make of that assessment?
    Ms. Steinzor. It is not what Curtis Copeland's carefully 
done reliable study shows, and I attached that study to my 
testimony and hope it will be included in the record. He really 
is a very thoughtful and diligent and careful researcher, and 
he did a much more reliable job than Brookings did, which is 
why we are having the Harvard peer review.
    Mr. Conyers. Thank you. This year, Congress disapproved of 
14 separate rules on party line votes in both chambers. No more 
than five House Democrats voted in favor of any resolution of 
disapproval. In the Senate, 11 of the 14 passed resolutions 
were opposed by at least 47 Senators.
    Now, how did the Congressional Review Act become such a--
let's call it a partisan instrument?
    Ms. Steinzor. Well, I think that people were quite shocked 
at the very aggressive use of it. I know I was. We expected 
perhaps a handful of rules might be challenged. We also know 
that President Trump was about to take over the government and 
would have enormous power to change rules through the normal 
notice and comment process. So this kind of--it was a 
blitzkrieg is really what it was.
    Mr. Conyers. Yeah.
    Ms. Steinzor. And people were very surprised. And the rules 
were idiosyncratic, and some of them seemed so sensible. Like 
Mr. Cicilline mentioned, internet privacy. That is something 
that consumers really support as an idea.
    Mr. Conyers. Now, currently, virtually all rules, including 
ministerial rules issued by the Coast Guard to open or close 
bridges, must be physically submitted to the House, Senate, and 
Government Accountability Office, the GAO. Are you concerned at 
all that the scope of this requirement may be overbroad?
    Ms. Steinzor. Yes. I think agencies are very confused about 
what is and isn't covered. Literally, thousands and thousands 
of guidance documents are issued every year. They can be 
speeches, they can be letters, they can be guidance in the form 
of memos, and any of those documents can be changed by an 
agency if it just says, we discovered new information. We 
changed our mind. We want to go in a different direction. But 
having to sort through all that paperwork and decide how much 
to send up here, it is literally everything the government does 
that it writes down, almost.
    Mr. Conyers. Should the Congressional Review Act apply only 
to major rules that have big economic effect, maybe exceeding 
$100 million or so?
    Ms. Steinzor. Well, I am urging you to repeal the 
Congressional Review Act.
    Mr. Conyers. Okay.
    Ms. Steinzor. If it were to continue, which I think would 
be a mistake, I think targeting significant rules defined as 
you did would make some sense. Those rules are already 
scrutinized within an inch of their lives by the White House 
and economists and all the stakeholders, as I mentioned.
    Mr. Conyers. I thank you very much----
    Ms. Steinzor. Thank you very much.
    Mr. Conyers [continuing]. For your testimony.
    Thank you, Mr. Chairman.
    Mr. Issa. Thank you.
    Mr. Buck.
    Mr. Buck. Thank you, Mr. Chairman.
    Professor Steinzor, I was just wondering if you were 
shocked by the Obama administration's seizure of \1/7\ of our 
economy in the Affordable Care Act or whether you were shocked 
by the regulations--the crippling regulations in the--or the 
crippling law in the Dodd-Frank, that that absolutely decimated 
community banks in this country, and whether you were shocked 
that the American people reacted by putting Republicans in 
charge of the United States House in 2010 elections, the United 
States Senate in 2014, and elected President Trump in 2016. 
Were you shocked by those things?
    You said you were shocked by the use of the CRA in this 
Congress.
    Ms. Steinzor. I was shocked by President Trump's election.
    Mr. Buck. I am going to yield the rest of my time to the 
Chairman, Mr. Issa.
    Mr. Issa. Thank you, Mr. Buck. I will be brief.
    First of all, since we are on the professor, you do not 
like the CRA. But if we were to be constitutional in the 
strictest form and require full debate, would you then believe 
that the REINS Act would, by definition, be the answer since, 
under the REINS, R-E-I-N-S, it requires that these kinds of 
major rules--and it is limited to those--be submitted to 
Congress; that Congress, in fact, hold hearings and then give 
an up or down? In other words, that Congress do its job after 
agencies have determined what they would like to have.
    Ms. Steinzor. Mr. Chairman, the REINS Act would say no rule 
goes into effect until you approve it. And with all due 
respect, I think you have so much work to do that I would 
really worry about you.
    Mr. Issa. Okay.
    Ms. Steinzor. Because you have appropriations, you have 
disaster relief, you have tax reform. I think we wouldn't have 
any rules, because you wouldn't have time to look at them.
    Mr. Issa. Well, you know, what is interesting is that 
everyone has this theory that Congress is too busy to look at 
what affects Mr. Carter's life.
    You said something that I thought was pretty profound in 
answering Mr. Buck and other questions, which was that you 
talked about thousands of guidance and how--and you said how 
they can be changed. You didn't say as a whim, but you implied 
as a whim, that they get changed, we make mistakes. In other 
words, every time a speech is made, Mr. Carter's people have to 
figure out whether that affects their lives, and they have to 
make changes.
    And so, Mr. Gaziano, you talk about a specific case that I 
think the professor alluded didn't occur or couldn't occur. You 
talk about a case in which very clearly at the court---- at the 
High Court, you had to argue that it was, in fact, a non-
regulation regulation that was what tipped the scale for your 
very much being there, something that undoubtedly was millions 
of dollars in cost to your--let me phrase it--huge amounts of 
hours and would have been millions of dollars to your client.
    Mr. Gaziano. The Federal Government was asking for $45 
million from our client for engaging in farming, plowing his 
field. But if I misspoke, the regulation--the non-regulation, 
the one the Justice Department said it didn't have to give you 
but that the judges had to defer to and our clients had to 
defer to, was based on a Supreme Court case we won. But it was 
just in the trial--the Federal District Court that we were 
proceeding.
    Mr. Issa. Okay. So it wasn't precedent. But, in fact, a 
justice department during your tenure of practicing law told 
you----
    Mr. Gaziano. It was a couple months ago.
    Mr. Issa. Okay.
    Mr. Gaziano. A couple months ago.
    Mr. Issa. A couple of months before or after January 20 of 
this year.
    Mr. Gaziano. We filed a motion in limine to ask the judge 
not to rely on this guidance that was never delivered to 
Congress and isn't in effect, and the DOJ opposed the motion.
    Mr. Issa. Okay. So under the Trump administration, as we 
speak, under this Attorney General, today, or at least weeks 
ago, we are still seeing the position of the Department of 
Justice that they will enforce things which have not complied 
with the rulemaking laws and that, in fact, they will stick by 
those, and they will not allow those to be taken away.
    So what you are saying is, under Attorney General Sessions 
and his Department of Justice and President Trump's 
administration, they are still, in fact, using non-regulations, 
regulations that do not comply with the law, to win cases that 
can cost clients a lot of money.
    Mr. Gaziano. Thank you for allowing me to clarify that too. 
That is happening, but I have to confess that I don't think it 
has reached the highest level yet. And your hearing will help. 
Trial attorneys--you know how aggressive trial attorneys are. 
And until they get the message from on high--and I don't think 
it is----
    Mr. Issa. Well, this is an administration that has no U.S. 
attorneys that have been politically appointed. This is an 
administration in which the bureaucracy is in place. These are 
nonpolitical people. They are, by definition, neither Obama's 
people nor Trump's people. But the Department of Justice is 
abusing clients like yours today, as we speak, by enforcing 
things which have not complied with the law, calling them 
sufficient, even though they are only guidance or unpublished 
to the Congress regulations. That is your sworn testimony here 
today.
    Mr. Gaziano. It is absolutely the case they are relying on 
them and in cases where I think it will make the difference.
    Mr. Issa. Well, I am out of time to get to a vote. I want 
to thank all of you for your testimony, and particularly for 
your testimony, which I will personally make sure gets to the 
Attorney General so it not just be at the prosecutor level who, 
in his zealous desire to get a win, is using that which is 
pretty clearly here not something that is law. Even the 
professor, who believed it wasn't being used, I believe was 
supportive that it shouldn't be used alone.
    I want to thank you. And we stand adjourned.
    [Whereupon, at 10:44 a.m., the Subcommittee was adjourned.]

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