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ADMINISTRATIVE LAW, PROCESS AND

PROCEDURE PROJECT

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 1, 2005

Serial No. 109–71

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 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina 

TRENT FRANKS, Arizona 

STEVE CHABOT, Ohio 

MARK GREEN, Wisconsin 

RANDY J. FORBES, Virginia 

LOUIE GOHMERT, Texas 

MELVIN L. WATT, North Carolina 

WILLIAM D. DELAHUNT, Massachusetts 

CHRIS VAN HOLLEN, Maryland 

JERROLD NADLER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida

RAYMOND V. SMIETANKA, Chief Counsel 

SUSAN A. JENSEN, Counsel 

MIKE LENN, Full Committee Counsel 

BRENDA HANKINS, Counsel 

STEPHANIE MOORE, Minority Counsel 

(III)

C O N T E N T S 

NOVEMBER 1, 2005

OPENING STATEMENT 

Page 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Chairman, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 1

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Commercial 

and Administrative Law ...................................................................................... 3

WITNESSES 

Morton Rosenberg, Esquire, Specialist in American Public Law, American 

Law Division of the Congressional Research Service, Library of Congress 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

Mr. J. Christopher Mihm, Managing Director of Strategic Issues, United 

States Government Accountability Office 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

Professor Jeffrey S. Lubbers, Fellow in Law and Government Program, Washington College of Law, American University 

Oral Testimony ..................................................................................................... 59

Prepared Statement ............................................................................................. 62

Professor Jody Freeman, Harvard Law School 

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

Prepared Statement ............................................................................................. 80

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................ 3

MATERIAL SUBMITTED FOR THE HEARING RECORD

Responses to additional questions from Morton Rosenberg, Esquire, Specialist 

in American Public Law, American Law Division of the Congressional Research Service, Library of Congress ................................................................... 94

Responses to additional questions from J. Christopher Mihm, Managing Director of Strategic Issues, United States Government Accountability Office . 112

Responses to additional questions from Professor Jeffrey S. Lubbers, Fellow 

in Law and Government Program, Washington College of Law, American 

University ............................................................................................................. 118

Responses to additional questions from Jody Freeman, Harvard Law School ... 125

(1)

ADMINISTRATIVE LAW, PROCESS AND 

PROCEDURE PROJECT 

TUESDAY, NOVEMBER 1, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Chris Cannon 

(Chair of the Subcommittee) presiding. 

Mr. CANNON. If you would all like to take your seats. Thank you 

all for coming this morning. 

I don’t have a gavel. We are now in order. Don’t worry about it. 

It is not life or death here. 

The current Federal regulatory process faces many significant 

challenges. Earlier this year the head of OMB’s Office of Information and Regulatory Affairs testified that ‘‘no one has ever tabulated the sheer number of Federal regulations that have been 

adopted since passage of the Administrative Procedure Act,’’ which 

I might add parenthetically was in 1946. He further acknowledged, 

‘‘Sad as it is to say, most of these existing Federal rules have never 

been evaluated to determine whether they have worked as intended and what their actual benefits and costs have been.’’ A rather depressing statement. 

In September 2005, the SBA’s Office of Advocacy reported that 

the annual cost to comply with Federal regulations in the United 

States in 2004 exceeded $1.1 trillion, about 10 percent of our whole 

economy, which means that if every household received a bill for 

its equal share, each would have owed $10,172, an amount that exceeds what the average American household spent on health care 

in 2004, which is just under $9,000. 

Other problematic trends include the absence of transparency in 

certain stages of the rulemaking process, the increasing incidence 

of agencies publishing final rules without having them first promulgated on a proposal basis, the stultification of certain aspects 

of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the EPA was enacted nearly 60 years ago, a 

fundamental question that arises is whether the act is still able to 

facilitate effective rulemaking in the 21st century. 

In an attempt to answer that question, House Judiciary Chairman Sensenbrenner earlier this year requested that our SubVerDate 0ct 09 2002 12:57 Feb 22, 2006 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 G:\WORK\COMM\110105\24282.000 HJUD1 PsN: 24282
2

committee spearhead the Administrative Law, Process and Procedure Project. 

The object of the project is to conduct a nonpartisan, academically credible analysis of Federal rulemaking that will focus on 

process, not policy concerns. Some of the areas that will be studied 

include the role of public participation in the rulemaking process, 

judicial review of rulemaking, and the utility of regulatory analysis 

and the accountability requirements. 

For the purpose of soliciting scholarly papers and promoting a robust dialogue, the Subcommittee intends to facilitate colloquia at 

various academic institutions and organizations that analyze Federal rulemaking. 

In addition, the Congressional Research Service has been asked 

to make some of its leading administrative law experts available to 

guide the project, one of whom is testifying today. Under the auspices of CRS, several independent empirical studies of various 

issues conducted by some of the most respected members of academia are already underway as part of the project, and we will 

hear about one of those ongoing studies as part of today’s hearing. 

The project will also benefit from the wealth of expertise that the 

Government Accountability Office provides. To date, GAO has produced more than 60 reports on various aspects of the Federal regulatory process, and one of our witnesses will explain the work of 

GAO in this critical area. 

The project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested 

areas for further research and analysis to be considered by the Administrative Conference of the United States. 

As you may recall legislation reauthorizing ACUS was signed 

into law last fall. ACUS was a nonpartisan, private-public think 

tank that proposed many valuable recommendations which improved administrative aspects of regulatory law and practice. Over 

its 28-year existence ACUS has served as an independent agency 

charged with studying the efficiency, adequacy and fairness of the 

administrative procedure used by Federal agencies. Most of its approximately 200 recommendations were implemented. They in turn 

helped save taxpayers millions of dollars. 

In a rare expression of unanimity, the Supreme Court Justices 

Scalia and Breyer jointly testified before our Subcommittee last 

year in support of ACUS. In complete unison they extolled the Conference’s virtues. Justice Breyer in particular cited the value of the 

Conference’s recommendations, noting that they resulted in ‘‘huge’’

savings to the public. Likewise Judge Scalia stated the Conference 

was ‘‘an enormous bargain.’’ Accordingly, it is critical that ACUS 

be appropriated its funding if not before, at least by the time the 

project report is completed. 

This is truly an exciting undertaking. I look forward—can you 

imagine an exciting undertaking in administrative procedures? It 

actually really is, and I look forward to the testimony from our witnesses as we get this project going. 

I now turn to my colleague, Mr. Watt, the distinguished Ranking 

Member of my Subcommittee, and ask him if he has any opening 

remarks. 

[The prepared statement of Mr. Cannon follows:]

3

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COM- MERCIAL AND ADMINISTRATIVE LAW

The current federal regulatory process faces many significant challenges. Earlier 

this year, the head of OMB’s Office of Information and Regulatory Affairs testified 

that ‘‘no one has ever tabulated the sheer number of federal regulations that have 

been adopted since passage of the Administrative Procedure Act,’’ which I might add 

parenthetically was in 1946. He further acknowledged, ‘‘Sad as it is to say, most 

of these existing federal rules have never been evaluated to determine whether they 

have worked as intended and what their actual benefits and costs have been.’’ A 

rather depressing statement. 

In September 2005, the SBA’s Office of Advocacy reported that the annual cost to comply with federal regulations in the United States in 2004 exceeded $1.1 trillion, which means that if every household received a bill for its equal share, each 

would have owed $10,172, an amount that exceeds what the average American 

household spent on health care in 2004, which is just under $9,000. 

Other problematic trends include the absence of transparency at certain stages of 

the rulemaking process, the increasing incidence of agencies publishing final rules 

without having them first promulgated on a proposed basis, the stultification of certain aspects of the rulemaking process, and the need for more consistent enforcement by agencies. 

Given the fact that the APA was enacted nearly 60 years ago, a fundamental 

question that arises is whether the Act is still able to facilitate effective rulemaking 

in the 21st Century? 

To help us answer that question, House Judiciary Committee Chairman Sensenbrenner earlier this year requested our Subcommittee to spearhead the Administrative Law, Process and Procedure Project. The objective of the Project is to conduct 

a nonpartisan, academically credible analysis of federal rulemaking that will focus 

on process, not policy concerns. 

Some of the areas that will be studied include the role of public participation in 

the rulemaking process, judicial review of rulemaking, and the utility of regulatory 

analysis and accountability requirements. 

For the purpose of soliciting scholarly papers and promoting a robust dialogue, 

the Subcommittee intends to facilitate colloquia at various academic institutions and 

organizations that analyze federal rulemaking. In addition, the Congressional Research Service has been asked to make some of its leading administrative law experts available to guide the Project, one of whom is testifying today. Under the auspices of CRS, several independent empirical studies of various issues conducted by 

some of the most respected members of academia are already underway as part of 

the Project, and we’ll hear about one of those ongoing studies as part of today’s 

hearing. The Project will also benefit from the wealth of expertise that the Government Accountability Office provides. To date, GAO has produced more than 60 reports on various aspects of the federal regulatory process. And, one of our witnesses 

will explain the work of the GAO in this critical area. 

The Project will culminate with the preparation of a detailed report with recommendations for legislative proposals and suggested areas for further research and 

analysis to be considered by the Administrative Conference of the United States. As 

you may recall, legislation reauthorizing ACUS was signed into law last fall. ACUS 

was a nonpartisan ‘‘private-public think tank’’ that proposed many valuable recommendations which improved administrative aspects of regulatory law and practice. Over its 28-year existence, ACUS served as an independent agency charged 

with studying the efficiency, adequacy, and fairness of the administrative procedure 

used by federal agencies. Most of its approximately 200 recommendations were implemented, and they, in turn, helped save taxpayers many millions of dollars. 

In a rare expression of unanimity, Supreme Court Justices Scalia and Breyer 

jointly testified before our Subcommittee last year in support of ACUS. In complete 

unison, they extolled the Conference’s virtues. Justice Breyer, in particular, cited 

the value of the Conference’s recommendations, noting that they resulted in ‘‘huge’’

savings to the public. Likewise, Justice Scalia stated that the Conference was ‘‘an 

enormous bargain.’’ Accordingly, it is critical that ACUS be appropriated its funding, 

if not before, at least by the time the Project report is completed. 

This is a truly exciting undertaking and I look forward to the testimony from our 

witnesses.

Mr. WATT. Thank you, Mr. Chairman, and thank you for convening this hearing, and thank Chairman Sensenbrenner and 

Ranking Member Conyers for enlisting the able assistance of the 

4

Congressional Research Service to provide guidance, supervision 

and a structural framework for this important, massive, bipartisan 

undertaking. 

As I indicated last year in our hearing in which Justices Scalia 

and Breyer offered their insights on the role that the defunct Administrative Conference of the United States had played prior to its 

demise, I found it somewhat ironic that the agency that had actively worked to make Government smaller, more efficient and 

more accountable was itself a victim of the end of the era of big 

Government mantra of the 90’s by reauthorizing the Administrative Conference last term. Congress has now taken the first steps 

toward restoring an invaluable mechanism created to improve the 

content, implementation and processes of Federal administrative 

law. 

Now, if we could get funding appropriated to fund the Administrative Conference, this project will serve as a useful device to sort 

through and prioritize those systematic issues in the administrative law arena that cry out for examination and possible reform. 

There is no greater example, as noted by several of our witnesses 

in their written testimony, of the need for review of the effectiveness of administrative law and procedures before us today than the 

bureaucratic morass that seemingly and tragically undermined efforts to save and provide prompt relief to the countless families and 

individuals caught in the path of Hurricane Katrina. 

While there will be probing investigations into what went wrong 

in the aftermath of Katrina, bureaucratic flexibility in the face of 

national disasters or emergencies together with the interoperability 

and coordination of efforts at all levels of Government are vitally 

important to be considered in this examination of the current state 

of administrative process and procedure. 

In addition to disaster-related areas of inquiry, there are other 

areas that are deserving of the in-depth review the project seeks 

to provide. I believe that overall review not only of our administrative agencies themselves but also of the judicial, presidential and 

congressional roles in the administrative process, will provide us 

with a thorough understanding of how each branch of Government 

contributes to furthering or impeding the goals of that process. 

As the project progresses to evaluate e-Government and e-rulemaking, I believe the questions of security, privacy and access must 

be considered. While technological advances have broadened the 

possibilities of delivering and managing some governmental services quicker with greater efficiency, these advances have also 

broadened the potential for abuse, misuse, and exclusion. 

For example, transparency may invite security concerns, assembly of vast amounts of personal data may invite privacy concerns, 

and the mere use of advanced technology to administer governmental programs and policies might invite access concerns for 

small, disadvantaged or minority stakeholders who have yet to 

cross the digital divide. 

There are many other issues, privatization, attorneys fees, judicial comity and the role of executive orders to name a few, that are 

important aspects of our system of administrative law and procedure. 

5

I look forward to continuing to work with you, Mr. Chairman, on 

this comprehensive and balanced bipartisan examination of the 

state of our administrative law system, and I thank the witnesses 

for the insights they will provide to us today and yield back the 

balance of my time. 

Mr. CANNON. Thank you, Mr. Watt. I have often said that the 

most interesting questions of our day are not partisan questions. 

This is certainly, I believe, one of them. When we consider a tenth 

of the economy is involved in the Federal regulatory process it is 

amazing. 

Without objection, all Members may place their statements in 

the record at this point. Without objection, so ordered. 

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

I ask unanimous consent that Members have 5 legislative days 

to submit written statements for inclusions in today’s hearing 

record. Without objection, so ordered. 

I am now pleased and honored to introduce our witnesses for today’s hearing. Our first witness is Mort Rosenberg, Specialist in 

American Public Law in the American Law Division of the Congressional Research Service. In all matters dealing with administrative law, Mort has been the Judiciary Committee’s right hand. 

For more than 25 years, he has been associated with CRS. Prior 

to his service with that office he was Chief Counsel for the House 

Select Committee on Professional Sports, among other public servant positions he has held. 

In addition to these endeavors, Mort has written extensively on 

the subject of administrative law. We are proud that he will later 

this month receive the American Bar Association’s Mary C. Lawton 

Award for Outstanding Government Service. Mort obtained his undergraduate degree from New York University and his law degree 

from Harvard Law School. Thank you for being here with us. 

Our second witness is Chris Mihm, who is the Managing Director 

of GAO’s Strategic Issues team, which focuses on government-wide 

issues with the goal of promoting more results-oriented and accountable Federal Government. The strategic issues team has examined such matters as Federal agency transformation, budgetary 

aspects of the Nation’s long-term fiscal outlook and civil service reform. Sort of the easy things, right? Government reform? 

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

Professor Jeffrey Lubbers is our third witness. A Fellow in Law 

and Government at American University Washington College of 

Law, Professor Lubbers brings a unique perspective to today’s 

hearing with respect to ACUS. As many of you know, Professor 

Lubbers worked at ACUS for 20 years, including 13 years as the 

Conference’s Research Director. A prolific writer on the subject of 

administrative law, Professor Lubbers obtained his undergraduate 

degree from Cornell University and his law degree from University 

of Chicago Law School. 

I would also like to mention that about 3 years ago, Professor 

Lubbers testified before this Subcommittee at an oversight hearing 

regarding the administrative law and privacy ramifications inVerDate 0ct 09 2002 12:57 Feb 22, 2006 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\COMM\110105\24282.000 HJUD1 PsN: 24282
6

volved in establishing the Department of Homeland Security. As a 

result of this hearing, our Subcommittee spearheaded the creation 

of the first statutorily mandated privacy officer as part of DHS’s 

enabling legislation. 

Welcome back, Professor Lubbers. We appreciate that. That actually has worked out awfully well, we think. 

Our fourth witness is Professor Jody Freeman. Professor Freeman teaches administrative law and environmental law at Harvard 

Law School, where she is the Director of the Environmental Law 

Program. Prior to joining Harvard Law School, Professor Freeman 

taught at UCLA for 10 years. I appreciate some good Western perspective here. Currently, she serves as Vice Chair of the ABA Administrative Law Section Subcommittee on both Dispute Resolution 

and Environmental Law and Natural Resources. She also chairs 

the AALS Executive Committee on Administrative Law. 

Professor Freeman received her undergraduate degree from 

Stanford University and her law degree from the University of Toronto, where I have a son living now. She thereafter received her 

master’s and doctorate of law from the Harvard Law School. 

I extend to each of you my warm regards and appreciation for 

your willingness to participate in today’s hearing. In light of the 

fact that your written statement is being included in the record, I 

request that you limit your remarks to 5 minutes. Accordingly, 

please feel free to summarize or highlight the salient points of your 

testimony. 

You will note that we have a lighting system that starts with a 

green light. After 4 minutes, it turns to a yellow light and then 5 

minutes it turns to a red light. It is my habit, interestingly it is 

actually captured here in my notes, to tap the gavel at 5 minutes. 

We would appreciate it if you would finish up your thoughts within 

that time frame. We don’t want to cut people off in the middle of 

their thinking, but it works better if everybody has that rule. It is 

not a hard rule, just so you know recognizing 5 minutes has gone 

by. We are actually quite interested in what you have to say and 

if it goes beyond that, I don’t think today anybody is doing to be 

very exercised. 

We would appreciate that, and I if really start tapping hard then 

you know I am bored or Mel is nudging me or something. After you 

have presented your remarks, Subcommittee Members, in the order 

they arrive, will be permitted to ask questions of the witnesses subject to the 5-minute limit and possibly subject to more than one 

round. 

Pursuant to the direction of the Chairman of the Judiciary Committee, I ask that the witnesses please stand and raise your right 

hand to take the oath. 

[Witnesses sworn.] 

Thank you. You may be seated. The record should reflect that 

the witnesses answered in the affirmative. 

And Mr. Rosenberg, we would be pleased if you proceed with 

your testimony. 

7

TESTIMONY OF MORTON ROSENBERG, ESQUIRE, SPECIALIST 

IN AMERICAN PUBLIC LAW, AMERICAN LAW DIVISION OF 

THE CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF 

CONGRESS 

Mr. ROSENBERG. Thank you, Mr. Chairman. Mr. Chairman, Mr. 

Watt, I am very pleased to be here today. I have enjoyed for many, 

many years working with your Subcommittee and Raymond 

Smietanka and Susan Jensen and with other parts of your full 

Committee. I am a wonk in administrative law. I get off on these 

kind of things and I have for over 30 years in CRS. 

You have asked me here today to discuss and describe the background, development and goals of your Committee’s Administrative 

Law, Process and Procedure Project, CRS’s role in that project, 

what we’ve done so far, and what we hope to accomplish in the future. 

In my prepared remarks, I have detailed the genesis of your 

project, from the coincidence of the briefing that T.J. Halstead, one 

of the CRS team, and I gave a full Committee staff briefing on 

emerging issues in law and ad process and your first hearing in the 

attempt to revive ACUS with Justices Scalia and Thomas [sic]. 

My sense at that time was that there was a close nexus between 

the demise of ACUS in 1995 and the growing number of seemingly 

insoluble process and practice issues over the last decade, a sense 

that I tried to convey to the Committee. I was perhaps influenced 

by an unknowing dependence upon ACUS. I do not exaggerate 

when I say that I have always had within arm’s reach in my 33 

years at CRS a full and, until 1995, complete growing set of ACUS 

reports and recommendations, which were often my first resource 

in responding to clients such as your Committee. 

I was fortunate in the 80’s and 90’s, when I was deeply involved 

in issues involving Executive Order 12291, presidential review of 

rulemaking, and some of the first major efforts at regulatory reform that were going on in those days, and I was fortunate to call 

upon for assistance and occasionally work with Jeff Lubbers when 

he was Research Director at ACUS. In any event, I was excited—

and I am excited—at the prospect of working with your Subcommittee, with the CRS team that includes T.J. Halstead of the 

American Law Division and Curtis Copeland, of our Government 

and Finance Division, in which to assist in the two-track effort that 

you have started. That is, by providing it with background materials and information to inform the bipartisan effort to reauthorize 

ACUS and identifying the issues that might be the subject of either 

further study by a revived ACUS and/or legislative action by the 

Committee during the 109th Congress. 

As you mentioned, success was achieved with regard to the first 

effort with the enactment of the Federal Regulatory Improvement 

Act of 2004 in October of 2004. But as of this date, funding legislation has not been passed. 

The Subcommittee, however, anticipated the possibility of an extended delay in the operational startup of ACUS after passage of 

the reauthorization legislation and directed its staff to consider, 

with the assistance of the CRS team, the options that would be 

available to it to accumulate the information and the data necessary to determine whether action on a particular issue required 

8

immediate legislative attention or was best referred to ACUS for 

further in-depth studies and recommendations. 

And after extended discussions, such traditional approaches that 

have been used in the past, such as a series of informative hearings by the Committee, possible establishment of a study commission, or the creation by the Committee of a study group, were rejected in favor of seeking and utilizing the assistance of resources 

outside of Congress and the Committee, such as academic institutions, think tanks, CRS, the Government Accountability Office, 

among others, and the potentiality of utilizing forums for the airing 

of issues outside of Washington were deemed important. 

The staff proposed and the Committee adopted a unique course 

of action. And I underline that what you’re doing here is pretty 

unique. It is novel in the way it is reaching out beyond the Beltway 

to try to get a diversity of opinions and compile a record outside 

which might be more reflective of what is really going on and what 

real practical thoughts are out there. 

What you did was pursuant to the House rule requiring Committee adoption of an oversight plan for the 109th Congress. The 

full Committee made a study of emergent administrative law and 

process issues a priority oversight agenda item for the Subcommittee. Among the benefits of so identifying the study as a Subcommittee priority was to give it the imprimatur of official legislative legitimacy and importance which might, in turn, be useful in 

enlisting the voluntary assistance and services of individuals and 

institutions throughout the Nation. 

The oversight plan identified seven general areas for study: public participation in the rulemaking process, congressional review of 

rules, presidential review of agency rulemaking, judicial review of 

rulemaking, the adjudicatory process, the utility of regulatory analyses and accountability requirements, and the role of science in the 

regulatory process. 

The CRS team was designated by the Chairman and Ranking 

Minority Member to coordinate this project. Its first task was to 

take these seven broad study areas and identify or define potential 

questions or issues for research. The thought was not to limit research to those matters within the combined experience and expertise of the team members, but to develop theme packages in order 

to sell a package or a particular issue to a law school or university 

graduate school, a public agency or a consortium of those institutions for systematic, in-depth studies by means of empirical studies 

and papers conducted and prepared by leading experts in the particular areas which might be followed by public presentations and 

findings of symposia that would reflect these competing views. 

Hopefully, the end product of that exercise is to be a compilation 

of the papers and the transcripts of the various public symposia 

similar to the two-volume working papers of the National Commission on Reform of Federal Criminal Laws published by your Committee in 1970, which contains 59 studies covering all aspects of 

the then current issues in criminal law reform. Those studies actually informed Congress’ subsequent successful reform efforts. 

As of this date, two major empirical studies are underway, and 

one forum is scheduled for this room on December 5th. 

9

One, being conducted under the direction of Professor Jody Freeman of Harvard Law School, is looking at the nature and impact 

of judicial review of agency rulemaking over what appears to be 

now a 13-year period in the 11 Federal Circuit Courts of Appeals. 

Professor Freeman is a fellow panelist today and will describe her 

plan for this very daunting and important undertaking. 

The second study is being led by Professor William West of the 

Bush School of Government and Public Service at Texas A&M and 

will be looking into the influences on the initiation, design and development of new rules at 20 agencies during the period prior to 

the publication of notices of proposed rulemaking for public comment in the Federal Register. Professor West will be assisted by 

eight graduate students, and the study is in part funded by CRS’s 

Capstone Program grant. 

Both studies are expected to provide at least preliminary results 

by the spring of 2006. The third thing is the forum that is going 

to be lead by Professor Cary Coglianese here on e-rulemaking. 

There will be two panels of experts from the private sector, from 

the public sector, from Government, and they will be speaking with 

regard to the problems and potentialities of e-rulemaking as a way 

of fostering public participation. 

Some other projects that we hope to place include a mega-project 

dealing with the problems that appear to be arising with presidential rulemaking, through executive orders, and the Congressional Review Act. That is the mechanism by which in 1996 Congress hoped to have a more effective oversight role and to balance 

what was going on under the executive order system. 

It appears apparent that there are problems. In the last few 

years under the leadership of OMB Administrator John Graham, 

it appears the balance between Congress’ review efforts and the 

control and direction of, and influence on agency rulemaking has 

extended to the extent that one could say that perhaps there is a 

constitutional imbalance that needs to be redressed. But again, as 

Professor Freeman notes in her statement, empirical study is really 

necessary to understand just exactly how effective and perhaps untoward the presidential review mechanisms are. 

Let me stop here and allow others to talk. There are a few other 

projects that we want to institute, but we can talk about those 

from your questions. I thank you. 

[The prepared statement of Mr. Rosenberg follows:]

10

PREPARED STATEMENT OF MORTON ROSENBERG


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Mr. CANNON. Thank you, Mort. The gentleman from North Carolina and Ranking Member of the Subcommittee is also the Chairman of the Congressional Black Caucus and has been extraordinarily busy with the passing of Rosa Parks, and so he has been 

concerned about his time. I leaned over and asked him if he 

thought I should tap, and his response was more or less no, this 

is great because we don’t have to read it. And so I suggest that is 

exactly my view, by the way. And so we are going to be a little bit 

liberal, in fact, forget the clock. Just be interesting and, if you see 

one of us nodding off, then you know you have probably gone on 

too long. 

Mr. ROSENBERG. I have one or two——

Mr. CANNON. We would like to hear that. Before you do so, let 

me suggest that we may be a little bit loose on the questioning too. 

As you were going through what were saying, Mort, it had occurred 

to me, are you familiar with WIKIsikis or Wikipedia, any of the 

panel? This is like a way for people to get online and work together. And you should look up Wikipedia, W-i-k-i-p-e-d-i-a, not the 

word spelling with the extra ‘a,’ and it is actually remarkable. It 

is a great encyclopedia that is created by people all over the world. 

And I suspect that, while we don’t have this broad a base for the 

Administrative Procedure Act as we do have for an encyclopedia, 

there are many people that are interested and so a public forum, 

it might be interesting as part of the process you’re considering. 

There are other tools. My office uses a tool called Net Documents, 

which most large law firms use, and it is a way to work collaboratively online. You may want to think about some of these tools 

in the process because if some wonk somewhere can take 5 minutes 

and review the latest activity and says, ‘‘Wow, you’re wrong, you 

have missed an idea,’’ it is a great way to really get a collaborative 

process. In the end, what we need here is not just a bipartisan 

process, we need a process the American people buy into because 

we are talking about 10 percent of our economy here. And that 10 

percent does many things. 

We were joking earlier about whether it does good things or not 

and it probably does, but it also limits the output of our economy 

in a dramatic way. So to the degree that we can remove obstacles 

that are not helpful, maybe create new obstacles that would be 

more helpful to what we don’t have right now, and be more rational, we would do well. And that I think means that you might have 

a very, very large group of people that get engaged in that process. 

Thanks, Mr. Mihm. You’re recognized for 5 minutes or whatever. 

TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR 

OF STRATEGIC ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. MIHM. Thank you, Mr. Chairman and Mr. Watt. It is an 

honor to be here. And Mr. Chairman, I will try and take your challenge of being interesting. That is a high bar but I am very pleased 

to be here and to contribute to your overview of Federal rulemaking and obviously we look forward to supporting this Subcommittee in its comprehensive and bipartisan review as you move 

forward. 

32

As you mentioned in your opening statement, sir, over the last 

decade or so, at the request of Congress, we have prepared over 60 

reports and testimonies reviewing cross-cutting aspects of rulemaking procedures and practices. Overall that work has found 

that—has identified important benefits of the efforts to enhance 

Federal rulemaking. At the same time, we have also pointed out 

some potential weaknesses and impediments to realizing those expected improvements. We have also identified some trends and 

challenges in the rulemaking environment that have emerged over 

the years that in our view merit closer congressional attention and 

consideration. 

I will touch on each of these points in turn. In terms of the benefits then, as detailed in my written statement, our review has identified at least four overall benefits associated with existing regulatory analysis and accountability requirements. First, encouraging 

and facilitating greater public participation in rulemaking that 

clearly gives opportunities for the public to communicate with 

agencies by electronic means have expanded and requirements imposed by some of the regulatory reform initiatives have encouraged 

additional consultation with affected parties. 

Second, improving the transparency of the rulemaking process. 

Initiatives implemented over the past 25 years have helped to 

make the rulemaking process more open by facilitating public access to information, providing more information about the potential 

effects of rules and available alternatives, and requiring more documentation and justification of agency decisions. 

Third, increasing the attention directed to rules and rulemaking. 

Our reports have pointed out that the oversight of agencies’ rulemaking can and has resulted in useful changes to those rules and 

furthermore that agencies’ awareness of this added scrutiny may 

provide an important and direct effect, potentially leading to less 

costly, more effective rules. 

And finally, increasing expectations regarding the analytic support for proposed rules. The requirements that have been added 

over the years have raised the bar regarding information and analysis needed to support regulations. Such requirements have also 

prompted agencies to provide more data on the expected benefits 

and costs of their rules, and encouraged the identification and consideration of available alternatives. 

On the other hand, as I mentioned, we have also identified at 

least four recurring reasons why reform initiatives have not been 

as effective. I think these are certainly consistent with the research 

agenda that the Subcommittee is putting forward. 

First, there has been a lack of clarity and other weaknesses in 

key terms and definitions. For example RFA’s analytical requirements, which were intended to help address concerns about the impact of rules on small entities, do not apply if an agency head certifies that the rule will not have, ‘‘a significant economic impact on 

a substantial number of small entities.’’ However, RFA neither defines this key phrase nor, importantly, places responsibility on any 

party to define it consistently across the Government, which not 

surprisingly has led to quite a bit of variance. 

Second, the limited scope and coverage of various requirements. 

For example, we pointed out last year that the relatively small 

33

number of rules identified as containing mandates under the unfunded mandates legislation could be attributed in part to the 14 

different exemptions, exclusions and other restrictions on the identification of regulatory mandates under the act. 

Third, the uneven implementation of the initiatives’ requirements. For example, our reviews of economic assessments that analyze regulations prospectively has found that those assessments are 

not always useful for comparisons across Government, because they 

are often based on different assumptions of the same key economic 

variables. 

And finally, a predominant focus on just one part of the regulatory process, and Mr. Chairman, in your opening statement this 

is certainly a point you were making. We have placed more analytic and procedural requirements on agencies’ development of 

rules than on other phases of the regulatory process, from the underlying statutory authorization, through effective implementation 

and monitoring of compliance with rules, to an evaluation of existing rules. What are we actually getting in terms of benefits and 

costs associated with rules? 

Thus, while rulemaking is clearly an important point in the regulatory process, other phases can also help determine the effectiveness of Federal regulation. 

The findings and emerging issues reported in our body of work 

on Federal rulemaking suggest a few areas in which Congress 

might consider legislative action or further study, which are of 

course certainly consistent with those issues that are laid out in 

the Subcommittee’s oversight plan and also as Mort was touching 

on in his written statement. 

We believe that first there is a need to reexamine rulemaking 

structures and processes, including APA, again a point, Mr. Chairman, you made in your opening statement. 

Second, there is a need to address previously identified weaknesses of existing statutory requirements. 

Third, we should promote additional improvements in the transparency of agencies’ rulemaking actions. 

And fourth, a point, Mr. Watt, that you were making in regards 

to information technology, we need to open a broader examination 

of how developments in information technology might effect the notice in common under rulemaking process. And as you pointed out, 

sir, there are key issues of security, transparency and access that 

all need to be carefully weighed and balanced off against one another. 

Mr. Cannon, Mr. Watt, this concludes my statement. I will be 

happy to answer any questions you may have. 

[The prepared statement of Mr. Mihm follows:]

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PREPARED STATEMENT OF J. CHRISTOPHER MIHM


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Mr. CANNON. I thank you very much. You know you talk about 

a high bar. For APA wonks, the bar appears substantially lower. 

Like a heartbeat probably works. 

Mr. Lubbers, we appreciate your testimony now. 

TESTIMONY OF PROFESSOR JEFFREY S. LUBBERS, FELLOW IN 

LAW AND GOVERNMENT PROGRAM, WASHINGTON COLLEGE 

OF LAW, AMERICAN UNIVERSITY 

Mr. LUBBERS. Thank you, Mr. Chairman, Mr. Watt. It’s great to 

be here with my distinguished panel members today, and I guess 

I do qualify as an administrative procedure wonk having worked 

in the area for so long. 

I found much to agree with in my fellow panelists’ statements 

and very little to disagree with. 

I first want to applaud you and your Committee for leading the 

successful effort to reauthorize the Administrative Conference, 

which had to close its doors—exactly 10 years ago yesterday, by the 

way. 

I truly believe it was one of the Federal Government’s most cost 

effective institutions and it has been sorely missed. 

I view this hearing as an opportunity to suggest a research agenda for ACUS that would help convince the appropriators that the 

relatively small investment in ACUS would be repaid many times 

over. 

I also applaud the Committee for sponsoring a series of empirical 

research projects that would provide reliable data for a reconstituted ACUS to use in making recommendations to use in improvements in the administrative process. I think it is a great idea and 

the two projects already underway to be carried out by Professor 

West and by Professor Freeman should be invaluable to all of us. 

Let me say that I think there is one analog that I can recall the 

Senate Governmental Affairs Committee back in the late 70’s, 

maybe early 80’s, late 70’s, did a series of empirical studies that 

provided a very good basis for regulatory reform proposals in the 

80’s. 

I have provided the Committee with a lengthy menu of topics 

that I believe might form the research agenda of a revived ACUS. 

I group these topics into several major areas. 

First, the rulemaking process. The notice-and-comment rulemaking process is the preferred way for most agencies to make policy. However, this process has become much more complicated in 

the last 35 years due to additional procedural and analytical requirements, to the point where many commentators are worried 

that the process has become too difficult—or ossified, to use the 

two-dollar word. And agencies seem to be increasingly trying to 

avoid these requirements by making policy through less visible 

types of nonrule rules, such as guidance documents that are not 

subject to notice and comment. 

Therefore, I believe that one area researchers should pursue is 

the increasing complexity of the rulemaking process. For example, 

agencies are required to prepare about a dozen separate analyses 

in rulemaking. A study of the costs and benefits of these impact 

analyses and how they could at least be consolidated would be useful. 

60

I also agree with Mort Rosenberg that the systems for both 

White House and congressional review of agency rules should be 

examined to see what kinds of changes agencies have made in proposed rules, and how the length of the rulemaking process has 

been affected. 

There is also a renewed emphasis on the need for sound science 

in rulemaking. Last January OMB issued a bulletin that requires 

administrative agencies to conduct a peer review of, ‘‘scientific information disseminations.’’ This followed enactment in year 2000 of 

the Information Quality Act, which was inserted as an undebated 

amendment into an omnibus appropriations bill. 

The IQA requires every agency to issue guidelines to ensure the 

quality, objectivity, utility and integrity of information disseminated by the agency. 

These two OMB-overseen initiatives require significant agency 

implementation activities, but it is unclear at this point how they 

have affected the rulemaking process or whether they have provided any improvements in regulatory science. 

Another study I recommend is to find out what is holding back 

negotiated rulemaking. Since the mid-90’s its use has plateaued or 

even fallen despite its great promise. It would be useful to mount 

a major study of why it is faltering and what should be done to revive it. 

The other major change, as others have mentioned, to the rulemaking process has been the impact of the Internet, leading to 

what is called e-rulemaking. Since ACUS’s defunding, there have 

been enormous developments in this area especially in the technology. But the legal developments are moving more slowly. I have 

tried to catalog the legal issues that provide challenges to the twin 

goals of better information dissemination and increased public participation in the rulemaking process. 

These legal issues include such things as how to best integrate 

the data, docketing questions, archiving, copyright protection, security, and privacy just to name a few. 

Beyond the rulemaking process itself, there are a lot of broader 

regulatory issues that need study: regulatory prioritization, retrospective reviews of agency rulemakings to see how the actual costs 

and benefits match the predicted costs and benefits, alternative approaches to regulation and enforcement—something that my colleague Jody Freeman has written very excellent articles about. Use 

of waivers and exceptions—something we have heard a lot about 

after the Katrina hurricane—federalism issues, and agency structural issues, such as how should departments and commissions be 

structured. 

There are also some pressing issues of administrative adjudication. The ALJ program, Administrative Law Judge program, is still 

having problems with agencies seeking to use other types of hearing officers too often. Agency appeal boards are coming under scrutiny in the immigration, Social Security and patent and trademark 

areas. And mass adjudication programs like the Social Security 

Disability program are facing huge backlogs and caseload pressures. 

And finally, there are recurrent issues concerning judicial review. 

The agency-court partnership is of obvious concern to all three 

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branches of Government as exemplified by the Chevron case, in 

which the Supreme Court basically told the judiciary to defer to 

reasonable interpretations of statutes made by executive agencies. 

This simple dictum has spawned many cases concerning what this 

deference should consist of and to what types of interpretations it 

should be applied. 

There is no shortage of scholarly commentary on these cases. But 

there is an absence of consensus-building around this issue. The 

courts are struggling with these issues, and a renewed ACUS could 

help provide some focus for the courts. 

One other judiciary issue I will mention, which relates to attorneys’ fee issues. This is something that ACUS had a role in, in 

overseeing the rules under the Equal Access to Justice Act. But a 

recent Supreme Court decision has limited what is meant by the 

term ‘‘prevailing party’’, which allows parties to get attorneys’ fees. 

The impact of this decision should be of great interest to Congress, 

which could of course make its intent clear if it so wished. 

In conclusion, let me say that this is a short summary of a 

lengthy list. But even the full list is hardly a comprehensive menu 

of projects that could be tackled by a revived ACUS. It is a collection of issues that have accumulated in the past decade. The new 

ACUS chairperson and his or her counsel would obviously have 

their own priorities. But I hope that this listing does show the need 

for a revised and continuing focus on the administrative procedural 

issues that often get short shrift but can make or break the success 

of governmental programs. 

For 28 years ACUS provided a low cost center of research scholarship and consensus-building on administrative law within the 

Federal Government and I believe that now, through the efforts of 

you and your Committee, that ACUS has been reauthorized, it 

should be funded as soon as possible. Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Lubbers follows:]

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PREPARED STATEMENT OF JEFFREY S. LUBBERS


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Mr. CANNON. My sentiment about funding exactly. I have been 

sitting here trying to figure out how we in an era of reducing programs by number as opposed to improving Government through a 

process is more important. We are working on that. Thank you, 

and appreciate your comments. 

Professor Freeman. 

TESTIMONY OF PROFESSOR JODY FREEMAN,

HARVARD LAW SCHOOL 

Ms. FREEMAN. Mr. Chairman, Mr. Watt, members of the staff, I 

am delighted to be here today. As you know, I specialize in administrative law and I want to line up on your side in terms of being 

excited all the time about administrative law issues. If anybody 

wants to keep talking about it after the end of the hearing I will 

stay as long as anyone likes. It is hard to find friends. Administrative law and administrative process issues have a PR problem in 

this regard, and I think that is part of the reason. 

I have spent a lot of time trying to think about how to rename 

the field. Things like ‘‘Government, power and you’’ come to mind. 

But I want to focus on two points of my testimony. I have gone on 

at length in my written testimony, and I won’t repeat all of it. 

First, I want to express the absolute clarity of the need for empirical research on what Government agencies do and how well 

they do it. We know precious little. We don’t know much at all 

about the very important process of generating rules which, as you 

all well know, reach every corner of our economy and every aspect 

of social life. The high volume of rules coming out of agencies like 

DHS and EPA and HHS and DOT, these rules have the power, the 

effect of legislation. And yet we know almost nothing about how 

well we are doing this and how we might improve it. And there is 

a clear need, as this Committee well knows, for an informed approach to congressional law reform efforts. 

As you know, Congress passes a few hundred laws every year. 

The Supreme Court issues maybe between 70 and 100 cases every 

year. And yet we have thousands of rules coming from the Federal 

Government every year, and we have almost no—I feel safe in saying—only almost no careful empirical analysis of what agencies are 

doing. 

And this is a really serious, I think, problem because we can’t 

answer some essential questions. We can’t answer the question yet, 

how well is congressional review of agency rulemaking going? We 

can’t answer whether OMB oversight is effective and whether it is 

effective for some agencies or not. Some agencies may perform costbenefit analysis particularly well, some agencies maybe fairly poorly. We can’t answer the question, have we heaped on too many of 

these analytic burdens so that we are actually undermining the 

ability of agencies to promulgate rational, defensible, smart rules? 

Intuitively you would expect more oversight, more analysis, more 

information to help the rulemaking process. But the problem is 

that we don’t know how well we are actually performing. 

So we have only scratched the surface in starting to explore 

these issues, and I think a coherent, comprehensive empirical research project would be enormously helpful to your efforts in Congress to either avoid law reform that is wasteful and distracting 

77

and just a bad idea, and to target your law reform efforts and your 

money and your time on things, on measures that will be beneficial. There will be short term measures, longer term measures, 

but what you want I believe is a list of priorities and a sense of 

where you will get the most bang for your proverbial buck. And I 

think that is something that a revived ACUS that is appropriately 

funded can really contribute to. 

There are many myths about the administrative process. There 

is a figure that we all know about which circulated for years which 

was a figure that claimed that 80 percent of EPA’s rules got challenged, and administrators of EPA cited this and people cited it in 

congressional testimony. And the truth is there was absolutely no 

empirical basis for the figure. People just thought it was 80 percent. 

This is not the way one ought to go about law reform and planning for administrative decision making. 

There is a similar figure floating around, and I believe there is 

a preliminary study that CRS did—I may be wrong about that—

but there is a figure floating around that 50 percent of rules that 

get challenged upon judicial review get struck down. 

Some people believe it is as high as 50 percent. This is something 

the study I am doing is looking at, and the truth of the matter is 

we just don’t know. We don’t know how well rules fair when they 

get challenged. 

So I will be happy to talk a little bit about the study and give 

you a sense of it. We are at the preliminary stage, but this is the 

kind of thing we want to know about. Because it would be a big 

mistake and a waste of resources to conclude that so many rules 

are being challenged and so many rules have been struck down 

that the process isn’t working and Congress ought to intervene to 

fix it if in fact that is not the case. 

So we really need to know the answers to these questions. 

Just briefly, the study that I am conducting I think can help 

shed some light on at least how one project is going about looking 

at the judicial review of rulemaking and also I think shed a little 

bit of light on the cost involved. 

This study grew out of conversations between me and staff at the 

Congressional Research Service, in particular, Curtis Copeland, 

which of course stem from this Committee’s interest in sponsoring 

empirical work. And we focused on the fate of agency rules upon 

judicial review. This study is the most comprehensive study I am 

aware of. We look at a database initially of 10,000 cases but culled 

to 3,000 cases, of which we think there are about 20 percent involving rulemaking, challenges to rules. So we think we are going to 

end up with about 600 cases, which is a very big database of cases, 

and every one of them is being coded in the most deliberate manner so that what we can pull out of this data would be preliminary 

inferences, preliminary answers to questions like how many rules 

do get struck down across all of the 11 circuit courts? How often 

do interest groups of a particular type succeed in challenging rules? 

Does it make a difference what agency promulgated the rules? Do 

some agencies always win, do some agencies always have their 

rules struck down? 

78

We don’t know the answers to these questions, and we are coding 

the data for even more than that. So if we want to ask even more 

detailed questions; for example, how do you do across the circuits? 

How does the Fifth Circuit compare to the First Circuit? Does it 

matter which panel of judges you come before in terms of the rate 

at which they strike rules down? 

All of these questions we are asking and we should be able we 

hope to infer something here as well about how closely judges are 

really reviewing rules because we are going to code the reasons 

why the rules are struck down, the basis for challenging why they 

are struck down when they are struck down. So we should be able 

to tell something about whether the courts are reviewing rules with 

a very serious, rigorous kind of approach which we would call 

‘‘hard look review’’ or whether they are giving these rules rather 

a soft glance and not being particularly rigorous in reviewing them. 

So I am happy to talk more about that study. I will tell you 

something about what it costs, and this leads to this problem of incentives to do this kind of research. I will be very honest with you, 

law professors really don’t want to do this. And the reason is not 

because we are not interested but you don’t get tenure for it. These 

kind of empirical studies give us very few rewards. Luckily I have 

tenure. I can just be interested in it. But without incentivizing this 

kind of work that means without a body like ACUS that can draw 

on academic expertise and tempt academics by saying—guess what, 

you can interact with some of the best minds in practice, some of 

the best minds in agencies, you will have lots of access to this collaborative, cooperative exercise, without incentives—it is going to 

be very hard to generate this kind of work, the work that you need 

to inform your efforts. 

The other thing I want to mention about empirical work is it 

takes time and money. It is slower going than we would like. It is 

hard to do. My project involved an empirical expert who directs empirical research at UCLA School of Law where I formerly was a 

professor before I joined Harvard. You need someone with that 

kind of statistical expertise to do this work so it’s reliable and credible for your purposes. I have a team of four research assistants. 

These people are very underpaid, and I need even more of them to 

do this properly. The project is probably easily costing $10,000 for 

the first cut through the data, and I imagine it will get easily to 

$20,000, and the generosity of the Dean of the Harvard Law School 

is making this possible. There is no other source of funding to do 

it. 

As you well know, Mr. Chairman, it is very hard to go out to 

foundations or anybody and say I am doing a fascinating project on 

the administrative process, even though it is about the way the 

American Government works and how well it works. 

Finally, my second big point and my most important point I 

think here for your purposes may be to reinforce the need to invest 

in ACUS. A small investment is going to go a very long way. This 

is a body that is going to be able to make recommendations in a 

way that no other body can. The American Bar Association doesn’t 

have the legislative clout and the credibility with agencies that 

ACUS will have. There is a Center for Rulemaking that Professor 

Kerwin has initiated at the American University. It is a very interVerDate 0ct 09 2002 12:57 Feb 22, 2006 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6601 G:\WORK\COMM\110105\24282.000 HJUD1 PsN: 24282
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esting center, but it doesn’t have the resources. It doesn’t have the 

ability to do the kinds of things that ACUS can do. And as Justice 

Scalia noted very clearly, there is a big difference when ACUS 

comes to agencies and says we want to study you. They perceive 

that as potentially helpful, and not as something that will potentially be an obstacle that will get in their way. 

I really believe that ACUS is a bargain for Congress. And as you 

mentioned, Mr. Chairman, as other panelists have mentioned, it is 

clear that funding ACUS to a tune of the several million dollars 

should not be seen as in competition with other efforts that are 

very pressing in the Federal Government. ACUS can help to improve our efforts, as you mentioned, in terms of disaster relief response and also in terms of security, national security concerns. If 

you make Government work better and you figure out ways to improve it, you’re going to assist in all those endeavors. It is well 

worth the investment. 

I just want to add to Professor Lubbers’ long list a few ideas for 

what I believe is really the next generation of ACUS. Ten years is 

a long time. Things have changed since ACUS was around, and 

there is, as Professor Lubbers has mentioned, a backlog of work to 

do. But in particular a few things have developed that I think are 

very worthy of ACUS’s time. One has been mentioned here today, 

privatization and contracting out. We really do not have administrative procedures adequate to guide privatization and contracting 

out. Private service providers are increasingly performing functions 

we have traditionally thought of as public, including functions associated with the military functions, prisons, national security. And 

the truth of the matter is most of these actions typically fall outside of the administrative law process and protections. And we 

need to think carefully about that. ACUS can spearhead in a bipartisan way a project to think about that. 

Second, I do want to mention it is the 10th anniversary of the 

Small Business Regulatory Enforcement Fairness Act and there 

have been concerns that small businesses are not the ones benefiting from getting an early look at these rules, but rather that, potentially, big business is driving the small business agenda. It is 

something that Congress may be interested in, something certainly 

that ACUS could look at. 

And finally, where ACUS could direct further research, as again 

has been mentioned here today and I want to reinforce it, is the 

reconciliation of the administrative law principles of fairness and 

openness and transparency and effectiveness with the clear imperatives of national security. This was not on the radar screen 10 

years ago, and it is front and center on the radar screen right now. 

There are agencies in the Federal Government that are not subject at the moment to the kind of rigorous cost-benefit analysis and 

the kind of other requirements that we impose on—that we normally impose on the process. And how are we going to reconcile the 

need to protect our national security while at the same time not 

abandon the norms and principles that inform administrative law? 

I think that’s a huge challenge. I don’t know the answer. 

But we are operating with a 60-year-old document, the Administrative Procedure Act, and we need to think very carefully about 

80

where and how to engage in reform. And I think ACUS will be well 

worth a small investment of Congress’ time and money. Thank you. 

[The prepared statement of Ms. Freeman follows:]

PREPARED STATEMENT OF JODY FREEMAN

Mr. Chairman and Members of the Subcommittee: 

Thank you for the invitation to testify at the Oversight Hearing on the Administrative Law, Process and Procedure Project. 

I am a Professor of Law at Harvard Law School. I specialize in administrative 

law and environmental law. My scholarship focuses on congressional delegation of 

authority to agencies, inter-agency coordination, public-private collaboration, dispute 

resolution, regulatory innovation, and privatization. I am the Vice-Chair of the 

American Bar Association Administrative Law Section Sub-Committee on Dispute 

Resolution as well as the Vice Chair of the Sub-Committee on Environmental Law 

and Natural Resources. I am the current Chair of the American Association of Law 

Schools (AALS) Executive Committee on Administrative Law. 

My testimony focuses on two points: (1) the need for empirical research to support 

congressional law reform efforts in administrative law; and (2) the benefits to be 

gained by funding the Administrative Conference of the United States (ACUS) to 

produce and sponsor such empirical research. I will also describe the empirical 

project on agency rulemaking that I have undertaken in consultation with the Congressional Research Service (CRS), a project that I hope will further this Subcommittee’s Oversight Plan and which might help to inform other empirical studies 

sponsored by ACUS, should it be funded. Although I will confine most of my remarks to the topic of rulemaking, the scope of what ACUS can and should undertake to study is broader. I will briefly touch upon some other matters ACUS might 

examine if it is funded, but a more developed proposal for the agency’s agenda will 

be offered by my co-panelist, Jeffrey S. Lubbers. 

I. THE NEED FOR EMPIRICAL RESEARCH TO ASSIST CONGRESSIONAL LAW REFORM

As this Subcommittee has noted, Congress needs more information on rulemaking 

and other aspects of the administrative process in order to focus its law reform efforts. We know precious little about the administrative process. Consider: Each year, 

Congress enacts a few hundred laws, the Supreme Court hands down fewer than 

a hundred decisions, and regulatory agencies promulgate several thousand rules. 

Yet while the legislative and judicial processes are the object of very close scrutiny 

and rigorous empirical analysis, the rulemaking process attracts strikingly little 

scholarly attention. Are rules effective? Are they produced in a timely manner? Are 

they produced with sufficient public input? Are they cost-effective? Do congressional 

and executive oversight mechanisms improve rules? Are rules challenged frequently? Do most challenged rules survive judicial review? We simply cannot answer these questions. The dearth of empirical research on rules is especially problematic given the importance of rulemaking as a vehicle for social and economic policy. Many rules have very significant social and economic effects. The agencies that 

produce a high volume of rules, including the Department of Transportation, the 

Environmental Protection Agency, the Department of Homeland Security, and 

Health and Human Services affect virtually every corner of the U.S. economy and 

every aspect of social life. Yet our empirical knowledge of the effectiveness of their 

rulemaking processes remains woefully thin. 

Without the benefit of reliable empirical research, Congress might waste both 

time and money on law reform efforts that are neither necessary nor effective. It 

would be a mistake, for example, to add more oversight mechanisms to rulemaking 

if the existing measures, such as cost-benefit analysis and peer review, work well. 

Intuitively, one would expect these additional steps to improve the quality of rulemaking, yet we cannot say with confidence whether or not this is true. Among the 

questions to be investigated are: How well do agencies perform these analyses? Do 

these oversight mechanisms improve the quality of rules? Do they slow down the 

rulemaking process unnecessarily? Are they a net benefit or a net cost? While we 

have some preliminary evidence on these questions, scholarly work to date has only 

scratched the surface. 

Moreover, to the extent that scholars do study the rulemaking process, the majority of attention focuses on ex ante processes in rulemaking (such as cost-benefit 

analysis). There is virtually no ex post empirical study of the rules themselves. To 

put a finer point on it, we do not know how well rules are implemented and whether 

they achieve their goals, and we lack mechanisms for feeding such ex post evaluation back into the rulemaking process. 

81

Indeed, we have not even agreed upon what measurement tools we would use to 

answer the most basic questions. For example, how would we answer the question, 

Are regulatory agencies getting better at rulemaking? Would we look to see if the 

agency is doing a better job of setting its priorities? Whether it is issuing rules faster than it used to? Doing a superior job of analyzing scientific data? Obtaining more 

feedback about the effect of its rules, and integrating it into decision making? Congress might be interested in knowing the answer to these questions before it undertakes reform. Perhaps agencies that are less successful at one or more of these steps 

might be encouraged to adopt the ‘‘best practices’’ of the more successful agencies. 

Congress might wish in some instances to require the adoption of certain practices 

across the board. With only anecdotal and impressionistic evidence, however, Congress would simply be guessing at what works. 

There are many myths about the administrative process that persist for years, despite their dubious origins. For example, scholars and practitioners of administrative law long subscribed to the widely-held belief that the vast majority—80 per 

cent—of regulations issued each year by the Environmental Protection Agency 

(EPA) were challenged in court. This statistic was relied upon by academics, legislators, and journalists, quoted by successive administrators of EPA, and cited before 

congressional committees as truth. The only problem was that the statistic had no 

factual basis. Indeed, one empirical study investigating its accuracy determined that 

no more than 35 per cent of the EPA’s rules were challenged. This rate of challenge 

is still significant, and might justify law reform efforts aimed at reducing legal challenges to rules. Yet the example ought to make us cautious. Some concerns about 

the administrative process might be overstated, and some understated. There may 

be similar mistaken assumptions about how many rules are invalidated upon judicial review. Some believe the figure is as high as 50 per cent, but we don’t really 

know. It would be a mistake to conclude, without knowing the real rate, that Congress needs to intervene to address this perceived problem. Only with good data can 

Congress choose wisely where to invest its resources, and prioritize which law reform efforts are most needed now, and which might be longer-term efforts. 

In its Oversight Report, this Subcommittee has already identified issues that require further study, including (1) public participation in the rulemaking process; (2) 

Congressional review of rules; (3) Presidential review of agency rulemaking; (4) judicial review of agency rulemaking, (5) the agency adjudicatory process; (6) and the 

utility of regulatory analysis and accountability requirements; and (7) the role of 

science in the regulatory process. I agree that these are important areas for examination and, after discussions with the CRS, I agreed to undertake an empirical 

study of one of these issues: the judicial review of rulemaking. I describe the study 

below. 

II. DESCRIPTION OF FREEMAN/DOHERTY EMPIRICAL STUDY: JUDICIAL REVIEW OF RULEMAKING

Origin of the Study 

This study grew out of conversations with the CRS about this Subcommittee’s interest in empirical work on the administrative process. Among the important subjects CRS identified for scrutiny at the behest of this Subcommittee is the fate of 

agency rules upon judicial review. I agreed to do an empirical study on this topic 

together with Joseph Doherty, Associate Director for Research in the Empirical Research Group at the UCLA School of Law, and with the help of a team of research 

assistants at Harvard Law School. We expect to have preliminary results in January 2006 and a final report by the end of August 2006. 

Purpose of the Study 

The goal of the study is to investigate what happens to rules upon judicial review, 

including the rate at which they are struck down; the reasons why they are struck 

down or upheld; and any trends in the cases that might be attributable to differences in (1) the agencies generating the rules; (2) the litigants challenging them; 

or (3) the Circuits hearing the cases. While this study is only a beginning, we expect 

it to yield useful data on what is actually happening to agency rules after they are 

promulgated and once they are challenged. 

Database 

We are using a comprehensive database consisting of all federal appellate cases 

involving administrative agencies (not just challenges to agency rules) from 1991 to 

2003. The database consists of 3,075 cases that were decided in the Circuit courts 

during this thirteen-year period. The database was culled from an initial database 

of 10,000 cases, which was collected and partially coded by the Administrative Office 

of the Courts. We obtained the original database with the assistance of the CRS. 

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To my knowledge, this database is unique in its breadth and in the time span it 

covers. 

Preliminary Report 

We are in the process of identifying those cases in which an agency’s conduct in 

promulgating a rule was challenged. This includes both formal and informal rulemaking. Preliminary analysis suggests that approximately 20 per cent of the cases 

will be identified as rulemaking cases. Thus, we expect to analyze approximately 

600 cases of rulemaking, a significant number and far in excess of the number of 

cases that have been examined to date. We will read every case in this group, and 

collect highly detailed information about who challenged the rule, the basis for the 

challenge, and the reasoning behind the court’s decision to uphold or overturn the 

agency’s action. This information will be collected and entered into a database. 

Analysis of the data will permit us to make inferences about general characteristics 

and trends in the courts’ reasoning. 

Relevance 

Why does this research matter? Right now, we simply do not know whether agency rules are generally upheld or not, or whether some agencies are more likely to 

have their rules struck down compared to others. Nor do we know whether challenges brought by certain types of groups are more successful than those brought 

by others. Moreover, we lack comparative knowledge about different Circuits i.e., 

whether outcomes vary across the Circuits, or indeed across specific panels of particular judges. In addition to shedding light on these matters, the study should enable us to say something about the extent to which courts are taking a ‘‘hard look’’ at agency rules (meaning that courts closely examine the rulemaking process), 

versus a more cursory ‘‘soft glance’’ kind of review (in which review is less exacting). 

Without answers to these questions, we cannot begin to answer the broader question of whether the rulemaking process is producing effective rules (or at least rules 

resistant to judicial invalidation), and whether judicial review is performing its intended function. 

III. THE BENEFITS OF FUNDING THE ADMINISTRATIVE CONFERENCE

OF THE UNITED STATES

Funding ACUS requires a relatively small investment but has the promise of big 

returns. I echo what this Subcommittee heard in the 108th Congress from Justices 

Scalia and Breyer, among others, about the unique role that ACUS has played in 

the past by serving as a remarkably productive and bipartisan ‘‘think tank’’ for administrative law reform. I agree with the consensus view that at past funding levels, 

and at funding levels being considered by the 109th Congress, ACUS was and will 

continue to be a bargain. Its key strength is in bringing together academics, experienced practitioners, and agency officials—people of great distinction from both the 

public and private sectors—to think carefully and systematically about sensible good 

government reform. As Justice Scalia only half-jokingly pointed out, many of these 

people charge very high billable rates; Congress gets their help for free. 

As I argued above, and as this Subcommittee well knows, there is an obvious need 

for empirical study of the administrative process, and ACUS is the institution best 

situated to generate and sponsor high quality research. The need for empirical research, particularly in the area of administrative law, is increasingly being recognized. In July 2004, the American University launched the Center for the Study of 

Rulemaking, which has as its mission examining and improving the processes used 

by government agencies to develop regulations. The Center has organized two conferences: one on e-rulemaking and another on the state of rulemaking in the federal 

government. While not devoted solely to empirical research, the Center has encouraged such study. Likewise, the American Association of Law Schools (AALS), a nonprofit association of 166 law schools, has set ‘‘empirical scholarship’’ as the theme 

of its annual meeting in 2006. I am Chairing the Administrative Law Section meeting this year at the AALS and, in line with the overall theme, we are focusing on 

empirical study of administrative law. But this will be a one-time event. 

The shift toward empirical study—what Roscoe Pound described as ‘‘law in action’’—may be ascendant, but it is neither coordinated nor coherent. While they can 

partner with ACUS, neither the Center for rulemaking, the AALS, the Administrative Law Section of the American Bar Association (ABA) nor any other body can by 

itself organize and direct a program of empirical study of administrative law issues. 

Moreover, as Justice Scalia testified before this Subcommittee last year, agencies 

view any review by these non-governmental bodies with suspicion. ACUS, on the 

other hand, is a ‘‘government insider,’’ with legislative clout. Justice Scalia described 

the difference as follows:

83

I was Chairman of the Ad. Law Section for a year, and there’s a big difference 

between showing up at an agency and saying, ‘‘I’m from the American Bar Association, I want to know this, that, and the other,’’ and coming there from the 

Administrative Conference which has a statute that says agencies shall cooperate and provide information. It makes all the difference in the world.

Only ACUS is positioned to sustain these studies over the longer-term, and to 

shape a coherent research agenda in coordination with Congress. 

IV. THE ADMINISTRATIVE CONFERENCE’S AGENDA

This Subcommittee has already identified research questions that it would like to 

see ACUS pursue, and other witnesses on today’s panel will have more to say on 

that topic. While I would not characterize the administrative state as being in crisis, 

it is operating with a sixty year old manual—the Administrative Procedure Act—

and there are critical areas in need of closer examination and reform. Jeffrey S. 

Lubbers, in his submissions, has provided a list of issues that require further study, 

and I am in full agreement with him. I wish only to underscore that I believe that 

ACUS could be the incubator for the next generation of administrative law research 

and I would suggest three other research areas on which it might focus. 

The first is privatization and contracting out. Private entities increasingly perform what we traditionally view as government functions, including some functions 

associated with the military, prisons and national security. Private service providers 

have contractual obligations vis-a`-vis the government, but their actions typically fall 

outside of administrative law protections, process and regulation. How, if at all, 

should we conceive of these actors in administrative law? Is there a need for administrative law reform to address the issues raised by contracting out? This is a topic 

of considerable relevance at the moment, and it will only become more important 

over time. 

The second area of research relates to the impact of the Small Business Regulatory Enforcement Fairness Act (SBREFA). In 1980, Congress enacted the Regulatory Flexibility Act (RFA), mandating that federal agencies consider the impact of 

regulatory proposals on small entities. The RFA was strengthened in 1996 by the 

enactment of the SBREFA. In the context of rulemaking, SBREFA grants small 

businesses the opportunity to see rules at a very early stage, before they are even 

proposed. While this seems to be a fair accommodation in principle, there is at least 

some anecdotal evidence that the process may not be working well and may even 

be abused. While small businesses may ostensibly be fronting the early review of 

rules, big business may in fact be driving the process behind the scenes. Next year 

is the tenth anniversary of SBREFA and it is an appropriate time to examine its 

effectiveness. ACUS could inquire into SBREFA’s implementation and determine 

whether Congress’ intended purpose of assisting smaller entities is, in fact, being 

met. 

Finally, the third area where ACUS could direct further research is the reconciliation of the principles of administrative law with the imperatives of national security. Like other agencies, the various agencies within the Department of Homeland 

Security (DHS) undertake administrative processes and promulgate rules. However, 

unlike the other agencies, the DHS has not, perhaps understandably, been subject 

to commensurate scrutiny or cost-benefit analysis. How are the administrative law 

principles of transparency and accountability, fairness and effectiveness, to be reconciled with national security interests? Can the Administrative Procedure Act, 

which is now 60 years old, deal with contemporary matters of national security? 

These are not easy questions to answer but ACUS could provide a forum for their 

consideration. 

These are among the next generation of issues that ACUS might profitably explore, along with coordinating empirical study of how well the administrative state 

currently performs its functions. A small financial investment in ACUS could lead 

to significant cost savings down the road by directing Congress to high priority 

issues that are most in need of reform, illuminating opportunities where Congress 

can get the biggest bang for its proverbial buck, and directing Congress away from 

reform measures that may be unnecessary. 

This concludes my remarks. I would be happy to take any questions that you 

might have.

Mr. CANNON. Thank you. I just want you all to know that I’ve 

made all these arguments about funding ACUS, and I think we’re 

making progress there. We’ll be submitting written questions that 

I think will take the bulk of what I would otherwise do. I’d like to 

84

take just a few moments and talk about where I’d like to see us 

go. 

You know, the reason we—the reason the only program, or the 

only program that was actually defunded was ACUS is because 

people didn’t understand it. They didn’t share our heartbeat over 

what it does. And so we are spending some time trying to raise the 

level of interest in that. 

And it was a bipartisan elimination. I mean, nobody knew much 

about what it did except those people who really understood, and 

they were not persuasive enough. 

And so one of the things that I hope, as we proceed in this 

project, as I mentioned earlier, that we have, is we try and reach 

out to other interest groups. And there are a lot of people out there 

who care a lot about it if they thought there was a way to make 

some progress. And so I think it’s our duty, as part of the project, 

to help look at those groups out there and draw them in. You do 

that by contacting them and by sending them an e-mail with a link 

and having them pop the link and then having a large corporation 

task a staff attorney or someone to follow the progress. 

And most corporations are spending a great deal of money on 

these issues. And as you tap into them and tap into the interest 

groups like the small business groups and the Chamber of Commerce and others, you end up with the ability to reach out and actually get people engaged in the process. And that means the process will be better, but it also means that we may actually be able 

to get something done. 

And so, I would, since we are all going to be working together 

on this over a long period of time, if I might suggest, you have 

WIKIs and blogs, you have Web sites and e-mails, and we need to 

be using sort of these tools that are out there to promote what we 

are doing. And, in fact, we need to do something, as you said, Ms. 

Freeman, about changing the name, because APA puts you to sleep 

if you could remember what it stands for. But something like, ‘‘The 

Government power and you’’—that does touch people and it especially touches people who have deep pockets and who care about 

this stuff, but who have grown inured to the enormity of what’s 

happening to them partly because the issues have been partisan. 

If you’re talking about environmental issues, you have people 

who are pro and con before the issue is on the table. And so you 

can’t say what is the process that leads us to an appropriate conclusion. And there are some people who will actually say that they 

specifically view the world that way. They don’t want it to be 

touched because walking on public lands or stopping categorical exclusions for drilling, those things are good, regardless of the cost 

and the outcome in a world where technology has changed. 

We just had over the weekend a news report that the local gas 

company has been awarded a 20 percent increase in its costs and 

what people pay. And they met with me the day before that happened and said it was going to be 30 percent. So you—now you 

have a bunch of guys say 20 percent, how do we do it on 20 percent? And what they have to do is come up with more oil and gas. 

They have several oil wells that have been completed, but not 

ready to produce because they are waiting for a signature by a bureaucrat in a system. And at the same time they believe they 

85

should get categorical exclusions which will allow them to drill 

enough wells between now and next November that prices could 

come down by 30 percent in November. And we are doing that in 

a context of people arguing at a level that is absolutely unrelated 

to either the production of more gas and, therefore, the lowering of 

costs or to the effectiveness of drilling when the technology is so 

radically different that we are not regulating the same thing that 

we produce the rules for. 

So this is a remarkably important time, and we are going to 

produce more oil and gas. The question is, do we do it thoughtfully? 

And what we do as a group here is likely to be a significant portion 

of that. 

So I am going to turn the time over to my Ranking Member in 

a moment, but I just want to thank you all for being here and tell 

you that this, I think, is about as important a thing as can be done 

in Government because we can regulate much more efficiently. We 

can accomplish our objectives without the kind of costs that we are 

imposing, and human beings and other species that share our 

world can enjoy it to a much better degree if we are faithful and 

articulate about what our goals are and how we achieve them than 

if we just live with an old structure that is in many ways probably 

not serving us very well. 

So I yield back my time. And Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. I couldn’t help but have 

my mind wonder at one point during this exciting testimony and 

your exciting response to the testimony, that a new stenographer 

came in the middle and she’s probably wondering what in the 

world is a WIKI. You ought to at least try to explain that to her 

so she can get it in the record. I mean, there was a different reporter here. 

Mr. CANNON. W-I-K-I. And Google it, G-O-O-G-L-E. I am sure 

you know what that is. 

Mr. WATT. Don’t make it worse. 

Mr. CANNON. It’ll be great. 

Mr. WATT. She was having enough trouble following your Utah 

accent without all these extraneous words. 

Let me start by asking a global question, and then I want to just 

go down and ask each one of you a question or two that got 

sparked by your exciting testimony. 

Global question: I take it that all of you would agree that this 

project in which you all are engaged is not a satisfactory substitute 

for ACUS. 

Ms. FREEMAN. As somebody conducting one of the few studies ongoing, let me say, absolutely not. As much as I appreciate the enormous help of the Congressional Research Service and their tremendous ability to help me do this, the truth is, it is very ad hoc. It 

depends on what a few people are interested in. This is not a comprehensive, well-thought-out exercise by those of us who are picking it up on the go. We need a body to say, here are the priorities. 

Mr. WATT. I thought that would be the—I guess that’s kind of 

the uniform response of all of the witnesses. 

Mr. LUBBERS. I think the results of the project could provide 

some good raw data and empirical information that an ACUS could 

use. 

86

Mr. WATT. I have got a question, a specific question, about that 

that I’ll come back to in a little bit. In light of your response, I 

think I will take a more frontal assault on the Contract with America that I took——

Mr. CANNON. It preceded me. 

Mr. WATT. That, I took a gentle swipe at in my opening statement. 

I think, actually, doing away with ACUS is probably the most 

dramatic demonstration that the Contract was political, rather 

than practical. I mean, I just can’t think of a more dramatic example of it, so I’ll let that go. 

All right, I’m going on to my list of questions, and I’ll just go 

down the questions, and maybe if you’ve got a thought or two about 

these questions that you want to do quickly, for each one of you—

but it might be helpful to have you be more thoughtful and address 

these questions maybe as a follow-up to today’s hearing because 

some of them are kind of more long term. 

Mr. Rosenberg, the question I had of you is, how systematic is 

the outreach in the project? Has the project itself become more of 

an inside game for inside players? 

In my role as Chair of the Congressional Black Caucus, one of 

the things I’m always concerned about is whether there is systematic or any effort to reach out to historically black colleges and universities, for example, to do any of these research projects. It is refreshing to see one female here on the panel, but I’m always wondering whether there is any diversity going on in any of this research or whether it is all an inside game. That was my question 

to Mr. Rosenberg. 

Mr. Mihm, you listed a series of things that you refer to as areas 

in which congressional action may be required—weaknesses, transparency, technology, impact. I might suggest that some more specific examples of that, of those areas, might be worthwhile to give 

us a context. 

Maybe that’s included in your testimony, your written testimony; 

maybe it’s not. As the Chairman said, one of the reasons you all 

went on and on and on beyond the 5 minutes was because probably 

neither one of us has read, had the opportunity to read your testimony. 

Mr. Lubbers, a more concise statement of how ACUS has been 

missed and in what areas. You got to that issue, kind of indirectly 

by listing a bunch of things that the new ACUS might want to 

focus on, but there are probably some very dramatic examples that 

could be pointed to within the last 10 years of mistakes or things 

that would not have happened had ACUS been in existence, or possibly would not have happened had ACUS not been—it seems to 

me that that would be a good laundry list of things. 

I’m trying to build a case for ACUS. I forgot to give you my 

mantra at the outset, ACUS ASAP. What about that? You like 

that? 

Mr. CANNON. We’re going to have to act like Senators and then 

figure out something that has meaning for that acronym. 

Mr. WATT. ACUS ASAP. That was kind of my overall mantra. I 

forgot to give it to you at the beginning. Okay, I’m almost through. 

87

I absolutely agree with Professor Freeman that we don’t have a 

clue of whether our Federal Government agencies and/or the rules 

and regulations they promulgate are being effective or not, or how 

they could be improved. And I want to second that emotion. 

I am especially interested in some of the things that you mentioned about the next generation of ACUS privatization, and contracting out is a major, major concern of ours when we start contracting out fighting a war. And there is some excellent research 

out there about how much of the Iraq war is being contracted out 

to private contractors, security providers, the whole effort in Iraq 

which—none of which is subject or little of which—is subject to any 

kind of governmental oversight or administrative oversight or rules 

or regulations. And then when some of these private contractors 

get captured or taken as prisoners, we don’t even know whether we 

have the responsibility to send the military in to rescue them or 

whether that is a private obligation. 

Even down to that level, when we start contracting out the interrogation of prisoners—this has been a major issue of ours domestically for years. When it comes to privatization of prisons, whether 

the private contractors are subject to the same set of responsibilities that the Government was subject to is a major issue, and I 

hope you’ll elaborate on that. 

And then, of course, the issue that I raised in my opening statement, of reconciling these imperatives of privacy and transparency 

with national security is a major issue that I think we’re just missing the boat on without ACUS doing systematic research. Not that 

the episodic research that you all are doing under the project is not 

good, but this needs to be systematic; and I want to join the Chairman of the Subcommittee in saying, it may not be exciting, but it 

is absolutely critically necessary. 

Might not be politically something that people want to spend 

money on, but when we start—what is it my mama used to say 

about saving, spending a little bit now to save more, penny wise 

and pound foolish, I think was the phrase she used. It is a dramatic demonstration that a lot of these suggestions that were implemented in the aftermath of the Contract with America have 

been just penny wise and pound foolish, in my opinion. 

So I won’t get off on that. I didn’t mean to politicize it. 

Mr. CANNON. Would the gentleman yield? 

Mr. WATT. I’m going to yield back. 

Mr. CANNON. Well, don’t yield back. 

Mr. WATT. Sure, I yield. 

Mr. CANNON. You’ve asked several questions of the individuals. 

Can I just add another question to that? And probably, Professor 

Lubbers, you are best equipped, but others may want to comment. 

Is it possible for ACUS to operate with private funding? I am just 

thinking, due to the legislation, it’s a Government agency almost, 

or it’s a sort of private thing. I don’t think it’s a not-for-profit, but 

there are many agency groups out there, I think, who would like 

to see it operate, and I don’t know that we’re going to be able to 

do much this year. 

Mr. WATT. I’ve got an idea for you. 

Mr. CANNON. Yield back. 

88

Mr. WATT. I’ve got an idea for you. It’ll cut down on regulations 

if you just have each agency’s budget assessed when they do a regulation or a rule to fund ACUS. 

Mr. CANNON. As a Republican, I agree with that. 

Mr. WATT. Get the money out of the various agencies. 

Mr. CANNON. I get the sense you’re trying to revive a new Contract with America from the Republican point of view. I got elected 

during the period of reaction to the Contract with America. I was 

only one of two Republicans who beat incumbent Democrats, 

whereas I think we lost eight or—— Mr. WATT. Not enough. 

Mr. CANNON. Thank heavens. 

Anyway, I yield back to you; and I think you have asked your 

questions. 

Mr. WATT. If there are any quick responses to any of the things 

I have raised, but I, I mean, maybe some more thoughtful, longerterm written responses would be just as well. So go right ahead if 

you all want to comment. 

Mr. ROSENBERG. My wife last night asked me what in the world 

I was doing working so late, and I explained to her, you know, 

what we were doing, and about ACUS and its reauthorization with 

no funds. She looked at me and said why didn’t they do the Lance 

Armstrong solution. There must be enough wonks out there who 

will buy a bracelet, red, white and blue, you know, for a buck each. 

Maybe there are three million of them out there, we can get it 

going into next term. 

With regard to your question——

Mr. WATT. Is this a policy wonks bracelet? Is that what you’re 

advocating for? 

Mr. ROSENBERG. Yes. A policy wonks bracelet. There should be 

three million of them out there for at least 1 year’s work. 

These are just preliminary thoughts. What is the selection process? It isn’t systematic. We are on the team and are familiar with 

various administrative law issues, administrative practice issues; 

and the way we know them is reading other—what people have 

done, things that have been published by people wherever they are. 

One of the things that I was hoping is that this hearing would 

get some notice out there in the industry, where the wonks would 

say, I have an idea, I’m willing to do that, I have the resources, 

or whatever it may be, and would come to us. We’re trying to find 

people in various areas and encourage them. 

The difficulty, as Professor Freeman has noted, is that whatever 

the university, graduate school, law school, whatever it is, unless 

there is some funding, they’re not going to be able to do it. It takes 

time to do some of these things. 

Not all these projects that we’re looking at by the way, are mega 

studies; some of them are mini studies. One of them involves consent decrees. Your Committee is dealing with a big, broad issue on 

consent decrees. But one thing it doesn’t deal with is a problem 

that—or at least it’s an anecdotal thing that I have come across—

is that there’s been a trend in the last 5 to 7 years of agencies 

whose rules are being challenged, are entering into consent decrees 

about those rules and changing the substantive thrusts of those 

rules. And under the law today, the only way those rules can then 

89

be changed is by Congress passing a law. It’s set in stone, and it 

is undermining public participation. 

Now, that is a mini study. We want to—what I’m trying to do 

is get people who have written about consent decrees in this area 

to look at them very carefully and say, is this a real problem, is 

this a trend in the way the administrative agencies are evading 

public participation and being able to change the rules themselves? 

And once that is done, maybe there can be a solution with regard 

to—well, H.R. 1229, the Federal Consent Decree Fairness Act, tries 

to do it by limiting the duration of any consent decree. I don’t think 

that will particularly work with this, but that would be one part 

of the solution. 

So they have a mini thing. And what you do is, you try to find 

somebody out there who has written about consent decrees and 

knows about this process and gets it, wherever they are, you know, 

whatever it is. We will try to make this as diverse as possible, but 

we have—it’s difficult enough finding people like Jody Freeman, 

you know, to do this kind of thing. 

Mr. WATT. Are you all funding—who’s funding even the basic 

part of this? Are there grants? 

Ms. FREEMAN. Harvard Law School. 

Mr. WATT. Harvard Law School has taken your project completely. So you’ve got to go ask somebody to do something for free. 

Mr. ROSENBERG. Yes. But there is a partial funding of this public 

participation study at Texas A&M. It’s coming from CRS, which 

has links with about four or five graduate schools, universities, 

where they have, where—this is a unique funding thing. Most of 

them are to help CRS do various studies. This is the first one in 

which we are aiding a Committee and funding, you know, the eight 

graduate students, you know, to do this massive study of——

Mr. WATT. But think about what we’re saying here. That’s almost guaranteeing a lack of diversity because the people who are 

less—the institutions that are least likely to be able to pick up that 

kind of economic burden are the ones that are just not going to. I 

mean, an HBCU is not going to be able to do that. Harvard can; 

a small university can’t. A big university may be able to, if, you 

know, so you’re almost guaranteeing a lack of diversity through 

this project, I think. 

Anyway——

Ms. FREEMAN. And, Mr. Watt, the problem’s even worse because 

it is very unstable and unreliable, so even if you can pick up some 

funding for a little while, it gets cut off when you’re mid-project. 

Mr. MIHM. Mr. Watt, in the question that you directed to me, I’m 

going to take you up on your kind offer to provide a more complete 

and perhaps thoughtful answer for the record. But at least three 

things right off the top in terms of statutory changes that Congress 

may want to consider. 

One, as I mentioned earlier, was revisiting the ‘‘significant economic impact on a substantial number of small entities’’ and providing—this isn’t a regulatory flexibility act, providing either some 

additional guidance to agencies on what that means, or more likely, 

I would think, requiring some consistent guidance that be provided 

on that so that we can get comparability across agencies; or when 

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it’s not comparable, make sure that it’s done for known reasons, 

rather than just kind of idiosyncratic reasons. 

The second is that I think that we’ve published in the past that 

we think that Congress ought to revisit the Inflation Adjustment 

Act which allows agencies to increase their civil penalties to capture inflation. There’ve been problems with that both in kind of the 

technical aspects, some technical aspects of that, as well again as 

the need for some cross-cutting guidance across Government. We 

found that as a result of that lack of guidance that there was some 

inconsistency in how agencies work. 

Mr. WATT. Are they required to increase them? Or some of them 

are doing it and some of them are not? 

Mr. MIHM. They are required, and some are doing it and some 

are not. 

Mr. WATT. But not consistently in the way they do it, is what you 

are saying? 

Mr. MIHM. Right. Yes, sir. 

And then the third and perhaps this is actually building on an 

ACUS recommendation to go back and look at APA, and in particular with, you know—APA, as you know, allows for good cause 

an agency not to have a notice of proposed rulemaking. That goodcause definition has been expanded and stretched and is perhaps 

at the screaming point in some places. 

Some clarified guidance on that or expectations from Congress, 

I think would also be helpful. But again, we will provide a more 

complete list for you. 

Mr. LUBBERS. Mr. Watt, it is a little hard to come up with dramatic examples of things that might not have happened if ACUS 

were there. It’s a little bit like proving a negative. And ACUS did 

not have any power, per se. It was a recommendatory agency. But 

let me try to give you a few thoughts that occurred to me. 

For example, the Department of Homeland Security, when that 

was created, a lot of agencies were brought together and there were 

some organizational issues that I think could have benefited from 

ACUS’s consideration. Don’t forget, ACUS was a large body of experts who were serving as volunteers, and it brought together people from all sides of the political spectrum. So I think one benefit 

of ACUS was that it reduced the partisanship that we see in Washington these days. So you had public interest groups from the left 

and the right talking to each other and Government people talking 

to private lawyers about some of these problems. 

Another issue that was sort of partisan was the midnight regulation issue. When the Clinton administration went out and the Bush 

administration came in, there were lots of crises about regulations 

that were issued at the end of the Administration and then withdrawn or delayed by the Bush administration. I think that is an 

issue that the Administrative Conference could have worked on. 

All of the issues regarding electronic rulemaking that I have 

mentioned I think would have benefited from scholarship and a coordinated set of studies. The Administrative Law Judge hiring program was frozen for 6 years at the Office of Personnel Management. Agencies could not hire new ALJs from the register of ALJs 

because of litigation over controversy concerning the Veterans PrefVerDate 0ct 09 2002 12:57 Feb 22, 2006 Jkt 000000 PO 00000 Frm 00094 Fmt 6633 Sfmt 6601 G:\WORK\COMM\110105\24282.000 HJUD1 PsN: 24282
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erence Act, and I think the Administrative Conference could have 

helped to solve that problem a lot earlier than 6 years. 

The asbestos compensation issue, which I know Chairman Cannon is very concerned about and this Committee is concerned 

about, is something that I think could have benefited from Administrative Conference review. Maybe an administrative forum could 

have been developed to help resolve that issue. 

Sarbanes-Oxley is another issue that receives a lot of concern. 

And I think that law was necessary because of some failings of selfregulatory organizations in the securities and accounting area. So 

that is another thing I think we could have worked on. 

Waivers and exceptions, we have seen that with respect to 

Katrina. People didn’t know whether or how waivers and exceptions should be granted. I think that was on our list back in 1995, 

and I think we would have gotten around to that before 2005. So 

those are some issues. 

Now, I just—I want to also respond to Chairman Cannon’s question about private funding. The Administrative Conference statute, 

of course, is very broad and it does permit the agency to accept private gifts, private donations, volunteer services, dollar-a-year people, and anybody who wants to work, agency transfers of funds. 

ACUS has a very flexible statute, and it would permit all these 

sorts of funding—sources of funding to be used at ACUS. Whether 

you could come up with a completely private analog of ACUS that 

would be as effective, I have some doubts. 

And let me just mention one other thing while I have the microphone which is, I’m working on an advisory committee, National 

Academy of Sciences official advisory committee now, which is concerning one slice of the Social Security program. And this is the 

part of the program that has to do with beneficiaries who cannot 

handle the benefits. Because of their disability, or they’re drug addicts or something like that, they have to have a representative 

payee to get these checks. And not surprisingly, there are some 

abuses in this area. 

So Congress has funded the Social Security Administration to 

then fund the National Academy of Sciences to study this issue. 

And this study, alone, I think, was funded at an $8 million level. 

And our Committee just received bids from Beltway organizations 

to do a nationwide survey of about 4,000 representatives and beneficiaries; and that’s going to be, I think, about a $5 million study. 

So that’s just one slice of one obviously important program that’s 

being funded for $8 million. And we’re talking about a $3 million 

budget for the Administrative Conference. 

Ms. FREEMAN. I just have a couple of brief remarks in response 

to the questions and concerns. 

First, these very potentially politically contentious issues around 

contracting out, privatization, and harmonizing national security 

and administrative law procedures, the great value ACUS can aid 

here is obviously not solving this problem, not making the hard 

choices. That’s for Congress to make, but steering a course through 

it by at least beginning to explain what kinds of contracting are not 

so problematic, what kinds of contracting are more problematic, 

what issues get raised, what rules apply. 

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You know, procurement law. There is an elaborate set of rules 

and regulations because of procurement. 

But then there is an entirely different arena of contracting where 

almost nothing governs. And it’s that kind of explaining what’s 

going on, dissecting what the issues are, proposing potential solutions that can be so useful when delivered to Congress, and you 

can decide what you wish to do. But that function is being lost 

here. 

And I think, too, with the—the same thing with the contentious 

dimensions of the national security administrative law conflict 

here, the question is, what are the options and what are the perceived benefits, what are the perceived costs, and how ought we to 

think about it? That’s a very important function that you want to 

put in the hands of a body that has this great reputation for being 

quite bipartisan and quite professional. 

And the final thing I want to mention that goes back to the mention of consent decrees and the problems of what I would call backdoor rulemaking, whenever you tighten up discretion in one area, 

the funny thing with administrative agencies is it pops out somewhere else. And there is a relationship between additional oversight mechanisms from both Congress and the executive and the 

great search within agencies for areas where they can operate more 

freely. 

So it’s something ACUS might look at; that is, the relationship 

between adding more analytic requirements and agencies feeling 

the need to go elsewhere, that is, operate through consent decrees, 

use exceptions that they can drive a truck through. These are related. And ACUS can look at that in a more comprehensive way 

than somebody who does a piecemeal study, part by part. 

And the very last thing, the problem, the PR problem with administrative law, this is a failure—I hate to admit this—of law 

schools. It’s a failure of policy schools, it’s a failure of public administration schools, because we have not developed a robust capacity 

to talk about how Government’s working. 

We talk about Congress plenty and we talk about judges a lot. 

But we do not focus on the heart and soul of the Federal Government, and that is the rulemaking and adjudicatory processes. And 

ACUS can be a spark to reignite interest in this important topic. 

Mr. WATT. Mr. Chairman, I’ve gone way over my time. I’ll just 

close by saying, ACUS ASAP. Yield back. 

Mr. CANNON. And that ‘‘P’’ probably needs to stand for private 

funding or some other source of funding, because we need to talk 

about it. Thank you very much, Mr. Watt. 

And we want to thank the panel. It is very insightful. We’ve, I 

think, learned a lot here today. I have. And we look forward to 

working with you over a long term on this, and maybe we can come 

up with some ways of actually getting people to realize that 10 percent of the economy is a lot more than whatever judges do or that 

these elections for Congress aren’t really very important in that 

context either. 

Thank you a lot. We appreciate it. And see you soon. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 

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RESPONSES TO ADDITIONAL QUESTIONS FROM MORTON ROSENBERG, ESQUIRE, SPECIALIST IN AMERICAN PUBLIC LAW, AMERICAN LAW DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS


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RESPONSES TO ADDITIONAL QUESTIONS FROM J. CHRISTOPHER MIHM, MANAGING DIRECTOR OF STRATEGIC ISSUES, UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE


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RESPONSES TO ADDITIONAL QUESTIONS FROM JEFFREY S. LUBBERS, FELLOW IN LAW

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RESPONSES TO ADDITIONAL QUESTIONS FROM JODY FREEMAN, HARVARD LAW SCHOOL


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