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CONGRESSIONAL REVIEW ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

NOVEMBER 6, 2007 

Serial No. 110–165 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

NOVEMBER 6, 2007 

Page 

OPENING STATEMENTS 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1 

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

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 2 

WITNESSES 

The Honorable John V. Sullivan, Parliamentarian, United States House of 

Representatives, Washington, DC 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 5 

Mr. Mort Rosenberg, Specialist in American Public Law, Congressional Research Service, Washington, DC 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Ms. Sally Katzen, Visiting Professor, George Mason University School of 

Law, Washington, DC 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Answers to Post-Hearing Questions from the Honorable John V. Sullivan, 

Parliamentarian, United States House of Representatives, Washington, DC 44 

Answers to Post-Hearing Questions from Mort Rosenberg, Specialist in American Public Law, Congressional Research Service, Washington, DC ............... 46 

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

George Mason University School of Law, Washington, DC .............................. 48 

(1) 

CONGRESSIONAL REVIEW ACT 

TUESDAY, NOVEMBER 6, 2007 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:06 p.m., in room 

2237, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Sa ́nchez, Johnson, and Cannon. 

Staff present: Eric Tamarkin, Majority Counsel; Daniel Flores, 

Minority Counsel; and Adam Russell, Professional Staff Member. 

Ms. SA ́ NCHEZ. The Committee on Commercial and Administrative 

Law will come to order. And I will now recognize myself for a short 

statement. 

In 1996, under a Democratic President, a Republican Congress 

passed as a part of the Contract with America, the Congressional 

Review Act. This act created procedures for legislative oversight of 

administrative rulemaking. Eleven years later I hope that the parties can once again come together in a bipartisan effort to examine 

some of the processes of the CRA. 

The CRA established a provision, the joint resolution of disapproval, by which Members of Congress may disapprove agency 

rules found to be too burdensome, excessive, inappropriate, duplicative or otherwise objectionable. Since the CRA was signed into law, 

43 joint resolutions of disapproval have been introduced relating to 

32 rules. None of the House joint resolutions have passed the 

House, and only three of the Senate joint resolutions passed the 

Senate. 

Only one Senate joint disapproval resolution of the Occupational 

Safety and Health Administration’s controversial ergonomic standards, in March 2001, also passed both the House and Senate. This 

disapproval was the result of an unusual confluence of factors, including the White House and both houses of Congress in the hands 

of the same political party, a contentious rule promulgated in the 

waning days of an outgoing Administration, longstanding opposition to the rule by some in Congress and by a broad coalition of 

business interests, and encouragement of repeal by the President. 

The entities tasked with implementing the CRA have faced significant administrative burdens. The CRA requires that all agencies promulgating a rule must submit a report to each house of 

2 

Congress and to the comptroller general at the General Accounting 

Office. 

To date agencies have submitted 47,136 rules. As a result, GAO, 

the parliamentarians and the clerk’s office in the House and Senate 

have experienced a deluge of paperwork. According to the House 

Parliamentarian, who is testifying today for the second time before 

this Subcommittee on this issue, the number of annual executive 

branch communications to the speaker of the House has nearly tripled since the enactment of the CRA. 

In order to relieve some of the administrative burdens of the 

CRA and to reduce duplicative paperwork, former Judiciary Committee Chairman Henry Hyde introduced H.R. 5380 in the 106th 

Congress with current Chairman of the Committee, Mr. Conyers, 

former Representative George Gekas and Representative Gerald 

Nadler as co-sponsors. I look forward to hearing ideas from our witnesses on how to improve the congressional oversight of executive 

branch agency rulemaking and whether the previously introduced 

legislation is an appropriate approach for reforming and streamlining the CRA. I believe many of my colleagues join me in seeking 

a balanced approach that will allow us to effectively perform our 

oversight function. 

At this time, I am now pleased to recognize my colleague, Mr. 

Cannon, the distinguished Ranking Member of the Subcommittee 

for his opening remarks. 

Mr. CANNON. Thank you, Madam Chair. We are here today to 

look at the Congressional Review Act, a law passed by Congress 

and an important tool in the oversight of administrative rulemaking. As I have highlighted in the past, when Congress passes 

complex legislation, it often leaves many of the details to the agencies authorized to enforce the laws. This body must remain vigilant 

over those details and how they are filled in by the agencies. We 

must do that through congressional oversight. 

To support that essential effort, the Congressional Review Act established a mechanism for Congress to review and potentially disapprove of Federal agency rules through an expedited legislative 

process. It requires agencies to report to Congress and the comptroller general information to help us assess the merits of the rules. 

We have yet to actually disapprove of many rules under the act. 

That is not to say that many rules in the past did not merit review 

or that many rules were not controversial. That is not to say that 

we will not in the future disapprove of many rules. We may, but 

so far we haven’t. 

This raises a couple of questions. First, are there ways in which 

the act itself may be impeding our ability to oversee rulemaking? 

Second, are unnecessary burdens accumulating on those who help 

us review agency rules as we, for whatever reason, do not move 

through the Congress enough disapprovals of agency rules. 

Those interviews include, for example, the House Parliamentarian’s office. Third, to what extent should the Congress review agency actions? I personally believe agency actions, including guidance 

documents, policy statements, changes to program manuals, and 

personnel handbooks should be reported to Congress for review. I 

also believe regulations should be voted on by Congress before they 

become law. 

3 

Let me just pause for a moment here and point out that the 

problem with this hearing is that we are dealing with one aspect 

of our role in Congress. And we are doing that in a world that has 

changed rapidly around us where government has become much 

more complex, where the extent of rulemaking and guidance documents have become much more complex. And all of that in the context of a law that we passed in the 1960’s and really hasn’t been 

updated. 

So what we need to get back to, this study that we have had 

done ongoing for the last 6 years, begun by former Chair George 

Gekas, and on a bipartisan basis studied by academics across the 

country, to deal with the complexities that we have found ourselves 

in and the tools that we are not availing ourselves of as we deal 

with these complex issues in a world where people need to understand what the rules are so they can operate their businesses from 

day to day. So I think we need to do that. 

That said, our witnesses will help us sort some of these issues 

that relate solely to the CRA today. But I want to stress that we 

should sort them out with an eye to making the Congressional Review Act more efficient and more effective, not with an eye just to 

shift the burdens from one body to another and not with an eye to 

give up on the act in any way. Why? Because just shifting the burden isn’t real reform. And giving up on the act simply is not an option. 

And I think that is what our panel will help us understand 

today. As I stressed at the outset, this body must remain vigilant 

over agency efforts to fill in the nuts and bolts of the statutes we 

pass. And we must do that through real congressional oversight. 

I thank you, Madam Chair. And I yield back. 

Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

Without objection, other Members’ opening statements will be included for the record. Without objection, the Chair will be authorized to declare a recess of the hearing at any point. 

I am now pleased at this time to introduce the witnesses for today’s hearing. Our first witness is Mr. John Sullivan. Mr. Sullivan 

has served as the House Parliamentarian from 2004 to the present. 

Prior to his current appointment, he served as both the assistant 

parliamentarian and counsel to the House Committee on Armed 

Services. Mr. Sullivan served in the United States Air Force from 

1974 until 1984. 

Welcome, Mr. Sullivan. 

Our second witness is Mort Rosenberg. Mr. Rosenberg is a specialist in American public law in the American law division at CRS. 

For more than 25 years Mr. Rosenberg has been associated with 

CRS. Prior to his service with that office, he was chief counsel to 

the House Select Committee on Professional Sports. 

And he has held a variety of other public service positions. In addition to these endeavors, Mr. Rosenberg has written extensively 

on the subject of administrative law. 

We welcome you, Mr. Rosenberg. 

Our final witness is Sally Katzen. Professor Katzen is a visiting 

professor of law at George Mason University from the University 

of Michigan Law School where she taught administrative law and 

information technology policy courses. Prior to joining academia, 

4 

Professor Katzen served nearly 8 years in the Clinton administration first as the OIRA administrator, then as deputy assistant to 

the President for economic policy and deputy director of the National Economic Council in the White House, and finally as the 

deputy director for management at OMB. 

And I thank you as well for being here. 

Thank you for agreeing to testify at today’s hearing. Without objection, your written statements will be placed into the record in 

their entirety. And we are going to ask that you please try to limit 

your oral remarks to 5 minutes. 

You all, I am sure, having all testified before Congress, are 

aware of the lighting system. The light will turn green. When you 

have 1 minute remaining it will turn yellow as a warning. And 

when it turns red, your time has expired. 

We would appreciate it if you would conclude your testimony 

when you see the red light so that we can get to everybody. And 

after each witness has presented their oral testimony Subcommittee Members will be permitted to ask questions subject to 

the 5-minute limit. 

With that, I will invite Mr. Sullivan to please proceed with his 

testimony. 

TESTIMONY OF THE HONORABLE JOHN V. SULLIVAN, PARLIAMENTARIAN, UNITED STATES HOUSE OF REPRESENTATIVES, 

WASHINGTON, DC 

Mr. SULLIVAN. Thank you, Madam Chair, Mr. Ranking Member. 

I am glad to be here with you to discuss this important matter. I 

have no narrative to add to my written testimony. And I won’t take 

up your time by paraphrasing what I have already submitted. But 

rather, I will be prepared to answer your questions when we get 

to that point. And I will let you go on to the statements by my colleagues. Thank you for having me. 

[The prepared statement of Mr. Sullivan follows:] 

5 

PREPARED STATEMENT OF THE HONORABLE JOHN V. SULLIVAN


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Ms. SA ́ NCHEZ. I think that is probably the shortest oral testimony 

this Subcommittee has ever received. We will, of course, elicit 

some, I am sure, testimony during our questioning period. 

Mr. ROSENBERG. Can I have his 4 and-a-half minutes? 

Ms. SA ́ NCHEZ. We will give you a little more leeway, Mr. Rosenberg. And at this time, I am going to invite you to go ahead and 

present your testimony. 

TESTIMONY OF MORT ROSENBERG, SPECIALIST IN AMERICAN 

PUBLIC LAW, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC 

Mr. ROSENBERG. Thank you very much, Madam Chair, Mr. Cannon. It is a pleasure to be here again. Just quick, one thing I was— 

I have been with CRS for 35 years. 

Ms. SA ́ NCHEZ. My apologies, sir. 

Mr. ROSENBERG. I am very pleased to be before you again, this 

time to discuss the Congressional Review Act, a statute that I have 

closely monitored since its enactment in 1966. Your Committee’s 

continued focus on this important piece of legislation is both opportune and hopefully propitious. 

As the CRS report on the decade of experience under the CRA 

details, we know enough now to conclude that it has not worked 

well to achieve its original objectives. That is to set in place an effective mechanism to keep Congress informed about the rulemaking activities of Federal agencies and to allow for expeditious 

congressional review and possible nullification of particular rules. 

The numbers that you have told us about, the 46,000 rules that 

have been reported and the over 700 major rules, only one of which 

has been nullified, are quite telling about the effect of the rule, I 

believe. Commentators have expressed the belief that the negation 

of the ergonomics rule was a singular event and not likely soon to 

be repeated. 

Furthermore, not nearly all the rules defined by the statute as 

covered are reported for review. The number of rules, of covered 

rules is likely to be significantly more than the number that are 

actually submitted for review. 

Federal appellate courts in that period of 11 years had negated 

all or parts of about 60 rules, a number, which while significant in 

some respects, is comparatively small in relation to the number of 

rules issues in that period. Indeed, at a hearing that you held in 

September, Professor Jody Freeman of Harvard presented the tentative conclusions of a study of judicial review of rulemaking that, 

contrary to popular myth, apparently the courts are not part of the 

problem, that indeed, the number of rules that have been, you 

know, successfully challenged is quite small. And the major part of 

them are limited to two agencies. 

The framers of this legislation anticipated that the effective utilization of a new reporting and review mechanism would draw the 

attention of the rulemaking agencies and that its presence would 

become an important factor in the rule development process. That 

has not happened because the ineffectiveness of the CRA review 

mechanism soon became readily apparent both to agencies and observers. 

11 

The lack of a screening mechanism to identify rules that warranted review and the absence of an expedited consideration process in the House that complemented the Senate’s procedures and 

numerous interpretative uncertainties of the key statutory provisions arguably have deterred its use. By 2001, one commentator 

opined that if the perception of a rulemaking agency is that the 

possibility of congressional review is remote, ‘‘it will discount the 

likelihood of congressional intervention because of the uncertainty 

about where Congress might stand on that rule when it is promulgated years down the road, an attitude that is reinforced so long 

as the agency believes that the President will support its rules.’’ 

Further reinforcing the perception that Congress would not likely 

intervene in rulemaking, particularly after 2001, has been in the 

emergence of what has been called by one scholar as the new 

presidentialism, which encompasses the notion of the unitary executive and expansive presidential control of the executive bureaucracy. We have reached the stage today where if the executive presumes without serious challenge from Congress that when Congress delegates rulemaking or other discretionary decision-making 

authority to agencies, it is also a delegation to the President, which 

allows him to freely control when and how that authority is to be 

executed. 

But there is some light in the tunnel to report. Due to the 

present and past leadership of this Subcommittee, attention has 

been given to the perceived flaws in the CRA. 

In 2006 and 2007, suggestions for at least a modest remediation 

of the perceived flaws in the CRA, if for no other reason than to 

maintain a credible congressional presence in the process of a delegated administrative lawmaking, were presented in a number of forums. These included hearings by this Subcommittee, a symposium 

held by the Congressional Research Service, CRS and GAO reports, 

and academic writings. Participating witnesses and panelists concurred that the role of Congress as the Nation’s dominate policy 

maker was being threatened by widespread agency evasion of notice and comment rulemaking requirements and the frequent calls 

for increased presidential control of agency rulemaking. 

Most important, I believe, during this period was the catalogue 

of legislative options for remedying the flaws of the CRA presented 

in your Subcommittee’s interim report on the administrative law 

project. Some of those options would not even require the passage 

of a law. 

Among the seven options suggested by the report, which could be 

explored today, include establishing a joint Committee by rule of 

each house to act as a clearinghouse and a screening mechanism 

for all covered rules; second, amending the CRA to limit it to review only of major rules; third, amending the act to make it clear 

that the failure to report a covered rule is subject to judicial enforcement; fourth, to amend the act to make it clear that an up or 

down vote is on the entire reported rule; and fifth, amend the act 

to clarify that a disapproved rule does not disable an agency from 

promulgating a rule in that area without further authorization 

from Congress. 

With that, I will conclude and await some questions. Thank you. 

[The prepared statement of Mr. Rosenberg follows:] 

12 

PREPARED STATEMENT OF MORTON ROSENBERG


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Ms. SA ́ NCHEZ. Thank you for your testimony, Mr. Rosenberg. 

At this time, I would invite Professor Katzen to present her testimony. 

TESTIMONY OF SALLY KATZEN, VISITING PROFESSOR, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW, WASHINGTON, DC 

Ms. KATZEN. Thank you, Chairman Sa ́nchez, Ranking Member 

Cannon, Members of the Subcommittee. I will try to summarize in 

my oral statement the written testimony. 

I would urge you, as you consider changes to the CRA, whether 

they be necessary or desirable, to keep in mind that the CRA was 

intended to serve an extraordinarily important function, namely, to 

reassert congressional accountability for what has become known 

as the administrative state. 

The broad delegations of authority from Congress to the agencies, which have been sanctioned by the courts and are now an integral part of our modern government, invariably diminished the 

power of Congress vis-a`-vis that of the President. To address this 

balance and to reclaim accountability for the administrative state, 

Congress enacted the CRA. 

The Chairman noted that this was a bipartisan effort. It was 

passed by a Republican Congress and signed by a Democratic 

President. He signed the bill not because he had to, but because 

he wanted to. He saw it as a contribution to good government. 

Now, there are two major concerns that have been raised, one 

having to do with the administrative burden of the act—the costs— 

and questions about its efficacy—the benefits. Let me start with 

the latter. 

It has been noted that there have been very few joint resolutions 

of disapproval that have been introduced, and only has been enacted, and the low numbers are being used to show that the act 

doesn’t work. But the numbers are also equally consistent with the 

notion that the act is working, and that the agencies have been 

doing a usually good job, faithfully performing their functions, especially knowing that Congress is looking over their shoulders. 

In fact, the congressional disapproval mechanism was not intended for the run-of-the-mill case. That was not its objective at the 

beginning, and I don’t think it should be the test by which it is 

evaluated today. 

It was to be used only in those infrequent instances where there 

was such opposition to an agency rule that the Congress was willing to put aside its other work and to express its concern in an official way, knowing full well that the President, in most such cases, 

would choose to support the agencies and then veto the joint resolution. 

In any event, notwithstanding the paucity of instances where the 

joint motions or the joint resolution has been enacted, I firmly believe that the fact that the CRA requires agencies to send their 

rules to Congress before they take effect, and that there is an opportunity for Congress—in admittedly rare cases—to disapprove of 

the rule, serves as a real check on agency excesses, and, at a minimum, reasserts congressional authority. In other words, the CRA 

remains an effective watch dog even though it doesn’t bark. GAO 

27 

and CRS have subscribed to this position, to at least some extent, 

in the materials that I point out in the written testimony. 

I suggest in my written testimony that the burden on the parliamentarian and others could be reduced by authorizing or requiring 

agencies to submit their rules to Congress electronically, which is 

how they send them to the Federal Register. I stress, however, that 

all materials covered by the CRA should continue to be sent to 

Congress, not to the GAO, but to Congress, without any exceptions 

so that the agencies are aware of the fact that it is Congress to 

whom they are beholden, it is Congress which has given them the 

authority, and it is Congress which is the ultimate lawmaker in 

our government. 

For related reasons, I think it is important to retain the requirement that, once they are received by the Congress, they go to the 

Committees of jurisdiction, not be filtered through some intervening Committee, or ask the Committees to access some control 

database. 

These Committees are the ones that have the expertise and programmatic experience and, therefore, are in the best position to 

evaluate whether an impending rule is consistent with congressional intent. With electronic processing the burden on the parliamentarian would be reduced, but systematic and timely notice to 

the Committees would remain. 

A far more dramatic change, affecting substance rather than 

process, would be to redraw the coverage of the act. As you know, 

the CRA covers all rules because Congress has authority and has 

delegated that authority for all rulemaking. So the act covers the 

major rules, those generally having an annual affect of $100 million or more, and the thousands of non-major rules issued each 

year. I hope during the question and answer period I can address 

why Congress would not want to have to take an affirmative step 

with respect to those non-major rules. 

Limiting the scope of CRA to the more important rules would reduce congressional authority. But it would enable Congress to focus 

on the rules that have the greatest impact and are likely to be the 

most important rules. This is the tradeoff that was reflected in 

President Clinton’s executive order whereby, OIRA no longer reviews all rules issued by executive branch agencies, but only the 

more important ones. We thought that if you try to do everything, 

you may not do anything very well. 

If Congress were to restrict the coverage of the CRA to major 

rules, there are, I think, two critical components that must accompany this. First, you should not use the major, non-major dividing 

line which is currently set forth in the CRA. The definition of 

‘‘major’’ in the CRA was taken from Executive Order 12291, which 

has not been in effect for 14 years. When President Clinton signed 

Executive Order 12866, the definition of major was encompassed in 

the term ‘‘economically significant’’ but there were three other categories that were added to significant. Those categories are important: materially affect the budget, novel issues, inconsistent actions 

that may be taken. If those are not included in the cutoff, Congress 

will be cutting off very important rules that it should be looking 

at. Now, these definitions of ‘‘economically significant’’ and significant were not changed by President Bush. They have been in effect 

28 

for over 14 years and I think have the acquiescence of both parties 

as the best criterion by which to determine what is really important. Or stated another way, if this is what OIRA uses to review 

executive branch agency rules, isn’t this what Congress should use. 

In that same connection, I would note that as Ranking Member 

Cannon said, there is all this guidance out there. Well, recently the 

President amended the executive order so that OIRA would review 

that guidance. Again, if it is important enough for OIRA review, it 

should be subject to congressional review. 

The problem with the guidance documents is one that Mr. Rosenberg has addressed. Agencies are not sending them to the Congress. Therefore, I think it would be very salutory if there were 

changes in the language of the CRA to clarify the initial intention 

reflected in the legislative history, but these guidance documents 

and manuals, et cetera were intended to be covered. 

I see my time is up. I would love to talk about the section 

801(b)(2), which is the prohibition. I hope that we will be able to 

get to that during the question and answer period because I think 

it is a very important aspect for this act. Thank you very much. 

[The prepared statement of Ms. Katzen follows:] 

PREPARED STATEMENT OF SALLY KATZEN

Chairman Sanchez, Ranking Member Cannon, and Members of the Subcommittee. 

Thank you for inviting me to testify today on the Congressional Review Act, 5 

U.S.C. §§ 801–08 (CRA). This Act was an important step toward reasserting Congressional accountability for what has become known as the ‘‘administrative state.’’ 

The Subcommittee is to be commended for convening a hearing, as it has in the 

past, to examine how the Act has been working in practice and consider whether 

modifications or clarifications of the law would enable it to better achieve its purposes. 

I served as the Administrator of the Office of Information and Regulatory Affairs 

(OIRA) at the Office of Management and Budget (OMB) for the first five years of 

the Clinton Administration, then as the Deputy Assistant to the President for Economic Policy and Deputy Director of the National Economic Council, and then as 

the Deputy Director for Management of OMB until January 2001. Among my responsibilities while I was Administrator of OIRA, I coordinated the Executive 

Branch views on the bills that became the CRA and, after its enactment, worked 

with the major executive branch regulatory agencies as they sorted through various 

implementation issues. I remain active in the area of administrative law, generally, 

and rulemaking, in particular. Since leaving government service, I taught Administrative Law and related subjects at George Mason University School of Law, the 

University of Michigan Law School, and the University of Pennsylvania Law School, 

and I have also taught American Government seminars to undergraduates at Smith 

College, Johns Hopkins University, and the University of Michigan in Washington 

Program. I frequently speak and have written articles for scholarly publications on 

these issues. 

The CRA was a bipartisan effort, passed by a Republican Congress and signed by 

a Democratic President. President Clinton signed the bill, not because he had to but 

because he wanted to. He saw it as a contribution to good government. See Statement on Signing the Contract with America Advancement Act of 1996 (Mar. 29, 

1996) (available at http://www.presidency.ucsb.edu/ws/?pid=52611). 

It may be helpful to provide some background as context for this characterization 

of the CRA. Congress has, over the years, enacted legislation setting forth general 

principles or goals and then delegated to the agencies—typically executive branch 

agencies but independent regulatory commissions as well—the authority to develop 

and issue implementing regulations that have the force and effect of law. These 

often broad delegations of authority have been sanctioned by the courts and are 

now, by any measure, an integral part of our modern government. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001). 

One unintended consequence of the vast delegations to agencies was to significantly diminish the power of the Congress vis-a ́-vis that of the President. To reduce 

this shift in power, Congress has used various means to exercise authority over the 

29 

administrative state. The Senate’s role in advising and consenting to presidential 

appointments at regulatory agencies, oversight hearings by both the House and the 

Senate, and the power of the purse were all useful in this regard, but necessarily 

ad hoc, and the latter two strategies were almost always triggered after rules had 

gone into effect and their unintended or undesired consequences were more difficult 

to redress. One device used by Congress to retain close control of certain rules, 

which was used in nearly 200 hundred provisions, was the one- (or sometimes two- 

) House legislative veto, whereby the enabling legislation provided that any implementing regulations would be laid before the Congress and go into effect only if neither House objected. This form of oversight was eventually held unconstitutional in 

INS v. Chada, 462 U.S. 919 (1983). 

Thereafter, the absence of a systematic mechanism for Congressional oversight of 

the regulatory apparatus eventually led to the passage of the CRA. Unlike the one- 

(or two-) House legislative veto, the CRA is decidedly constitutional—meeting the 

presentment and bicameral requirements of Article I, §§ 1 and 7, Cls. 2 and 3 identified in the Chada case. Also, the CRA was designed to be relatively efficient by, in 

effect, nullifying the Senate rules permitting a filibuster. Thus, with the CRA, if a 

majority in each House believes that a rule adopted by an agency is not faithful to 

Congressional intent or is otherwise deficient in a serious way, there is a ready vehicle for Congress to make its views known to the President. 

Some commentators and critics of the CRA have asserted that the Act is ‘‘not 

working’’—pointing to the relatively few Joint Resolutions of Disapproval that have 

been introduced and the fact that only one was enacted into law in the over tenyear history of the CRA. See CRS, Congressional Review of Agency Rulemaking: An 

Update and Assessment of the Congressional Review Act After Ten Years, RL30116, 

pg. CRS-1 (Mar. 29, 2006) (hereinafter ‘‘CRS Ten-Year Review’’); Cindy Skrzycki, 

Reform’s Knockout Act, Kept Out of the Ring, Washington Post, Apr. 18, 2006, D01. 

Limited use of the disapproval resolution mechanism may be a manifestation that 

the Act is not working; it is, however, equally consistent with the notion that the 

Act is working and that agencies are usually faithfully performing their functions 

(especially knowing that Congress will be looking at their final work product—more 

on that below). In fact, the Congressional disapproval procedure was not intended 

to be used in the run of the mill case. Rather it was to be used only in those instances where there was such strong disagreement in Congress with what the agency did that Congress was willing to put aside other work and express its concern 

in an official way—knowing that in most such cases, the President would chose to 

support his agencies and thus veto the joint resolution. Stated simply, the disapproval process itself was intended to be used, and should be used, only when an 

agency’s work product warrants the attention of Congress as a whole and is worth 

a confrontation with the President. 

Nonetheless, the fact that the CRA requires that agency rules must be sent to 

Congress before they can take effect, and that there is an opportunity for Congressional review which could—in admittedly rare cases—result in disapproval of a rule, 

operates as a real check on agency excesses, and at a minimum reasserts Congressional authority. The General Accountability Office (GAO) has previously testified 

that ‘‘the benefits of compiling and making information available on potential federal actions should not be underestimated.’’ GAO, Federal Rulemaking: Perspective 

on 10 Years of Congressional Review Act Implementation, GAO-06-601T, pg. 4 (Mar. 

30, 2006) (hereafter ‘‘GAO Testimony’’). It further suggested that ‘‘the availability 

of procedures for congressional disapproval may have some deterrent effect.’’ Id. The 

Congressional Research Service (CRS) describes the effect in somewhat more positive terms, such as ‘‘exert[ing] pressure on the subject agencies to modify or withdraw the rule.’’ CRS Ten-Year Review at CRS-8. In other words, the CRA remains 

an effective watchdog over agency rulemaking even when it doesn’t bark. 

Having said that, there are ways to modify or clarify the Act to ensure that it 

captures the agency rules that it should capture and that it does so in a relatively 

efficient way. First, there are concerns about the administrative burden on the Parliamentarian (and others) resulting from the flood of paperwork that is generated 

by the Act’s requirements. One way to alleviate this burden is to explicitly authorize 

agencies to submit their rules to Congress electronically, as they typically do when 

sending materials to the Federal Register for publication. This would obviously facilitate the processing of the information provided to Congress and would be in furtherance of the objectives of the ‘‘E-Government Act of 2002,’’ 107 P.L. 347, 116 

Stat. 2899, codified at 44 U.S.C. § 101 (2007). The requirement for electronic submission should encompass all material covered by the CRA, without any exemption, including rules sent to the Federal Register. Keeping in place the requirement of 5 

U.S.C. § 801(a)(1)(A), that the agencies send their work product to Congress, keeps 

the agencies focused on the fact that it is Congress that delegates rulemaking auVerDate Aug 31 2005 11:49 Feb 10, 2009 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 H:\WORK\COMM\110607\38764.000 HJUD1 PsN: 38764
30 

thority to the agencies and it is Congress that is ultimately the law maker in our 

government. 

For related reasons, it is important to retain the requirement of 5 U.S.C. 

§ 801(a)(1)(C) that, once the material is received by the Congress in electronic form, 

it should be forwarded to the committees of jurisdiction rather than leaving it up 

to the committees to access some central database. These are the committees that 

have the expertise and programmatic experience and are therefore in the best position to evaluate whether impending rules are consistent with Congressional intent. 

With electronic processing, the burden on the Parliamentarian would be reduced, 

but systematic and timely notice to the committees of agency actions within their 

jurisdiction would remain. Without such notice, the committees might not promptly 

focus on soon to be effective regulations, unless, of course, special interest groups 

alert them to potential problems. Given that the strength of the CRA is its comprehensive coverage, it is best not to leave committee awareness to happenstance. 

A far more dramatic change, affecting substance rather than process (but which 

is compatible with the suggestions above) would be to redraw the coverage of the 

Act. As noted above, the CRA was deliberately designed to cover all rules because 

Congress is the source of authority for all agency actions that affect the rights and 

obligations of the public. As a result, the CRA explicitly covers not only the ‘‘major’’ 

rules—generally those having an annual effect on the economy of $100 million or 

more, 5 U.S.C. § 804(2)—but also the many thousands of rules by which the agencies 

carry out the day to day responsibilities of government. A rough estimate is that 

there may be 50–100 major and 2,000–3,000 non-major rules each year. Limiting 

the scope of the CRA to the more important rules would somewhat reduce Congressional authority, but it would enable Congress to focus on the rules that are likely 

to have the greatest impact on the public, and it would obviously greatly reduce the 

burden of sorting through the flood of less important rules that the Parliamentarian 

is currently receiving. This is the type of trade-off that was reflected in President 

Clinton’s Executive Order 12,866, 58 Fed. Reg. 51735 (1993), whereby OIRA limited 

its review of executive branch rules to those defined in the Executive Order as ‘‘significant.’’ See EO § 6(a)(3)(a). We believed that it was better to focus our limited resources on the more important rules, recognizing that if you try to do everything, 

you may not do anything well. 

If Congress were to decide to restrict the coverage of the CRA to the more important agency actions, there are two key, indeed critical, companion pieces that must 

be a part of any such change. First, Congress should most definitely not use the 

‘‘major’’/‘‘non-major’’ dividing line as currently set forth in the CRA. The definition 

of ‘‘major’’ in § 804(2) of the CRA was taken from Executive Order 12,291, 46 Fed. 

Reg. 13193 (1981), which has not been in effect for over 14 years. Executive Order 

12,866, which replaced Executive Order 12,291, used the term ‘‘economically significant’’ to capture much of what ‘‘major’’ encompassed, although there were several 

important changes: ‘‘Major’’ was defined in Executive Order 12,291 § 1(b) as: 

any regulation likely to result in: 

1. An annual effect on the economy of $100 million or more; 

2. A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or 

3. Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. 

‘‘Economically significant regulatory action’’ (the short-hand term for those rules 

captured by § 6(a)(3)(C)) is defined in Executive Order 12,866 § 3(f) as: 

any regulatory action that is likely to result in a rule that may: 

1. Have an annual effect on the economy of $100 million or more or adversely 

affect in a material way the economy, a sector of the economy, productivity, 

competition, jobs, the environment, public health or safety, or State, local, or 

tribal governments or communities 

Executive Order 12,866 § 3(f) also added three other categories of ‘‘significant’’ regulations, namely, those that: 

2. Create a serious inconsistency or otherwise interfere with an action taken or 

planned by another agency; 

3. Materially alter the budgetary impact of entitlements, grants, user fees, or 

loan programs, or the rights and obligations of recipients thereof; or 

4. Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order. 

31 

The definitions of ‘‘economically significant’’ and ‘‘significant’’ regulatory actions 

have been in effect since 1993 and have not been changed in any way by President 

Bush. As a result, these are the operative definitions for review of executive branch 

rules by OIRA. If Congress were to limit its review of agency actions under the CRA 

to the more important rules, these definitions are the best criteria for determining 

the scope of the Act. Using these definitions would bring the number of rules covered under the CRA to several hundred a year—still well below the number that 

are now sent to Congress, but presumably a manageable amount. More importantly, 

as noted, these are the criteria that OIRA uses for presidential review, and if a rule 

is important enough for presidential review, it should be subject to Congressional 

review. 

A related point is that if Congress were to decide to narrow the scope of the CRA, 

it should simultaneously clarify, in legislative language, that the CRA covers not 

only rules subject to the Administrative Procedure Act’s notice and comment requirements, but also any interpretive rules, guidance documents, and other similar 

statements of policy that will have a future effect on the rights and obligations of 

the public. Making explicit that the CRA covers such agency actions—albeit only 

those that also fall within the definition of ‘‘significant’’ if that is made the test of 

coverage—would resolve any lingering doubts on the scope of the Act. Both the GAO 

and the CRS have opined that this is the correct interpretation of the CRA. GAO 

Testimony at 4 (‘‘CRA contains a broad definition of the term ‘rule,’ including more 

than the usual notice and comment rulemakings published in the Federal Register 

under APA’’); CRS Ten-Year Review at CRS-24 (‘‘it was meant to encompass all substantive rulemaking documents—such as policy statements, guidances, manuals, circulars, memoranda, bulletins and the like—which as a legal or practical matter an 

agency wishes to make binding on the affected public’’). Yet it is not altogether clear 

that this is how the agencies are reading the statute. Both GAO and CRS note that 

there are instances where agencies are not forwarding their work products to Congress, Id at CRS-40, with the GAO stating that when OIRA is notified of unfiled 

rules, agencies then file the rules ‘‘or offer an explanation of why they do not believe 

a rule is covered.’’ GAO Testimony at 4. In five of the eight cases where GAO was 

asked to follow-up on a non-filing, GAO said that the supposedly non-covered agency 

actions were, in GAO’s opinion, within the scope of the CRA. GAO Testimony at 4– 

5. Clarifying in legislative language the intended breadth of the Act would be instructive to, and hopefully productive for, the agencies. 

There are two further observations on this point. First, for the reasons set forth 

above, Congress should ask GAO to send the list of unfiled rules that it currently 

sends to OIRA to the Congressional committees of jurisdiction as well. Second, as 

the Subcommittee will recall, earlier this year, President Bush amended Executive 

Order 12,866 to bring within its scope significant agency guidance documents. See 

EO 13,422 § 3, 72 Fed. Reg. 2763 (2007). Clearly the Administration believes that 

these documents warrant review by OIRA; again, at a minimum, anything that 

OIRA reviews should be subject to review by Congress. 

Finally, I would like to comment on § 801(b)(2), which prohibits agency issuance 

of a rule ‘‘in substantially the same form’’ after passage of a joint resolution of disapproval unless Congress, by law subsequent to the disapproval resolution, authorizes the issuance of such a rule. Only one Joint Resolution of Disapproval has been 

enacted since the CRA became law, but the consequences of that disapproval are 

draconian—far more draconian than was originally intended. As CRS has noted, a 

disapproval resolution applies to the rule as a whole, which, as in the case of the 

ergonomics rule that was disapproved, can cover a vast area. CRS, Congressional 

Review of Agency Rulemaking: An Update and Assessment After Nullification of 

OSHA’s Ergonomics Standard, RL30116, pg. 14–15 (Washington, D.C., Jan. 6, 

2003). When the Bush Administration, which supported the disapproval resolution, 

went back to the drawing board and tried to craft a new rule that would pass muster with Congress, it concluded that it could not, under the CRA, draft any rule relating to ergonomics. If that view prevails—namely, that no new rule affecting the 

same subject matter can issue without new Congressional authorization—then there 

could well be an extended period of time where nothing could be done to deal with 

an admittedly serious problem so long as the agency’s first attempt was unsuccessful. Yet, as CRS has noted, other provisions of the CRA, particularly the provision 

extending for one year any statutory or judicial deadlines for a rule that is disapproved, strongly suggest that the CRA was not intended to be a permanent bar. 

CRS Ten-Year Review at CRS-34-35. Nor was it so understood within the Administration when the bill was signed. The Subcommittee should therefore consider 

changing the prohibition so that it extends only for the duration of the Session (or 

of the Congress) during which the disapproval resolution was enacted. Agencies 

should be able to take a disapproved rule, fix it, and resubmit it at the next Session 

32 

(or next Congress). The CRA would then have the salutary effect it was intended 

to have. 

This brings me back to where I started: CRA is good government. It reasserts 

Congress’ legitimate role and responsibility for the administrative state. It is not an 

empty shell or mere formality—even if there are few disapproval resolutions filed 

or enacted. The point is that, with the CRA, the agencies are aware that Congress 

has an opportunity to review their work before it takes effect and that, on occasion, 

other sets of eyes and different minds will examine what the agencies have done 

and evaluate its consistency with the Congressional mandate by which it was authorized. In an age where divided government is more frequently the norm than the 

exception, there will sometimes be a different perspective coming from the Hill than 

from the other end of Pennsylvania Avenue. The CRA is an important way to ensure 

that those different perspectives are taken seriously. 

Thank you again for the opportunity to testify today. I look forward to answering 

any questions you may have. 

Ms. SA ́ NCHEZ. Thank you, Professor Katzen. 

We will now proceed to the rounds of questioning. And I will 

begin with Mr. Sullivan. 

Dr. Katzen has suggested that perhaps the CRA could be reformed to permit agencies to submit rules to Congress electronically. Is that a viable reform that could reduce paperwork and reduce the burden on the parliamentarian’s office? 

Mr. SULLIVAN. Madam Chair, I think that would be a step. And 

as my colleagues have noted, my input to the Committee has been 

largely logistical on these things. But I am not here to whine about 

our workload. 

I wonder whether it would have any material effect on your effort to optimize the coverage and the effect of the act. I am not sure 

it would. Electronic wouldn’t be hand trucks of boxes of documents. 

Ms. SA ́ NCHEZ. Right. I read your testimony about that. And I 

thought all that paperwork is probably—— 

Mr. SULLIVAN. For a small operation like ours it is more significant than might meet the eye. And, you know, digital is better than 

analogue in that case. But I am not sure from the broader perspective from which my colleagues speak about the intention here. 

And we are talking about delegation of quasi-legislative power 

and what kind of strings should you attach to it, to the delegation 

itself or what kind of oversight mechanism should you array to 

make sure that it is prudently exercised. And I am not sure whether the streamlining by electronic submission affects that equation. 

Ms. SA ́ NCHEZ. Okay. What about considering eliminating the submission requirement in the CRA for non-major rules? Do you support that idea? And if you do, how would that impact the work—— 

Mr. SULLIVAN. I would support anything—I am sorry. 

Ms. SA ́ NCHEZ. And if you do support that, how would that impact 

the workload in your office? 

Mr. SULLIVAN. I am not sure of what the numbers are between 

major and non-major. But I certainly would recommend anything 

that dealt with a more selective universe of rules. I think that 

would more focus the oversight. 

I start from the tenant that Congress doesn’t need the CRA in 

order to disapprove a rulemaking. If Congress sees a bad rule, it 

can by act of Congress disapprove it. It doesn’t need the CRA to 

do it. 

Now, sometimes there are needs to set up either an approval 

mechanism, an approval requirement saying we will give you a 

33 

rulemaking power, but we have to approve it by act of Congress. 

So you can do the leg work for us, and then we will exercise the 

legislative power ourselves. 

The other option, the one taken by the CRA, is to provide some 

boost to the Congress’ disapproval reaction, some expedition. But 

as it happens, the CRA doesn’t expedite anything in the House. 

And in the end, all it does from the House’s point of view is to facilitate vigilance, facilitate the vigilance that should go on. In the 

ordinary case, Committee council being experts in their jurisdiction 

keep an eye on the agencies for whom Congress has enabled rulemaking in their jurisdiction and a watchful eye on them. 

Now, perhaps merely facilitating vigilance has the kind of deterrent effect that my colleagues mentioned, that the agencies know 

that they are being watched more than they otherwise might. But 

that seems like a very marginal benefit to me. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. Rosenberg, given the fact that there are these large volumes 

of information that are provided to Congress pursuant to the CRA 

and that that has only resulted in a limited number of joint resolutions of disapproval having been introduced and only one having 

succeeded, do you think that CRA is not working and should be repealed? Because Professor Katzen obviously feels that the argument can be made the other way. And I am interested in getting 

your opinion on that. 

Mr. ROSENBERG. Not working because it is not—it is flawed in 

the way that it looks at the rules and the way it receives them. It 

doesn’t receive enough information to start with. You get a report 

from GAO which simply says we have got a rule that has been in 

the Federal register. And it complies with all the executive orders 

and other rules in conformity. 

It doesn’t deal with analysis of whether the rule is cost beneficial 

or would, you know, has been looked at for cost effectiveness or 

anything like that. That is the information that comes over and 

drops on a Committee. 

I don’t know who it is in the Committees that do it, but my experience has been that a rule that is controversial, whether it is a 

major rule with an economic—tremendous economic impact or a 

lesser rule that, you know, impacts on constituents or small businesses or whatever it may be, it is only when somebody pokes the 

bear over here that you get some reaction to it. 

There is a need for a CRA if there is expedited review. There 

would be an even better reason for a CRA if there is expedited review in the House. 

A second thing is an information clearinghouse mechanism that 

provides the appropriate Committees with sufficient information on 

which to determine whether they should take some action, whether 

a joint resolution of disapproval should be filed in either house. If 

you had a concurrent, you know, expedited procedure, you would 

see an awful lot more out there. 

I tried to find anecdotal evidence of what Professor Katzen was 

saying, that, sure, it is having an impact. It must be because it is 

a wall. I looked at what has been happening the last 6, 10, 12, 14 

years. There is less and less acquiescence, less and less cooperation 

34 

between the executive branch and Congress with regard to oversight. 

You know, you have more than enough instances of refusals to 

provide access to information with regard to any kind of decision 

making and a refusal to obey subpoenas upon occasion without response by the Congress. There is a need for an effective CRA to 

keep Congress even. 

I mean, we are talking about separation of powers here. They 

used to call the old 122941, you know, in OIRA at that time the 

800-pound gorilla in the house. I think it is 1,600 pounds now with 

the kind of changes and the aggressive use of the executive order 

and the amendments to the executive order. I won’t go on. 

Ms. SA ́ NCHEZ. Thank you, Mr. Rosenberg. My time has expired. 

I will now recognize my colleague, Mr. Cannon, for 5 minutes. 

Mr. CANNON. Thank you, Madam Chair. You know, I couldn’t 

help thinking of the imperial presidency, Mr. Rosenberg, as you 

were speaking about what I think you called the new 

presidentialism and what Professor Katzen later then called the 

administrative state. And so, we are sort of in this like remarkable 

hearing where our personal views—and I don’t know that I—I am 

not sure I speak for the Chairman here, but I think I do and the 

panel members—have all transcended party and even branch and 

have said we have something, we have a problem we have to deal 

with. 

And I was telling some of the panel members before—and I think 

this story is actually important and maybe ought to go on the 

record. I have a constituent that has a service that is complicated 

and allowed by the IRS, but without particular guidance. And in 

a conference call in which my constituent was excluded but which 

many other people, 20 or 30 other people were on the conference 

call, a bureaucrat demeaned the constituent and said that they 

would never get guidance if he had his way. 

So I called the senior person in the general counsel’s office and 

asked about it. And I had an interesting experience. 

He talked about their schedule for guidance papers. So what we 

have here is an environment of complex regulation where a personality can assert himself, maybe improperly. It appeared that way 

on the surface. Maybe it was not improper. We have a role for curbing individual antagonism. But the context of that role is law. 

In other words, we don’t let people make decisions. We have a 

rule of law. And yet that rule of law can’t take place because it has 

to be scheduled, and the person who may have had a problem with 

my particular constituent may actually have something to do with 

what gets scheduled or not. And in the meantime, business goes on. 

And so, we find ourselves with an administrative process that 

does not take into consideration the vast amount of activity that 

individual bureaucrats and cumulatively agencies have to participate in. And in that mix, I know that our parliamentarian has a 

huge burden. And we want to eliminate the paper part of that burden at least. But we are not in Congress in any way organized to 

even act consistently or coherently with OIRA. 

We put all the burden on a very small parliamentarian staff and 

virtually none on our Committee staff, as I think Professor Katzen 

had suggested where the burden ought to be. And therefore, the 

35 

only oversight we have is the very inadequate oversight, which 

today is slightly better from what it was under the Republicans. 

I think one of the big mistakes Republicans made when they took 

over Congress is they decided to show the world that they could cut 

expenses. And so, we got rid of all of our oversight staff or virtually 

all of our oversight staff. 

And we have had significant arguments among ourselves as Republicans over that. But clearly, we have not done anywhere near 

the oversight. As the budget of government has doubled over the 

last 10 or so years, our oversight activity has diminished and only 

increased slightly under the new Democratic majority. 

So what we find ourselves is in a position of not doing oversight, 

of having laws developed, regulations developed or regulatory activities evolving through the activities of individuals without the 

kind of oversight that we need. So this hearing is dramatically important. 

And in that context, let me just ask. If you talk about the CRA, 

then we are talking about what we do with paperwork and what 

we do internally. But we are talking about the Administrative Procedure Act, don’t we need to deal with that before we can actually 

deal with how Congress oversees effectively what we are doing in 

the Administration? 

And let me just put another question on the table, going back to 

the imperial presidency and whatever name we use for it. We have 

more judges, more adjudication that happens in the agencies than 

we have with Article 3 judges. 

And we have vastly more law than we produce here in Congress. 

Shouldn’t we in Congress be thinking in terms of shrinking that, 

strengthen the presidency by taking more control, not just over regulations, but perhaps over administrative judges? 

And, Professor Katzen, would you mind responding first, and 

then we will move across the dais? 

Ms. KATZEN. Trying to keep my answer brief, you raise some 

very important points. The APA is clearly relevant. 

The APA, the Administrative Procedure Act, which was written 

in 1946, deals with, for the most part—this is great simplification— 

the interaction between the agency and the public, what kind of 

input the public has and how the agency has to treat those comments. That is clearly relevant. But this is the other end of the 

process, which is having delegated the authority, what reins does 

the Congress want to keep on the agencies, and how does it manifest that? 

So, I think you can look at the CRA without looking at the APA, 

though I would encourage you to work on the APA because there 

are lots of issues there that warrant attention and, I think, updating. 

Having said that, the concept of review in this discussion that I 

find troubling in one major respect is that rules are not all the 

same. 

We talked ‘‘major,’’ and ‘‘non-major.’’ And I would beg of you to 

think ‘‘significant,’’ ‘‘non-significant’’ instead of ‘‘major,’’ ‘‘nonmajor’’ for the reasons I explained. But even among the biggies and 

the little guys there are huge differences. 

36 

The parliamentarian said he was not completely up to date on 

the numbers. It is roughly 50 to 100 ‘‘economically significant’’ 

rules a year, another 200 to 300 ‘‘significant’’ rules a year and 

2,000 to 3,000 ‘‘non-significant’’ rules a year. But what are these 

non-significant rules? One of the ones that I know help populate 

the ‘‘non-significant’’ world are FAA, Federal Aviation Administration, air worthiness directives. 

Do you really want to stand between the FAA issuing an air worthiness directive to take a plane out of operation or to fix a screw 

or to change a motor or to reinforce a door and have it go through 

the—no, you want those rules to be able to function. Those are the 

routine elements of Congress. 

Setting the course—— 

Mr. CANNON. I don’t mean to mix your words, but—— 

Ms. KATZEN. Go ahead. 

Mr. CANNON. But this is really a vital issue that I would like to 

just—if the Chair would indulge me. The fact is you have to have 

guidance that can’t go through Congress. But on the other hand, 

you want to have clarity about the process that develops the base 

rule. 

Don’t we need to be more subtle in our thinking between what 

is guidance that is clearly guidance and which over time becomes 

formalized, so that you have the ability to set—as you suggested 

before the hearing, Congress doesn’t set or review the times that 

we change for daylight savings time. The railroads, the other commissions do those sorts of detailed things. 

But ultimately when you make a decision about how the time 

should change, that may evolve actually into a rule that becomes 

part of a rule that is overseen. In other words, don’t we need to 

deal with—we have a world that is so radically different. We have 

wickies today. That means we can accumulate and collaborate and 

develop a wisdom that is greater than any individuals and certainly than any bureaucrats. 

Don’t we need to have some kind of process where we have clarity of decision on issues like screws and reinforcing doors and then 

on the other side, a cumulation of that process into a rule that we 

know has clarity? So you have certainty that you have to replace 

the screw. Then you have certainty about what the context of that 

replacing of the screw is because the larger rule goes through a 

process that is informed by each of the decisions that are more subtle. 

Ms. KATZEN. Yes, in a word. 

Mr. CANNON. Thank you. And that seems to me to be the task 

of this Committee. I appreciate that. 

Ms. SA ́ NCHEZ. Were you finished with your response, Professor? 

And did anybody else on the panel want to comment to the question or comments that Mr. Cannon posed? 

Ms. KATZEN. I guess I just would like to add that the reason I 

went through the FAA’s air worthiness directives, which are rules, 

and all the other rules, is you can’t talk about them as though they 

are the same thing. You have to go through the slicing and dicing 

and making those kinds of distinctions. And this discussion, which 

lumps it all together, is difficult to navigate. 

37 

Mr. ROSENBERG. Let us start with the APA and about amending 

it or doing something with it. APA is a very special law. It has 

been around since 1946 and, as Professor Katzen has noted, hasn’t 

been amended. I think there have been, you know, little things 

here and there. 

APA is a special law that is like our Constitution except it is the 

Constitution for our administrative processes. It has stop signs, 

and it has protections, and it has due process concerns. And those 

remarkably, if you study the history prior to 1946 and the 8-year 

battle to get the APA passed, what you will see is the 1946 enactment has become a charter of the Constitution which has been 

amended, interpreted as time has changed. 

And it has morphed and tempered, you know, with help of the 

courts, sometimes with, you know, statutory, with imaginative devices that ACUS helped during its 28-year period. Those kinds of 

things helped it. 

I don’t think we have to dive into it unless there is something 

egregiously wrong with the general public participation and 

reviewability and accountability provisions that are there now that 

have worked. What we have to look at is broader and look back 

on—it is dealing with Professor Katzen’s—let us cut it down to significant rules. 

What determines what is a significant rule? You thought it was 

pretty significant with regard to your constituent. 

Mr. CANNON. And that is only guidance. 

Mr. ROSENBERG. And that is guidance. But when a guidance— 

I have never understood the OMB new bulletin on guidance which 

says that they will review it if it has $100 million impact. Now, 

there may be a couple of guidances out there that some way or another have $100 million. 

But that seems to be treading very closely on what a rule is. If it has $100 million impact, to my mind, there is a presumption that 

perhaps there is something substantive about this that has an effect on persons outside the executive branch and outside the government and on private citizens if it has that much of an impact. 

What we are dealing with is—and remember what the CRA says. 

The CRA says that it is for—concerning what is a major rule, the 

only one who determines it is the OIRA administrator. 

Now, I don’t know that we want OIRA and what it does to be 

the one that determines what is a significant rule that Congress 

might be interested in. I don’t know how you can write a statute 

that says, you know, whatever OIRA is interested in we should be 

interested in it, too, and that has to be sent over somehow or another. 

I don’t think you can give the power to a jurisdictional Committee, you know, in the statute to say they can point to a rule and 

say send it up. I think there may be a charter problem there. 

You know, and I don’t think you have a choice of all the rules 

as there are now or specified rules and some other. Whoever determines whether it is a major rule or a significant rule that is important. 

Stepping back even further, we have got to be cognizant of the 

fact that there is a competition that is built into the Constitution 

between the President and Congress with respect to decision makVerDate Aug 31 2005 11:49 Feb 10, 2009 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\COMM\110607\38764.000 HJUD1 PsN: 38764
38 

ing in the executive branch. The fight since the New Deal, especially as more agencies have become more proliferous and also 

their powers have become more extensive, that the focus is on the 

agency, on agency decision making and who controls agency decision making. 

And over the last since the Reagan administration more and 

more agency decision making, particularly with regard to rulemaking has fallen into hands of the executive. I am not against executive, you know, review. I think it is beneficial and an important 

aspect of open government and also, you know, effective government and efficient government. 

But to the exclusion of Congress, the more Congress gets excluded from that decisional processes and unable to monitor and 

control and police the enormous amounts of delegated power, delegated lawmaking power it has given, I think we have to think 

about the future as, you know, it is not likely that any President 

in the future is going to accept less of power than has been claimed 

and asserted, you know, during the last 6, 8 years or 12 years and 

even during the Clinton administration. 

Mr. CANNON. Madam Chair, would you indulge me to just follow 

up on clarifying one point? 

Ms. SA ́ NCHEZ. I will, although we have gone way over time with 

your questioning. I will grant you an additional minute. We are 

also expecting votes. 

Mr. CANNON. I thank the Chair. 

Ms. SA ́ NCHEZ. And I do want to allow Mr. Johnson an opportunity to ask questions. 

Mr. CANNON. Certainly. I apologize to Mr. Johnson in advance 

here. 

If I could restate what I think you are saying, Mr. Rosenberg, the 

APA is important because like the Constitution, it is based on principles. And those principles haven’t changed. And they won’t 

change. 

My concern is that the context in which we are applying those 

principles has changed dramatically. So the number of decisions 

being made, the number of people at lower and lower levels making 

decisions which may or may not be significant to OIRA but may be 

significant to a business ought to be captured somehow with the 

new tools that are available to capture those. So I have never advocated a throwing out and redoing of APA, only of updating it on 

the margins. And is that consistent with what you are suggesting? 

Mr. ROSENBERG. Context does not override basic principles, 

whether it is the principles that underlie the APA or the principles 

that underlie the separation of powers. 

Mr. CANNON. Exactly. 

Mr. ROSENBERG. Undermining them, undermining the ability of 

Congress to be the prime policy maker in the separation of powers 

is dangerous. 

Mr. CANNON. I think we agree entirely. The question is don’t we 

have tools today, and don’t we have a need because of the growth 

of government and decision makers within government to use new 

tools to help make the principles of the APA applicable at increasingly low levels of government. 

39 

Mr. ROSENBERG. If you are thinking the CRA is a tool, it is an 

ineffective tool. If it was amended and made effective so that Congress can be more accountable about its delegations and also assure that there is transparency and there is accountability in the 

executive, yes, that is fine. That is creating new tools, you know, 

to accomplish those basic, you know, constitutional and administrative law, you know, precepts and protecting them—— 

Ms. SA ́ NCHEZ. The time of the—— 

Mr. ROSENBERG [continuing]. Will be very beneficial. 

Ms. SA ́ NCHEZ [continuing]. Gentleman has expired. 

Mr. CANNON. Thank you, Madam Chair. I yield back. 

Ms. SA ́ NCHEZ. And I will recognize Mr. Johnson for 5 minutes of 

questions. 

Mr. JOHNSON. Thank you, Madam Chair. I will try my best to 

come up with 5 minutes worth of material. I will say that I stayed 

awake last night pondering the realities of this information that we 

are receiving today and tried my best to engender some type of enthusiasm. And I was woefully unable to do so. 

Mr. CANNON. If the gentleman will yield, he has chosen the right 

Committee. 

Mr. JOHNSON. I am very impressed that my friend, Mr. Cannon, 

has been completely successful at being enthusiastic about it. So 

my hat is off to you, sir. And you are welcome to utilize another 

10 minutes of my time that I will probably—— 

Mr. CANNON. As long as the gentleman will not go to sleep during that period. 

Mr. JOHNSON. It was recently reported that because the Administration has been frustrated by the legislative process, Mr. Rosenberg, that the President has endeavored to achieve policy objectives 

through executive orders or agency rulemaking. What reforms to 

the CRA are the most important in strengthening congressional 

oversight of agency rulemaking? 

Mr. ROSENBERG. First, having an adequate screening mechanism 

with respect to rules, whatever which ones are going to be reported, whether they are all the rules, the major rules, significant 

rules, whatever they are. It needs to be a mechanism that—and 

one particular model is a joint Committee that is not a substantive, 

not a legislative Committee, but a Committee from both houses 

that receives the rules, has an ability to look at them in-depth, to 

get help, let us say, of GAO to do cost benefit, cost effectiveness 

analysis, any other analysis necessary so that a judgment can be 

made by a joint Committee with respect to rules they find significant, that then recommends them to the jurisdictional Committees; 

second, a process, a coordinate process of expedited consideration 

in the House, both houses; third, dealing with certain interpretative flaws that are in the CRA. 

I think it wouldn’t be destructive or threatening to the executive. 

It would put back on a par that is probably necessary for the maintenance of the separation of powers. 

Mr. CANNON. Would the gentleman yield? 

Mr. JOHNSON. Yes. 

Mr. CANNON. In that scenario, Mr. Rosenberg, would you suggest 

that perhaps if the Committee of jurisdiction decides that there is 

a problem with the rule that it can hold that rule from going into 

40 

effect during some sort of a legislative deferral to rules and therefore, having a bigger bite with the agency? 

Mr. ROSENBERG. Are you saying to have a—— 

Mr. CANNON. Some way to have a holdup on a rule. 

Mr. ROSENBERG. A mini-veto? 

Mr. CANNON. Yes, based upon a majority of a Committee. In 

other words, what would you do to give teeth to Congress over the 

rules that come to us? 

Mr. ROSENBERG. Well, you can’t give them legislative veto powers. In other words, you can’t have these rules unless you make all 

rules recommendatory and have a fast track process for taking care 

of 99.9 percent of them and filtering them through. That is not 

likely to receive, you know, blessing either here in the House or 

certainly not by the President. 

Mr. CANNON. You think the President would veto that idea? 

Mr. ROSENBERG. I think he would laugh his way to the veto 

table. 

Mr. CANNON. He might laugh his way into an override. 

Mr. ROSENBERG. I don’t think there could be—no, but I think 

that a mechanism that—and the joint Committee is one that I 

think has a political efficacy, too. You are not impinging on the jurisdictions of the Committee’s in both houses. 

What you are doing is having recommendations which then can 

be acted upon in an expeditious way. That could be frightening. 

That would truly be frightening to, you know, the agencies. They 

would take notice. 

I mean, preferably we know that the agencies are between a rock 

and a hard place between OMB and OIRA and jurisdictional Committees. But if the choice be made nowadays in the last decade or 

more, they are going to do what OIRA and OMB says. 

Mr. CANNON. Madam Chair, I note that the time has expired. 

But I think that Professor Katzen would like to respond. And so, 

I ask unanimous consent that the gentleman’s time be extended so 

that she can respond. 

Mr. JOHNSON. Thank you. I was just getting ready to reclaim 

what little time I had. 

Ms. SA ́ NCHEZ. Mr. Johnson, Mr. Cannon ate up all your time. I 

just want that noted for the record. In the future you might be a 

little more judicious about how many minutes you do yield to him. 

Mr. CANNON. And Mr. Johnson didn’t go to sleep. This is an 

amazing hearing. 

Ms. SA ́ NCHEZ. Professor Katzen, you will be allowed to answer. 

I just want to advise Members we have been called across the 

street to vote. We do need to wrap up the hearing. 

So if you could be brief, we would appreciate that. 

Ms. KATZEN. I will try, although there has been a lot said that 

I think is far more complicated. A joint Committee is something, 

notwithstanding my enormous respect for Mr. Rosenberg, that I am 

very dubious about. Think about who signs up for such a Committee. Think about who does the work on such a Committee. 

Ms. SA ́ NCHEZ. Probably Mr. Cannon and not Mr. Johnson. 

Ms. KATZEN. I am not sure Mr. Cannon would be happy looking 

at 4,000 rules each year, which is why I say the Committees of jurisdiction are the ones that have the expertise and the experience 

41 

to recreate that, or I should say to attempt to recreate that in a 

new joint Committee would be, I think, to create another bureaucracy. And I ordinarily don’t use the ‘‘b’’ word as a bad word. But 

in this instance, there would be a layering effect that will not provide the institutional benefits that you might otherwise want to 

have. 

With respect to expedition, having participated into the wee 

hours of the morning in negotiating the CRA back in 1995, I can 

tell you there was not one whit of concern about the House. If the 

leadership of the House wants to bring something up, it has the 

ability to do it. The problem has always been the Senate. 

And what the CRA did—and I know I am speaking on the House 

side, not the Senate side—but please believe me that what the 

CRA does is bypass the possibility of filibuster, and that was enormous. It was monumental. It was not swallowed easily by the Senate. It was incredibly significant. I don’t think you have to change 

the rules in the House to achieve any kind of result like that. 

In terms of the clarifications, I would join Mr. Rosenberg there. 

I think it is not clear that it is extant to the kinds of guidance documents that have been stipulated. And the agencies are not sure 

of it. 

I would, as a matter of personal privilege having served as administrator of OIRA for 5 years, take exception to the characterization of who decides what is ‘‘significant’’ and whether that is a good 

place to be. And I would like to engage with the Committee on the 

process that OIRA uses. And it is not purely subjective, and we are 

not hiding the ball. We are not. 

How could I say we? It has been over 10 years since I served in 

that capacity. But as an institution, OIRA doesn’t try to hide the 

ball on that. So it strikes me that one has to take some of the 

things you have heard today with just a tiny grain of salt. 

Ms. SA ́ NCHEZ. Thank you. And I want to thank all of the witnesses for their testimony today. 

Without objection, Members will have 5 legislative days to submit any additional written questions which we will forward to the 

witnesses and ask that you answer as promptly as you can so that 

they can be made a part of the record. Without objection, the 

record will remain open for 5 legislative days for the submission of 

any additional material. 

And I want to thank again our panelists for their time and their 

patience. And this hearing on the Subcommittee of Commercial and 

Administrative Law is adjourned. 

[Whereupon, at 3:04 p.m., the Subcommittee was adjourned.] 

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MATERIAL SUBMITTED FOR THE HEARING RECORD

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ANSWERS TO POST-HEARING QUESTIONS FROM THE HONORABLE JOHN V. SULLIVAN, 

PARLIAMENTARIAN, UNITED STATES HOUSE OF REPRESENTATIVES, WASHINGTON, DC 


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ANSWERS TO POST-HEARING QUESTIONS FROM MORT ROSENBERG, SPECIALIST IN

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ANSWERS TO POST-HEARING QUESTIONS FROM SALLY KATZEN, VISITING PROFESSOR, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW, WASHINGTON, DC 


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