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65–074 PDF 2011

REGULATIONS FROM THE EXECUTIVE IN NEED 

OF SCRUTINY ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 10 

MARCH 8, 2011 

Serial No. 112–26 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

TOM REED, New York 

DENNIS ROSS, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 8, 2011 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

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

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 2 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

David Schoenbrod, Trustee Professor of Law, New York Law School 

Oral Testimony ..................................................................................................... 81 

Prepared Statement ............................................................................................. 83 

Eric R. Claeys, Professor of Law, George Mason University School of Law 

Oral Testimony ..................................................................................................... 87 

Prepared Statement ............................................................................................. 90 

David Goldston, Director of Government Affairs, Natural Resources Defense 

Council 

Oral Testimony ..................................................................................................... 122 

Prepared Statement ............................................................................................. 124 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 4 

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

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

on the Judiciary ................................................................................................... 7 

Material submitted by the Honorable John Conyers, Jr., a Representative 

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

on the Judiciary ................................................................................................... 139 

(1) 

REGULATIONS FROM THE EXECUTIVE IN 

NEED OF SCRUTINY ACT OF 2011 

TUESDAY, MARCH 8, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 4 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Gowdy, Gallegly, Franks, Reed, 

Ross, Cohen, Johnson, and Quigley. 

Also Present: Representatives Conyers and Jackson Lee. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; Ashley Lewis, Clerk; John Hilton, Counsel; and Allison 

Rose, Professional Staff Member. 

Mr. COBLE. The Subcommittee will come to order. 

As I stated in our January, 24, 2011, oversight hearing it is no 

secret that our economy is still soft. Unnecessary or unreasonable 

regulatory burdens will continue to drive business investments to 

other countries, and the result will continue to be too few American 

jobs and too little American prosperity. Perhaps more than anything else is Congress’ excessive delegation of legislative decisions 

to Federal agencies that has produced a flood of Federal regulation 

that burdens our economy. When Congress makes the decisions, it 

is accountable to the voters for the results. When agencies make 

the decisions, they are not. 

Not surprising, therefore, it is the unaccountable agencies that 

churn out regulation after regulation, year after year, whether 

needed or not. The cumulative weight of their regulations contributes heavily to the difficulty of our economic recovery. So does uncertainty over what regulations will come next, particularly what 

$100 million or $1 billion regulations are around the country. 

The REINS Act is an important step, it seems to me, to turn this 

state of affairs around. It returns to Congress the decisions over 

whether the most costly regulations proposed by Federal agencies 

will become effective. And by returning these decisions to Congress, 

it ultimately will return the decisionmaking authority to the voters. 

At our January, 2011, oversight hearing on the REINS Act, we 

considered at length the basic policy decision that the REINS Act 

presents. We also began a discussion about the constitutionality of 

the bill. At today’s hearing, we will continue our consideration of 

2 

the REINS Act’s constitutionality. It is my view that the discussion 

must begin from the premise that agencies have legislative rulemaking authority only because the Congress has delegated it to 

them. Therefore, when Congress seeks to reclaim some of its legislative authorities, that would seem to be inherently constitutional. 

I am sure the witnesses will offer us their views on that and on 

ways in which we may be able to improve the REINS Act language. 

I look forward to hearing our witnesses’ testimony, and reserve the 

balance of my time, and I am pleased to recognize the distinguished gentleman from Tennessee, the Ranking Member on this 

Subcommittee, Mr. Cohen. 

Mr. COHEN. Thank you, Mr. Chair. 

Welcome to the witnesses. I appreciate your coming before us. 

Sometimes during a legislative hearing, a Committee will examine the particulars of a bill at issue, including the quality of its 

drafting, the need for additional provisions, or whether it can be 

improved or tweaked to make it more acceptable to the bill’s opponents. 

However, with respect to H.R. 10, the ‘‘Regulations From the Executive in Need of Scrutiny Act,’’ or ‘‘REINS Act,’’ I do not see the 

point of engaging in such a process because such a bill is simply 

an ill-conceived notion, particularly because the regulations—the 

title, Regulations From the Executive in Need of Scrutiny, implies 

directly that the Executive is in need of scrutiny. That Executive, 

of course, is the President of the United States; not the president 

of the Democratic Party, but the President of the United States, 

Barack Obama. 

This act was not needed when George Bush was President, apparently. He did not need scrutiny, although, in retrospect, with 

the Nation coming close to falling into the Great Depression, the 

second Great Depression we would have had, he needed a lot of 

scrutiny. Putting us into a war where we didn’t have weapons of 

mass destruction, and squandering a trillion dollars of our wealth 

and 4,500 people’s lives and a whole lot of our reputation around 

the world, he didn’t need scrutiny. Only when this man, this great 

man becomes President, is there a need for—let me see the title of 

this again—executive scrutiny. I think that is what it was. Executive in Need of Scrutiny Act. Well, in itself I think you can see that 

it is political and not a governmental decision. 

In reviewing the written statements of the two majority witnesses, it is clear the real purpose of this hearing is to attack at 

its foundation the administrative system, particularly this President. In fact, both witnesses seem to take a strong issue with much 

of the 20th century. In fact, this antecedes the President, but certainly his policies embody much of the great policies of the last half 

of the 20th century which are under attack in this Congress, this 

modern government is. 

Under H.R. 10, all major rules, that is, rules that have a positive 

or negative economic effect of a hundred million dollars or more, 

and there are increased prices for consumers, industries, and government entities, or have significant adverse economic impact must 

be approved by Congress before they can take effect. Congress 

must do so by passing a joint resolution of approval through both 

Chambers under expedited process. 

3 

I do not believe the REINS Act is necessary for the exercise of 

congressional control over the administrative system. Congress already has a number of means at its disposal to shape agency rulemaking. The most straightforward, of course, is its power to determine the nature and scope of its delegation of authority to an agency. If Congress deems the delegation of authority was too broad, it 

is always free to revisit that delegation and, if needed, retract or 

narrow the scope of the agency’s authority, always keeping in mind 

that we have three separate and equal branches of government. 

And that should be reminded to us as well as we read the Constitution in the first week. And it talked about the three separate 

branches, Article 1 and 2, et cetera. 

Additionally, as it was demonstrated vividly just a few weeks 

ago, Congress can use its power of the purse to stop implementation of specific regulations it objects to. For instance, no fewer than 

19 out of the 67 amendments to H.R. 1, the ‘‘Full Year Continuing 

Appropriations Act 2011,’’ or the attack on the last half of the 20th 

century were aimed at defunding the promulgation or implementation of existing and proposed regulations. Congress can also conduct oversight, whether through formal hearings or through less 

formal interactions between agencies and individual Members or 

Committees. Among the first phone calls that small business people and other constituents make when they have concerns about 

agency actions are to their Member of Congress, which in turn 

prompts Members to act. 

Finally, Congress has enacted statutes to shape the administrative rulemaking process, including the Administrative Procedure 

Act and the Regulatory Flexibility Act. Moreover, through the reporting requirements through the Congressional Review Act, Congress has kept informed about agency rulemaking activity. 

Congress is not shy about objecting to rules it finds objectionable, 

and has the means to impose its will regarding such matters. 

Moreover, each of these mechanisms ensures democratic accountability over agency rulemaking. The REINS Act, however, would 

force Congress to pass judgment on major rules without the opportunity to make a well-informed decision about their merits, leaving 

them wide open for special interests to stifle such rules in Congress. 

Under the bill, Congress has only 70 legislative days to pass the 

joint resolution of approval through both Chambers, and is limited 

to a total of 2 hours of debate in each House; only 1 hour for each 

of those in favor and 1 for those opposed to the joint resolution; certainly not enough time for a well-informed and intellectual debate 

of the issues. 

Committees of jurisdiction will only have 15 legislative or session 

days to consider the merits of major rules under their jurisdiction, 

after which a joint resolution of approval is automatically discharged. 

Under such a short-circuited process, is Congress really in a position to second-guess the merits of rules that in many cases took 

many years of vetting to produce? Instead, Members would be 

bombarded with visits, phone calls, and talking points from industry lobbyists who would no doubt take advantage of this shortcircuited process to shape Members’ perspectives about the recalls. 

4 

The REINS Act forces Congress to move too quickly while pointlessly slowing down the agency rulemaking in a way that is not improvement. The REINS Act also threatens to undermine Congress’ 

ability to consider other legislative business. For example, in calendar year 2010 alone, there were 94 major rules while there were 

only approximately 116 legislative days in the House during the 

same period. We are having less time on the floor, now that we 

have had a change in the 112th Congress in how we meet. Even 

under expedited procedures, Congress would be forced to delay important business, doing a further disservice to the American people. 

This is not the first time the idea of requiring congressional approval has been proposed. It has been considered and rejected in 

the past. Chief Justice John Roberts criticized such legislation that 

was similar to the REINS Act in 1983. In a memorandum he objected that such legislation would ‘‘hobble agency rulemaking by requiring affirmative congressional consent to all major rules,’’ and 

would ‘‘seem to impose excessive burdens on the regulatory agencies.’’ 

We ought not let the political passions at the moment produce 

such a radical change in how our government has worked and 

worked well for more than a hundred years, recognizing the three 

separate and equal branches of government. 

The REINS Act is troubling for many reasons beyond the obvious 

political reins that it tries to project, and I urge my colleagues to 

oppose it. 

I yield back the balance of my time. 

[The prepared statement of Mr. Cohen follows:] 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress 

from the State of Tennessee, and Ranking Member, Subcommittee on Courts, 

Commercial and Administrative Law 

Sometimes during a legislative hearing, a committee will examine the particulars 

of the bill at issue, including the quality of its drafting, the need for additional provisions, or whether it can be improved or tweaked to make it more acceptable to 

the bill’s opponents. 

With respect to H.R. 10, the ‘‘Regulations From the Executive in Need of Scrutiny 

Act’’ or ‘‘REINS Act,’’ however, I do not see the point of engaging in such a process 

because the bill is, simply put, an ill-conceived idea. 

In reviewing the written statements of the two Majority witnesses, it is also clear 

that the real purpose of this hearing is to attack at its foundation the administrative system. In fact, both witnesses seem to take strong issue with much of the 20th 

Century, at least with respect to the development of modern government. 

Under H.R. 10, all major rules—that is, rules that have a positive or negative economic effect of $100 million or more, increase prices for consumers, industries, and 

government entities, or have a significant adverse economic impact—must be approved by Congress before they can take effect. Congress must do so by passing a 

joint resolution of approval through both chambers under expedited procedures. 

I do not believe the REINS Act is necessary for exercising Congressional control 

over the administrative system. Congress already has a number of means at its disposal to shape agency rulemaking. 

The most straightforward, of course, is its power to determine the nature and 

scope of its delegation of authority to an agency. If Congress deems that its delegation of authority was too broad, it is always free to revisit that delegation and, if 

needed, retract or narrow the scope of the agency’s authority. 

Additionally, as was demonstrated vividly just a few weeks ago, Congress can use 

its power of the purse to stop implementation of specific regulations that it objects 

to. For instance, no fewer than 19 out of the 67 amendments to H.R. 1, the ‘‘FullYear Continuing Appropriations Act of 2011,’’ were aimed at de-funding the promulgation or implementation of existing and proposed regulations. 

5 

Congress also can conduct oversight, whether through formal hearings or through 

less formal interactions between agencies and individual Members or Committees. 

Among the first phone calls that small businesspeople and other constituents make 

when they have concerns about agency action is to their Member of Congress, 

which, in turn, prompts Members to act. 

Finally, Congress has enacted statutes that shape the administrative rulemaking 

process, including the Administrative Procedure Act and the Regulatory Flexibility 

Act. Moreover, through the reporting requirements of the Congressional Review Act, 

Congress is kept informed about agency rulemaking activity. 

Congress is not shy about objecting to rules that it finds objectionable and has 

the means to impose its will regarding such matters. Moreover, each of these mechanisms ensures democratic accountability over agency rulemaking. 

The REINS Act, however, would force Congress to pass judgment on major rules 

without the opportunity to make a well-informed decision about their merits, leaving the door wide open for special interests to stifle such rules in Congress. 

Under the bill, Congress has only 70 legislative days to pass a joint resolution of 

approval through both chambers and is limited to a total of 2 hours of debate in 

each House—only 1 hour each for those in favor and for those opposed to the joint 

resolution. Committees of jurisdiction would have only 15 legislative or session days 

to consider the merits of major rules under their jurisdiction, after which a joint resolution of approval is automatically discharged. 

Under such a short-circuited process, is Congress really in a position to secondguess the merits of rules that, in many cases, took years of vetting to produce? 

Instead, Members would be bombarded with visits, phone calls, and talking points 

from industry lobbyists, who would no doubt take advantage of this short-circuited 

process to shape Member views about the rule. 

The REINS Act forces Congress to move too quickly while pointlessly slowing 

down the agency rulemaking process in a way that does not improve it. 

The REINS Act also threatens to undermine Congress’s ability to consider other 

legislative business. For example, in calendar year 2010 alone, there were 94 major 

rules, while there were only approximately 116 legislative days in the House during 

that same time period. Even under expedited procedures, Congress would be forced 

to ignore other important business, doing a further disservice to the American people. 

This is not the first time that the idea of requiring Congressional approval of 

agency rules has been proposed. Such a proposal had been considered and rejected 

by Congress in the past. 

Interestingly, Chief Justice John Roberts criticized legislation that was very similar to the REINS Act back in 1983. In a memorandum, he objected that such legislation would ‘‘hobbl[e] agency rulemaking by requiring affirmative Congressional assent to all major rules’’ and would ‘‘seem to impose excessive burdens on the regulatory agencies. . . .’’ 

We ought not let the political passions of the moment produce such a radical 

change in how our government has worked—and worked well—for more than 100 

years. The REINS Act is troubling for many reasons, and I urge my colleagues to 

oppose it. 

Mr. COBLE. I thank the gentleman from Tennessee. 

The Chair recognizes the former Chairman of the House Judiciary Committee, the distinguished gentleman from Michigan, for his 

opening statement. 

Mr. CONYERS. Thank you very much, Chairman Coble and Ranking Member. I am very happy to be with you all today and to also 

recognize, in addition to the distinguished witnesses, our former 

colleague, Sherwood Boehlert of New York. We are grateful that he 

is once again up on the Hill in this hearing room. 

But today we focus on H.R. 10. Now what does REINS stand for? 

Regulations From the Executive in Need of Scrutiny. REINS. This 

is the fourth time in this Subcommittee in less than a month and 

a half that we considered the state of the Nation’s regulatory system. I want to thank Chairman Coble for having this hearing. It 

was at my request. But I am raising the question of this incredible 

amount of attention that is being paid in a number of ways. I have 

6 

one, two, three, four, five, six, seven, eight, nine, ten different hearings in a number of Committees in the House of Representatives, 

but four of them come from this very Subcommittee. 

We studied and had a hearing on this same bill on January 24. 

And then we had a hearing on the Regulatory Flexibility Improvement Act on February 10. And then on February 28 we had a hearing on the APA at 65: Is reform needed to create jobs, promote economic growth, and reduce costs? And then, of course, today we are 

having yet another hearing on Regulations From the Executive in 

Need of Scrutiny. 

Now, we have got some incredible comments coming in. And 

what I would like to do, if I can, is make the point that there must 

be some concern among ourselves as a Committee and the witnesses, who should be very much interested in whether or not this 

bill will threaten the health, the safety, and the welfare of the citizens in our country. 

From my experience, we are undeniably in a better place in this 

country today than we were several decades ago, largely as a result 

of regulations that have promoted worker safety, improved the environment, and ensured the purity of our foods and drugs. Within 

a generation we have restricted lead in gasoline and paint, required autos to be equipped with seat belts and air bags, reduced 

the number of carcinogens that appear in our Nation’s food, drugs, 

and cosmetics. We have engineered startling health and safety advances, from catalytic converters to scrubbers required on smoke 

stacks, and the elimination of chemicals, among them freon and 

others, that were actually burning a hole in the ozone layer. Yet, 

it is unlikely that these health and safety gains we have enjoyed 

would have been possible under the very legislative proposal, H.R. 

10, that we are considering. 

This measure before us today for the fourth time would effectively strip Federal agencies of the authority to implement environmental public health and safety protections unless a majority in 

both House and Senate approved the rules and then they were 

signed by the President. I needn’t tell you how that would slow the 

process down, how it would complicate the agencies from taking 

care of their responsibility. Things move slowly enough in the congressional process now. We certainly don’t need to have the Congress now reviewing and passing on agency regulations. 

Some have gone as far as to suggest that the removal of lead 

from gasoline in the seventies wasn’t a result of the Congress, that 

indeed I question if REINS were enacted, we would never get anything done. And so my feeling is that giving lawmakers a personal 

stake in updating statutes is totally the wrong direction in which 

to go. 

We have some new Members, the newest party in American politics, the Tea Party. I always worry about their positions on things 

as well. And we have had at least one Member before the Committee on various regulatory subjects. 

As has been demonstrated in every prior hearing of this Subcommittee, we have repeatedly talked about the costs, but apparently—I hope accidentally—ignored the benefits. And so what I 

want to do is refer you not only to the Center for Progressive Reform, which has recently released ‘‘Setting the Record Straight,’’ 

7 

the Crane and Crane report on regulatory costs, as well as the Office of Management and Budget that estimated that the benefits 

associated with major regulations were between $126 billion to 

$663 billion—more than ten times their cost. This is OMB. 

I will submit the rest of my statement, Mr. Chairman, and thank 

you for your indulgence. 

Mr. COBLE. Without objection. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Today’s hearing, focuses on H.R. 10, the ‘‘Regulations From the Executive in Need 

of Scrutiny Act of 2011’’ (otherwise known as the ‘‘REINS Act’’). This hearing marks 

the fourth time this Subcommittee—in less than a month and a half—considers the 

state of the Nation’s regulatory system. 

Unfortunately, my colleagues on the other side of the aisle appear to be absolutely 

committed to pursuing a divisive partisan agenda that has little prospect of creating 

jobs and improving the economy. 

Nevertheless, I appreciate Chairman Coble’s concurrence with my request to hold 

a legislative hearing on H.R. 10 to follow-up on the oversight hearing held on this 

legislation last January. 

If anything, this second hearing on the REINS Act gives me yet another opportunity to highlight this bill’s numerous flaws. 

In sum, the REINS Act, if enacted, would impose a drastic cost on society. 

It would dramatically change the way necessary and beneficial rules are promulgated, by requiring all new major regulations to be affirmatively approved by both 

Houses of Congress and the President before they can take effect. 

I am gravely concerned that this bill will threaten the health, safety and 

welfare of our country. 

We are undeniably in a much better place in this country today than we were 

several decades ago largely as a result of regulations that have promote worker 

safety, improve the environment, and to ensure the purity of our food and drugs. 

In the span of a generation, we have restricted lead in gasoline and paint, required automobiles to be equipped with seatbelts and air bags, and reduced the 

number of carcinogens that appear in our Nation’s food, drugs and cosmetics. 

We have engineered startling health 

and safety advances from catalytic converters to scrubbers on smoke stacks and 

the elimination of chemicals like Freon that were burning a hole in the ozone layer. 

Yet, it is unlikely that any of the health and safety gains we have enjoyed would 

have been possible under H.R. 10. 

This bill would effectively strip federal agencies of the authority to implement environmental, public health, and safety protections unless a majority in both the 

House and the Senate approved the rules and they were signed by the President. 

Proponents of the REINS Act claim it will increase accountability and transparency in the regulatory process. 

For example, one of our witnesses today will argue that Congress is no longer accountable to voters because it gives federal agencies the responsibility to decide controversial issues. 

He seems to suggest in his written testimony that members of Congress cannot 

be trusted to make hard decisions. He cites the effort to remove lead from gasoline 

in the 1970s. 

Let’s talk about lead and gasoline. 

Professor Schoenbrod suggests in his written testimony that in 1970, Congress 

wasn’t able to protect children from lead and gasoline. 

He claims that Congress was stymied by competing demands: the demand to protect children and voters’ desire to keep gas cheap. 

If that, indeed, was the case, I question why he would believe that in 2011 or 

2012, if the REINS Act were to be enacted, Congress would be any less stymied? 

Is there reason to believe that ‘‘the past is no longer prologue’’ with respect to 

Congress? 

Professor Schoenbrod suggests twice in his written testimony that the REINS Act 

would give lawmakers a ‘‘personal stake’’ in updating statutes, and make Congress 

more accountable and responsible to the people. 

Professor Schoenbrod, I invite you to look around. 

8 

1Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, & Matthew L. Spitzer, Administrative Law and Regulatory Policy, p. 80 (4th ed. 1999). 2 Id. 

3 Id. at 81. 4 462 U.S. 919 (1983). 

5 Id. at 923. 6 Id. at 924. 7 Id. at 923–924. 8 Id. at 925. 

Do you really see a commitment to compromise, and to modulate personal views 

for the greater good from our newest members of Congress? 

Do you honestly believe that our newest, Tea Party members of Congress are interested in compromising for the greater good, in order to update statutes? 

I am afraid the answer is no. In reality, H.R. 10, will serve to block essential public health, environmental, and safety protections. 

As demonstrated at each of the three prior hearings on the state of our Nation’s 

regulatory system, my colleagues on the other side of the aisle repeatedly cite the 

costs of regulations, but conveniently ignore their benefits, which in most instances 

greatly exceed their costs. 

We already discussed in the first hearing on H.R. 10 the flawed economic analysis 

underlying these claims, and the fact that the key study cited in support of this legislation fails to account for the overwhelming benefits of regulation—including both 

cost-benefits and benefits improving quality of life. 

At the hearing this Subcommittee held on February 10, 2011 on H.R. 527, the 

Regulatory Flexibility Improvements Act of 2011, we entered into the hearing record 

the report that clarifies this issue from the Center for Progressive Reform entitled 

Setting the Record Straight: The Crain and Crain Report on Regulatory Costs. 

Also, I should remind my colleagues that the Office of Management and Budget— 

during both the Bush and Obama Administrations—found that the benefits of regulation overwhelmingly outweigh the costs. 

Specifically, OMB estimated that the benefits associated with major regulations were between $126 to $663 billion, that is, more than ten times their cost! 

Others have similarly agreed with this analysis and I expect these reports will 

also be offered to be included in today’s hearing record. 

Another concern that H.R. 10 presents is that it will violate fundamental 

separation of powers principles. 

The bill goes well-beyond the careful balance of power envisioned by the Constitution by giving Congress both the power to make the laws and, in effect, to execute 

those laws, which would raise significant separation of powers concerns. 

As a result, H.R. 10 turns the constitutional process for amending legislation on 

its head. 

In effect, it would authorize either the House or Senate to void or block enacted 

laws when those laws are executed by agencies through implementing regulations. 

Moreover, the bill threatens to create what would in effect be an unconstitutional 

one-House legislative veto, because all it requires is for one chamber to not act in 

order to veto a major rule. 

By way of background, the legislative veto is a clause in a statute that provides 

that a particular agency action will not take effect if Congress nullifies it by resolution within a specified time period.1 The details of the legislative veto could vary 

from statute to statute, but whatever the particulars, the legislative veto was the 

means by which Congress reserved the power to nullify the executive branch’s exercise of delegated agency authority.2 The basic goal of the legislative veto was to 

allow Congress an opportunity to oversee and veto agency decisions, particularly 

when agencies acted under statutes that gave them broad discretion that amounted 

to a form of lawmaking.3 The legislative veto was incorporated into many individual 

statutes rather than one overarching statute. 

In 1983, the United States Supreme Court held in Immigration & Naturalization 

Serv. v. Chadha 4 that the legislative veto was unconstitutional Chadha was a foreign student who overstayed his student visa and was, therefore, subject to deportation.5 When the Immigration and Naturalization Service (INS) started deportation 

proceedings against Chadha, he applied for a suspension of deportation.6 Under the 

Immigration and Nationality Act, the INS had the authority to suspend deportations for humanitarian reasons—authority that Congress delegated to the Attorney 

General, who, in turn, delegated it to the INS.7 The Act, however, contained a legislative veto provision that required the Attorney General to report to Congress all 

instances in which the INS suspended deportation and allowed each House of Congress to pass a disapproval resolution within a certain amount of time.8 If either 

House passed such a resolution, the suspension of deportation was invalidated and 

9 

9 Id. 

10 Id. at 926–928. 11 Id. at 954–955, 959. 12 Id. at 946–951. 13 Id. at 967 (White, J., dissenting). 14 Ben Geman, Top Republican Eyes Congressional Review Act Challenge to EPA Rules, THE 

HILL, Jan. 2, 2011, available at http://thehill.com/blogs/e2-wire/677-e2-wire/135595-upton-eyescongressional-review-act-challenge-to-epa-climate-rules. 15 As used in the CRA, the term ‘‘rule’’ means ‘‘the whole or part of an agency statement of 

general . . . applicability and future effect designed to implement, interpret, or prescribe law 

or policy. . . .’’ 5 U.S.C. § 551 (2006). See also 5 U.S.C. § 804(3) (2006) (defining ‘‘rule’’ by reference to § 551, with certain exceptions). 16 5 U.S.C. § 804(2). 17Pub. L. No. 104–121, subtitle E, 110 Stat. 857–74 (1996) (codified as 5 U.S.C. §§ 801–808). 18Pub. L. No. 96–353 (1980). 19Pub. L. No. 104–4 (1995). 20 5 U.S.C. § 801(a)(1)(B). 21See 5 U.S.C. § 802 (outlining congressional disapproval procedure). 22 5 U.S.C. § 802(a). 23 U.S. Const. Art. I, § 7, cl. 2, 3. 24 5 U.S.C. § 801(f). 25 5 U.S.C. § 801(b)(2). 26 5 U.S.C. § 802(c). 

the deportation had to proceed.9 In Chadha’s case, Congress exercised that veto and 

Chadha challenged its constitutionality in court in response.10 The Court concluded 

that the legislative veto provision violated the Bicameralism and Presentment 

Clauses of Article I of the Constitution.11 These Clauses required, respectively, that 

legislation, including a resolution vetoing an agency action, must pass both Houses 

of Congress and be presented to the President for his approval or, if he disapproved, 

that the bill be re-passed by two-thirds of both Houses of Congress.12

The Chadha decision had a profound impact on the administrative system because at the time the decision was handed down, more than 200 statutes contained 

legislative veto provisions.13 The Chadha decision invalidated all of them and Congress lost an important form of control over many types of agency action. 

While Congress continued to have the power to check agency behavior through 

more limited delegations of authority, the appropriations process, or oversight, Congress also explored a number of ways that it could achieve the objectives of the legislative veto while comporting with Article I’s mandates after the Chadha decision. 

One response was the Congressional Review Act (CRA), which was enacted with bipartisan support in 1996 as part of then-Speaker Newt Gingrich’s Contract with 

America.14

The CRA requires an agency promulgating a rule 15 to submit a report to both 

Houses of Congress and to the Government Accountability Office (GAO) containing: 

(1) a copy of the rule; (2) a concise general statement describing the rule, including 

whether it is a major rule (i.e., one that will likely have an annual effect on the 

economy of $100 million or more, increases costs or prices for consumers, industries 

or State and local governments, or have significant adverse effects on the economy) 16; and (3) the proposed effective date of the rule.17

If the rule is a major rule, the agency must further submit to GAO and each 

House of Congress: (1) a complete copy of any cost-benefit analysis; (2) a description 

of the agency’s actions pursuant to the requirements of the Regulatory Flexibility 

Act 18 and the Unfunded Mandates Reform Act of 1995 19; and (3) any other relevant 

information required under any other act or executive order.20

The CRA authorizes Congress to disapprove an agency rule to which it objects. 

Congress can do so by enacting a joint resolution of disapproval.21 Such a joint resolution must be introduced within at least 60 days of the rule’s submission to Congress.22 For a joint resolution of disapproval to take effect, it must pass both Houses 

of Congress and be signed by the President (thereby meeting the Bicameralism and 

Presentment Clauses’ requirements, as required by the Chadha decision.) 23 If a 

joint resolution is enacted into law, the disapproved rule is deemed not to have had 

any effect at any time.24 Additionally, the CRA prohibits an agency from reissuing 

a rule that is substantially the same as a disapproved rule.25 The CRA prescribes 

special expedited procedures for Senate consideration of a joint resolution of disapproval, though it does not provide for similar procedures in the House of Representatives.26

Barring congressional action, a major rule goes into effect on the latest of three 

possible dates: (1) 60 calendar days after it has been submitted to Congress or has 

been published in the Federal Register, (2) 30 session days after a presidential veto 

of a joint resolution of disapproval or earlier if either House of Congress votes and 

10 

27 5 U.S.C. § 801(a)(3). 28 5 U.S.C. § 801(a)(4). 

fails to override such veto, or (3) the date on which the rule would otherwise have 

gone into effect absent the CRA review requirement.27 A nonmajor rule goes into 

effect as otherwise provided for by law.28 In either case, Congress still has 60 legislative or session days to disapprove the rule. 

In addition to being unnecessary, because Congress already has control over agency rulemaking through the Congressional Review Act, the REINS Act is also dangerous. 

This REINS Act would block or void federal laws protecting public health, safety, 

welfare and the environment through fundamentally anti-democratic, and arguably 

unconstitutional, means. 

As I said during our last hearing, although Congress is charged with making the 

laws, Constitution demands that the Executive Branch ‘‘take care that the laws be 

faithfully executed.’’ 

This fundamental notion of the separation of powers is the essence of what our 

founding fathers envisioned in the Constitution of this great Nation. 

I am concerned that H.R. 10 ‘‘unduly trammels on executive authority’’ under the 

separation of powers doctrine that the Supreme Court upheld in the 1988 case, Morrison v. Olson. 

A group of sixty-five law professors from across this nation has written a letter 

opposing the REINS Act for legal and policy reasons. I would request unanimous 

consent to enter that letter into the record now. 

In addition to the foregoing, I would also like to observe that H.R. 10 is 

not necessary. 

I agree that we can and should ensure that we regulate American businesses only 

when necessary to meet broader societal objectives like limiting harmful pollution 

or preventing worker 

injuries or reducing motor vehicle deaths, and that regulations do not needlessly 

burden regulated industries. 

But H.R. 10 is not necessary to achieve that balance, nor is it the appropriate way 

to do so. 

We already have checks in place to ensure regulations meet these objectives. 

For example, the Executive Branch only has the power to regulate when Congress 

passes laws that confer regulatory authority. 

As a further protection against unwarranted regulation, the Congressional Review 

Act allows Congress to disapprove of any regulations that a majority in both Houses 

deem unacceptable. 

Congress also retains its authority to limit funding for regulatory programs and 

to enact new laws if it believes regulatory protections are no longer necessary. 

In recognition of the critical role federal regulations play, most rules are subject 

to a very lengthy vetting process involving the agency, the Administration and the 

public, through notice and public participation processes. 

The REINS Act is simply unnecessary, and inappropriate policy. 

I look forward to discussing more of these issues and hearing from the witnesses 

today. 

Thank you. 

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Mr. COBLE. Without objection, additional opening statements 

from other Members will be made a part of the record. 

We welcome our panel today. Let me give you some background. 

David Schoenbrod is a Trustees Professor of Law at the New York 

School of Law and a Visiting Scholar at the American Enterprise 

Institute. He is the co-director of the project, ‘‘Breaking the Logjam: An Environmental Law for the 21st Century.’’ The project is 

a call for bipartisan action for smarter, more flexible regulatory 

programs to protect the environment, encourage green technology, 

and stimulate the economy. Professor Schoenbrod is a frequent contributor to the Wall Street Journal and the New York Times editorial pages. He has been an attorney at the Natural Resources Defense Council, published several books, and held faculty positions 

at Yale School of Law and the New York University School of Law. 

At NRDC Professor Schoenbrod has served as codirector of the 

Council’s Project on Urban Transportation with Professor Sandler. 

Professor Schoenbrod is a nationally recognized expert on injunctions, congressional relations with regulatory agencies, and environmental law. He was graduated magna cum laude from Yale and 

was a Marshall Scholar at Oxford. 

Eric Claeys is our second witness. He is a professor at the George 

Mason University School of law. Professor Claeys has also taught 

at the St. Louis University School of Law and the University of 

Chicago School of Law. Prior to teaching, Professor Claeys practiced appellate and tort litigation at Kirkland & Ellis, and clerked 

for the Honorable Chief Justice William Rehnquist and the Honorable Melvin Brunetti. Professor Claeys’ scholarship focus is on 

American property and constitutional law, and particularly on the 

influence of American natural law/natural rights theory on the law. 

He was graduated from Princeton University and received his J.D. 

From the University of Southern California. 

Our third and final witness is Mr. David Goldston, who I believe 

is a good friend of yours, Mr. Boehlert, our colleague from New 

York. Mr. Goldston is the Director of Government Affairs at the 

Natural Resources Defense Council. As director, Mr. Goldston oversees the development and implementation of NRDC strategies for 

interacting with Congress and the Obama administration. Mr. 

Goldston is a former chief of staff of the U.S. House Committee on 

Science, where he served under Chairman Boehlert for 6 years. Mr. 

Goldston left Capitol Hill in 2006, and since then has taught at 

Princeton and Harvard. He also has written a monthly column, 

‘‘Party of One,’’ on science policy for the journal Nature. Mr. 

Goldston graduated magna cum laude from Cornell University and 

was awarded his Ph.D. From the University of Pennsylvania. 

Gentlemen, it is good to have all three of you with us. I would 

ask you, if you could, we try to comply with the 5-minute rule. 

When the amber light appears, this will be your warning that the 

red light is imminent. And the red light usually calls for conclusion, if you will, shortly after that. 

Mr. COBLE. Professor Schoenbrod, good to have you with us. If 

you will kick us off. 

81 

TESTIMONY OF DAVID SCHOENBROD, TRUSTEE PROFESSOR 

OF LAW, NEW YORK LAW SCHOOL 

Mr. SCHOENBROD. Chairman Coble, Ranking Member Cohen, 

Members of the Subcommittee, thank you for the opportunity to 

testify. My experience at the Natural Resources Defense Council, 

heading the campaign to protect children from lead, is the reason 

I am here today to support the REINS Act. 

In the Clean Air Act of 1970, Congress took responsibility for a 

rule requiring cars made from 1975 on, to use unleaded gasoline. 

That was the easy choice. It was easy because lead would ruin the 

pollution control devices required on these cars. But this easy 

choice would do nothing to reduce lead in gasoline for 5 years; and 

even after that 5 years, there would be a hundred million cars on 

the road still burning lead. What to do about those cars, that lead, 

that was the hard choice. Voters wanted to ‘‘GET THE LEAD 

OUT.’’ That is what the bumper sticker said. But they also wanted 

cheap gasoline. 

Congress avoided this hard choice by ordering EPA to set a 

health goal for lead pollution and achieve it by 1976, thereby claiming credit for the benefit of protecting health and avoiding blame 

for any possible increase in gas prices. EPA, understandably, went 

into a stall. We sued EPA and won many victories in court. But 

EPA accomplished very little at the gas station. 

If Congress could not have avoided responsibility for the hard 

choices in 1970, it would have adopted a rule to eliminate at least 

half of the lead in gasoline in the early 1970’s. After all, Congress 

told the auto manufacturers to reduce their pollution from their 

new cars over the same period by 90 percent. 

The result of Congress avoiding responsibility is that many children died or suffered permanent brain injury, especially in inner 

cities. Using EPA data, I estimate that the deaths and injuries to 

be on the scale of American casualties in the war in Vietnam. And 

I set it all out in a book called ‘‘Saving our Environment from 

Washington’’ (Yale University Press, 2005). 

Lead is no aberration. The biggest successes on air pollution 

have come when Congress did take responsibility, and the biggest 

failures have come when Congress avoided it. This, too, is documented in another book coauthored with the former chairman of 

the Environmental Defense Fund. The book is called ‘‘Breaking the 

Logjam’’ (Yale University Press, 2010). 

This experience with the Clean Air Act led me when I became 

an academic to search for ways to help Congress to take responsibility. And I wrote another book (‘‘Power Without Responsibility’’ 

Yale University Press, 1993)). In it, I quote James Landis, the New 

Deal’s sage of administrative law, who urged in 1938 that agency 

regulations be presented to Congress for approval: ‘‘It is an act of 

political wisdom to put back upon the shoulders of Congress responsibility for controversial choices.’’ REINS would do that, 

thereby making regulation more effective and efficient. 

Consider environmental regulations again. It suffers from polarized politics—the swinging pendulum in Congress left to right, 

right to left. REINS would help by inducing EPA to talk to centrist 

legislators. Both parties would find they must adopt a modulated 

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ished both parties at various times in the past. This is how we 

should get the sensible results in a democracy, not by elected lawmakers hiding behind unelected agency officials. 

REINS would also induce changes in how Congress delegates to 

agencies. Knowing that the big decisions would come back to it, 

Congress would order the agency to shape their rules to achieve 

compromise standards rather than telling agencies to achieve the 

best of everything for everyone. 

Finally, environmental regulation also suffers from obsolete statutes. Congress has not passed a major environmental statute for 20 

years. Most of the statutes on the book owe their basic structures 

to the early 1970’s or late 1970’s. The reason that Congress does 

not update the obsolete statutes is that the problems that they create for the environment and for the economy are not problems for 

legislators who, after all, can blame these problems on EPA. 

REINS, by bringing the rules back to Congress, would give legislators a reason to reexamine their handiwork from the 1970’s. 

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

Mr. COBLE. Professor, thank you as well. 

[The prepared statement of Mr. Schoenbrod follows:] 

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Mr. COBLE. Professor Claeys, you are recognized for 5 minutes. 

TESTIMONY OF ERIC R. CLAEYS, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Mr. CLAEYS. Chairman Coble, Ranking Member Cohen, and 

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me to testify. I would like to restate my written testimony as three 

points: 

First, Congress has constitutional authority to enact the REINS 

Act. The power to promulgate legislative rules becomes an executive power if, to the extent, and under whatever constitutionally 

proper conditions Congress establishes on the agency, using the 

necessary and proper clause. 

Even if the pros of legislative rulemaking sometimes outweigh 

the cons, legislative rulemaking does have cons. Executive-ordered 

rules can jeopardize the liberties of citizens, seem politically illegitimate, or undermine ordinary political accountability. This Congress may reasonably decide that these cons outweigh rulemaking’s 

pros when $100 million or more is on the line. This Congress may 

reasonably decide that executive rulemaking is unnecessary and 

improper for executing Congress’ constitutionally enumerated powers without a prior congressional approval. 

The testimony on January 24 raised two other issues that I 

would be happy to discuss in question and answer. 

Now, for my other two points, I am grateful to Mr. Goldston to 

offer his testimony because the difference between his testimony 

and my testimony illustrates and 

highlights some important issues of principles for this Committee 

to consider. I would like to restate my other two highlights in relation to that testimony. 

First, Mr. Goldston states that the REINS Act threatens to replace a process based on expertise, rationale, and openness with 

one based on political maneuvering, economic clout, and secrecy. 

My second point: That contrast states a false choice. In reality, 

in one process the federalist theory of government, the process is 

openly political and it makes legislators write laws and be accountable for bad laws at the voting booth. In the other, which my testimony calls the Progressive New Deal theory of government, the 

process is covertly political. Agency experts claim that all the political choices have been settled. They then use agency policymaking 

powers to impose their choices with less accountability to voters at 

the voting booth. 

For example, last Congress, cap-and-trade legislation failed. And 

last November, some cap-and-trade supporters were voted out of office. Right now, however, the EPA is going ahead with rulemakings 

on greenhouse gas standards for petroleum refineries and fossil 

fuel power plants. In response, this House’s Commerce Committee 

is a considering a bill more drastic than the REINS Act to eliminate the EPA’s jurisdiction to make rules on greenhouse gases. 

Some of the EPA supporters are criticizing that bill on the 

grounds the bill defies the scientific consensus. They are using 

rulemaking and the authority of science to cover over difficult 

tradeoffs between clean air and the technology that is available to 

make clean air, and the economics. If the EPA does this, then it 

avoids having—it undoes the settlement that happened by legislation, by elections last year. 

Separately, Mr. Goldston defends executive branch 

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rists believe this. By contrast, the federalists disagreed on the 

ground that the latent causes of faction are sown in the nature of 

man. 

Recent economic and political science scholarship has confirmed 

the federalist portrait as the product of extremely complicated coalitions between Baptists and bootleggers. And here I apologize to 

both Baptists in real life and to bootleggers in real life. 

An example from my testimony. For the last 16 years, the Consumer Product Safety Commission has been working on a rulemaking petition to order manufacturers to make a furniture that 

won’t ignite if a cigarette that is lit is sitting on it. On both sides 

of the dispute, 

bootleggers—regulated industries—are coopting 

Baptists—agencies in seemingly idealistic advocacy 

groups—to fight one another. 

The rulemaking was petitioned by the National Association of 

Fire Marshals. The fire marshals had received considerable financial assistance from and were getting free lobbying from cigarette 

companies, which tried to head off proposals to have the CPSC 

order them to make self-extinguishing cigarettes. 

On the other side of the table, furniture companies slowed down 

the rulemaking by citing health and environmental concerns. They 

persuaded Congress to order the rulemaking delayed until the Federal Government could fund medical studies on the impact of the 

retardant chemicals. 

Mr. Goldston portrays regulation as all Baptist, all the time. 

With James Madison, I believe the bootleggers divert the right regulatory process fairly often. 

Members of the Subcommittee, I am sure you have more experience and familiarity than I do to decide which of the two of us is 

describing the regulatory process more accurately. If you agree that 

it is impossible to take all of the politics out of regulation, it would 

be better if we all admitted as much and forced agencies to seek 

permission from Congress. Deeply political choices will be made 

more transparently and your constituents will know who is accountable for the choices. And the REINS Act does this—and only 

for regulations where $100 million or more are on the line. 

Thank you. I would be happy to answer questions. 

Mr. COBLE. Thank you Mr. Claeys. 

[The prepared statement of Mr. Claeys follows:] 

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Mr. COBLE. Mr. Goldston, you are recognized for 5 minutes. 

TESTIMONY OF DAVID GOLDSTON, DIRECTOR OF GOVERNMENT AFFAIRS, NATURAL RESOURCES DEFENSE COUNCIL 

Mr. GOLDSTON. Thank you. Chairman Coble, Mr. Cohen, Members of the Subcommittee, thanks for having me here today, though 

it is a little odd to be sitting on this side of the dais. 

I am here today to testify in opposition to the REINS Act, a bill 

that I think itself cannot withstand scrutiny on either practical or 

theoretical grounds. And I look forward during the Q&A to engaging with Professor Claeys on some of the points that he referenced. 

Let me start with the practical problems. This bill would basically amend virtually every health and environmental law currently on the books, along with other laws, hampering their implementation. Its clear purpose is to place roadblocks in the way of 

protecting the public and to privilege the complaints of any industry. 

How would the bill work in practice? Congress would be put in 

a position of quickly second-guessing decisions that are often based 

on years of technical analysis and policy deliberation. In response, 

industry lobbyists would inundate Congress both with campaign 

contributions and to evaluate technical and economical claims. 

Congress would have little choice but to fall back on political calculations, logrolling, and dealmaking, that might have little to do 

with the merit of the arguments before them. Industry would no 

longer have an incentive to cooperate with agency rulemaking processes and the regulatory process would likely become more random 

and less predictable. The Executive’s ability to carry out the laws 

as they are written would be curtailed and the courts would be limited in their ability to enforce them. 

All this is totally unnecessary. The rationale for delegating some 

decisions to agencies is as valid now as it was 100 years ago. Congress is not the best venue for reaching detailed, technically based 

decisions regarding every issue. And I would add that the issue is 

whether the REINS Act would make the situation better or worse, 

not whether there are any problems at all with current rulemaking 

procedures. 

Congress does not lack the tools it needs to guide the regulatory 

process. It writes the laws which govern the regulations and it can 

intervene to change those laws or to block individual regulations 

anytime it chooses. It also has vast informal powers to influence 

the Executive. The concern the bill’s sponsors have with the current system seems not to be that the current system doesn’t work, 

but that it does. The public is protected, yet agencies are constrained by courts and the political context. The benefits of regulations outstrip the costs. The complaint is, rather, that those on the 

right end of the political spectrum don’t always win under the current system. This bill is an effort to rewrite the rules of governance 

and reverse longstanding practices to make it easier for one ideological fashion to triumph. 

Mr. COBLE. Mr. Goldston, if you would suspend. We were late 

starting your clock so the red light does not bar you right now. You 

have got a couple of minutes to go. That was our mistake here. 

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Mr. GOLDSTON. I think we would be well advised to stick to a 

system based on long experience and constitutional principles that 

has yielded public protections while allowing for economic growth. 

Thank you. 

[The prepared statement of Mr. Goldston follows:] 

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Mr. COBLE. Thank you all, gentlemen. 

Gentlemen, we try to apply the 5-minute rule to us as well. So 

if you all could respond tersely, that would be of benefit to us. 

Professor Schoenbrod, let me ask you this question. Does the 

REINS Act preclude congressional consideration of the expertise 

that agencies have brought to the development of a given regulation? 

Mr. SCHOENBROD. No, it does not. The agencies would investigate. The agencies would analyze. Congress’ job would be to 

render a judgment and to be accountable. 

Mr. COBLE. Professor Claeys. 

Mr. CLAEYS. Yes, Mr. Chairman. 

Mr. COBLE. Critics of the REINS Act allege that it has constitutional flaws in light of the Supreme Court’s rulings in INS v. 

Chada and Morrison v. Olson. Summarize, if you will, your views 

of this criticism. 

Mr. CLAEYS. Mr. Chairman, neither of those criticisms has merit. 

As a background matter, agencies have no power to promulgate 

legislative rules unless it is given to them by Congress. So the Morrison argument runs off of the assumption that there is some core 

inherent prerogative of the President in relation to legislative rulemaking that is threatened by the REINS Act. However, if all of executive branch agencies’ rulemakings powers must come from Congress, there can’t be any such core Article 2 prerogative. 

Maybe the most helpful precedent here would be Youngstown 

Sheet and Tube v. Sawyer, a 1952 case. President Truman tried to 

order a seizure of the steel mills and he didn’t have an act of Congress to support it. The Court held that in the absence of that statute—such a statute or other kind of authorization from Congress— 

that the President had no authority. 

So as for the Chada ruling, once it is accepted that—as it is 

under controlling practice and precedent—that agencies may receive delegations from Congress of Executive power to promulgate 

legislative rules, then trickier issues 

arise about whether and in what circumstances Congress may 

put strings or conditions on an executive branch agency’s exercise 

of that Executive power. 

The Chada decision doesn’t rule out the possibility that Congress 

may ever attach strings. It merely states if Congress does attach 

such a string, Congress must do so by a genuine bona fide legislative act that is passed by the House and the Senate and then either signed by the President or passed by two-thirds supermajority 

in both Houses. 

The REINS Act specifies that a major rule is promulgated pursuant to valid enabling statute and there is valid Executive authority, 

except that the rule may not take the force of law until this Congress passes a joint resolution of approval. If that joint resolution 

satisfies bicameralism at presentment, it satisfies Chada. 

Mr. COBLE. Professor Claeys, let me come back to you. There has 

been some criticism directed against the REINS Act on the charge 

that it is biased against public interest and public protection. What 

say you to that? 

Mr. CLAEYS. Mr. Chairman, I taught food and drug law for 3 

years. I haven’t taught it recently, but I have taught it. And one 

133 

of the things that struck me was that some of the FDA’s biggest 

successes and the legal mandates that it enforced the most successfully were ones acting in response to an implementing statute 

passed by Congress. 

When there was a thalidomide scare, there were other significant 

medical scares, the FDA staff recommended to Congress that a bill 

be passed. And Congress took the agency’s expertise and implemented and enacted the law. 

I don’t understand why, if a similar problem were to arise today, 

this Congress would not respect the agency’s arguments, look at 

the factual record the agency put together, and look at all interpretive and other policy questions the agency needed to consider. And 

if Congress was satisfied, this Congress could then say, We approve 

of the Executive’s proposed legislation and we are not going to stay 

in the way of its going forward. 

Mr. COBLE. Thank you, sir. 

Mr. Goldston, none of us is perfect. So Federal agencies from 

time to time do get things wrong. If they do, then why shouldn’t 

their biggest and most important decisions be placed before the 

Members of Congress for a vote? 

Mr. GOLDSTON. Well, I think there certainly should be an ability 

for Members of Congress and the public to have recourse in terms 

of Federal regulations. Congress has that ability right now: The 

Congressional Review Act. The House just passed the continuing 

resolution the other day that had at least 19 examples of places 

where Congress used its spending authority to block regulations. 

We didn’t think that was a good idea, but it certainly was within 

their authority. Congress could rewrite the statutes. 

Congress, as Professor Claeys mentioned, the House is right now 

thinking of considering legislation to change EPA’s authority regarding greenhouse gases. Congress has all the tools it needs to do 

exactly what you asked about. The question is, What would be the 

impact of reversing the entire system that has grown up; who 

would be likely to benefit; would the solution be worse than the 

disease? I would argue that it would be. 

Mr. COBLE. I see the red light is illuminated, therefore barring 

me from further questioning. I recognize the distinguished gentleman from Tennessee, Mr. Cohen, for 5 minutes. 

Mr. COHEN. Thank you, sir. 

Mr. Goldston, do you see constitutional problems with the separation of powers here? 

Mr. GOLDSTON. I am really not an expert on the constitutional 

question. I would say that one concern, though, is that—there are 

two concerns with the bill that at least raise issues relating to the 

Constitution, whether they are constitutional or legal issues. 

One is, I agree with Professor Claeys that Congress is the one 

that has the authority to delegate to agencies and it has the choice 

whether to do that. What this bill does is it continues to delegate, 

but then doesn’t allow the agency to carry out the delegated authority. This is sort of a halfway measure where Congress isn’t taking the authority back but it is not leaving it with the agency either. I think that is a peculiar situation and can result in a situation where the law is not able to be carried out and there is no recourse for anybody in the courts or elsewhere. So that is one issue. 

134 

The other is that regardless of whether it violates Chada or not, 

this bill does create a situation where the failure—where failure to 

act by one House will kill an Executive action, with again, no recourse to the other body or the President. Whether that is technically a constitutional issue in terms of the law, I leave to Constitution experts. But it certainly raises practical problems that the 

Constitution tried to avoid. 

Mr. COHEN. It does raise that issue. Bills have to be passed by 

both Houses. And that is something we have done for a long time. 

In this circumstance, the Senate would have to—could on its own 

not pass something—and it takes 60 folks to do anything over 

there. It really takes more than 60. Sixty. So 41 people could stymie the entire United States Government. Pretty strange veto 

power they would then have over the Executive. It is something 

that I don’t think is envisioned anywhere. 

Professor Schoenbrod, you are familiar with Morrison v. Olson, 

I guess. 

Mr. SCHOENBROD. Yes. 

Mr. COHEN. How do you reconcile that case where Chief Justice 

Rehnquist said that the test for evaluating a statutory scheme 

under the separation of powers doctrine to see whether it can 

stand. It says the statute is suspect if it is an attempt by Congress 

to increase its own powers at the expense of the Executive branch. 

This indeed would be an attempt by Congress to increase its powers. How would you reconcile the REINS Act with Justice 

Rehnquist’s ruling in Morrison v. Olson? 

Mr. SCHOENBROD. There are cases going back to the framing of 

the Constitution which describe law as rules of conduct. The regulations that agencies promulgate are rules of Conduct. And in fact, 

courts talk about these regulations all the time as ‘‘legislative 

rules.’’ So we are not talking here about Executive power fundamentally; we are talking here about legislative power. So it is a 

question of Congress reclaiming some of its legislative powers. So, 

therefore, Morrison v. Olson is not implicated. 

Mr. COHEN. Well, the regulatory agencies, commissions, do you 

consider them executive or legislative? 

Mr. SCHOENBROD. Well, they can’t be legislative. They are not 

part of the legislative branch, but they are exercising legislativetype powers. And when courts talk about ‘‘legislative rules’’ as opposed to ‘‘interpretive rules,’’ they are recognizing the fact that 

these agencies make law. 

Mr. COHEN. But the agencies are executive—under the Executive. 

Mr. SCHOENBROD. That is right. 

Mr. COHEN. So it is taking away from the executive branch. That 

is the executive branch. They may be legislating, they may be rulemaking. Presidents make decisions, Vice Presidents. Secretary 

Clinton makes a decision. Her committees make a decision. But 

that doesn’t make them part of the legislature. They are part of the 

executive. 

Mr. SCHOENBROD. Pardon me, Congressman. Congress has delegated to the agencies the power to make these legislative rules. 

Congress could take that back or condition it. 

135 

Mr. COHEN. Right. Congress could just make all the rules themselves. Why couldn’t we just under this theory, which makes more 

sense to me, just make all the rules ourselves; have some Committees make the rules. Since they are not going to go into effect until 

we approve them, why shouldn’t we have the Committees pass and 

approve all of the rules and then just let the agencies administer 

them? Would that make for sense to you? 

Mr. SCHOENBROD. I think not. I mean, I think there are problems 

given the volumes of rules that our country has. It seems to me 

what the REINS Act attempts to do is to draw a line and to have 

the more important ones come back to Congress for consideration. 

Mr. COHEN. Well, what if we just did the more important ones? 

The fact is, we couldn’t even amend the law. You have got an hour 

to talk about it. You talk about post offices. And we passed 70 post 

offices. That is a simple thing; voice vote, nobody cares. Fine and 

dandy. It is done. These are things that should be policy issues and 

people are going to want to debate them and have differences of 

opinion. From your testimony, and I appreciate your scholarly 

background, you don’t have a real good impression of Congress, or 

attitude about it, do you? 

Mr. SCHOENBROD. Well, it seems to me that I am here suggesting 

how it would make sense to move forward. And whatever my private opinions are, they are my private opinions. I think this bill is 

a good bill. And whatever my impressions are of any branch of government is really my private point of view. 

Mr. COHEN. Mr. Chairman, if I could just have 30 seconds to finish. 

Mr. GOWDY. [presiding.] Without objection. 

Mr. COHEN. Thank you. 

Mr. SCHOENBROD. I am sorry. I worked in Congress for Senator 

and Vice President Hubert Humphrey, going back to the sixties, 

and I do have a lot of respect for the institution. I do think, however, that the system as a whole sometimes fails the people. It is 

not Congress as a whole. 

Mr. COHEN. Mr. Chairman, I will say, reading the testimony, it 

is obvious that your opinion of Congress is not particularly good. 

You think that we don’t want to take decisions and make decisions 

that are difficult; that we take easy, easy things like naming post 

offices—and I forget; I am trying to find the page and how you 

refer to that—we don’t like to take a stand. 

The fact is, with the passage of this you can’t guarantee that 

Congress will do any more about lead poisoning that was the beginning of the basis of your discussion. That doesn’t mean Congress 

is going to belly up to the bar and do the right thing or approve 

some regulation or not. You might have no lead regulation at all 

and more children die. 

So I submit to you, whether you are right or not, unless maybe 

you change the people, it is not the institution, and you are trying 

to change the institution. 

Mr. SCHOENBROD. I think Congress has done many excellent 

things in regard to air pollution. It was Congress that passed the 

rule to reduce auto emissions 90 percent. It was Congress who decided to eliminate ozone-destroying chemicals. It was Congress that 

had the effective action on lead and gasoline. It was Congress that 

136 

decided to reduce acid rain 50 percent. I think Congress is capable 

of doing many wonderful things. And I think Congress works best 

when it is most accountable. 

Mr. COHEN. Thank you, sir. Thank you Mr. Chairman. 

Mr. GOWDY. Mr. Goldston, I want you to assume hypothetically 

that Congress were contemplating a piece of legislation—and hypothetically let’s assume it was called the PATRIOT Act. Would you 

agree or disagree that Congress could pass a broad piece of legislation called the PATRIOT Act and then let the FBI fill in the details? 

Mr. GOLDSTON. Yes. I think, again, the courts have limited how 

much delegation authority Congress has, but it is very broad. So 

yes, creating broad policy I think is the role of Congress. And then 

it could leave to the agencies the particulars of how to implement 

it with, again, always the ability to come back under current procedures. 

Mr. GOWDY. So you would let the Bureau promulgate regulations 

that the Bureau would then interpret and enforce. 

Mr. GOLDSTON. In this hypothetical, sure. I think it would behoove Congress—and I agree with Professor Schoenbrod on this— 

to give as much direction to the agency as possible. But if there 

were kinds of issues that raised either particular kinds of technical 

questions or that involve complicated deliberations that needed 

some 

quasi-judicial look, then yes; I would not be inherently opposed 

to the agency being able to figure out the specifics of that. 

Mr. GOWDY. Currently there are regulations which constitute evidence of negligence; in fact, in some instances, evidence of negligence per se in civil cases. Correct? 

Mr. GOLDSTON. I am not an attorney, but yes. 

Mr. GOWDY. Don’t go bragging. What about—well, let me ask you 

if—and if I am asking a question that is not fair, then I will withdraw it. Would you disagree with me that there are criminal sanctions for the violations of certain regulations? 

Mr. GOLDSTON. Absolutely. 

Mr. GOWDY. And would you not agree with me further that it 

really is best for Congress to pass regulations or rules that carry 

with it criminal sanctions? 

Mr. GOLDSTON. Yes. And I think that is generally what happens. 

Congress is the one that decides that if you are going to put an effluent into the water or a pollutant into the air, that that would 

constitute under certain circumstances a criminal violation. The 

specific level which involves, among others things, technical decisionmaking, figuring out which pollutant, and so forth, that is what 

was left to the agency. The agency on its own can’t decide that 

something is a criminal violation. 

Mr. GOWDY. You mentioned expertise. Are you familiar or can 

you give me examples where the ‘‘expertise’’ failed? 

Mr. GOLDSTON. Not offhand, but I have no doubt that there are 

many. I am not arguing—my argument is not that agencies are 

never wrong or should be beyond the law. My argument is that the 

solution of the REINS Act would make worse every situation that 

it aims to clear up. 

137 

Mr. GOWDY. Do you challenge the constitutionality of the REINS 

Act? 

Mr. GOLDSTON. I don’t have a position on constitutionality. As I 

said, I think it does some things that are constitutionally suspect 

in sort of the way that it will leave, for example, a situation where 

the law could remain on the books but be unenforceable in court 

or elsewhere because the court couldn’t get Congress to approve a 

regulation that would be required by the statute which would remain in effect. Whether that would be technically unconstitutional 

or not, I am not qualified to say. 

Mr. GOWDY. Professor Claeys, can you think of any examples 

where the expertise fails? Because it strikes me that that is the argument in favor of the status quo, is that there are experts at these 

executive agencies, whereas Congress is bereft of expertise. In some 

instances, that may be correct. Can you cite examples where the 

‘‘expertise’’ failed? 

Mr. CLAEYS. I hope this is answering your question. It may be 

an answer to a different question. I can cite and did cite in my testimony examples where the claims made on behalf of expertise 

couldn’t justify the regulation that was being put forward. So, for 

instance, back in 1980 the Supreme Court considered a challenge 

to a rule to impose bending standards to put in a one-part-per-million restriction on the amount of benzene in the workplace. And the 

Occupational Safety Health Administration had three or four pieces 

of data. Some was about studies done of workers in Turkey who 

made shoes and were exposed to benzene and some of them contracted leukemia. Some had to do with people who made glue in 

Italy and they contributed leukemia. Some had to do with general 

medical data and people who contracted blood deficiencies. But the 

exposures to which all those people were subjected were 150 parts 

per million up to 650 parts per million for leukemia or 25 parts per 

million for the people who suffered the blood deficiencies. There are 

laboratory tests on mice and rats that suggested that other chemicals caused health problems at one part per million, but not benzene. 

The point of my testimony is just to show in a situation like that, 

there is a tremendous amount of extrapolation that the agency 

needs to take from the three or four data points to say that there 

is a safety problem at one part per million. 

In a situation like that, there are two or three really political 

choices. First, how do you interpret three or four pieces of data? 

Second, assuming that you think it creates some possibilities of a 

health risk, does the agency think the technology exists to impose 

the standard? And, third, what are the cost-benefits economically? 

And if you put the three of those together, it is just simply not 

expertise that is justifying the extension of this data into a rule. 

There are three political choices being made, and it would be better, more accountable, if Congress took ownership of those choices 

by embracing a joint resolution of approval. 

Mr. GOWDY. All right. Thank you. 

I have run into a red light, and the Committee would recognize 

the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is an astounding hearing to me. 

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Are you aware, Professor, that 66 law professors, plus a former 

California Supreme Court justice, have all sent in a letter to us giving 5 reasons why they express their opposition to the passage of 

the REINS Act? 

Mr. SCHOENBROD. No, I am not. Put it this way: I have been a 

law professor a long time, and I never cease to be astounded by 

what law professors conclude. 

Mr. CONYERS. Well, I noticed. I have been listening to you all 

afternoon, and I never—I am always astounded by some of your 

comments. So I accept your remark. 

Now, let me ask Professor Claeys, are you familiar with this letter dated February 8th, 2011, from—I am going to put it in the 

record, by the way—66 law professors, including a former Supreme 

Court justice, stating 5 reasons why they oppose the passage of the 

REINS Act? 

Mr. CLAEYS. No, Congressman Conyers, I am not. 

Mr. CONYERS. All right. 

Let me ask you—you are not a professor, Mr. David Goldston? 

Mr. GOLDSTON. Not currently. I have been. 

Mr. CONYERS. Well, are you aware of the letter that I have been 

asking about? 

Mr. GOLDSTON. Yes, I am. 

Mr. CONYERS. So the two professors are not aware of the letter, 

and the one former professor is aware of the letter. 

Well, I ask unanimous consent to enter the letter from the 66 

law professors into the record, Mr. Chairman. 

Mr. GOWDY. Without objection. 

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Mr. CONYERS. Now, let me ask you, Mr. Goldston—you are on 

the Natural Resources Defense Council—do you believe that there 

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this problem of how we get rulemaking agencies to determine their 

own rules? 

Number five in the letter I just introduced into the record follows 

this sentence: ‘‘The regulatory process is accountable even though 

regulators are not elected,’’ and that they have—that the agencies 

develop regulations to implement laws. They solicit comment from 

the affected parties and the public. The White House and the Regulatory Affairs goes through drafts of significant regulatory proposals. The agencies issue final regulations, but Congress has a 

fast-track opportunity to block them, and sometimes this happens. 

Can you comment on the lack of necessity for us to bring in this 

incredible notion that we are going to regulate executive decisions 

from the White House because we feel that they are questionable? 

Mr. GOLDSTON. Yes. There are, I think, at least three ways in 

which the theory behind this, in terms of what is missing now, is 

misguided. Two of them are discussed in the part of the letter you 

just mentioned. 

So, first is that the agencies are constrained by law and by politics, actually, because they operate in a political context. So I think 

the agencies do not have carte blanche, or I think in Professor 

Claeys’ testimony at one point he said a blank check. I don’t think 

that is the case. And, in fact, Professor Schoenbrod mentioned 

NRDC lawsuits against agencies that he was involved in. Those are 

only possible because there is a statute that allows it. So that is 

one way in which there is accountability now, to some degree. 

The second is—and I think more relevant to this—is that Congress, itself, has a huge number of tools at its disposal, formal and 

informal, to intervene in the regulatory process, including the ability to block individual regulations, wisely or otherwise. 

But the third issue is, the matter seems to be whether there is 

any electoral accountability. We just went through an election, in 

fact, an election that gave new life to this proposal, where Members 

felt that they got elected because the public didn’t like the regulatory regime that we have now. This seems—— 

Mr. GOWDY. Mr. Goldston, I hate to interrupt you. Let me ask 

you if you could summarize it in just a couple more sentences. We 

have run into the stop sign. 

Mr. GOLDSTON. Sure. Absolutely. 

So I think there is—the recent elections shows there is accountability. I think some of the most controversial regulations that 

have been brought up will feature in future elections. And so, the 

notion that there is no political accountability, in addition to the 

other kinds of accountability we are talking about, I think is hard 

to maintain. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much. 

Mr. GOWDY. Thank you, Mr. Conyers. 

The Chair would now recognize the distinguished gentleman 

from Florida, Mr. Ross. 

Mr. ROSS. Thank you, Mr. Chairman. 

Gentlemen, interesting, a couple of months ago, I was talking to 

an elementary class about American government and, of course, 

talked about the three branches of government. And since we have 

had, as the distinguished gentleman from Michigan pointed out, 

149 

had several hearings here lately on the regulatory process, I think 

I now have to amend my talk about the fourth branch of government called the regulatory agencies. 

And I say that somewhat in jest, of course, because I think that 

the regulatory environment has been good. I think it has provided 

a good platform of a delegation of duties by the Congress to make 

sure that we have the proper health, safety, and welfare of the 

American citizens addressed. But I also think that we are here 

today on the REINS Act because of what I consider to be regulations gone wild. 

And my concern has to do with the appellate review process. And 

I would like to ask the two professors specifically. If you could just 

summarize briefly, if I have an adverse ruling, how long does it 

take to have that brought to resolution? 

Professor Schoenbrod? 

Mr. SCHOENBROD. Well, at least the year in the court of appeals, 

often a couple of years. And then if the Supreme Court—then one 

could petition for certiorari to the Supreme Court. And if the Supreme Court takes jurisdiction, then it could be another couple— 

you know, a long time after that. So it is a very prolonged process. 

And even, you could add to that rehearings, that kind of thing. And 

the 70 days that—so that means that, really, by the time that the 

judicial review process is just getting under way, the whole REINS 

process is over. 

Mr. ROSS. Exactly. I mean, this is an expedient way of appellate 

review, is it not, by the people or the body that empowers those to 

make the regulations? 

Mr. SCHOENBROD. Yes. 

Mr. ROSS. And, Professor Claeys, I mean, has it been your experience, in dealing with the Administrative Procedures Act and the 

regulatory environment, that the recourse out there is so prohibitive that those that are affected by it stand nothing to gain by challenging it? 

Mr. CLAEYS. Congressman, I wouldn’t say that litigants have 

nothing to gain. It happens fairly often that people can win victories using an APA lawsuit. But an APA lawsuit is very costly. 

And, also, there is a tremendous amount of loss of stability or security to have one’s affairs be suspended for 18 months or longer 

while wading through a suit. And so those costs do deter people, 

yes. 

Mr. ROSS. And so, Professor Claeys, would you say, under the 

REINS Act now, if the agency gets it wrong and Congress disapproves it, would it not be a way of sending a message back to 

that agency to go and get it right and come back with a different 

regulatory rule or action? 

Mr. CLAEYS. Congressman, I would want to be careful here because the REINS Act is very specific to reserve to parties all APA 

challenges that they would have, whether or not the rules were approved. 

So the REINS Act adds another check, and that check is to say 

that there was not the substantial consensus that you need in two 

branches of the House—or, sorry, the two parts to the Congress 

and the President to let the rule go forward politically, but then 

the litigant does reserve all rights to bring a suit afterwards. 

150 

Mr. ROSS. And let me clarify that a little bit. What I am suggesting to you is that, if the REINS Act were law, it would not foreclose agency action on a particular issue. It would merely mean 

that Congress has spoken and has now instructed that agency to 

go back and revisit it, and they could and address it in a different 

fashion. 

Mr. CLAEYS. That is right. If Congress does not act, it is a signal 

to the agency that the agency did not come forward with the justification that seemed legitimate enough to an encompassing majority, as proven by surviving bicameralism and presentment. And if 

it does do its homework, it will pass, and then things can go forward. 

Mr. ROSS. Mr. Goldston, I know that you are with the Natural 

Resources Defense Council. Has that organization ever had any officials be appointed to any agency that might oversee or interpret 

regulatory rules? 

Mr. GOLDSTON. Do you mean, have NRDC former staff become 

Federal officials? Yes. 

Mr. ROSS. Right, right. 

And with regard to a blog that I think that you do and one that 

I think was just done yesterday, you indicate, ‘‘As I mentioned last 

week on my blog, one of the most destructive aspects of the House 

spending bill for the rest of this year is that it contains 19 antienvironmental riders. The list of anti-environmental riders compiled by NRDC is here. Note these riders do not change the amount 

of Federal spending by 1 cent. They just block public protections 

that are otherwise required by law.’’ 

And you list as one of those a particular amendment offered by 

the gentleman from Florida, Representative Rooney, that would 

block a plan to clean up Florida waterways. Specifically, that was 

the Numeric Nutrient Water Criteria deal, wasn’t it? 

Mr. GOLDSTON. Right. 

Mr. ROSS. Now, as a native of Florida and a member of the Florida—past member of the Florida legislature, I take to heart how we 

handle the waterways in Florida. It is how we make a living. It is 

what we rely on not only for our industry but also for our tourism. 

And, actually, that Numeric Nutrient Water Criteria standard 

has not yet—while it has been promulgated, it has not been implemented. Is that correct? 

Mr. GOLDSTON. That is my understanding. 

Mr. ROSS. So, in effect, what you have said there is not really 

true because it is not an existing law and it did not impact the environment because it has not been implemented yet. 

But be that as it may, that particular rule would require over a 

billion dollars in expense by industry just to implement. It would 

cost over 1,400 jobs. 

It seems to me that a cost-benefit analysis is absolutely necessary if we are going to determine the effectiveness of any particular regulatory rule. Wouldn’t you agree? 

Mr. GOLDSTON. Some laws allow for that, and some don’t. But, 

under Executive order, there is usually a cost-benefit analysis done. 

Again, the point of that blog was to talk about whether it was 

the right decision for the House to use the spending bill to block 

implementation of these particular pending rules. But there is no 

151 

question that Congress has the legal authority to do that, which is 

one of the tools that they have which seems to make the REINS 

Act seem both unwise and redundant. 

The other thing, if I might, Mr. Ross, you talked about Congress 

sending back a rule to an agency to be reworked, but the REINS 

Act actually prevents the agency from coming back for a year, no 

matter how simple the change would be. 

Mr. ROSS. Thank you. I think my time is up. 

Mr. GOWDY. Thank you, Mr. Ross. 

The Chair would now recognize the distinguished gentleman 

from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Professors, I know a lot of professors pay attention to United 

States Supreme Court rulings as they come down. Are you two also 

students of the U.S. Supreme Court and the various rulings that 

come down? 

Mr. SCHOENBROD. I concentrate more on environmental law, 

though I read some of the Supreme Court opinions. 

Mr. JOHNSON. Uh-huh. Okay. 

Mr. CLAEYS. I concentrate on political theory and on property 

law. I try to read the major court opinions as they come down—— 

Mr. JOHNSON. Uh-huh. 

Mr. CLAEYS [continuing]. Especially constitutional opinions. 

Mr. JOHNSON. Yeah. Did you consider the constitutional opinion 

rendered by the Supreme Court in the case of Citizens United, 

which implicated the First Amendment? Did you, Professor Claeys, 

consider that to be a very important case and ruling? 

Mr. CLAEYS. No, Congressman, I didn’t because—— 

Mr. JOHNSON. All right, okay, all right. 

Well, how about you, Professor Schoenbrod? 

Mr. SCHOENBROD. No, I have not studied that case. 

Mr. JOHNSON. Okay. So neither one of you would be prepared to 

venture an opinion as to how the ruling in Citizens United would 

impact, on the ground, as things work, the REINS Act, if it were 

passed? You would not be able to comment about the ruling in Citizens United, the effect that it would have the on rulemaking process if the REINS Act passed? 

Mr. CLAEYS. If I could clarify, I want to give you two different 

answers. 

Mr. JOHNSON. Okay. Well, I want you to keep it short. 

Mr. CLAEYS. As a lawyer, I don’t think the opinion is applicable. 

The other part of your question asked of the political consequences, and on that I have not speculated. I don’t have the expertise to speculate. 

Mr. JOHNSON. Okay. All right. 

And you either? You would be the same way? 

Mr. SCHOENBROD. Well, I have not read the opinion. I think what 

may be behind your question, Congressman—— 

Mr. JOHNSON. Well, let me just tell you. If a corporation is recognized as a person for the purpose of a First Amendment right, and 

if a corporation can invest huge sums of money to control an election and that money can elect the legislators whom business favors, 

and as Congress does its business and lobbyists come forward to 

the Congresspeople and start to tell them about the effects of varVerDate Aug 31 2005 10:00 May 31, 2011 Jkt 000000 PO 00000 Frm 00155 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\030811\65074.000 HJUD1 PsN: DOUGA
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ious rules pursuant to legislation that has passed, the effect of 

these rules on the corporate bottom line, I believe that that could 

be influential in terms of the rulemaking process. 

And, certainly, politicians would be accountable for rulings so 

made. But is that what we really want to do, take our rulemaking 

away from one based on, as in your testimony, Dr. Goldston, is 

based on expertise, rationality, and openness and replace it with a 

process that is strictly political? Whoever has the most economic 

clout can cause whatever rules that benefit them to be the ones 

that are implemented? Is that what we really want here in America? 

And I find it, Professor Schoenbrod, instructive that your book, 

‘‘Saving Our Environment From Congress,’’ deals with the impact 

of environmental regulations. And, also, you mention something 

about health regulations. These are the things that are under attack now by the interests that elected this new Congress. And so 

I find it interesting that you would be in support of the REINS Act. 

But what do you have to say, Professor Claeys? 

Mr. CLAEYS. Congressman Johnson, I want to bracket a few different issues. I am not competent to talk about the ways in which 

corporations lobby at a real specific level. What I tried to do, 

though, in my testimony was to restate and to provide to this Subcommittee some of the findings in economic and political-science 

scholarship about how businesses try to influence regulation. And 

there is a well-developed body of economic and political-science 

scholarship under the rubric of the theory of economic regulation. 

And maybe, to put it in a sentence, the main lesson from that 

scholarship is that corporations pressure both Congress and the 

regulators. And when trying to figure out the way in which a certain regulatory system is going to generate outcomes, you have to 

anticipate that possibility and their costs all around. 

Mr. JOHNSON. Thank you, sir. 

Thank you, Professor. 

And I am sorry I didn’t get to you, Mr. Goldston. 

Thank you. 

Mr. GOWDY. Thank you, Mr. Johnson. 

The Chair would now recognize the distinguished gentleman 

from Arizona, Mr. Franks. 

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

Gentlemen, thank you for being here. 

My first question would be for you, Professor Claeys. You know, 

the obstensible purpose for the REINS Act here is to try to, obviously, reassert congressional authority so that we might make the 

final legislative calls in an effort to help our regulatory system better conform to the Constitution itself. At least, that is the goal. 

And would you take issue with that? 

Mr. CLAEYS. A little. There is a—let me put it this way. Current 

precedent in institutional practice allows Congress to delegate considerable discretion to agencies. This bill does not reclaim all of 

that discretion. It leaves executive branch agencies with that discretion. It adds for significant exercise of rulemaking power a 

check, a permission slip. 

So that formally does not reclaim the power, but it does have the 

effect politically of making agencies go back to Congress and makVerDate Aug 31 2005 10:00 May 31, 2011 Jkt 000000 PO 00000 Frm 00156 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\030811\65074.000 HJUD1 PsN: DOUGA
153 

ing Congress take ownership of the hard, kind of, political conflicts 

I talked about, in terms of evidence and science and technology and 

economics. 

Mr. FRANKS. Well, I actually agree with you completely. 

Now, you would probably agree that critics who allege that the 

REINS Act is biassed against the public interest and public protection—I mean, that is essentially their argument, that somehow the 

REINS Act is antithetical to the public interest. And I am just 

wondering if you agree with that or place any credibility in that in 

any way. 

Mr. CLAEYS. Congressman Franks, one of the important points of 

my testimony was to provide a polite warning that there is some 

truth to that—there is—it is true that regulation can be—in the 

absence of regulation, the public interest can be heard. But it is 

equally true that the public interest can be heard if there is too 

much regulation. 

And one of the things I was trying to impress in my testimony 

is simply that you have to be—want us to be careful that regulations may be against the public interest. And in those cases in 

which the regulations might be in the public interest, quite often 

I think it likely that Members of Congress, if they don’t see a compelling argument against the regulation, will endorse the joint resolution of approval. 

So, to me, the burden lies on people who oppose the REINS Act 

to explain precisely why Members of Congress won’t endorse, embrace a joint resolution of approval for a bill that seems to be in 

the public interest. 

Mr. FRANKS. Well, I guess my point here is that it seems like the 

critics of the REINS Act suggest that giving constitutional or giving 

congressional signoff is biased against the public interest. That is, 

at least, their suggestion. And they would go further and suggest 

that—some of us would say that the regulatory agencies seem to 

be biased in exactly the opposite direction. 

What do you think is the reason for that understanding on the 

part of both sides? Do you think it is accurate? And why does that 

dynamic seem to—I mean, it seems to me there is something to 

that dynamic. It seems like a bureaucracy or a regulatory agency 

seems to have a tendency, a momentum to go overboard, sometimes 

antithetically, to the public interest, whereas, if you have people 

that are voted into office, it seems like the public interest is more 

carefully considered. 

Mr. CLAEYS. And here, Congressman, I go back to a fundamental 

choice as stated in my opening testimony, in my written testimony. 

There is a dispute in this country about the proper relationship between freedom and regulation. And one political tradition is most 

notably in Federalist 51. It says that government is needed for men 

because men are somewhere between angels and beasts. 

And if you take that view, you presume in favor of liberty. And 

there will be times when law is needed, but you want to have a 

system where people who want to co-opt and capture the law have 

to make a convincing argument to the lawgiver that it is a good 

law. And the Constitution can’t institute that perfectly, but it can 

use the fact that a law has to pass through the House and the SenVerDate Aug 31 2005 10:00 May 31, 2011 Jkt 000000 PO 00000 Frm 00157 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\030811\65074.000 HJUD1 PsN: DOUGA
154 

ate and be signed by the President as indirect proof that it really 

is in the public interest. 

There is another theory about the relationship between freedom 

and government that says that people aren’t meaningfully free unless government is very active. And the progressives and New 

Dealers laid this out. I think that, in contemporary life, some agencies act to empire-build, but many do not. But many of the regulators who do not, make assumptions about the relationship between freedom and regulations similar to those of the New Dealers. 

And they, however well-intentioned, think that government is better if the regulations are presumptively valid unless knocked out 

by an APA lawsuit. 

And it is perfectly legitimate for them to believe this, and there 

are many parts of contemporary practice that allow them to do so. 

But that choice is a political choice. And if this Congress wants to 

make a different choice and take things in a different direction, the 

Necessary and Proper Clause in this Congress’ legislative power 

allow it to do so, as it is considering doing for major rules. 

Mr. FRANKS. Mr. Chairman, I think that is well-said, and the red 

light prevents me from asking Mr. Goldston my questions. Thank 

you. 

Mr. GOWDY. Thank you, Mr. Franks. 

On behalf of all of us, we would like to—the Chair would recognize the gentlelady from Texas, Ms. Jackson Lee, is present and 

has been present for the majority of the testimony and the questioning. And we thank you for your presence. 

Ms. JACKSON LEE. And a Member of the full Committee. 

Mr. GOWDY. And a Member of the full Committee, yes, ma’am. 

With that, let me thank, on behalf of all of us, the panel for your 

professionalism, your collegiality toward one another and during 

the question-and-answer session. We have all benefitted from your 

testimony and the Q&A. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond to as 

promptly as they can so that their answers may be made part of 

the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, again, on behalf of all of us, thank you for your testimony and your questions and answers. This meeting is adjourned. 

[Whereupon, at 5:23 p.m., the Subcommittee was adjourned.] 

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