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ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MAY 20, 2010 

Serial No. 111–127 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

HOWARD COBLE, North Carolina 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

MAY 20, 2010 

Page 

OPENING STATEMENTS 

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

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

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

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

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Commercial and Administrative Law .................................. 3 

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

of Texas, and Ranking Member, Committee on the Judiciary ......................... 4 

WITNESSES 

The Honorable Stephen G. Breyer, Associate Justice, U.S. Supreme Court, 

Washington, DC 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

The Honorable Antonin G. Scalia, Associate Justice, U.S. Supreme Court, 

Washington, DC 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 21 

Mr. Paul R. Verkuil, Chairman, Administrative Conference of the United 

States 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 47 

Ms. Sally Katzen, Executive Managing Director, Podesta Group 

Oral Testimony ..................................................................................................... 60 

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

Mr. Jeffrey S. Lubbers, Professor of Practice in Administrative Law, American University Washington College of Law 

Oral Testimony ..................................................................................................... 68 

Prepared Statement ............................................................................................. 71 

Curtis W. Copeland, Ph.D., Specialist in American National Government, 

Congressional Research Service 

Oral Testimony ..................................................................................................... 77 

Prepared Statement ............................................................................................. 79 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Ranking Member, Committee on 

the Judiciary ......................................................................................................... 6 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Commercial and Administrative Law ......................................... 12 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from the American Bar Association (ABA) ................................................ 95 

(1) 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

THURSDAY, MAY 20, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:33 p.m., in room 

2141, Rayburn House Office Building, the Honorable Steve Cohen 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Conyers, Delahunt, Johnson, 

Franks, Smith, Coble, and King. 

Staff present: (Majority) Carol Chodroff, Counsel; Michone Johnson, Subcommittee Chief Counsel; Susan Jensen, Counsel; Reuben 

Goetzl, Staff Assistant; and Daniel Flores, Minority Counsel. 

Mr. COHEN. And the red coats are here, as I earlier announced. 

The red coats are coming. This hearing of the Committee on the 

Judiciary, Subcommittee on Commercial Administrative Law and 

place of the redcoats will now come to order. Without objection, the 

Chair will be authorized to declare a recess of the hearing. I recognize myself for a short statement. 

Exactly 6 years ago today, Justice Breyer and Justice Scalia testified before the Subcommittee on reauthorizing ACUS, the Administrative Conference of the United States, and thus I would like to 

welcome you both back, along with the newly appointed chair of 

ACUS and our other prominent witnesses. 

ACUS is an agency of the United States Federal Government 

charged with making recommendations for the improvement of administrative agencies and their procedures, particularly with respect to efficiency and fairness in the rulemaking process. It is considered both an independent agency and a Federal advisory committee and develops recommendations for improving the fairness 

and effectiveness of rulemaking, education, licensing, investigative 

and other functions by which Federal agencies administer government programs. 

Over the course of its 28-year history, ACUS has issued more 

than 200 recommendations, some of which were government-wide, 

and others were agency specific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial 

review of agency action and encouraging less costly consensual alternatives to litigation. 

2 

The proofs of these efforts include the enactment of the Administrative Dispute Resolution Act of 1990, which established a framework for the use of ADR. ACUS also serves as a resource for Members of Congress, congressional committees, Internal Revenue Service, the Department of Transportation and the Federal Trade Commission. 

ACUS has been praised for yielding tremendous cost savings and 

promoting efficiency by obtaining expert legal advice from private 

sector lawyers that would otherwise cost hundreds or thousands of 

dollars, as inflation has increased per hour. It also may save significant funds through some of its recommendations. 

But the true value of ACUS is that it promotes greater fairness 

in the promulgation of agency rules in the administrative process. 

Every individual in this country depends in one way or another 

upon Federal agencies and scientific evidence informed regulations 

that protect the Nation’s health, safety and welfare. 

We are facing significant issues in the country now, issues concerning the environment, health care, national security, privacy, 

public participation in the Internet, and the economy, among others. We have a tremendous need for effective, fair and strong regulations based on sound evidence and science. Through its work and 

recommendations, ACUS helps to promote and ensure fairness in 

the administrative process. 

It is my hope that today’s hearing will serve as a welcoming 

forum and a launching pad as ACUS begins its second incarnation. 

I look forward to hearing from all of our witnesses today about how 

Congress can help support ACUS and its work. I also look forward 

to hearing from our esteemed witnesses what issues ACUS might 

prioritize in this new Administration. 

I would like to note that ACUS is currently authorized through 

2011, and I intend to introduce legislation in this Congress to ensure that ACUS is reauthorized in a timely fashion, all of which 

is subject to the whims and caprices of the Chair of the Committee. 

I now recognize my colleague, Mr. Franks, the distinguished 

Ranking Member of the Subcommittee, for his opening remarks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. I just want to extend a sincere and hearty welcome to Justice Scalia and Justice 

Breyer, Chairman Verkuil, and really any other witnesses that 

may be here today. It is not often that a sitting Supreme Court justice graces our hearing chamber, let alone two, and I couldn’t be 

happier to hear from both of you very distinguished panelists, to 

say the least. 

From its beginnings in the 1960’s, the Administrative Conference 

of the United States was a constant source of innovation in administrative law and practice. It actively sought out the best ideas 

from the private sector and public sector to make our government 

work better. It helped government in important ways to be more 

efficient, more effective and more responsive. 

Starting in the mid-1990’s, the conference was authorized by legislation, but it lacked the funding to carry out operations. And now, 

thanks to the bipartisan leadership of the Judiciary Committee and 

this Commercial and Administrative Law Committee, Mr. Chairman, it has come back to life. And we all look forward to the conVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
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tributions the conference can make to administrative reform in the 

years to come. 

Today we have an opportunity to explore a number of questions. 

Two sets of questions are really at the top of my own list. First, 

what should the conferences policy agenda be as it resumes operations? And second, what practical challenges does the conference 

confront as it begins anew from scratch, and how can Congress 

help the conference to overcome those fundamental challenges? 

Now, with regard to the first set of questions, I believe that the 

conference priorities should be clear. It has been the better part of 

a century since the Administrative Procedure Act became law in 

1946. And since then, while the basic structure of the APA has 

been maintained, the size, the scope and nature of the regulatory 

state has expanded beyond the 79th Congress’ wildest imaginations, to say the least. 

It is time to modernize the APA to keep pace with the times and 

make the regulatory bureaucracy more transparent, more responsive and, of course, more accountable. In the 108th and 109th Congresses, our Subcommittee engaged this task through the Administrative Law Process and Procedure Project for the 21st Century. In 

2006 we issued an interim report that identified nearly 75 issues 

in seven key areas for further investigation and possible legislation. These issues were identified with the hope that the conference 

could be revived, study them further, and help us to identify the 

best possible reforms. 

Now, I believe that the issues specified in our 2006 report 

present the conference with a ready-made charter of its priorities 

as it resumes operations. I don’t want to sound presumptuous here. 

That is what they wrote. 

With regard to the second set of APA questions, Chairman 

Verkuil has identified in his written statement a number of operational challenges that the conference confronts as it gets off the 

ground. I hope that each of our witnesses today can help us determine whether there are any legislative remedies or oversight activities with which the Congress can help the conference. And certainly, we are here to lend our support in whatever way that we 

can. 

And as others have said before, the government that governs 

best governs least. And when the government does govern, it 

should govern at its best, of course. And to help us achieve that 

goal is the conference’s vital mission, and I certainly wish it every 

success. 

And I welcome both of you again here today. 

Thank you, Mr. Chairman. 

Mr. COHEN. I thank the gentleman for his comments and statement and remarks. 

And I would like to ask the Members who have opening statements to submit them for the record, although we always recognize 

our distinguished Chairman, Mr. Conyers, if he would choose to 

make a statement. 

Mr. CONYERS. Thank you. Thank you, Chairman. 

It is always a privilege when members of the court join us for 

the discussion, and the two that are before us are becoming well 

known in terms of the kinds of discussions that we engage in. And 

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now that this conference is up and running—we have got a chairman—I think it is being looked at with fresh sets of eyes. 

That is, the role of the conference is different from nearly every 

other part of the government, and under these circumstances that 

exist, it is very important in terms of what possibilities that are in 

front of it and that are open to it. And we couldn’t start this examination off with two people that have been more intimately connected with the conference. 

And so I am always pleased when the Judiciary Committee and 

members of the highest court can join us in the way that we are 

brought together today. So we all welcome your appearance and 

look forward to the discussion ahead. 

Mr. COHEN. Thank you, Mr. Chairman. 

And for the last Member to make a statement, I will recognize 

the Ranking Member, my friend from Texas, Mr. Smith 

Mr. SMITH. Thank you, Mr. Chairman. 

Justice Scalia, Justice Breyer, we are truly honored by your presence, and we look forward to your comments today as well. 

The Administrative Conference of the United States is an important institution recently revived by Congress. As a tightly focused, 

historically successful nonpartisan body, it offers an outstanding 

forum for innovation in administrative law and practice. I am glad 

that it will once again be able to make unique contributions to administrative reform. 

Since the conference last operated in the mid-1990’s, a number 

of things have changed. Important Supreme Court precedents on 

administrative law have been handed down. New challenges have 

come before administrative agencies. And the economy has entered 

a period of difficulty we hardly could have foreseen 15 years ago. 

One thing, however, has not changed. It has always been important for administrative agencies to be open, efficient, effective and 

accountable. That has never been truer than today, as regulated individuals and companies fight intense economic headwinds. Now 

more than ever we need administrative reform to ensure that our 

administrative agencies are responsive, do not excessively burden 

our economy, and do not kill jobs. The Subcommittee on Commercial and Administrative Law and the Administrative Conference of 

the United States can and must be on the front lines of that effort. 

In the last two Congresses, the Subcommittee undertook a major 

reform project called the Administrative Law Process and Procedure Project for the 21st Century. In its 2006 interim report on this 

subject, a Subcommittee identified a host of issues for further investigation and potential legislation. These included topics ranging 

from electronic rulemaking to negotiating rulemaking to congressional, presidential and judicial review of rules. They also included 

regulatory analysis and accountability requirements, the role of 

science, and the agency adjudicatory process. 

I hope that in this Congress and in the next one, with the conference’s help, we will continue and complete our examination of 

these issues and produce the needed legislation. I have invited the 

Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs to work with us on these issues as well. 

Today, these overtures have not been returned, and that is greatly 

disappointing. It must not, however, delay our work. 

5 

With the conference up and running, perhaps OMB will find a 

renewed enthusiasm to join us in this effort. OMB surely can help 

us, and both the Committee and the conference surely can help 

OMB as it evaluates its role in Federal rulemaking under Executive Order 12866. 

Mr. Chairman, I would like to ask unanimous consent to submit 

my letters to OMB and the Office of Information and Regulatory 

Affairs for the record. 

Mr. COHEN. Without objection, it will be done. 

[The information referred to follows:] 

6 

MATERIAL SUBMITTED BY THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY


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Mr. SMITH. Thank you, Mr. Chairman. 

The call from the public is clear. The people who bear the weight 

imposed by Federal agencies want agencies to be transparent, to 

listen, and not impose unfair burdens. They also want to hold Federal agencies accountable. Congress’ and the conference’s efforts, 

particularly their efforts on major reform, must serve those interests. 

Thank you, Mr. Chairman. Yield back and look forward to the 

justices’ testimony. 

Mr. COHEN. Thank you, sir. Appreciate your statement. 

Without objection, other Members’ statements, their opening 

statements, will be included in the record. 

[The prepared statement of Mr. Johnson follows:] 


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PREPARED STATEMENT OF THE HONORABLE HENRY C. ‘‘HANK’’ JOHNSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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Mr. COHEN. I am now pleased to introduce our first panel of witnesses. 

And I want to thank all the witnesses for your willingness to 

participate in today’s hearing. Without objection, your written 


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statements will be placed in the record. We would ask you to limit 

your oral remarks to 5 minutes. We have a lighting system that 

starts with the green light. That means that you are in the first 

4 minutes of your comments. At the 4-minute mark, it becomes yellow, and at the 5-minute mark, it goes red, and that means you are 

supposed to have ended your speech. 

After each witness has presented his or her testimony, Subcommittee Members will ask questions, subject to the same 5- 

minute limit. 

We have a very distinguished panel before us. Our first witness 

is Associate Justice Stephen Breyer. In 1994 he was appointed to 

the Supreme Court by President William Jefferson Clinton. Prior 

to that appointment, Justice Breyer taught law for quite a few 

years at Harvard, and he has worked as a Supreme Court law 

clerk, Justice Department lawyer, and assistant Watergate special 

prosecutor, chief counsel of the Senate Judiciary Committee, and 

judicial conference liaison to ACUS. 

In 1990 he was appointed an appellate court judge—my script 

says by President Carter. That is not right. Was it 1980 or was it 

President—I would think it was 1980. 1980? Court of Appeals. Excellent. I knew 1990 would have been quite a trick for President 

Carter. 

Justice Breyer has written books and articles about administrative law, regulation, the Constitution, and is an expert on his own 

biography. 

Thank you, Justice Breyer, for being here, and please begin your 

testimony. 

You need to turn your microphone— 

TESTIMONY OF THE HONORABLE STEPHEN G. BREYER, 

ASSOCIATE JUSTICE, U.S. SUPREME COURT, WASHINGTON, DC 

Justice BREYER. Oh, I see. Well, thank you very much for inviting me. And I think my colleague, Justice Scalia, feels the same, 

and he was actually the chairman of the Administrative Conference. I was a member of it, representing the judiciary, for a few 

years. 

We have a long history of excellent chairmen. He was an excellent chairman. Sally Katzen, whom you will hear from, was an excellent chairman. Now your new chairman, Paul Verkuil, has loads 

of experience in administrative law, technical matters, as well as 

having run large institutions like William and Mary. And so it is 

a good history have here. 

Now, I think I can speak for him in this. 

All right? 

Justice SCALIA. Absolutely. You usually—— 

Justice BREYER. You don’t know what I am going to say. 

Justice SCALIA. You usually—— 

Justice BREYER. Gotcha. No, just it is—— 

Justice SCALIA [continuing]. Even though I disagree with you. 

Justice BREYER. Never. 

What is terribly good, I think, is that you are here and that you 

are interested in this subject, because almost by definition the subject matter of the Administrative Conference is somewhat technical 

and usually below the radar of those who are elected public offiVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
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cials. And in a way that is why it can be effective, and that is why 

it is important. 

The subject that they are a part of to me is a question that has 

bothered human beings in democracies and even before. How do we 

control the regulator? Who is going to regulate the regulator? How 

do we assure that a system of regulation or administration is efficient? How do we assure that it is fair? How do we assure that it 

is effective? 

Now, those are three questions that are just as important today 

as they were 1,000 years ago. And they are just as important today 

as they were 6 years ago when we testified. Now, what part of this 

big question does this group of the Administrative Conference of 

the United States answer? 

Well, sometimes people get very bad treatment in the agencies 

of the government, and then they go to you as individuals, or 

maybe they go to an inspector general or maybe they go to somebody in the agency they complain to that isn’t their job. Or maybe 

sometimes the policy at issue is just people think the wrong policy, 

or maybe you think that. And then they are back here again, and 

they are back asking you to change the legislation. 

But in between those two things there is a whole layer of terribly 

important decisions to be made, and those are administrative agency decisions. And that is how Justice Scalia, who taught administrative law for a long time, and I, who also did, made our living 

for quite a while. And it wasn’t good just for that reason. It was 

good and important, because they affect millions and millions and 

millions of Americans. 

So the question that often is too technical or too nonpolitical for 

it to force itself onto your agenda, but where there is often quite 

a lot of work to be done, is on the fairly technical questions of improving the procedures within the administrative agency. And different nations have different ways of going about it. Different ones 

have different councils or groups. Well, our way of going about it 

is called the Administrative Conference of the United States at the 

Federal level, and it often helps. How? 

Well, first they brought together four groups of people, who do 

not always talk to each other so often or over such a wide range 

of subject matter. Those were staff of different agencies, heads of 

different agencies, outside lawyers and others who are not to do 

with the government but practice before those agencies and knew 

something about it, and academics. 

And they would say to the academic, ‘‘Write a study.’’ And the 

academic could actually go and ask these people, who knew a lot 

of the practical things about it, and didn’t just have to look at 

books. So they would get a study, and then the study would be 

criticized. And then it would be ending up with some recommendations maybe on some subject matter such as how do we improve notice and comment rulemaking. 

You know, you can say the words and a lot of people fall asleep 

by the time you finish the word ‘‘rulemaking.’’ But if you go to a 

foreign country and you say, ‘‘You know, we have a system in the 

United States which means the public doesn’t vote on every detail, 

because it can’t, but it also is a way of getting the public involved 

so people in the agencies, who may be too insulated, can find out 

16 

what they think and can learn something about their experience— 

it is called notice and comment rulemaking,’’ their ears pick up, because they want to know how it works. 

So they will do studies. How do we make it not too long? How 

do we actually get public involvement without dragging the whole 

thing not forever? How can we be sure the agency listens to relevant things without having to listen to every single individual, because there might be 5 million of them. That is where the studies 

come in. 

Now, Justice Scalia has listed several instances from history. 

Our history is 6 years ago and more. I have listed some. I think 

they are important. He thinks they are important. So all we can 

say is where I started. I am really very, very glad indeed that you 

are here, because it shows support for this institution, and I think 

that institution, the Administrative Conference, is important to the 

ordinary American, even if he has never heard its name. 

Mr. COHEN. Thank you, sir, and although you have a red light, 

if you would like to talk further, you would certainly—permission 

is granted. 

Justice BREYER. I think I will stop, because I have made my 

point. 

[The prepared statement of Justice Breyer follows:] 

PREPARED STATEMENT OF THE HONORABLE STEPHEN BREYER


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Mr. COHEN. Thank you, sir. You certainly have. 

Our second witness is Associate Justice Antonin Scalia. He was 

nominated as associate justice of the Supreme Court of the United 

States by President Ronald Reagan, assumed that office September 

26 of 1986. Prior to that appointment, he was in private practice 

in Cleveland, Ohio, and served as professor of law at the University 

of Virginia and the University of Chicago and as a visiting professor of law at both Georgetown and Stanford. 

He served as chairman of the ABA section of administrative law 

and as conference of section chairman. Justice Scalia served as 

general counsel of the Office of Telecommunications Policy, as 

chairman of the Administrative Conference of the United States, 

and as assistant attorney general for the Office of Legal Counsel. 

He served as a judge on the U.S. Court of Appeals for the District 

of Columbia circuit in 1982. 

Thank you, Justice Scalia, for being here. Please begin your testimony. 

TESTIMONY OF THE HONORABLE ANTONIN G. SCALIA, 

ASSOCIATE JUSTICE, U.S. SUPREME COURT, WASHINGTON, DC 

Justice SCALIA. Thank you, Mr. Chairman. I am very glad to be 

here. 

As you noted, Justice Breyer and I were here 6 years ago to the 

day. And to tell you the truth, I was not—well, I was at best guardedly optimistic that on that occasion the Committee would succeed 

in reinvigorating or reauthorizing and re-funding the Administrative Conference. As I told you then, I thought it was a good idea. 

I am just delighted to see that it has come to fruition. 

I am probably happier than most people at the reemergence of 

the Administrative Conference, because I had three offices in the 

executive branch before I went back to teaching. Of those three, 

two of the agencies had been abolished. I had begun to feel I was 

something of a governmental Typhoid Mary, and I was afraid the 

Justice Department would be next, because that was my third job. 

So I am delighted to see the conference back. I think it was one 

of the best bargains, results for the buck, that the government had 

during the years while it was in existence. It is impossible to tell 

you or to get you to appreciate how expert the private lawyers 

were, who donated their time to considering the studies done by 

the consultants for the conference. And all of that was gratis, of 

course. The other members of the conference were academics and 

government officials, usually general counsels. 

I have in my prepared testimony described to you some of the accomplishments of the conference. I am sure there is a lot more 

work to be done, and I share with you the hope that the new conference will improve the administrative process for all of us. 

I could not be more pleased at the selection of Paul Verkuil to 

be one of my successors. Paul was in fact one of the consultants 

to the old conference, did one of the studies that resulted in recommendations by the conference. 

I will just make one other comment, and then do what I really 

came here for, which is to answer whatever questions you might 

have. 

21 

Justice Breyer mentioned, and I think he is quite correct, that 

ordinarily these matters of administrative procedure are too technical to attract anybody’s attention, and they tend to be under the 

radar. To tell you the truth, I am not sure that is all bad. One of 

the things I worried about with the conference was the danger of 

its being politicized of its studies being directed to helping business 

or not helping business, that one interest group or another would 

come to dominate either the conference assembly or the recommendations that were presented to the assembly. 

I think that didn’t happen during most of its previous existence, 

and I hope that that will continue, because this is technical stuff. 

And there is a good, fair way to do it. It should not be done in such 

a way as to push the substantive results in one direction or another. 

And that is all I have by way of introductory remarks. Thank 

you, Mr. Chairman. 

[The prepared statement of Justice Scalia follows:] 

PREPARED STATEMENT OF THE HONORABLE ANTONIN SCALIA


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Mr. COHEN. You are welcome, Justice Scalia. And we appreciate 

your testimony and for your being here. 

We will now begin the questioning. And I want to remind my colleagues that our witnesses are guided by Canon 3 of the Code of 

Conduct for United States Judges, which advises the judiciary to 


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avoid making public comments with respect to the merits of pending or impending actions. We should endeavor to respect those constraints and limit our questions to the subject matter of our hearing. Adherence to this guidance will promote greater dialogue at 

this hearing and encourages the judiciary to participate in future 

hearings. No questions should be entertained that relate to any 

particular cases or tennis. 

Justice SCALIA. Wouldn’t answer anyway, Mr. Chairman. [Laughter.] 

Mr. COHEN. I will begin by the first volley myself. 

Justice Breyer, you refer to practices that other countries used 

to regulate the regulators. Are there lessons you believe ACUS 

might take from some of these international examples? 

Justice BREYER. It is interesting. One of the things I think 

maybe the judicial system and maybe the administrative system 

could think about is in—sometimes when highly technical matters, 

of which there are more and more—scientific matters, for example, 

does this kind of brake work properly, or does this kind of, you 

know, device have certain amount of polluting qualities or danger 

of product, et cetera—it is awfully important to get good science. 

And there are systems where the lists of sciences from the academies, say, in different European countries will be made available 

to judges so that the judges can call their own expert from those 

lists. 

Now, I suspect that probably some agencies are perfectly able to 

do that, and other agencies are not quite as able to do that or quite 

as used to doing that. I am 6 years, at least, out of date on this, 

but one of the things that I have looked forward to in the Administrative Conference is when you get different groups of staff and 

agency heads and private lawyers, who know something about several agencies, say, in that respect, they start talking about it, and 

they do studies, and one will say, ‘‘Well, we couldn’t get the right 

experts on this,’’ and some will say, ‘‘Well, we could.’’ 

And what was the difference and how did you get them? And 

then suddenly you see in one of the heads of one of the administrations the look which suddenly says the light is dawning, which 

means he has learned something from somebody else. That may 

not be quite the right topic, but a lot of these things are international. 

And what your suggestion puts into my mind, but it is more important to have in Paul Verkuil’s mind, is in today’s world it isn’t 

such a bad idea to get someone from the EU or to get someone from 

somebody else’s—from some of these other countries to ask, ‘‘How 

are you doing this thing—you, who have the same kinds of problems—and what are your procedures?’’ And there is some interchange there internationally, which I would be pretty interested in 

finding out if the Administrative Conference can look to those 

things, too. 

So that is what your question triggers in my mind when you ask 

it. 

Mr. COHEN. Thank you, Justice Breyer. Are there are issues that 

you hope that ACUS will prioritize this year? 

Justice BREYER. That is up to them. And I think that an age-old 

question, and I know you are working on this, and one of the probVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
32 

lems is there is something now, I think, called quasi-final rules or 

something. Does that ring any bells—a quasi-final rule, or what is 

it called? An interim final rule, where there is less procedure. 

And I imagine that one of the things they are going to go into 

is how does that work? And how does the agency—people in agencies, in my experience, and I am sure it is still true, they might 

be given a job like set a consumer-oriented labeling rule for tires. 

Well, they don’t have anyone in their agency who knows what the 

right rule is, and they have tire companies who will tell them, ‘‘Our 

tires better, because it goes faster and doesn’t skid on the straightaway.’’ And somebody else will say, ‘‘No, no. It is the curves that 

matter.’’ ‘‘No, it is the rain—rain. It has got to hold during rain.’’ 

And so they get lots of conflicting advice. 

Well, in those circumstances there is likely to be no absolute answer. There is likely to have to be a weighing of different factors. 

And they will want to get some people in who aren’t just the staff 

working on it, nor just the interest groups that are talking to the 

agency. How? When? Under what circumstances? How do you prevent this process from going on forever? How can we do better and 

get to the right rule? 

Well, I am sure those problems are there double, and they 

haven’t met for 6 years. And so from my outside position on this, 

and just seeing cases that are failures, because that is what comes 

to us as a court—somebody is saying it is a failure—I would say 

that that is a huge area, which they will, I suspect, want to go into. 

And then I go back to your first question and say, let us look 

what they are doing on this in the EU. Let us look what they are 

doing on this in other countries. And maybe we will all learn something, because that is the bottom line, I think, for ACUS. Can we 

all learn something? And quite often, you do. 

Mr. COHEN. Thank you, sir. 

Justice Scalia, you are former chair and you have now got another successor in Chairman Verkuil. As he begins his chairmanship, would you be kind enough to offer him some suggestions or 

recommendations on how we should proceed? 

Justice SCALIA. Do good and avoid evil—— [Laughter.] 

The only thing for sure. 

Well, of course, the first thing that Chairman Verkuil is going to 

have to do is to identify talented workers, which is by and large 

academics who are interested in the field of administrative law and 

can do out and go out and do the legwork that is necessary to any 

serious study of administrative procedures. Fortunately, he is in 

academia, as most of the chairman of the conference have in the 

past been, and I think he will be able to identify them readily 

enough. 

As to particular subjects, that is—frankly, the hardest job of the 

chairman is to figure out what to study. What is it that really 

needs doing? I agree with Justice Breyer that surely one of the 

areas focused on—it is always focused on—is rulemaking, especially since the courts’ manner of reviewing rulemaking has seemingly changed in recent years. 

I am not as sanguine as Justice Breyer is that we are going to 

learn much from foreign countries. I have no antagonism toward 

studying the best around the world, but—I used to teach comparaVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
33 

tive law—but, frankly, I don’t think administrative law is an area 

where we have much to learn as opposed to teach, because I think 

we have probably—and probably you would agree, wouldn’t you, 

Justice Breyer?—the most open and efficient system of administrative law in the world. I don’t know any country that—well, many 

of them don’t have a rulemaking, basic rulemaking system of the 

sort that we do. 

Other advice for Chairman Verkuil. No, I think that is about it. 

He has to select good people—I don’t know—and good members of 

the conference, of course. It is up to the chairman to appoint the 

lay members of the conference. And that, again, requires a good 

deal of judgment. But I am sure Chairman Verkuil knows where 

the good ones are. 

Mr. COHEN. Thank you, Mr. Justice. As you might have noticed, 

our lighting system is not without the ability to fail, and—but I 

know my 5 minutes are up, and so I will recognize the Ranking 

Member of the Subcommittee, Mr. Franks, for his 5 minutes. 

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

And again, thank both of you. 

Justice Scalia, if it is all right, I will begin with you. And I want 

to certainly defer to the restraints that you have, and so if I get 

caught sideways, just ignore me, okay? 

In the Subcommittee’s 21st Century Project report, we identified 

several issues for study and potential reform to make judicial review more effective. And so I guess I ask you what do you think 

are the top challenges the judiciary confronts in providing effective 

judicial review of agency action? 

Justice SCALIA. Currently—and there are some ‘‘Law Review’’ articles that will substantiate this—currently, part of their problem 

is to know when it is that they should and when it is that they 

not defer to the judgment of the agency. It is really—the answer 

to that question is quite vague, and maybe that is our fault, but 

that is the reality. That is the biggest problem that the lower Federal courts face—and for that matter, our court. I am not sure that 

I know the answer either. 

Mr. FRANKS. Justice Breyer, do you have anything to—— 

Justice BREYER. Well, it could be a problem for you. I think it 

is a very, very big problem. It sounds technical but, look, we live 

today in a world where 300 million Americans want a say in what 

happens. And this is the difficulty. The same is the difficulty for 

every one of us. It is called time. It is called time is limited. We 

have a lot to do, and a lot of these decisions require some degree 

of expertise. 

So people know what they want. They want a cleaner environment or they want better health care, whatever those things are 

that they vote for. And they are put at a general level. Now, you, 

then, legislate at a pretty general level. But you have to decide to 

what extent you want the agency to write the details. And if you 

give them too much power, well, then you have taken power away 

from the ordinary American. But if you give them too little power, 

they won’t be able to achieve those general objectives. You don’t tell 

the Army what hill to take. 

Mr. FRANKS. Yes. 

34 

Justice BREYER. So, ultimately, you are trying to make that decision. But you don’t focus on it when you write the bill. 

Mr. FRANKS. Yes. 

Justice BREYER. So we have to interpret these statutes on an 

issue that is inevitably important to you, but you haven’t told us. 

And that, I think, as Justice Scalia said, is a very difficult problem, 

because it comes down to the question of how much we interfere 

with the agency. 

Mr. FRANKS. Mr. Chairman, I don’t know about trying to coalesce 

many different voices. That sounds like something Members of 

Congress might be more challenged with than members of the 

court, but that is just a thought. 

Justice Scalia, could ACUS help, do you think, identify the most 

promising legislative actions that could help the judiciary in the 

area that—the question I asked? Do you think that is something 

that they might focus on or have any thoughts on? 

Justice SCALIA. That is one of the authorized functions of the 

agency is to make recommendations not just to the agencies, to the 

President and to the courts, but to the Congress. And some problems in administrative process could not be fixed except with the 

cooperation of Congress. 

Perhaps the most significant change made by the old Administrative Conference was eliminating the doctrine of sovereign immunity 

in the review of administrative actions. The Justice Department 

used to have canned briefs, you know—give them the sovereign immunity brief, you know. You just pull it off the shelf and file it. 

And with the help of Congress, the statute was amended to make 

it very clear that sovereign immunity does not apply to challenges 

to administrative action where you are not seeking money damages, but you are seeking to get the agency to do it right. So, yes, 

absolutely. 

Another area that occurs to me that—well, I don’t want to get 

sideways with Verkuil. I don’t know what Verkuil wants to do. But 

what I would be interested in some statutes Congress requires the 

agency to act by rulemaking. It says the agency shall issue rules 

on this or that. In other areas the Congress does not require the 

agency to act by rule, but authorizes the agency to act by rule. And 

in yet other areas, Congress says nothing about it. And so the 

question is does the agency have inherent rulemaking power or 

not. 

The courts have held that an agency, where it has power to act 

by rule or by adjudication, does not have to act by rule. It can just 

have case-by-case hearings and make its law through those caseby-case hearings, just the way the courts do. I mean, we don’t have 

rulemaking, but we, in effect, make law by case-by-case. 

Now, people have often commented that there are some areas 

where that case-by-case process is not good, and maybe the agency 

ought to be required to act by rule. If there was one area where 

I would look into as to whether Congress should take some action, 

it might be in that group. 

Mr. FRANKS. Well, I guess my time is up, but can I toss this last 

one out, Mr. Chairman, to Justice Scalia? 

I wanted to see if you had any follow up on Justice Breyer’s comments related to how clearly Congress writes statutes. And I am 

35 

not trying to draw you into a war here, but do you have any 

thoughts along those lines? I mean, is there things you could offer 

Congress in the clarity of our statutes? 

Justice SCALIA. I am much too diplomatic, Congressman, to be 

drawn into that subject. 

Mr. FRANKS. Yes, sir. 

Well, it sounds like the gentleman may know the difference between a judge and a legislator as well, so that is great. 

Thank you, sir. Thank you. 

Thank you both. 

Mr. COHEN. Thank you, Mr. Franks. 

I now recognize the distinguished Chairman of the full Committee, the dean of the Judiciary Committee, and my leader, John 

Conyers. 

Mr. CONYERS. Thank you, Chairman. 

What I think we have here is some amazing agreement over the 

importance of this conference, a welcome to a new chair. And I 

think that we are going to have to have the time spent in which 

the conference starts acting for us to draw conclusions about what 

we think about it. 

We are all in agreement about its undervalued importance. We 

think it is on the right track. It is re-stimulated. And I think from 

that point on, we will have to see what they actually do before we 

begin to volunteer recommendations in terms of process or even 

substance. And so I think this gets us off to a good start. 

Rulemaking is extremely complicated, and for the Congress to be 

relieved of that task and to have it vested in this conference is 

probably a very good thing, because this leads to consistency and 

makes it much easier for us to do the substantive legislation. 

Now, is there some area you might think that we might be looking at before the new chairman really gets in the saddle? 

Justice SCALIA. I would give him a chance to get his footing rather than push him in one direction or another. You know, he is likely to take a suggestion by Congress as a command, and if I were 

you, I would—he is a good man, and I would let him survey the 

territory and maybe come to you with the suggestions, and then 

you can pick the ones that seem the best. 

Mr. CONYERS. And after all, Mr. Chairman, we can have him 

come before the Committee from time to time himself. 

Now, there is a subject that I am anxious to raise with you, but 

every member of the staff has recommended strongly that I did not 

raise it, that it fails the minimum, the warning, the admonitions 

of the Subcommittee Chair. 

Justice SCALIA. Mr. Chairman, we are both friends of Elena 

Kagan, and I don’t—— [Laughter.] 

I don’t think we are willing to go beyond that. [Laughter.] 

Mr. CONYERS. Well, I am sure you will be relieved to know that 

that was not what I had in mind. [Laughter.] 

But I think that these kinds of discussions between the two parts 

of the Federal system should be encouraged. You know, after all, 

there are two levels to every subject matter. One is the substantive 

part, the matter, the entitled matter that we are considering, but 

there is another psychological area, and that area is the personal 

feelings about human beings that we all have toward one another. 

36 

And what that means to me is that if you really understand if 

you really have a disagreement on the substance that is not personal and does not go beyond the agreements or the differences 

that exist, we are all in a much better position to come to a probably more reasonable conclusion when we are operating on that 

level. 

And all too frequently in the only system I know, a democracy 

like this, it is so easy to move from the substantive to the subjective. And once that happens, again, just from my experience, that 

affects the reasoning processes about the substantive. And it is for 

that reason that I applaud the Chairman and his ranking colleague 

for doing what we are doing and urge that wherever it is appropriate that it be engaged in more. 

I have come to appreciate it at the opening of every one of the 

judicial conferences, the Chairman of both Judiciary Committees 

and their Ranking Members are invited to join the chief justice 

with some of the leaders from the various circuits. And it has come 

to be something that I look forward to. 

It is not a long time, but you can talk about whatever you want, 

and the views, of course, of the two Chair and the two Ranking 

Members, their presentations are all unrehearsed and are quite different from each other in terms of the subjects that they pick as 

well as their point of view on the subjects that they pick. 

And we think that that practice and this practice both make it 

more likely that regardless of whether our agreements or disagreements result, that it is done in a more thoughtful way and a less 

subjective way. And for that I am very grateful that you have chosen to come back again and again to be with us. Thank you for 

that. 

Thank you, Mr. Chairman. 

Mr. COHEN. Thank you, Mr. Chairman. And while we—— 

Justice SCALIA. I agree with that. 

Mr. COHEN [continuing]. We can’t violate Canon 3, you did volunteer, and that opens the door to guessing what Chairman Conyers’ 

question was by admitting that you both were friends of Ms. 

Kagan. Would you like to continue on with other thoughts of what 

his question might have been? [Laughter.] 

Justice BREYER. But I thank you for the Chairman’s remarks, 

too, and because I couldn’t—we live in an institution where we disagree about a lot of things, and we also agree about a lot of things. 

And by keeping our discussions always at the substantive, professional level and doing our absolute best not to make them subjective or personal, we remain good friends, and we discover that in 

a lot of cases, which could go either way, you know, it is just much 

easier to reach agreement. So your remarks struck a chord in my 

mind, for which I thank you. 

Justice SCALIA. I agree with that. Somehow the press sometimes 

portrays the Supreme Court as nine scorpions in a bottle, you 

know, all that. That is not what we are at all. We are all friends. 

And how close our friendship is has nothing to do with how much 

we agree on particular substantive issues. And the fact that we are 

friends makes it easier to listen to one another on the substantive 

matters, which is what you are saying, Mr. Chairman. 

37 

I wish that we had more contact with other people on the Hill. 

I think the world was much different when this was a smaller 

town, when it was a one-company town and all of the social interaction was essentially between members from the three branches. 

My colleague here has a lot of contacts on the Hill, having worked 

there for a long time. He has friends on the staff, and I am sure 

with the members. 

I don’t have that advantage and, frankly, I wish that I did know 

more people on the Hill and associate with them not just in formal 

hearings like this, but even socially. And I don’t know—maybe 

there ought to be a Take a Congressman to Lunch Program. 

[Laughter.] 

Mr. COHEN. Where? [Laughter.] 

Thank you, sir. 

Mr. Coble from the great state of North Carolina? 

Mr. COBLE. Thank you, Mr. Chairman. 

Gentlemen, good to have you both on this side of the Hill. Gentlemen, from your past experience with the administrative council— 

Administrative Conference—what are some of the important— 

strike that. What are some of the significant difficulties that it 

faced in identifying and making effective recommendations on some 

of the important areas for administrative law? 

And I will be glad to hear from each of you. 

Justice SCALIA. Well, I would have a better perspective on that. 

Sometimes you would find an agency that was very reluctant to 

take any advice or guidance—not often, but sometimes. And that 

would make it hard to get our recommendations adopted. 

Ordinarily, though, since the general counsel of that agency 

would normally be part of our operation, and since the agency 

would have cooperated with the whole study, that is not ordinarily 

the problem. But that can be one problem. 

And needless to say, getting Congress, if our recommendation is 

one for legislation, you know how easy it is to get legislation 

through, right? 

Mr. COHEN. Lots of things pass the House, sir. [Laughter.] 

Mr. COBLE. Justice Breyer, do you want to be heard further? 

Justice BREYER. No, I suspect that the problem on something like 

that is to say it is a problem for many of us, and you might have 

it. It is a question of where can you be effective. 

And, for example, if you have a—there are a large number of different subjects that you personally as a legislator, wherever you 

are, might deal with. And you are trying to look to see, well, where 

can we make a difference here? And that depends on what the cooperation is from other people. And also you would like it to be 

something significant. 

And so I think the Chairman, who has lots of experience in this 

area, will have to see, well, let us see what those agencies—what 

are they being bothered with? And where do we think we can make 

some progress on this? And then do we find the academic? 

You know, I was an academic for a long time, and just being 

there is a strong temptation to just sit in your office. But in this 

area—and it is wonderful for the academic—they will go out and 

talk to people who actually are involved in the process and would 

actually have some experience. And so their work will be better. 

38 

You have got to get the right academic, and you have got to get 

to understand from the practitioners what they want and need, and 

you have to understand what is likely in the agency. So there we 

are, that—just anyone who is trying to be effective in an area. 

Mr. COBLE. Let me put one more question to each one of you. 

One key area of reform the Subcommittee identified in its 21st 

Century Project was electronic rulemaking. And can you all identify ways in which Congress both promote a rulemaking and better 

ensure that documents agencies make electronically available are 

redacted to protect all personal information? That is a long question, but could you illuminate on that? 

Justice SCALIA. Well, ordinarily, the agencies’ rulemaking process 

is a written process now. Whether it is written on a typewriter or 

on a word processor or electronically, it doesn’t seem to me to make 

a whole lot of difference. Where the new electronic age might make 

a difference is the agency posting its proposed regulations so that 

they will be available to everybody readily. That will be a great 

help. 

But as far as the receipt of recommendations, I, you know, I don’t 

know that it would—going to make a whole lot of difference whether they do it electronically or by mail. It is something the conference ought to look into. What difference does the new electronic 

age make on the agency’s rulemaking? 

Justice BREYER. Because I suspect it will. There we were pleased 

at the court, because the Congress provided a year ago a small 

amount of extra money to put our proceedings instantly online. So 

everything goes instantly online, the opinions, within a matter of 

minutes. And the result of that is we got about a million hits a 

day—I mean, huge. And that to me is wonderful because, you 

know, people can instantly find out what it is that we have done 

or are saying, and so forth. 

But if you are on the opposite side, of course, if you can have a 

million or 2 million or 10 million hits, i.e., you could have a 10 million comments, and people, if they can, they might, and suddenly 

you have got to figure out how do we separate the wheat from the 

chaff here. And then people can get annoyed if they feel they didn’t 

get a good response, and there are perhaps millions of people 

who—you can’t answer everybody. You answer the kind of comment, not necessarily the individual. 

Well, I think it would be pretty interesting, as Justice Scalia 

says, to find out what is going on, what could go on, what do we 

put online, how do we separate wheat from chaff, and so forth. 

Justice SCALIA. Well, I mean, that is a good point that Justice 

Breyer makes. Since the agency under normal rulemaking procedures must consider all of the comments received, you don’t want 

to make it too easy to give comments to the agency. I mean, you 

don’t want to sift through a lot of garbage that has come through 

on the Internet. So maybe it is better to leave the comment process 

in writing. But that is something that I think the conference ought 

to look into. 

Mr. COBLE. Thank you, gentlemen, for being with us. 

I want to beat the red light so the Chairman won’t—you won’t 

keelhaul me. Yield back, Mr. Chairman. 

Mr. COHEN. Thank you, Mr. Coble. Never would happen. 

39 

Have either of you all ever considered tweeting or twitting? 

Justice SCALIA. I don’t even know what it is, Mr. Chairman, to 

tell you the truth. [Laughter.] 

I have heard it talked about, but, you know, my wife calls me 

Mr. Clueless. I don’t know what you—with tweeting. 

Justice BREYER. Well, I had no personal experience with that. I 

didn’t know how it worked. And then, remember when they had 

disturbance in Iran? 

Mr. COHEN. That is true. 

Justice BREYER. Well, for my son said, ‘‘Go look at this.’’ And, oh, 

my goodness. I mean, there were some twitters, they called them. 

But there were people there with photographs as it went on, and 

I sat there for 2 hours absolutely hypnotized. And I thought, ‘‘My 

goodness, this is now for better or for worse.’’ I think maybe in 

many respects for better—in that instance, certainly. 

It is not the same world, and it is instant. And people react instantly. And there we are. I will just say there is quite a difference 

there, and it is not something that is going to go away. 

Mr. COHEN. I would now like to recognize a former district attorney general and a long-term serving Member of this Committee, a 

man who has been hypnotized on several occasions by many different current events and national events, and a lame duck, so you 

never know what he will say, Honorable Bill Delahunt. 

Mr. DELAHUNT. I, too, shall be diplomatic, Mr. Chairman. I can’t 

really add anything to what has already been said other than to 

extend a note to the both of you of gratitude for providing impetus, 

if you will, for the resurrection of the conference. I think you both 

deserve unrestrained praise for again bringing back to life what 

will be a useful tool. And this will be part of your collective legacy. 

And I guess my one observation would be that we hear much 

about accountability and transparency in government, and government being out of control. This is a very significant vehicle to ensure accountability, another check that, if you will, is under the 

radar screen. Even with your presence here, one doesn’t see a mass 

of cameras here today. There might be one or two members of the 

press, but this kind of—the availability of the conference, really, I 

consider something of immense value in terms of how government 

functions. 

But I would hope, with the advent of the new leadership, and we 

all welcome the new director here, there is an understanding that 

it is important to have a profile. Maybe I can make this into a 

question to see whether you concur with this judgment. But we 

ought to be able to, you know, demonstrate to the American people 

that this is—I think maybe it was you, Justice Scalia, that said 

this is a good bargain. This is a real good investment. 

And maybe within the conference itself there is an opportunity 

to establish in very real and practical terms the cost savings that 

are effected by the work of the conference over an extended period 

of time. Do you have a comment? 

Justice SCALIA. Yes. You know, a good way to do it would be to 

have the private lawyers keep track of the hours that they expend 

in committee meetings and in the assembly, and then to charge 500 

bucks an hour or whatever their normal rate is, and add it up and 

40 

see what it comes to at the end of the year. You will find that you 

are getting an awful lot of very—— 

Mr. DELAHUNT. I am not even talking about those kind of savings. What I am talking about is the benefit of the recommendations—— 

Justice SCALIA. That is a little—— 

Mr. DELAHUNT [continuing]. In terms of the functioning of government. 

Justice SCALIA. That is a little harder to quantify. I mean, that 

is why most of this stuff is under the radar. It is hard to quantify 

most of it. 

Mr. DELAHUNT. Really? 

Justice Breyer? 

I mean, I would encourage it, because I think that, you know, 

much of what we do here, really, its importance and significance 

goes entirely unnoticed. And this would be an opportunity to say 

to the American people government is working. It can function in 

an efficient, effective way. 

And here’s the bottom line. Now, maybe we have to guess somewhat. Maybe it has to be a range, but I see it as a small step in 

terms of restoring what clearly is a—I don’t want to become, you 

know, I don’t want to indulge in hyperbole here—but restoring 

some confidence in government, that it can function and it can 

work, as far as the American people are concerned. 

Yes? 

Justice BREYER. Congressman, I am glad that we are hearing 

you ask that. It might be on some things. For example, suppose you 

change some of these processes so the bottom line, which it would 

be a rule coming out, comes out more quickly. Well, there you can 

make an estimate with that, because a longer time takes a lot of 

money. And then you could see there’s some measurement of satisfaction. 

And there might be ways that Sally Katzen—I don’t want to put 

her on the spot, but she has been over running OIRA. And in OIRA 

they have ways in OIRA of measuring that they save the country 

X billion dollars, for example. And some of what the Administrative 

Conference, but not all, would lend itself to that. 

And then how many people actually file court cases as a result 

of the rule? If, on balance, fewer people do, because there is greater 

satisfaction, that might be quantifiable, too. So I suspect with some 

of the things that there will be some methods of quantifying some 

of them as minimal savings, and maybe more. And I think that 

might help. 

Justice SCALIA. The conference publishes an annual report—I am 

sure it will continue to do that—which tries to set forth the most 

important recommendations it has come up with in the previous 

year and also the most important accomplishments of prior recommendations from the previous year. And I am sure that will continue, but I am also sure that it will not make the front page of 

the Washington Post. 

Mr. DELAHUNT. Right. 

Justice SCALIA. Most of this stuff is very incremental. It is very 

technical. It is hard to grab the public’s attention with it. 

Mr. DELAHUNT. Yes. Thank you, gentlemen. 

41 

Mr. COHEN. Thank you, Mr. Delahunt. 

I now recognize the gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman. 

Thank you, Justices, for your testimony here and your engaging 

response to the questions that have been offered by the members 

of this panel. I happened to notice that there were 13 people that 

came through the gallery here that had been in my office within 

the last 2 hours. They are quite interested in the dialogue that is 

taking place here today, and as am I. 

And I am wondering—this is kind of a personal curiosity—how 

broad the comments might come from the conference on when we 

are looking at comments that would go in on the executive branch 

of government, certainly, and the rulemaking process. Would those 

comments also have the view from the judicial branch and of the 

legislative branch? 

Justice SCALIA. I am sure that we never—well, I do not recall 

during my tenure as chairman, nor am I aware that during any 

other chairman’s tenure, views were requested from the courts. I 

am not aware that that ever happened. And I am not sure—I am 

unaware of soliciting views from the Congress either. When Congress had views, I am sure it made them known, but I don’t think 

we have solicited them. 

Mr. KING. Thank you. 

Justice Breyer? 

Justice BREYER. In the Administrative Conference itself, which is 

really not the rulemaking body, but it is considering the rulemaking procedures, for example, of other agencies, I was the judicial liaison. So there there was a method of finding out what judges 

thought of the processes that they were considering. 

And also from time to time there were people from Congress, it 

is my recollection. And I know that Congress has often provided a 

comment on rulemaking by different agencies, it used to be, whether it was EPA or other things. It is rare that the judiciary will do 

that. 

Mr. KING. Well, here is what brings about my curiosity and within this context that as rules are proposed by the agencies, if the 

conference is taking a look at those rules before they have the force 

and effect of law, they—and they are perhaps making a recommendation as to looking at it from all three branches of government, perhaps an evaluation of where constitutional problems 

might arise, or in the legislative branch—now, let me say that that 

would be the judicial branch—the executive branch on whether and 

how the executive branch might administer these rules, and maybe 

recommendations to the legislative branch as well as far as the 

input that might come from the public on the policy side. 

I bring all of these up because I watch us pass legislation here 

that turns into rules that have the force and effect of law, and once 

it leaves the Congress and goes to the President’s desk, it is completely out of our control, and yet our constituents have to live with 

the consequences. 

And so I am looking for a way that—I have in the past introduced legislation, and I am currently an original co-sponsor of legislation that the lead sponsor on it is Congressman Davis of Kentucky, H.R. 3765, which the legislation that I introduced requires 

42 

all the rules to come before Congress before they have—and they 

can be voted in block or separated out and amended, but before 

they have the force and effect, so that Congress could vote them 

up or down. 

And it seems to me that if we could pass the legislation of that 

type in this Congress, that would allow all of us with our 306 million constituents to have input sorted through each of our Members. And then that kind of input could go to the conference to be 

evaluated and perhaps be coupled with a recommendation before 

we would vote on such rules before the Congress. 

And I see Justice Scalia with an answer to that idea. 

Justice SCALIA. Please, please don’t do it, Congressman. [Laughter.] 

We didn’t, and I don’t think we should, get into the substance of 

rules. I think it would be the kiss of death for the Congress to have 

it review the substance of agency rulemaking. 

The only thing we look to, and that is why it is so—what should 

I say—so unpopular and dull and under the radar, all we look to 

are the procedures that the agencies use. They may come out with 

real garbage, but that is none of our business. That is your business, I understand, but it is not the conference’s. 

And I think if you tried to make it the conference’s, it would alter 

the character of the organization enormously. I think it would ultimately be ineffective, because it would inevitably become politicized, the substance, you know, getting into what people favor or 

don’t favor, whereas procedures are pretty much, you know, people—but whatever procedures are passed, efficient, fair, you can 

get people to agree on those things. But when you get into the substance, you are going to politicize. We have never done that in the 

past, and I hope that that that won’t happen. 

Mr. KING. Justice Breyer? 

Justice BREYER. It is a very big topic with a history. And I would 

bet if you go back a hundred years, you will find people with the 

same concern and a hundred years from now, because your concern 

is, well, we have to delegate a lot of authority to the President or 

to the agency, and then we really don’t have much of a check on 

how they exercise it. 

And one of the ways of solving that for a while was something 

called the legislative veto. And there was a two-House veto, and 

there was no one-House veto, and then in a case called Chadha, 

which was decided before I was on the court, the court said that 

that is unconstitutional. I didn’t do it, but the court—— 

Justice SCALIA. I did. And I wrote one of the briefs in the case. 

Justice BREYER. Yes. 

Justice SCALIA. Entirely correct. 

Justice BREYER. I am sure it was. I wasn’t there, so I don’t—— 

And then are there ways of replicating procedures like that? 

Well, that is a big question and difficult to do, and so I will leave 

you with the problem. But I will note, yes, of course, it is a problem. 

And by the way, interestingly enough, there have been complaints in a famous article written by Lloyd Cutler years ago that 

just as you are in the position of, well, we give this power to this 

agency and then we don’t know what they will do with it and we 

43 

have no check, so is the President, said Lloyd Cutler, and because 

he actually doesn’t run the agencies, and he has limited time, and 

how does he bring them into a check? 

Hence, OIRA. Hence, OIRA, in an effort to do this, and this is 

bipartisan. They have different names under different Presidents, 

but it is the same effort. And now you are trying to figure out a 

way how to do that in Congress, and you do it some with hearings, 

you do it some with budgets and so forth. But so I won’t say don’t 

do it—— 

Mr. KING. But I—— 

Justice SCALIA. I would say yes—— 

Justice BREYER. You know, good luck, and it is important—— 

Mr. KING. I mean, my comment was really in an advisory capacity on this, and I think in the end we could agree that this default 

needs to go back to the voice of the people as heard by the Members of Congress, and it is our responsibility in the end to take care 

of that here at—— 

Justice BREYER. Because what I had said—it is a very interesting 

topic for me, because I—what I said before was not a criticism of 

Congress. But I don’t know how I would write a statute which says 

we want to give the agency just this much power, and we want the 

courts to dive in just this much. Well, what is the ‘‘this much?’’ And 

how do you write that? And that is why it is so difficult. 

So it is a huge problem, and it is not as if you can’t make any 

progress. Maybe you can. But I could just make the trite observation that it is no less of a problem today than it was 6 years ago 

or 60 years ago. And that is what we are trying to find out. 

Mr. KING. Well, in conclusion, Mr. Chairman, I would just comment that the Endangered Species Act and the Clean Water Act 

mean something entirely different today than they did when they 

were passed, and that is one way to illuminate this problem that 

we have. 

Thank you, Justices. I appreciate it. 

And I yield back. 

Mr. KING. Thank you, Mr. King. 

And I want to thank each of the members of the panel, in particular the justices on the panel, for their time, their interest in the 

subject matter, their testimony today. 

And we are going to recess this hearing, because we have votes. 

We will come back. 

The justices are, within the powers that I have, dismissed. And 

I want to thank you for your testimony. 

And, Justice Breyer, I want to thank—you give me a lot of new 

ideas on how to buy my new tires. Thank you. Thank you very 

much. 

Justice SCALIA. Thank you, Mr. Chairman. Enjoyed being here. 

[Recess.] 

Mr. COHEN. [Presiding.] This panel is now reconvened and open 

for business. Thank you for participating today. And we have the 

same instructions that we had previously—red, blue, yellow, green 

lights. Hopefully, they work. 

Our first witness is Mr. Paul Verkuil, who has had much recommendations and advice today from distinguished scholars, confirmed by the Senate as chairman of the administrative office—AdVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
44 

ministrative Conference of the United States, aka ACUS, sworn in 

by the Vice President April 6, 2010, served as president of the College of William and Mary, where Rip Scherer went to school and 

might have coached as well, dean of Tulane, where Richie Petitbon 

went to school and may have coached as well, and Cardozo Law 

Schools, where Bike Haas went to school, the acting dean of the 

University of Miami Law School, where George Meyer went to 

school, and CEO of the American Automobile Association. 

Legal activities include appointment as special master by the 

U.S. Supreme Court in the original jurisdiction case of New Jersey 

versus New York, not in the NBA, and appointment as special master by the Fifth Circuit in U.S. versus Louisiana higher education 

desegregation case. 

As senior counsel to Boies, Schiller & Flexner, Mr. Verkuil 

oversaw the firm’s pro bono program of anti-trust and corporate 

governance matters, published over 60 articles on administrative 

law and regulation topics, chair of the administrative law and regulatory practice section of the ABA, and a consultant to and member 

of the Administrative Conference of the United States, ACUS. 

Thank you, Mr. Verkuil, for your participation. And will you proceed with your testimony, sir? 

You have to turn yourself on there. There you go. 

TESTIMONY OF PAUL R. VERKUIL, CHAIRMAN, 

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 

Mr. VERKUIL. I am sorry. Can you hear me? 

Mr. COHEN. Yes, sir. 

Mr. VERKUIL. Am I on? Okay, good. 

I am sorry Justice Scalia has left, because I wanted to assure 

him—— 

Mr. COHEN. We can call him back. 

Mr. VERKUIL. No, no, that is all right. 

Mr. COHEN. Somebody issue a subpoena quickly. [Laughter.] 

Mr. VERKUIL. I just wanted to assure him and assure you, too, 

that I am definitely here to do good and avoid evil. 

Mr. COHEN. Good. 

Mr. VERKUIL. As you can tell. 

Mr. COHEN. We are all, you now, waiting to hear. 

Mr. VERKUIL. I know this was a question to be answered first. 

As you can tell, we are an agency with many friends in government, on the Hill and on both sides of the aisle. It tempts me to 

recall the words of Daniel Webster, who told the Supreme Court in 

the Dartmouth College case that we are a small college, but there 

are those who love us. Well, we are a small agency, but we have 

many friends. We are big in friends. And this is so for a reason. 

ACUS represents an ideal in government administration, a 

thoughtful balance politically and ideologically, and consensus-driven. It is no exaggeration to say that the best of our recommendations contain a kind of moral as well as logical force. They are followed or adopted because they are the product of deliberation and 

are persuasive. They are not ukases issued from above. 

It is my hope that during my time as chair these qualities will 

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conference, whether it be colloquia, research reports or informal adVerDate Aug 31 2005 10:17 Nov 18, 2010 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 H:\WORK\COMM\052010\56524.000 HJUD1 PsN: 56524
45 

vice. I am also sensitive to the charge that we not become too esoteric, too law professor-like, if you will, in our work. We need to 

think without being a think tank. We need also to do. So let us call 

it a think and do tank. 

Informal advice on short notice should be one of our strengths. 

Solving sticky, small procedural problems quickly should be as important as deliberating carefully over large questions of the administrative process. 

My written testimony sets out a potential list of topics, some big, 

some small, but rather than dwell on these in my short time, let 

me tell you what I have in mind and have been doing to get us up 

and running. Currently, I am the only employee of ACUS, but I 

have been assisted by some effective consultants and a former conference senior staff attorney, who has been detailed from GSA. I 

have undertaken the following activities to get it started again. 

First, prospective members of the council are in the final stages 

of approval and will be announced shortly by the White House. 

OMB has reestablished an account for the conference from which 

appropriations can be drawn, and we have established the budget 

mechanisms and authorities necessary to commence operations. 

Steps have been taken to reclaim old conference files from the 

national archives and from unlikely places like law school libraries 

and even basements of former employees. In fact, I have my eyes 

out everywhere for old ACUS documents and memorabilia, one of 

which I can show you. We found the original seal in, I must say, 

David Pritzker’s basement. 

While I was in Thomasina Rogers’ office last week. She is the 

last chair of the conference and is now chair of the Occupational 

Safety and Health Review Commission, and I spied some old green 

conference volumes on her shelf, which I hope to recover, or at 

least borrow. And so it goes. 

Mr. COHEN. Have you been to Justice Scalia’s office? 

Mr. VERKUIL. No. I have, but I haven’t looked on the shelves. I 

am going to do that. Thank you for the tip. 

We have been using temporary space made available by the Federal Trade Commission under an interagency agreement until our 

permanent space is available sometime in July, and we are in the 

process of getting our appointments through OPM, as required. 

We started the process of filling up the membership by determining the independent regulatory agencies that are statutorily entitled to membership, consulting with the White House on the departments and agencies that require presidential designations, 

identifying departmental subagencies that might deserve their own 

members, and beginning the process of identifying a diverse group 

of nongovernmental members and liaison representatives, whose 

appointment will be subject to approval by the council. 

I have met with GSA to discuss the requirements of the Federal 

Advisory Committee Act as they apply to the conference. We are 

working together to finalize a charter, which under FACA must be 

filed before any meetings can take place. A copy of that charter will 

also be filed with the standing committees of the Senate and House 

committees with jurisdiction over ACUS. 

I met with DOJ’s Office of Legal Counsel to request review of a 

prior OLC opinion concerning the application of the Emoluments 

46 

Clause of the Constitution to the office, to our members and to our 

council membership. I met with the U.S. Government Ethics Office 

to review, update and simplify our prior procedures for monitoring 

potential conflicts of interest, particularly among nongovernmental 

members of the conference. And I have been reviewing and considering updates to conference bylaws to conform with changes in law 

and reestablish our committee structure. 

I am working to reconnect with Federal agencies, the bar, public 

interest groups, the academic community and, of course, with the 

Hill and with this Committee to solicit input on issues that might 

make the most sense to address first. In order to gain momentum, 

I have met with several academic researchers to undertake specific 

studies in some of the areas mentioned in my written testimony. 

I am engaged in planning for a Web site that will be easily accessible to the public and the agencies alike and help us provide a 

useful forum to discuss and propose best practices. Finally, I have 

submitted our fiscal year 2011 budget to the House Appropriations 

Committee through OMB. 

I can tell you, Mr. Chairman, that we are very happy to be in 

business. I am very proud to be part of the agency that you have 

permitted to come back to life, and I want you to know that I will 

work as hard as I can to make this Subcommittee and this Committee proud that you have been the driving force to reestablish 

the Administrative Conference. Thank you very much. 

[The prepared statement of Mr. Verkuil follows:] 

47 

PREPARED STATEMENT OF PAUL R. VERKUIL


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Mr. COHEN. Thank you. You make me feel like Dr. Frankenstein. 

[Laughter.] 

Something like that. Thank you for your testimony, Mr. Verkuil. 

Our second witness is Ms. Sally Katzen. And Justice Breyer referred to her at least three times in his testimony. We noticed that, 


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and I think Mary Ann Akers will comment on that in her gossip 

column tomorrow. 

Ms. Katzen has testified before Congress over 65 times on a 

broad range of Federal Government activity and has served on panels at the National Academy of Science. Her career in the Federal 

Government includes 8 years in the Clinton administration as deputy director for management of the OMB, as deputy assistant for 

the President for economic policy and deputy directory of the National Economic Council and is administrator of the Office of Information and Regulatory Affairs in OMB, where she was the senior 

advisor to the President on regulatory policy and process. 

Ms. Katzen was the first female partner at Wilmer Cutler & 

Pickering and is a well-respected professor, having taught at GW, 

Michigan, George Mason, Pennsylvania and Georgetown law 

schools, in addition to Smith College, Johns Hopkins University 

and the Michigan and Washington program. 

Welcome back. 

TESTIMONY OF SALLY KATZEN, EXECUTIVE MANAGING 

DIRECTOR, PODESTA GROUP 

Ms. KATZEN. Thank you very much, sir. 

Chairman Cohen, Ranking Member Franks, if I may echo Justice 

Breyer, thank you so much for having a hearing on this subject. It 

sends a very strong message that will resonate throughout the 

town. 

Now, the witnesses today—and you have assembled a most impressive group of ACUS supporters—have submitted written testimony about the importance of ACUS, the significant substantive 

contributions it made in its first incarnation, and an array of contributions it can make in the future. And rather than go down that 

now well-worn path, I thought I would try to take a stab at the 

question of what you can do now, what Congress can do to help advance the ball. 

And this Committee, as everyone has recognized, has been very 

instrumental in reauthorizing ACUS and in prevailing upon your 

colleagues for the appropriations. And I emphasize the latter, because it was because of the lack of appropriations in 1995 that 

ACUS was closed. 

I want to take just 1 minute to just talk about the question that 

invariably comes up when you are talking about funding using taxpayer money for an institution or an entity like ACUS. And they 

always say, ‘‘Why does ACUS have to exist? Isn’t there some other 

entity, if not in the Federal Government, then in the private sector?’’ 

And in my written testimony I go on at some length about the 

various things I have done over the last four decades in the field 

of administrative law in the private sector, in the public sector and 

in the academy. And so I say with some confidence categorically 

that no other entity can do what ACUS can do. And I am not saying that no one can’t do it as well or as efficiently. I am saying no 

one can do it, period. And so to keep ACUS alive and well is really 

critically important. 

And I know you are working on reauthorization. I would urge the 

Committee to think about permanent reauthorization so that you 

61 

can set an example and send again a message for the appropriators 

that this is a critical thing. We have had a 15-year hiatus, and 

while Chairman Verkuil has talked about the steps he has taken, 

you hear how difficult it is to start out even an agency that has 

all the files and the seal in place. And I would just urge that we 

do not have to go through that again by having Congress send the 

signal that this is here to stay. 

I also would encourage you to send a message to the White 

House. Chairman Verkuil said that they are going to announce the 

council. Great. Let us get on with it and be able to have the chair 

and the council convene an assembly so that the important work 

can be done. 

I talked about all the different institutions in my written testimony. I would be happy to answer any questions, but again, I want 

to just thank you so much for doing what you have done. 

[The prepared statement of Ms. Katzen follows:] 

62 

PREPARED STATEMENT OF SALLY KATZEN


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Mr. COHEN. You are welcome, Ms. Katzen. I appreciate your testimony. 

Our third witness is Professor Jeffrey Lubbers. Professor Lubbers 

is a professor of practice in administrative law and active in the 

WCL’s law and government program. He has expertise in administrative law, government structure and procedures, and regulatory 

policy and procedures, among other things, I am sure. 

From 1982 to 1995, Professor Lubbers was the research director 

of the Administrative Conference of the United States. He has published two books on agency rulemaking and administrative procedure in addition to teaching. Professor Lubbers is also administrator of law consultant, whose clients include numerous Federal 

agencies, law firms, public interest groups and international organizations. 

Professor Lubbers, will you proceed with your testimony? I hope 

I got that right the last three times. 

TESTIMONY OF JEFFREY S. LUBBERS, PROFESSOR OF PRACTICE IN ADMINISTRATIVE LAW, AMERICAN UNIVERSITY 

WASHINGTON COLLEGE OF LAW 

Mr. LUBBERS. Yes, you did. 

Thank you very much, Mr. Chairman and Mr. Franks. It is a 

great pleasure for me to be here today. 

As you said, I was an attorney at the Administrative Conference, 

actually, from 1975 to 1995. I was the research director for the last 

13 years of that period, so I am really thrilled to be here today to 

mark the rebirth of the Administrative Conference, which is happening primarily because of the Subcommittee’s steadfast bipartisan support for reauthorizing the conference. 

Now, needless to say, it is very unusual for an agency to go on 

a 14-year hiatus. And this presents some interesting challenges to 

get it going again. But, fortunately, the Administrative Conference 

Act as amended still offers an excellent blueprint and foundation 

for the conference’s work, and I am confident that Chairman 

Verkuil will provide the leadership necessary to meet those challenges. And I would say that even if he hadn’t asked me to be a 

consultant in helping him to begin this effort. 

Now, of course, today’s problems and the landscape of today’s 

government are somewhat different from those of 1995, but the 

basic tensions in our administrative procedure between fairness 

and efficiency, discretion and accountability, formality and informality, and openness and confidentiality continue to exist. And it 

is a big part of ACUS’s mission to help find the right balance between those poles in various contexts. 

I thought I would say a few words about how the Office of the 

Chairman and its small staff functioned in practice. Of course, we 

recognize that the full assembly members, including savvy experts 

like Sally Katzen, was the great resource of the conference. 

The debates in ACUS meetings were almost always civil. It was 

striking how interest group lawyers, who are normally strong opponents in the world of litigation, lobbying and politics, could come 

together in a spirit of cooperation to seek consensus on process. I 

firmly believe that the connections forged in ACUS meetings 

69 

helped increase civil discourse and reduce the level of partisanship 

in legal Washington. And it can do so again. 

Our role in the Office of the Chairman, which had never more 

than 20 employees, was to serve both the chairman and the membership and to undertake all the different operational responsibilities that come with being an agency. 

We were very fortunate to have a dedicated and stable group of 

staff attorneys during my tenure at ACUS. They had to do a little 

bit of everything—take minutes at conference meetings, help write 

Office of the Chairman sourcebooks, critique consultants’ reports, 

wordsmith draft recommendations, interact with high-level and 

high-powered members of the conference, work on implementation 

of ACUS’s body of recommendations, and carry out special statutory assignments under the Administrative Dispute Resolution Act, 

Equal Access to Justice Act, and several other statutes. 

All of ACUS’s employees, except for the chairman and his confidential assistant, were career civil servants, so we had to be, and 

I think we were, scrupulously nonpartisan, and we supported the 

chairman’s agenda regardless of his or her political ideology. 

I thought I might mention a few of the biggest operational challenges we had, from my point of view. One was that the large body 

of ACUS recommendations issued over the years needed appropriate follow-up. These recommendations were not issued as helium 

balloons let loose in the wild blue yonder. They were issued to persuade recipients—the agencies, Congress and the President—to 

take the actions suggested. 

In that regard ACUS’s lack of enforcement power was both a 

strength and a weakness. The fact that ACUS is purely advisory 

meant that agency members in the assembly could participate in 

deliberations frankly and without concern that the group’s conclusions were binding on them. And this willingness was the key to 

obtaining consensus. 

On the other hand, because ACUS cannot order anyone to do 

anything, it was up to the Office of the Chairman to do everything 

it could to cajole and advocate for the recommendations. This 

meant that we had to not only monitor a lot of developments, but 

we also had to prioritize and concentrate on the ones that were either the most pressing or had the best chance of being adopted. 

It was difficult to measure success in this area. If Congress enacted the recommended legislation, which does happen fairly often, 

we could check that one off. But sometimes only a part of the recommendation would be enacted, or if the recommendation were addressed to the agencies, some might take the suggested action and 

some might not. We felt the need to measure our success in this 

area, and we did keep a running tally, but it was a challenge. 

In terms of new research, we didn’t just want studies that could 

be done in a law library. We wanted what former Chairman Robert 

Anthony, who is in our audience today, called eyeball and shoe 

leather research. This meant that we wanted our researchers to 

interview agency and congressional staff and affected stakeholders. 

One of the Office of the Chairman’s major attributes was that it 

could facilitate these interviews. 

Another challenge was to find the funds to undertake larger and 

more empirically-based studies. Occasionally, Congress specifically 

70 

asked ACUS to undertake projects that required rather large empirical inquiries without providing additional funding. This meant 

that other research had to take a back seat to those projects. 

On the other hand, sometimes Congress did include a supplemental appropriation for a project. Often agencies would ask us to 

undertake projects, and sometimes we had to ask for funds to do 

them. Thankfully, ACUS’s statute made it possible to accept these 

contributions, but doing so meant that we had to make doubly sure 

that these projects could go forward without undue influence from 

the funding sources. 

I believe we were successful in doing that, but in those instances 

I was concerned about appearances and would have much preferred 

it if we could have counted on having enough of our own funds for 

research. 

I firmly believe that ACUS is equipped to do research projects at 

a much lower cost than other entities, so I hope that as ACUS 

moves forward, this Committee will continue to support funding 

that allows ACUS to really take on the important administrative 

process issues of today, some of which you might want to request 

of ACUS, because doing so will produce even bigger savings and 

payoffs for the government in the future. 

In closing, let me say that I plan to do everything I can to help 

ACUS resume its essential activities. I, too, have a lot of old files 

in my basement, and had them for 14 years, and I am looking forward to returning them to their rightful place when the new office 

is up and running. So thank you very much for your support over 

these years. 

[The prepared statement of Mr. Lubbers follows:] 

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PREPARED STATEMENT OF JEFFREY S. LUBBERS


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Mr. COHEN. Thank you, Professor, and appreciate your returning 

the materials. 

Our final witness is Dr. Curtis Copeland, a specialist in American national government at CRS, Congressional Research Services. 

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Prior to joining CRS, he held a variety of positions in the Government Accountability Office during his 23 years there. 

Dr. Copeland, welcome. And will you begin your testimony? 

TESTIMONY OF CURTIS W. COPELAND, Ph.D., SPECIALIST IN 

AMERICAN NATIONAL GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE 

Mr. COPELAND. Mr. Chairman, thank you very much. 

Mr. Franks, thank you for inviting me here today. 

As I described in detail in my written statement, dozens of suggestions have been made over the last 6 years particularly as to 

what issues ACUS could address, now that it is up and running. 

However, because the agency’s authorization for appropriation expires in less than 17 months, some have suggested that ACUS 

focus on one or two short-term projects that could quickly prove its 

value to Congress and the American people. 

Several observers have noted, and several did today, that previous ACUS recommendations have saved the government much 

more than their appropriation. There seems to be widespread 

agreement that this trend could continue into the future. 

For example, 6 years ago today, Justice Breyer said that implementation of ACUS recommendations to shorten the rulemaking 

process could save millions or even billions of dollars. Based on recent estimates of Federal expenditures on regulatory activities, if 

ACUS could make rulemaking agencies even one-tenth of 1 percent 

more efficient, the savings would be nearly $60 million a year, 

about 40 times the $1.5 million that ACUS has been appropriated 

for fiscal year 2010. 

In August 2009, the ABA Section on Administrative Law and 

Regulatory Practice recommended two projects for ACUS that it 

said could produce substantial savings in the near as well as the 

long term. The first was that ACUS sponsor a best practices forum 

at which agencies could share information and obtain advice from 

experts, thereby preventing them from having to reinvent the 

wheel each time they changed policies. Such a forum could help the 

diffusion of innovative practices, improve results, and potentially 

provide substantial savings. 

The ad law section also recommended that ACUS review what it 

termed the plethora of unimplemented administrative law recommendations by GAO, the ABA and others during the 14 years 

since ACUS was discontinued in 1996. By leading certain recommendations to implementation, the section said ACUS could potentially improve government operations and could save the government ‘‘tens of millions of dollars each year.’’ 

ACUS could also demonstrate its value by leading improvements 

on the revenue side of the ledger. For example, in 2003 GAO discovered that changes made to the Civil Penalties Inflation Adjustment Act of 1996 sometimes actually prevented agencies from adjusting their penalties for inflation. As a result the penalties that 

Congress set were losing their deterrent value, and the government 

was losing revenues. 

In 2007, GAO said that if just civil tax penalties had kept pace 

with inflation, IRS collections from 2000 to 2005 would have increased by $61 million. ACUS could provide a renewed basis for 

78 

congressional consideration of this issue, potentially leading to annual revenue increases that are many times the conference’s appropriation. 

ACUS could also prove its value to Congress and the public in 

other ways. For example, the recently enacted health care legislation has more than 40 provisions requiring or permitting agencies 

to issue implementing regulations. ACUS could guide the agencies 

in this process, serving as a central repository of expertise on such 

issues as the Administrative Procedure Act, the Paperwork Reduction Act and a host of other regulatory statutes and executive orders. 

The health care legislation also establishes dozens of new government organizations and advisory bodies. ACUS could offer valuable 

advice to agencies on the establishment of these entities, particularly with regard to the applicability of certain general management laws like the Freedom of Information Act, the Federal Advisory Committee Act, and so forth. 

In short, ACUS could quickly prove its value in several ways, potentially making it easier for Congress to justify future conference 

authorizations or a permanent authorization and appropriation. 

Mr. Chairman, thank you very much, and I appreciate it. And I 

will answer any questions that you have for me. 

[The prepared statement of Mr. Copeland follows:] 

79 

PREPARED STATEMENT OF CURTIS W. COPELAND


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Mr. COHEN. Thank you, Dr. Copeland. I appreciate your testimony, as the other folks’. 

We will now go into a questioning period, and I will recognize 

myself for questions. 

The first thing is, Dr. Verkuil—Verkuil, excuse me—what factors 

do you believe led to ACUS’s demise? And how do you plan to address or avoid these issues in this newly reborn ACUS? 

Mr. VERKUIL [continuing]. Combination of events at the time. 

The idea of saving government money by reducing the number of 

agencies ironically fell upon maybe the one agency that was making the government money, but we were symbolic of a mood, I 

think, that perhaps is what led to our demise then. 

And, I think, almost instantly on both sides of the aisle, everyone 

reflected on this and said, ‘‘This doesn’t make any sense,’’ and so 

the fight to come back, while it has taken some years, was begun 

and persisted and now has achieved success. 

All I can say to you, Mr. Chairman, is that I am going to try to 

make sure that we do effective work, and do it well and carefully, 

and communicate with all the constituencies that we have so that 

we will be in a position to flourish and not be in jeopardy any 

longer. And, of course, it is if we want to make sure that we have 

a permanent appropriation and that you will take advantage of us, 

really as an agency of government that wants to help improve the 

quality and the efficiency and the fairness of government process. 

Mr. COHEN. You were a victim, I guess, of the Contract on America? 

Mr. VERKUIL. Well, you know, the contract—that was the time 

of the Contract with America, and it did have important points to 

make, and I think it was not just that. It was the whole reinventing government movement came along, and we somehow got in 

the midst of it. And I don’t remember exactly why. I wasn’t there. 

Mr. COHEN. Does anybody else have any ideas on why ACUS demised—the demise of ACUS? 

Yes, Ms. Katzen? 

Ms. KATZEN. I was the acting chair at the time of the end of 

ACUS, and I think it was just a perfect storm. It was the Contract 

on America had said we had to have a smaller government, and 

that was a rallying cry that was taken up. And unfortunately, the 

only two agencies that were eliminated, one of them was ACUS. 

But I think the fault, dear Brutus, lay with us as well in that there 

was not a lot of communication with the Hill as to what we did or 

why we did it. 

You heard Justice Scalia say earlier that these kinds of issues 

are below the radar. That is good in one sense, but it means that 

they can be misunderstood. The importance of them cannot be appreciated, because no we knew what we were doing, and when we 

realized that this was happening, and I, among others, started running around the Hill, saying, ‘‘Wait. Wait a second. This is a good 

organization. This is not what you want to do,’’ people had no clue 

what the Administrative Conference of the United States did. They 

had no idea about the savings that we could render to the government. And I think that was the fault of those of us who had 

thought, ‘‘Sure, we will stay below the radar and just discuss this.’’ 

Mr. COHEN. Anybody else want to offer any new material? 

92 

Mr. LUBBERS. Well, I would just mention that at the time that 

the conference lost its funding, it was also undergoing reauthorization in the two Judiciary Committees in both houses, and that 

process was proceeding normally and going well, so this was an appropriations issue. 

I recall that on the Senate side there was actually a letter from 

eight senators, four Republicans and four Democrats, urging the 

Senate Appropriations Committee to maintain the funding that the 

Senate had voted for, and during the course of the conference committee, it didn’t happen. So it was sort of caught up in the appropriation bowels of the time. 

Mr. COHEN. Do each of you think that ACUS should be more visible, or remain under the radar? 

Mr. VERKUIL. Well, it seems to me the lesson is—excuse me—the 

lesson is that we should be more visible, if only to make sure that 

we are secure in our future and that we can continue to do our 

work, so I take Ms. Katzen’s observations very seriously. 

I don’t think we should, you know, we don’t have to look for 

things to gain great visibility, but we are going to have a Web site, 

for example, which didn’t exist when we stopped 14 years ago, a 

Web site which will link us to other agencies, which I hope will be 

a home that people will come to to find good programs. 

We are going to use the advantages of electronic rulemaking internally. We are going to turn ourselves into—when we do recommendations, we want to have input from other agencies, from 

the Hill, and from the public so that we will be known and seen 

maybe better, even if we are still doing things that by themselves 

don’t generate, you know, a high degree of visibility. That is how 

I would begin to approach it. 

Mr. COHEN. Anybody else want to contribute to that response— 

visible, not visible, better? 

Mr. LUBBERS. I think the more visibility, the better. 

Ms. KATZEN. So long as it is visibility for educative purposes 

rather than visibility for calling attention to one’s self. And given 

the caliber of the chair and the people who I suspect will be appointed to the council and the plenary session, the assembly, I 

don’t think that will be a difficulty. 

I think keeping the lines of communications open to the Hill are 

critical. They should be partners in this. It should be bipartisan, 

bicameral, actually nonpartisan. But there should be those channels open. 

Mr. COHEN. Thank you. 

I now yield to the Ranking Member, Mr. Franks. 

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

Thank all of you for being here. 

I know sometimes to add some commitment to making the bureaucracy run not only smoothly but efficiently and effectively is a 

big challenge, because that is, you know, it is something that there 

is almost ubiquitous comment about, and so I appreciate what you 

do. 

In our Subcommittee’s 21st Century Project, we identified seven 

areas, along with a number of issues within them, for study in potential administrative reform. And I see from your written statement that your suggestions for ACUS’s initial agenda overlap to a 

93 

very significant degree with that agenda that we identified in our 

report. And this Subcommittee invested, obviously, a great deal of 

time and effort and a great deal of a number of hearings in the 

21st Century Project. 

So I am going to ask something incredibly presumptuous. Would 

you be prepared to at least consider making the agenda we identified in the project report ACUS’s first agenda, or agenda for the 

first year? Mr. Verkuil, I will throw that at you. Again, forgive the 

presumption here. 

Mr. VERKUIL. To make sure that the 21st agenda report would 

be part of our own agenda is the—— 

Mr. FRANKS. Or at least be considered as the agenda of your first 

year. 

Mr. VERKUIL. I think so. I think we are looking at it, and we 

have observed some very good thoughts already. We have—I would 

say, not exclusively relying on that, because we have—the ABA administrative law section has made some good ideas, proposed some 

good ideas, too. But we are certainly using those as the two key 

documents in terms of structuring ourselves in the first year. And 

I would hope we would select out, you know, once we decide. 

It is a kind of a combination of the best idea, how quickly we can 

do some of these things, because you would like to take some that 

are easier off-the-shelf kind of ideas and some longer terms, some 

of the ones you mentioned in your earlier testimony, that are more 

theoretical and looking at changes, let us say, in the Administrative Procedure Act, or something like that, take a combination of 

short and long-term projects, find the good people to do the work 

to help us as consultants, and mesh them all together, and then 

present them to the council and get this thing going. 

I mean, I, as you know, I am sure, I am anxious to roll it out. 

And I will be—I promise you we will be guided very much by what 

is going on here. 

Mr. FRANKS. Well, in your written statement you identify a number of challenges you are facing as you restart ACUS, and I don’t 

envy you, but these include issues with the applicability of the Federal Advisory Committee Act and the, you know, Constitution’s 

Emoluments Clause, and your own review, updating and simplifying the ethics procedures. 

Are there any potential legislative reforms to the Federal Advisory Committee Act or the Administrative Conference Act or any 

of the statutes that might help you with these issues? Is there any 

congressional oversight activity that you think might help sort out 

any of the issues that you are confronting—in other words, legislation or oversight in these areas? What would you think would help 

you the most? 

Mr. VERKUIL. I would like to be able to come back to you with 

an answer to that, Mr. Franks. I do think that right now in the 

Federal advisory committee area, we must commit a lot of our time 

to making sure it works well in this new electronic age. I think 

that is one of the questions. So we have made some successful contacts with GSA, who does manage the FACA process. We have 

worked on the Emoluments Clause issue, I think, hopefully, to good 

effect. We will hear back from the Office of Legal Counsel. 

94 

And so we are in a position not yet to say we can’t function within what we have, but the more we learn, the more we will be able 

to tell you, really, very closely, whether we need legislative help in 

that. Thank you, though, for asking. 

Mr. FRANKS. Well, listen, those are the questions I had, Mr. 

Chairman. 

Ms. Katzen, I appreciate your past support. 

All of you for what you have done here, and, Mr. Verkuil, all of 

you, I wish you the very best. You have got a tall challenge ahead 

of you. Thank you. 

Mr. VERKUIL. Thank you, sir. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. COHEN. You are welcome. Thank you, Mr. Franks. I appreciate your participation in this hearing and all the members of the 

panel. 

I thank everybody for their participation. 

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

and ask that you promptly respond. They will be made part of the 

record. Without objection, the record will remain open 5 legislative 

days for the submission of any additional materials. 

Again, I thank everyone for their time and patience. 

The hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 5:24 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

LETTER FROM THE AMERICAN BAR ASSOCIATION (ABA) 


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