Datasets:

gtfintechlab
/

CoCoHD_transcripts

	<html>
	<title> - REINING IN THE ADMINISTRATIVE STATE: RECLAIMING CONGRESS'S LEGISLATIVE POWER</title>
	<body><pre>
	[House Hearing, 118 Congress]
	[From the U.S. Government Publishing Office]


	REINING IN THE ADMINISTRATIVE STATE:
	RECLAIMING CONGRESS'S LEGISLATIVE POWER

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

	HEARING

	BEFORE THE

	SUBCOMMITTEE ON THE ADMINISTRATIVE STATE,
	REGULATORY REFORM, AND ANTITRUST

	OF THE

	COMMITTEE ON THE JUDICIARY

	U.S. HOUSE OF REPRESENTATIVES

	ONE HUNDRED EIGHTEENTH CONGRESS

	FIRST SESSION

	__________

	FRIDAY, MARCH 10, 2023

	__________

	Serial No. 118-9

	__________

	Printed for the use of the Committee on the Judiciary

	[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

	Available via: http://judiciary.house.gov

	__________


	U.S. GOVERNMENT PUBLISHING OFFICE
	51-502 WASHINGTON : 2023

	-----------------------------------------------------------------------------------

	COMMITTEE ON THE JUDICIARY

	JIM JORDAN, Ohio, Chair

	DARRELL ISSA, California JERROLD NADLER, New York, Ranking
	KEN BUCK, Colorado Member
	MATT GAETZ, Florida ZOE LOFGREN, California
	MIKE JOHNSON, Louisiana SHEILA JACKSON LEE, Texas
	ANDY BIGGS, Arizona STEVE COHEN, Tennessee
	TOM McCLINTOCK, California HENRY C. ``HANK'' JOHNSON, Jr.,
	TOM TIFFANY, Wisconsin Georgia
	THOMAS MASSIE, Kentucky ADAM SCHIFF, California
	CHIP ROY, Texas DAVID N. CICILLINE, Rhode Island
	DAN BISHOP, North Carolina ERIC SWALWELL, California
	VICTORIA SPARTZ, Indiana TED LIEU, California
	SCOTT FITZGERALD, Wisconsin PRAMILA JAYAPAL, Washington
	CLIFF BENTZ, Oregon J. LUIS CORREA, California
	BEN CLINE, Virginia MARY GAY SCANLON, Pennsylvania
	LANCE GOODEN, Texas JOE NEGUSE, Colorado
	JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
	TROY NEHLS, Texas MADELEINE DEAN, Pennsylvania
	BARRY MOORE, Alabama VERONICA ESCOBAR, Texas
	KEVIN KILEY, California DEBORAH ROSS, North Carolina
	HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
	NATHANIEL MORAN, Texas GLENN IVEY, Maryland
	LAUREL LEE, Florida
	WESLEY HUNT, Texas
	RUSSELL FRY, South Carolina

	------

	SUBCOMMITTEE ON THE ADMINISTRATIVE STATE,
	REGULATORY REFORM, AND ANTITRUST

	THOMAS MASSIE, Kentucky, Chair

	DARRELL ISSA, California DAVID N. CICILLINE, Rhode Island,
	KEN BUCK, Colorado Ranking Member
	MATT GAETZ, Florida HENRY C. ``HANK'' JOHNSON, Jr.,
	MIKE JOHNSON, Louisiana Georgia
	DAN BISHOP, North Carolina ERIC SWALWELL, California
	VICTORIA SPARTZ, Indiana TED LIEU, California
	SCOTT FITZGERALD, Wisconsin PRAMILA JAYAPAL, Washington
	CLIFF BENTZ, Oregon J. LUIS CORREA, California
	BEN CLINE, Virginia MARY GAY SCANLON, Pennsylvania
	LANCE GOODEN, Texas JOE NEGUSE, Colorado
	JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
	HARRIET HAGEMAN, Wyoming ZOE LOFGREN, California
	NATHANIEL MORAN, Texas STEVE COHEN, Tennessee
	GLENN IVEY, Maryland

	CHRISTOPHER HIXON, Majority Staff Director
	AMY RUTKIN, Minority Staff Director & Chief of Staff


	C O N T E N T S

	----------

	Thursday, March 9, 2023

	Page

	OPENING STATEMENTS

	The Honorable Thomas Massie, Chair of the Subcommittee on the
	Administrative State, Regulatory Reform, and Antitrust from the
	State of Kentucky.............................................. 1
	The Honorable David N. Cicilline, Ranking Member of the
	Subcommittee on the Administrative State, Regulatory Reform,
	and Antitrust from the State of Rhode Island................... 3
	The Honorable Jerrold Nadler, Ranking Member of the Committee on
	the Judiciary from the State of New York....................... 4

	WITNESSES

	Allyson Ho, Partner, Gibson, Dunn, & Crutcher, LLP
	Oral Testimony................................................. 7
	Prepared Testimony............................................. 9
	Jonathan Wolfson, Chief Legal Officer and Policy Director, Cicero
	Institute
	Oral Testimony................................................. 12
	Prepared Testimony............................................. 14
	Ryan Cleckner, Co-founder, Gun University, LLC
	Oral Testimony................................................. 21
	Prepared Testimony............................................. 22
	Emily Hammond, Vice Provost for Faculty Affairs, George
	Washington University Law School
	Oral Testimony................................................. 25
	Prepared Testimony............................................. 27

	LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

	All materials submitted for the record by the Subcommittee on the
	Administrative State, Regulatory Reform, and Antitrust are
	listed below................................................... 58

	Materials submitted by David N. Cicilline, Ranking Member of the
	Subcommittee on the Administrative State, Regulatory Reform,
	and Antitrust from the State of Rhode Island, for the record
	Statement from United Steel, Paper and Forestry, Rubber,
	Manufacturing, Energy, AlliedIndustrial and Service
	Workers International Union (USW)
	Statement from Elizabeth Skerry, Regulatory Policy Associate,
	Public Citizen
	An article entitled, ``Buttigieg calls on Trump to back
	reversing deregulation in wake of train derailment,'' The
	Hill
	A letter from the Center for Progressive Reform, colaborated
	with various institutions, March 10, 2023
	A letter from The Coalition for Sensible Safeguards (CSS),
	February 27, 2023
	Materials submitted by the Honorable Pramila Jayapal, a Member of
	the Subcommittee on the Administrative State, Regulatory
	Reform, and Antitrust from the State of Washington, for the
	record
	A letter support for the Stop Corporate Capture Act from the
	Coalition for Sensible Safeguards (CSS), March 10, 2023
	An article entitled, ``Big oil and gas kept a dirty secret
	for decades. Now they may pay the price,'' The Guardian
	A letter from All Aboard Ohio, April 18, 2020, on Norfolk
	Southern's influence on safety regulations
	An article entitled, ``Presence and influence in lobbying:
	Evidence from Dodd-Frank,'' Cambridge University Press


	REINING IN THE ADMINISTRATIVE
	STATE: RECLAIMING CONGRESS'S LEGISLATIVE POWER

	----------


	Friday, March 10, 2023

	House of Representatives

	Subcommittee on the Administrative State,

	Regulatory Reform, and Antitrust

	Committee on the Judiciary

	Washington, DC

	The Subcommittee met, pursuant to notice, at 9:04 a.m., in
	Room 2141, Rayburn House Office Building, Hon. Thomas Massie
	[Chair of the Subcommittee] presiding.
	Present: Representatives Massie, Issa, Buck, Johnson of
	Louisiana, Bishop, Fitzgerald, Bentz, Cline, Hageman, Moran,
	Cicilline, Nadler, Johnson of Georgia, Jayapal, Correa,
	Scanlon, Lofgren, and Ivey.
	Mr. Massie. The Subcommittee will come to order.
	Without objection, the Chair is authorized to declare a
	recess at any time. I anticipate we're going to have to take a
	break for votes at some point in this hearing.
	We welcome everyone to the first hearing of the
	Subcommittee on the Administrative State, Regulatory Reform,
	and Antitrust.
	The Chair now recognizes himself for an opening statement.
	In some ways, the importance of today's hearing goes back
	to the founding era. Even before America declared its
	independence, John Adams emphasized that a Republic is a
	government of laws, not of men. This hearing is about who makes
	the laws in our country. It's also about how Congress should
	reclaim its legislative power from the Administrative State.
	This is an important discussion.
	By way of background, the U.S. Constitution separates the
	powers of government between the States and the Federal
	Government. It further separates the powers among the three
	branches of the Federal Government.
	Importantly, Article I of the U.S. Constitution vests the
	Federal legislative power in Congress. In other words, the
	words of Chief Justice John Marshall: ``Powers are separated
	with the intent that the legislature makes the law.''
	In the modern day, we have seen a troubling consolidation
	of powers in the Executive Branch. That is, in part, because of
	how many regulations, binding rules that affect the American
	people are coming from the Executive Branch. Indeed, in recent
	years, the Administrative State has issued regulations carrying
	the force of law more than 20 times as frequently as America's
	elected Representatives have passed laws through the process
	the Constitution requires.
	When Chair Jordan invited me to Chair this Subcommittee, I
	asked him what the topics were, what would be our jurisdiction,
	and he said, ``that Administrative Law would be our
	jurisdiction.'' I said, ``well, you've just given us
	jurisdiction over about 95 percent of the Federal Government,''
	and I'd be happy to Chair that Committee.
	What this means is that so much of the law is
	Administrative Law, unelected bureaucrats in the branch tasked
	with executing the laws are, instead, making many of those laws
	that bind the American people.
	The modern Administrative State's violation of these
	fundamental principles is significant. In our country,
	lawmakers should be politically accountable to the electorate.
	As Professor Philip Hamburger wrote in his book, The
	Administrative Threat, quote:

	These are core civil liberty issues. Binding agency rules deny
	Americans their right under Article I to be subject to only
	Federal legislation as enacted by an elected Congress, and such
	rules thereby dilute the constitutional right to vote.

	Today, Americans must routinely follow rules that come from
	a source other than Congress. In recent years, Federal agencies
	have more and more frequently imposed their will on the
	American people.
	To name just a few examples, OSHA's vaccine mandate, the
	national eviction moratorium, the FTC's proposed noncompete
	rule, and ATF's recent rule on stabilizing pistol braces, not
	to mention Waters of the United States, which, incidentally, is
	like a ping pong match, every time we get another
	administration.
	When we went from the Bush Administration to the Obama
	Administration, we got a new Waters of the U.S. law, a new
	interpretation of the Clean Water Act. Then when we went from
	Obama to Trump, we got a new interpretation of the Clean Water
	Act. Now, we've gone again to Biden's rules.
	Each of these examples shows the Administrative State, not
	Congress, attempting to or actually imposing binding rules on
	the American people. Consider the ATF's pistol brace rule. It
	requires gun owners to use stabilizing braces, not bump stocks,
	Mr. Ranking Member, to register their braced pistols, modify
	their weapons, or risk potential felony charges.
	In the words of James Madison, the accumulation of all
	powers. Legislative, Executive, and Judiciary, in the same
	hands may justly be pronounced the very definition of tyranny.
	That quotation by James Madison implicates an Administrative
	State that makes law.
	Today's hearing is about exploring the need for Congress to
	reclaim its legislative authority and to discuss potential
	legislative responses. Some legislation, like the REINS Act and
	the Separation of Powers Restoration Act, are steps in the
	right direction. Ultimately, Congress needs to reestablish
	itself, not government agencies, as the main driver of Federal
	policy.
	I'll end with this final point: Although some conflate this
	hearing's focus with deregulatory efforts, that need not be the
	case. We're not arguing that there don't need to be any
	regulations. Put simply, we can and should have a discussion
	today about where law should come from.
	As set forth by our Constitution, binding rules should come
	from politically accountable elected representatives, not from
	the Administrative State. Reasonable minds may differ about
	certain policies, but we in this body should all be on the same
	page about who should be making our laws, and that is Congress.
	Before I recognize the Ranking Member, I want to thank him
	for his service in Congress and tell him that we're going to
	miss him. I hear that he's leaving this session early, and I
	hope it's not because I am the Chair of this Committee.
	Now, I recognize the gentleman from Rhode Island, Mr.
	Cicilline, for his opening statement.
	Mr. Cicilline. Thank you, Mr. Chair. I congratulate you on
	Chairing this Committee and for our first hearing and can
	assure you that your ascending to this Chairship did not
	contribute to my decision to leave early.
	Mr. Chair, it's just over a month now that the Southern
	train derailed in East Palestine, Ohio, setting off a cascade
	of events that have put countless lives at risk. Crews are
	still cleaning up the highly toxic chemicals that were released
	into the water, ground, and air. We will not know the full
	effects of this environmental and safety disaster for decades.
	This Subcommittee is charged with overseeing regulatory
	reform, which is clearly much needed. Yet, today, instead of
	using our first hearing to discuss what and how we must ensure
	that the government is acting to not only help those in need
	right now, but also to implement new safety and environmental
	regulations that would prevent a disaster like this from ever
	happening again, we're talking about, and I quote, ``reclaiming
	Congress' legislative power.'' I, frankly, didn't know that
	this is a power that had been lost.
	At the center of today's hearing is, of course, the
	Regulations from the Executive in Need of Scrutiny Act of 2023,
	or the REINS Act, which would not, in fact, make rulemaking
	more efficient or responsive to public concerns but instead,
	would hinder the most basic functions of our government to keep
	people safe.
	By requiring that both the House and Senate pass and the
	President sign a joint resolution of approval before any major
	rule issued by an agency can take effect, we are effectively
	negating the authority we have already given these agencies.
	Let me make it plain. Congress already has the power to
	oversee agency rulemaking, and agencies can only exercise
	authority that we grant them. What the REINS Act would do, in
	short, is prevent agencies from keeping dangerous products off
	the shelves and toxic chemicals from polluting our land, air,
	and water.
	This is nothing more than a congressional power grab that
	will lead to even more deregulation that puts people at risk
	and will pave the way for reckless and powerful corporations to
	put their profits ahead of the health and well-being of the
	American people.
	The REINS Act would prevent the Consumer Product Safety
	Commission from updating safety standards for infant walkers,
	like they did in late 2022, responding to alarming news that
	these products had become a leading cause of death and injury
	for small children.
	The REINS Act would prevent rules from the Food and Drug
	Administration, like their August 2020 rule to move to more
	quickly identify and remove potentially contaminated food from
	the market, resulting in fewer deaths and illnesses.
	Finally, rules like the FDA's hearing aid regulation that
	will lower cost for millions of Americans and allow people to
	get hearing aids over-the-counter would be blocked under the
	REINS Act.
	Deregulation led to last month's derailment in East
	Palestine and Norfolk Southern's recent derailment in
	Springfield, Ohio. Further deregulation will lead to even more
	tragedies in the future.
	For years, at the behest of companies and special
	interests, the Federal Railroad Administration has engaged in
	deregulatory efforts despite workers' calls for necessary
	stronger safety measures. We cannot place companies' greed over
	public and worker safety and the cleanliness of our air, water,
	and land.
	Railroad workers have a saying, that their safety
	regulations are written in blood, because it is only after
	disasters, up to and including the loss of life, that pro-
	safety changes are made. This is absolutely unacceptable.
	Agencies are charged by the authority Congress grants to
	enforce our laws. They do that, in part, by issuing those
	rules. To that end, I hope my colleagues on both sides of the
	aisle will join me in supporting legislation that would make
	industry and our government more accountable by ensuring that
	all agency-issued rules are based on rigorous studies and free
	from bias, like the Stop Corporate Capture Act introduced by
	Representative Jayapal.
	At a time when residents across three States are grappling
	with the highly toxic fallout of a culture of deregulation and
	lax safety standards of the Trump Administration, we need to be
	focusing on how to make rulemaking more effective and
	efficient, not gunking up the wheels.
	I thank you, Mr. Chair. With that, I yield back.
	Mr. Massie. Thank you, Mr. Cicilline.
	I now recognize the Ranking Member of the Full Committee
	for his opening statement, if he has one.
	Mr. Nadler. Thank you, Mr. Chair.
	Mr. Chair, at a time when the Nation is reeling from
	multiple train derailments in Ohio alone as well as
	increasingly harsh storms due to climate change and an outbreak
	of Avian Flu that has led to the deaths of tens of millions of
	chickens in our food supply and experts tell us could
	conceivably jump into other species, including humans, and
	could conceivably cause another pandemic, I find it telling
	that we are using the first meeting of this Subcommittee not to
	discuss how we can better serve the needs of all Americans,
	but, rather, how we can remove public health and safety
	safeguards for the sake of higher company profits.
	How do Republicans plan to advance their extreme agenda
	protecting profits over people? By trotting out the same old
	tired anti-health and safety legislation they have tried year
	after year whenever they control the House. We are only three
	months into the new majority, and I guess they are already out
	of fresh ideas.
	One of the bills we are examining today, the Regulations
	from the Executive in Need of Scrutiny Act of 2023, or the
	REINS Act, has been considered in every Congress in which
	Republicans have held the majority since 2012.
	The REINS Act would grind the gears of rulemaking to a halt
	by requiring all major rules to be affirmatively approved by
	both Chambers of Congress. A regulation would be blocked from
	being implemented if even one House declines to pass an
	approval resolution. The goal of this legislation, quite
	simply, is to stop the regulatory process in its tracks,
	regardless of its impact on public health and safety.
	The bill purports to give Congress control of the
	rulemaking process, but Congress already has this power and
	exercises it in a number of ways. First, Congress can delegate
	authority to agencies with specificity, thus limiting the scope
	of the agency's authority. Second, it can impose restrictions
	on rulemaking through appropriations. Third, it can influence
	rulemaking through oversight activities.
	If all these measures are insufficient, we also have the
	blunt tool of the Congressional Review Act, which allows
	Congress not only to overturn a rule, but also to bar the
	agency from ever passing a substantially similar rule.
	The REINS Act is not only redundant, but it also creates
	insurmountable procedural hurdles that would stall the approval
	of rules of major impact, rules that would be highly beneficial
	to the public's health and safety.
	It's important to remember why we have regulations in the
	first place. Congress sets broad policies, but we delegate
	authority to executive agencies because we do not have the
	expertise to craft technical regulations ourselves.
	Who here knows how many parts per billion of arsenic should
	be allowed in our drinking water? Is 10 the proper amount?
	Should it be five or 15? None of us here knows the answer. The
	dedicated professionals at our Federal agencies, many of whom
	have decades of experience and vast technical expertise,
	undertake a careful process to protect our health and safety.
	This process ensures--this process I should say includes
	numerous procedural safeguards, including public notice and
	comment.
	Regulations ensure that our air is safe to breathe, our
	water is safe to drink, our food is safe to eat, and the life-
	saving medications we depend on are safe and effective. It
	means that the cars we drive and the planes we fly have proper
	safety mechanisms, and that banks and credit card companies
	cannot take advantage of unsophisticated borrowers.
	When we do not properly regulate, sometimes it means that
	trains carrying dangerous chemicals can derail in our
	communities, putting thousands of people at risk.
	I feel much better about leaving regulatory decisions to
	the careful study of agency experts rather than to Members of
	Congress who want to substitute their judgment, subject to the
	whims of politics.
	Republicans also want to eliminate the Chevron doctrine,
	which calls for courts to give deference to an agency's
	reasonable interpretation of its statutory authority. So, if
	it's not Members of Congress regulating our health and safety,
	I guess it would be Federal judges.
	Republicans have spent decades waging an all-out assault on
	the regulatory process, trying to add hurdle after hurdle on
	the ability of agencies to issue regulations that protect
	public health and safety, regulations whose benefits
	consistently outweigh their costs, often by many multiples.
	If we want to improve the regulatory process, we would
	consider legislation such as the Stop Corporate Capture Act,
	which would bring more transparency and accountability to the
	rulemaking process. Instead, the Subcommittee has chosen to
	make their first order of business the dismantling and
	destruction of the regulatory process, regardless of the impact
	on public health and safety. This gives us a good idea of the
	priorities we should expect to see out of this new extreme
	majority. I hope they will reconsider this dangerous agenda.
	I yield back the balance of my time.
	Mr. Massie. Thank you, Ranking Member Nadler.
	Without objection, all other opening statements will be
	included in the record. We will now introduce today's
	witnesses.
	Allyson Ho is a partner and a Co-chair of the Appellate and
	Constitutional Law Practice Group at Gibson, Dunn & Crutcher.
	She has argued cases before the Supreme Court, States' Supreme
	Courts, and various State and Federal Appellate Courts. She
	previously served as Special Assistant to President George W.
	Bush, counselor to Attorney General John Ashcroft, and she
	clerked for justice Sandra Day O'Connor.
	Jonathan Wolfson is the Chief Legal Officer and Policy
	Director at the Cicero Institute. His research at Cicero
	focuses on healthcare, regulatory reform, and employment
	policies. He previously led the Policy Office at the U.S.
	Department of Labor.
	Ryan Cleckner is the Co-founder of Gun University LLC, and
	a former Army Ranger. He is an attorney and previously served
	as Vice President of Compliance at the Remington Outdoor
	Company and is a Manager of Government Relations at the
	National Shooting Sports Foundation.
	Emily Hammond is the Vice Provost for Faculty Affairs and
	the Glen Earl Weston Research Professor at the George
	Washington University Law School. Professor Hammond's research
	focuses on energy law, environmental law, and administrative
	law.
	We welcome our witnesses and thank them for appearing
	today. We will begin by swearing you in. Would you please rise
	and raise your right hand.
	Do you swear or affirm, under penalty of perjury, that the
	testimony you are about to give is true and correct, to the
	best of your knowledge, information, and belief, so help you
	God?
	The record will reflect that the witnesses have answered in
	the affirmative. Thank you. Please be seated.
	Please know that your written testimony will be entered
	into the record in its entirety. Accordingly, we ask that you
	summarize your testimony in fivw minutes.
	The microphone in front of you has a clock and a series of
	lights. When the light turns yellow, try to begin to conclude
	your remarks. When the light turns red, your time is expired.
	Ms. Ho, you have the distinguished honor of going first.

	STATEMENT OF ALLYSON N. HO

	Ms. Ho. Thank you. Chair Massie, Ranking Member Cicilline,
	thank you for inviting me here today to testify about reining
	in the Administrative State.
	I am heartened to see this issue being debated in Congress.
	Our system of checks and balances can only work when Congress
	is active in its engagement with the other branches, including
	the Executive Branch. That's particularly important when we're
	talking about the modern Administrative State, where the
	Executive Branch regularly runs the risk of encroaching on the
	authority of the Legislative Branch.
	So, regardless of what actions this Congress chooses to
	take in response to the rise of the Administrative State, I
	think this hearing alone serves an important function in
	Congress fulfilling its responsibilities under the
	Constitution.
	In my remarks today, I want to discuss one specific issue
	that has coincided with, and likely accelerated the rise of the
	Administrative State: Doctrines that force courts to defer to
	administrative agencies.
	The most well-known of these doctrines is Chevron
	deference, which originates from a 1984 Supreme Court decision,
	Chevron U.S.A. v. Natural Resources Defense Council. That case
	holds that when a court is reviewing an agency's interpretation
	of a statute that it administers, the court should defer to the
	agency's interpretation if the statute is ambiguous and the
	agency's interpretation is reasonable.
	There are other types of judicial deference as well. For
	example, Auer deference holds that courts should give
	controlling weight to an agency's interpretation of its own
	regulation unless the interpretation is plainly erroneous or
	inconsistent with the regulation.
	There are several significant flaws with judicial deference
	to agency interpretations, and I'd like to highlight just a few
	of them.
	First, it flies in the face of the bedrock principle
	underlying the rule of law. A law means what it says. A statute
	or a regulation has a correct interpretation, and it is that
	correct interpretation which should govern our actions.
	Deference to an agency's interpretation turns that
	fundamental principle on its head. Courts no longer care
	whether the agency has the correct interpretation, just whether
	the interpretation is reasonable. Suddenly, this reasonable
	interpretation, which may or may not be correct, becomes the
	law.
	To enforce an agency's interpretation of the law, even
	though it is not the best interpretation, is inconsistent with
	the Judicial Branch's constitutional duty to say what the law
	is, contrary to Congress' directive in the Administrative
	Procedure Act, and harmful to confidence in our legal system.
	Second, deference doctrines have become a tool for agencies
	to expand their power and influence, often at the expense of
	individual rights and freedoms. One of the biggest problems
	with deference is that it allows agencies to effectively write
	their own laws.
	Because courts are required to defer to an agency's
	interpretation of a statute if its reasonable, agencies have an
	incredible amount of discretion to interpret laws in a way that
	gives them more power and authority. This can result in
	regulations that are far more burdensome and restrictive than
	anything Congress intended when it passed the underlying law.
	Third, these deference doctrines undermine very
	fundamentally the separation of powers that is so critical to
	our system of government. When agencies are given broad
	authority to essentially write the laws, write regulations that
	have the force of law, they are stepping into the role that
	Congress has, not the Executive.
	Moreover, even though agencies are technically within the
	Executive Branch, the rise of the Civil Service and the vast
	expansion of the Federal bureaucracy has effectively made them
	a fourth branch of government, with the power to make laws and
	enforce them with little effective political oversight.
	Elected officials are supposed to be held accountable to
	the people who elected them, but the Administrative State is
	often staffed by unelected bureaucrats who are difficult to
	hold accountable, even by the Executive. This can make it hard
	for the public to have a say in the laws and the regulations
	that affect their lives. The more you believe in democracy, the
	more you should be concerned about the rise of the
	Administrative State.
	So, what can be done? There are many solutions, but part of
	the growth of the Administrative State comes from congressional
	neglect. When Congress passes laws that are open-ended, when
	Congress doesn't react to civil agencies that are acting
	outside the bounds of their authority, all that empowers
	agencies to continue expanding their influence.
	So, to end where I began, I'm grateful for the Committee's
	invitation to testify today. I hope I can answer any questions
	you have and help in any way I can in your efforts to rein in
	the Administrative State. Thank you.
	[The prepared statement of Ms. Ho follows:]

	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Mr. Massie. Thank you, Ms. Ho.
	Mr. Wolfson, you may begin.

	STATEMENT OF JONATHAN WOLFSON

	Mr. Wolfson. Chair Massie, Ranking Member Cicilline,
	Members of the Subcommittee, good morning and thank you for
	having me today. It's an honor to testify on Congress' role in
	creating law and oversight when Executive Branch agencies start
	to write laws instead of simply working to enforce the law that
	is already written.
	My name is Jonathan Wolfson. I'm the Chief Legal Officer
	and Policy Director at the Cicero Institute, which is a
	nonprofit think tank focused on identifying, developing, and
	advancing entrepreneurial solutions to society's toughest
	public policy problems.
	Previously, I had the honor of serving as the head of the
	Office of the Assistant Secretary for Policy at the U.S.
	Department of Labor, as well as the Regulatory Reform Officer
	at that Department.
	Today's hearing centers on ways that Congress can bring
	additional accountability to Federal rulemaking, whether by
	limiting the power of the Executive Branch to act absent
	congressional authorization or requiring legislative approval
	of regulations.
	Today, I will focus on four key points: First, the
	legislature should create laws, and the Executive Branch should
	encourage compliance and enforce those laws; second, the
	Legislative Branch is more accountable than the Administrative
	State; third, agencies have expertise in regulatory process,
	not necessarily on making legislative decisions; and fourth,
	the REINS Act appears to be a valuable step toward restoring
	Congress' and agencies' appropriate roles.
	Before we dive in further, I'd like to clarify that while
	collo-
	quially regulation often means government restrictions,
	regulations are actually agency rules that purport to
	effectuate statutes. This is important, because too often
	discussions of deregulation devolve into caricatures, where
	proponents of deregulation are asked to defend whether they
	care about clean air, safe food, or fair banking practices.
	Congress can pass laws to protect air, food, or finances
	through statute without subsequent agency-driven lawmaking.
	So, let's talk about why agencies are not supposed to make
	new laws. Basic Schoolhouse Rock civics lessons teach us that
	Congress makes laws, and the President executes and enforces
	those laws, but Members of this Subcommittee know that this
	isn't really the reality. Unfortunately, the Executive Branch
	and independent Federal agencies regularly make new laws and
	fill intentional or unintentional gaps left by Congress. At
	times, regulatory agencies even act to make new laws without
	any congressional authority at all.
	Now, Congress does bear some responsibility for this
	phenomenon. New laws are often vague. Sometimes this is out of
	neglect, sometimes it's out of convenience for the legislature,
	and sometimes it's out of apparent necessity. Often, this
	leaves vague and big questions for the regulated community.
	Regardless of the cause, I would argue that this is not the
	ideal that we should be aiming toward. As Ms. Ho just
	mentioned, this is not the ideal that the Constitution sets up
	for us.
	Second, Congress is accountable and agencies are not.
	Another key reason that agencies ought not legislate is
	that voters may hold legislators accountable for their action.
	Accountability is especially important where there are
	tradeoffs between different constituents and competing
	interests.
	When a secretary supports a particular policy, the agency
	staff do as well. That policy is likely to prevail. Traditional
	deference principles mean reasonable regulations, stand even in
	the face of strong objection. Given the substantial burden and
	the limited ability of Congress to hold agencies accountable,
	Congress ought to write the laws.
	Third, unique agency expertise often lies in regulatory
	process. Some proponents of the Administrative State contend
	that Congress lacks expertise on a range of issues that face
	our Nation and agencies have the depth of knowledge and
	experience necessary to write the laws. They argue that
	Congress could codify public sentiment and leave the regulatory
	details to the agency experts.
	While regulators do bring specialized knowledge and years
	of experience in government to the table, it does not follow
	that this experience makes them better at making the rules than
	a Member of Congress would be if given the opportunity.
	Even assuming that the typical Federal official writing
	regulations is a neutral, unbiased subject matter expert who
	leaves his or her own preferences aside, do they possess the
	right kind of expertise? Unfortunately, many agency staff have
	narrow expertise, often in creating and enforcing regulations
	rather than on important tradeoffs that occur in the real
	world.
	Even when they have field-level expertise, their relative
	comparative advantage compared to academic or industry is
	knowledge and experience in how the government works, how to
	get something published in the Federal Register. So, they
	revert to regulation, even if regulation is not the best path
	forward, because regulators regulate. This knowledge of the
	rules also helps them impose new regulations via guidance,
	which doesn't have to go through all the Administrative
	Procedure Act hurdles. To limit this overreach, I was honored
	to sign the Department of Labor's Regulatory Openness through
	Good Guidance rulemaking.
	Fourth, Congress can use the REINS Act to rein in
	regulatory excess. The REINS Act is a good proposal to restrict
	legislative activity by agencies and restore the proper
	relationship between the Legislative and Executive Branches.
	The REINS Act is the next in a series of laws to limit
	regulatory autonomy and require a particular regulatory process
	to ensure the constitutionally required balance of power.
	Thank you again for the opportunity to testify and share my
	perspective. I look forward to answering any questions you all
	may have.
	[The prepared statement of Mr. Wolfson follows:]

	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Mr. Massie. Thank you, Mr. Wolfson.
	Mr. Cleckner, you may go now.

	STATEMENT OF RYAN M. CLECKNER

	Mr. Cleckner. Good morning, Chair Massie, Ranking Member
	Cicilline, and Members of the Subcommittee.
	I am Ryan Cleckner. I am a former special operations
	sniper, and I'm a firearms attorney that specializes in Federal
	firearms law and ATF compliance, among many other projects in
	the firearms industry.
	I am concerned with Federal administrative agency overreach
	with respect to rulemaking. I believe that power in the
	government should be limited, and it should only be in the
	hands of those accountable to the people, and decisions and
	debates on matters in legislation should be open and
	transparent to the public.
	Allowing nonelected and nonrepresentative government
	bureaucrats in Federal agencies to exercise power that should
	be limited to Congress and to do so behind closed doors without
	accountability nor transparency, is destructive to America, its
	citizens, and Congress. I implore you to not let these Federal
	agencies under the Executive Branch continue to steal power
	that has been entrusted to you by us.
	A recent example of agency overreach where laws are being
	changed by unelected bureaucrats with decisions being made
	behind these closed doors is ATF's latest rule 2021R-O8F, its
	Factoring Criteria for Firearms with attached Stabilizing
	Braces. It was published in the Federal Register on January
	31st of this year.
	This latest rule that the ATF has made, it redefines laws
	that have been passed by Congress, and it criminalizes the
	possession of firearms with certain accessories that the ATF
	itself had previously specifically approved. This rule by fiat
	effectively gives the ATF the power to determine who is a felon
	by the stroke of a bureaucrat's pen.
	This is not an appropriate enforcement of law. It is
	tyranny. It's unfair for the ATF to expect the average citizen
	to not only be aware of these changes, especially since the ATF
	itself has waffled back and forth over the years on pistol
	braces alone, but expects citizens to make these determinations
	about these objects themselves without clear direction about
	what the ATF considers to be legal. However, even with clear
	instructions, these changes to legal definitions within law are
	not appropriate for the ATF to make.
	If Congress doesn't rein in Federal agencies and these
	agencies are permitted to continue to change laws and provide
	this conflicting guidance to citizens, I believe that chaos
	ensues.
	Thank you for the opportunity to speak here today, and I'm
	willing to answer any questions you may have.
	[The prepared statement of Mr. Cleckner follows:]

	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Mr. Massie. Thank you, Mr. Cleckner.
	Mr. Massie. Professor Hammond, you may begin.

	STATEMENT OF EMILY HAMMOND

	Ms. Hammond. Thank you, Chair Massie, Ranking Member
	Cicilline, and distinguished Members of the Subcommittee, for
	the opportunity to testify today.
	I'm a professor of law at the George Washington University
	Law School, where I do, indeed, specialize in administrative
	energy and environmental law. I have previously served in
	Federal agencies, both as legal counsel and in my previous
	career as an engineer, where I coauthored several scientific
	publications.
	I am deeply concerned about the REINS Act. It's
	impractical. It's harmful to the people of this country. It
	eviscerates two cores of government legitimacy, participation
	and reasonableness, and it is likely unconstitutional.
	Congress has long recognized that among the branches of
	government, agencies within the Executive Branch are best
	positioned to leverage specialized expertise to tackle the most
	challenging issues that we face as a society.
	Whether protecting the functioning of our markets, keeping
	workers safe, or protecting the air we breathe, these
	challenges are incredibly complex and difficult to address
	solely in the legislative arena. So, in its wisdom, Congress
	establishes the statutory basis for action, but tasks the
	Executive Branch with the duty to bring that legislative vision
	to life.
	Congress has put a number of guardrails in place. For
	rulemaking, these include the participation, deliberation, and
	reason-giving requirements that stem from the Administrative
	Procedure Act.
	Notably, these features of rulemaking are fundamental to
	the democratic decisionmaking. They guard against
	arbitrariness, and they promote oversight through transparency.
	In particular, that reason-giving requirement ensures that
	Congress and the public can both understand the basis for the
	decision and see whether the agency has maintained fidelity to
	statute.
	Now, there is always room for improvement in agency
	decisionmaking, and Representative Jayapal's Stop Corporate
	Capture Act, for example, offers several upgrades. These are
	aimed at empowering the public, ending corporate manipulation,
	attending to social equity, and minimizing the dysfunction that
	OIRA review can engender.
	By contrast, the REINS Act would replace scientific
	informed participatory government decisionmaking with an
	utterly impractical system. Congress is neither designed nor
	staffed to deeply evaluate every single agency's major rules,
	especially within such short timeframes.
	The suggestion that the REINS Act is meant to promote
	legislative transparency is baffling. It permits only one or
	two hours of debate on the joint resolutions and otherwise sets
	such tight timeframes that it is difficult to understand how
	legislators could give careful review to each regulation.
	This scenario promotes opacity and heightens the risk that
	votes will be based on naked political preferences that would
	not be permissible in the agencies themselves.
	Right now, America needs more protections, not fewer. We
	know from the East Palestine disaster what an antiregulatory
	culture can do, and we have seen these lessons across our
	history. We know as well that weak regulatory protections mean
	fewer people make it home to their families after work. More
	people die too soon, and we hasten and intensify climate
	disasters. This is not idle speculation. It's backed up by the
	cost-benefit analyses that the REINS Act asks for, but that are
	already available for review by Congress and the public.
	Finally, the REINS Act is concerning because it blurs
	separation of powers beyond what the Constitution can bear. On
	one hand, if the joint resolution process is a legislative act,
	it must meet constitutional requirements for doing so. On the
	alternative, it would violate separation of powers for Congress
	to exercise the executive function of finalizing regulations.
	To conclude, the unconstitutional REINS Act would fail to
	achieve what it promises and would, instead, harm our economy,
	our safety, our health, and our environment.
	Thank you again for the opportunity to testify today, and I
	look forward to your questions.
	[The prepared statement of Ms. Hammond follows:]

	[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

	Mr. Massie. Thank you, Professor Hammond.
	We'll now proceed under the five-minute rule with
	questions. I recognize the gentleman from California, the Chair
	of the IP Subcommittee, Mr. Issa, for five minutes.
	Mr. Issa. Thank you, Mr. Chair.
	It's always interesting to be told something is
	unconstitutional in this body by a professor who just doesn't
	like how Congress might rule.
	So, I'm going to start with Mr. Cleckner, since you fought
	to defend our country and her right to be wrong.
	Let me ask you a question: Do you think for a moment that a
	body that regulates one way and then regulates another way is
	consistently meeting the congressional mandate that they
	interpret but not make laws?
	Mr. Cleckner. Of course, it would depend on the situation,
	but the way it's happening now, no.
	Mr. Issa. Right. In your case, they fully executed, knowing
	what the devices did, regulations and categories. Now, they're
	changing them, based on a political, Oh, these are too
	dangerous, these are this, these are that. Whatever their
	reason is, they're making a political decision to make a change
	that is not supported by a change in the hardware or the change
	in the statute. Is that correct?
	Mr. Cleckner. I believe so. I do not think this is a
	regulation that is promulgating current law. They are
	specifically in the ruling calling out what the current law is
	and then saying, we are redefining that to be this instead.
	They're actually changing the language of the law in the
	definitions.
	Mr. Issa. Mr. Wolfson, you looked a little uneasy as the
	last witness spoke. The unconstitutional claim that we just
	heard, is it correct--and I'll ask both the other witnesses. Is
	it correct that we could strip every single statute by a rule,
	by simply the House and the Senate voting to do so, and
	eliminate all statutes since the beginning of time and start
	over if we chose to, and that would be constitutional?
	Mr. Wolfson. My understanding of the Constitution is that
	yes, if Congress passed a law to strip all current statutes,
	that they would be allowed to do that.
	Mr. Issa. So, unless it is within the 27 amendments and the
	original Constitution, which we cannot strip by congressional
	fiat, everything else, by a two-thirds majority over the
	objection of a President, can be eliminated to zero. Is that
	correct?
	Mr. Wolfson. That's my understanding.
	Mr. Issa. OK. So, any administrate--so any failure in the
	REINS Act to meet some sort of a constitutional test as written
	would simply be that we probably didn't write the REINS Act
	quite specific enough to assert the powers that Congress
	clearly has. Is that correct?
	Mr. Wolfson. I would assume that would be the argument. It
	would be that the language of the REINS Act, as currently
	drafted, may have some sort of constitutional defect.
	The concept of the legislature being able to say, we're
	going to create a rule that says all the regulations have to
	come back to Congress, considering Congress theoretically gave
	the agency the authorization to write them, that would be--
	Mr. Issa. Right. So, now in the case of the Federal Trade
	Commission, which you opined on, clearly they are now asserting
	areas that they never asserted for their first decades of
	existence. Is that correct?
	Mr. Wolfson. That is correct. There are certain regulations
	that are being proposed by the Federal Trade Commission,
	specifically the noncompete clause regulation, which it does
	not appear that the FTC was ever given authority to do that
	sort of regulation, regardless of whether that is good or bad
	policy.
	Mr. Issa. Right. So, Ms. Ho, I don't want to leave you out
	of this. The Chevron deference that ultimately creates the
	ability for if you challenge in court the assumption that
	somehow the Congress has simply had ambiguity, do you see--in
	the ATF, or in the FTC, do you see ambiguity in the original
	law that would cause decades after one precedent was set to be
	changed simply by a change in who happens to occupy the
	Chairship and, of course, the White House?
	Ms. Ho. Thank you for that question. I wouldn't presume to
	comment on the details of any specific legislation, but I would
	go back--
	Mr. Issa. Well, Chevron isn't legislation. Chevron is a
	Supreme Court decision that essentially says the court is going
	to assume that these agencies act in good faith and that it's
	simply ambiguity in the law.
	Do you believe there is ambiguity in either of these two
	decisions, or are you unwilling to comment on them?
	Ms. Ho. I'm not in a position to comment on either of them,
	but I do underscore the significant flaw in the Chevron
	approach, which essentially takes away this body's ability to
	make law, and also the judiciary's constitutional
	responsibility to say what that law is.
	Mr. Issa. So, in my remaining few seconds, for all the
	witnesses, including Ms. Hammond, is it fair to say that
	instead of working on the REINS Act, perhaps we should be
	working on explicitly eliminating Chevron and putting the
	deference back to you must return to Congress if there's
	ambiguity? Any comments?
	Mr. Massie. The gentleman's time is expired, but I'll allow
	one witness to respond to that. Mr. Wolfson.
	Mr. Wolfson. I guess I'll take it. I think that eliminating
	Chevron deference or curtailing it significantly would be an
	action that Congress could take, which would have an even
	bigger effect than something like the REINS Act. Because the
	REINS Act, it was only prospective, whereas the--eliminating
	Chevron deference affects all regulation that are currently on
	the books.
	Mr. Issa. Thank you, Mr. Chair. I yield back.
	Mr. Massie. The gentleman yields back.
	The Chair now recognizes the gentleman from Rhode Island,
	Ranking Member Mr. Cicilline, for five minutes.
	Mr. Cicilline. Thank you, Mr. Chair.
	I want to quickly dispense with one thing, Mr. Wolfson. You
	said in your testimony here just now, and in your written
	testimony, that agency expertise is really expertise in the
	regulatory process, not on the complicated tradeoffs between
	competing priorities.
	You're not suggesting, I hope, that the thousands of
	scientists who work at the FDA or the thousands of engineers
	and products experts that work at the Consumer Product Safety
	Division are only experts in the regulatory process and not the
	underlying science or engineering that they were trained to do,
	are you?
	Mr. Wolfson. Thank you for the question. No, I'm not
	suggesting that they--
	Mr. Cicilline. OK. Thank you. So, reclaiming my--so my
	point is regulators have expertise, not just in the
	understanding of the regulatory process, but they're hired in
	these agencies of the Federal Government because they bring
	with them life-saving training and science and expertise that
	we don't have as Members of Congress.
	So, the notion of like all they know about is the
	regulatory process, which is what you say here, that's
	exaggerated. It's actually the underlying substance of their
	expertise that is saving the lives of the American people. So,
	I just wanted to make sure that you weren't making a claim to
	the contrary.
	Professor Hammond, what I want to ask you about is, would
	the response to environmental calamities, like the one that was
	caused by Norfolk Southern train derailment East Palestine, be
	better or worse off if the EPA were subjected to the REINS Act
	that is being offered by my colleagues on the other side of the
	aisle?
	Ms. Hammond. Thank you for that question. Very much worse
	off. Agencies need those regulations to then carry out their
	work, whether that's investigatory work or enforcement work.
	Plus, one of the things I want to emphasize is that
	regulations protect people in the first place. They help keep
	disasters like East Palestine from happening. So, we can back
	it up a minute and just think about let's prevent harms instead
	of waiting for disasters.
	Mr. Cicilline. Would requiring Congress rather than
	agencies that are equipped with both expertise and
	professionals who do this work, a body of Congress, those of us
	that are elected members, who are not scientists or experts on
	public health or environmental protection, worker protection,
	safety provisions, would it endanger the lives of the American
	people if we were to second-guess agency decisionmaking that
	is, in fact, intended to keep Americans safe?
	How much longer would it take for these regulations which,
	in fact, are saving people's lives to go into effect, if they
	would ever go into effect, if the REINS Act became law?
	Ms. Hammond. I think the concern is that they would never
	go into effect, and we'd be left with huge gaps in protection
	across every field of our economy. So, although we might
	envision a system where Congress tried to legislate every
	regulatory detail, as you mentioned, there's a matter of
	comparative institutional expertise here.
	Agencies really have the expertise to bring that kind of
	scientific informed judgment to those regulatory protections.
	Mr. Cicilline. Let me just end with a very specific
	example. During the Trump Administration, the Federal Railroad
	Administration withdrew an Obama-era Notice of Proposed
	Rulemaking mandating two qualified crew members on most freight
	locomotives. Workers have strongly supported a crew size
	mandate like this one, as they believe it's integral to rail
	safety. Although the Biden Administration has reproposed this
	rule, railroads have staunchly opposed this safeguard.
	Under the REINS Act, railroads would have even more leeway
	to influence rules like this one, through lobbying Members to
	use an unconstitutional one-Chamber veto of such a rule.
	So, my question is, would the REINS Act provide more
	protection for workers and people who use the rails and
	sometimes less protection for hazardous materials that they
	transport or less? In other words, would worker safety be
	impacted in any positive way or a negative way if the REINS Act
	were in place?
	Ms. Hammond. Certainly, in a negative way. We should be
	listening to those workers.
	Mr. Cicilline. With respect to the notion that the
	regulatory process is difficult to follow and doesn't have the
	voices of the American people embedded in that process, would
	you respond to that argument, Professor?
	Ms. Hammond. Sure. Under the Administrative Procedure Act,
	all agencies are required to have a period of notice and
	comment. Anyone, any person can offer comments. Although there
	is room to bring even more voices to that process, agencies are
	required to respond to the significant comments that are raised
	and incorporate that understanding into their final rules.
	So, there's very much a sense of participation and
	democratic accountability embedded in the process.
	Mr. Cicilline. Thank you, Professor.
	I yield back, Mr. Chair.
	Mr. Massie. The Ranking Member yields back.
	Then I'll recognize the gentleman from Colorado, Mr. Buck,
	for five minutes.
	Mr. Buck. I thank the Chair.
	Ms. Ho, I want to direct these questions to you, and I
	guess my comments also. We have a situation in Congress where
	we have a large number of programs that are unauthorized. The
	programs were originally set up with a sunset provision,
	typically five years.
	The five years has expired, and I want to just--there are
	actually 1,200 programs that have now expired, and Congress
	refuses to do its job and review those programs.
	When Congress pretended that it cared about spending, it
	set up a two-step process. The first step was to authorize a
	program, and the second step was to appropriate to the
	authorized program.
	The rules of Congress for the last 50 years have included a
	provision that requires Congress not to appropriate to an
	unauthorized program. What's so interesting about that is
	Congress waives its own rules for each appropriations bill so
	that it can bypass the responsibility of actually appropriating
	only to authorized programs.
	The purpose of this, obviously, is that Congress, as
	responsible to the American people, should be reviewing these
	programs, determining if these programs need to be expanded,
	contracted, amended in some way so that they are more
	responsible.
	My question has to do with the interaction or interplay of
	the Chevron doctrine with the concept of Congress'
	responsibility in overseeing these particular programs.
	Ms. Ho. Yes, thank you for that thoughtful question.
	I agree that the scenario that you lay out highlights I
	think one of the critical aspects. Why I think it's so
	important that we're here today having this discussion is as
	important and salutary for Congress to exert its lawful
	authority under the system that our Founders designed, and that
	when Congress doesn't, we shouldn't be surprised to see other
	branches sort of exploiting that lack of action.
	So, I think your question really highlights the important
	role that Congress has to play in ensuring that our system of
	separation of powers that the Founders bequeathed to us remains
	vibrant and effective in safeguarding individual rights and
	liberties.
	Thank you for that question.
	Mr. Buck. I have to say I think you are far too kind. You
	understand that you are testifying in Congress, and you are a
	gentlelady from the great State of Texas. I respect all those
	things, but the reality is Congress has failed to do its job.
	Part of the problem and the reason for these administrative
	agencies overstepping their bounds and the one that gets under
	my skin--and I'm sure my good friend from Wyoming, Ms. Hageman,
	would agree with me on this--is the WOTUS rule. It comes up
	every time the Democrats get into the White House, the Waters
	of the U.S.
	Everytime my district actually touches, borders the State
	of Wyoming, and we share water. If the Democrats get to
	regulate ditch water in my district and every puddle in my
	district, we're going to have problems. So, the idea that these
	agencies can expand their authority is, really, they are
	filling a vacuum that Congress has created.
	My point--and I'm hoping to get your comment on this. My
	point is that without Congress' neglect, without Congress'
	failure to act, we wouldn't be dealing with the REINS Act right
	now, because we would actually be doing our job every day of
	overseeing the functions in the Executive Branch.
	Ms. Ho. Yes, Your Honor. I think the Founders well
	understood and anticipated the very dysfunction you describe,
	which is it creates real problems in our system of separation
	of powers when one branch does not exert its lawful authority,
	does not do its job.
	So, for this branch, as you highlight, this branch's role
	in our constitutional form of government is to make law. So,
	when Congress does not--when Congress passes, say, vague laws
	or when Congress does not act at all, it upsets the system of
	checks and balances.
	Mr. Buck. I yield back. Thank you.
	Mr. Massie. The gentleman yields back.
	The Chair now recognizes the Ranking Member of the Full
	Committee, Mr. Nadler, for five minutes.
	Mr. Nadler. Thank you, Mr. Chair.
	Mr. Buck's discussion of the fact that Congress can't find
	the time to reauthorize all the programs leads me to wonder how
	Congress would ever find the time to go over thousands and
	thousands of detailed regulations.
	My understanding is that under the REINS Act, many
	industries would be expected to self-govern.
	Professor Hammond, do you think the railroad industry will
	do this effectively, putting health and safety above profits?
	Ms. Hammond. No. There's a long and well-documented history
	of a concerted effort by the entire industry to resist any
	safety requirements. The REINS Act only makes it more difficult
	to actually put those protections into place.
	Mr. Nadler. In addition to the dangerous REINS Act, which
	we've discussed, Members of the Subcommittee also support the
	Separation of Powers Restoration Act, which would eliminate
	Chevron deference, that is, deferring to expert agencies on
	their interpretation of statute so long as it's not
	unreasonable.
	Professor Hammond, do you think public health and safety
	would be improved or hindered if agencies lacked this deference
	and had constantly to go to court over their authorizing
	statute?
	Ms. Hammond. It would be much more difficult to protect the
	public.
	I would like to just point out that I'm hearing the words
	``Chevron deference,'' but the Chevron doctrine itself has a
	key component that this discussion so far has overlooked, which
	is the first step. If the statute is clear, the analysis stops.
	There is no deference to the agency, because the clear language
	of the statute controls.
	It's only if there's ambiguity that as a matter of
	comparative institutional competence as between the courts and
	the agencies that a court should not be substituting its own
	policy preference for the way the agency exerted its expertise
	and did so with political accountability.
	So, the Chevron doctrine itself has quite a bit more nuance
	and does recognize the expertise of agencies, but certainly has
	guardrails in place for congressional oversight.
	Mr. Nadler. Thank you. I assume that if an agency abused
	its authority under the Chevron doctrine, that's subject to
	challenge in court?
	Ms. Hammond. Certainly.
	Mr. Nadler. Thank you.
	Supporters of the REINS Act argue that this bill would help
	tame inflation, despite the fact that the bill could, in fact,
	result in blocking any major rule contemplated by our expert
	agencies, even if they're designed to address inflation.
	Professor Hammond, how do you think the REINS Act, if
	passed, would affect the economy and inflation?
	Ms. Hammond. Well, we know--are we OK there? All right.
	We know that regulatory protections actually help the
	economy. I collected several examples in my written testimony,
	but just to give you one, EPA's proposed soot rule that was
	proposed earlier this year would save 270,000 lost workdays. It
	would also provide $43 billion in net health benefits. That's
	good for the economy.
	If the REINS Act would cutoff all these protections at the
	knees, we'd see a lot of detrimental economic impact.
	Mr. Nadler. Thank you. The National Transportation Safety
	Board recently launched an investigation into Norfolk Southern
	following the derailment in East Palestine. The investigation
	is rare, because it will consider Norfolk Southern as a whole
	rather than the East Palestine incident in particular.
	Professor Hammond, do you think Norfolk Southern is the
	only railroad company that needs more regulatory oversight, and
	do you think that regulatory oversight would be improved under
	the REINS Act?
	Ms. Hammond. No. Indeed, as I said previously, this is an
	entire industrywide effort. I should mention that self-
	regulation tends to be a euphemism for putting profits over
	health, safety, and the environment. We've seen that not just
	in the railroad industry, but, for example, in the extractive
	energy industries.
	The REINS Act, once again, would only undercut the
	protections that we need.
	Mr. Nadler. Do you think this applies basically to every
	area in the economy?
	Ms. Hammond. Everyone that I've seen, including even the
	markets.
	Mr. Nadler. Thank you very much.
	Mr. Chair, I yield back.
	Mr. Massie. The gentleman yields back.
	We're going to--I'm going to allow one more of our Members
	to take five minutes, and then we will vote. So, if people want
	to go ahead and vote right now, we're going to recess
	immediately after Mr. Cline.
	I now recognize Mr. Cline for five minutes.
	Mr. Cline. Thank you, Mr. Chair.
	I want to thank the witnesses for being here.
	I'm concerned by something that Professor Hammond said,
	that there's already a certain degree of accountability in the
	rulemaking process when, according to a recent study of the
	Department of Health and Human Services' rulemaking practices
	from 2001-2017 revealed that 1,860 FDA final rules, 98 percent
	of their total, had been issued illegally, and that other
	agencies had similar problems, in violation of Buckley v.
	Valeo, where the Supreme Court held that rulemaking is a
	significant government power that may be exercised only by
	officers appointed in accordance with the Constitution's
	appointment clause.
	So, what we have are unappointed, unelected bureaucrats
	issuing rules against the law, against the Constitution, and
	against courts' rulings.
	That's why I've introduced legislation called the Ensuring
	Accountability in Agency Rulemaking Act. It's a bipartisan
	bill. It says that all rules, except in limited circumstances,
	have to be signed and issued by an individual appointed by the
	President and confirmed by the Senate. It's common sense, it's
	compliant with the Supreme Court precedent, and it would ensure
	the accountability that the professor claims exist, but really
	does not at this point.
	We have a situation where the Biden Administration have--
	the regulatory burden totals greatly exceed those of its
	immediate two predecessors. The 517 rules have been issued,
	costing $318 billion in total and requiring more than 218
	million hours of paperwork, not by bureaucrats but by American
	taxpayers and businesses, to comply with these regulations.
	So, as the AAF put it in their research, the overarching
	conclusions drawn from this data are hardly surprising. The
	Obama and Biden Administrations imposed regulatory burdens in
	the hundreds of billions of dollars, while the Trump
	Administration was nominally deregulatory.
	So, in addition to cosponsoring the REINS Act, we need to
	take action legislatively to regain the rulemaking power of the
	Congress.
	I would go to ask Ms. Ho, let's go to another agency. The
	FTC, under Chair Lina Khan, recently announced a proposed rule
	that would purport to prohibit noncompete agreements
	nationally. This comes on the heels of California weakening or
	eliminating the enforceability of noncompete agreements, which
	China has capitalized on and is another method in their arsenal
	to steal U.S. intellectual property, specifically trade
	secrets.
	Do you believe that the proposed rule exceeds the FTC's
	statutory authority?
	Ms. Ho. Thank you for the question.
	Without commenting on particular rules, I will underscore
	that one thing your question highlights is that one way that we
	know, or we can tell or suspect that an agency is exceeding its
	authority, is when it acts in an area that it has not typically
	acted in before. That's one of the aspects of the major
	questions doctrine that has been I think a topic of interest
	lately.
	So, I think one clue, perhaps, that an agency may be acting
	outside of its authority is when it is acting in an area that
	it has not acted in and also an area where, in our system of
	federalism, States have typically acted.
	Mr. Cline. What's your position on the constitutionality of
	rules issued by nonconfirmed individuals, essentially violating
	Buckley v. Valeo?
	Ms. Ho. I think that's an excellent question. I think I
	would need to know sort of more facts and circumstances to
	opine definitively, but I do think, again, your question
	highlights issues of accountability, accountability to voters.
	Mr. Cline. Mr. Cleckner, I believe you spoke to Ms. Khan
	and the FTC a little bit earlier. Did you? OK. Can you speak to
	that?
	All right. Mr. Wolfson.
	Mr. Wolfson. I think that for the FTC to step into an area
	that they have never previously found authority in the FTC
	statute to then say, we now have the authority to bar
	particular behaviors, again, regardless of whether that is a
	good or bad law--there are a lot of States, red and blue, that
	are addressing noncompete clauses.
	So, regardless of whether or not that is a good thing, it's
	kind of like if Health and Human Services said, ``We're going
	to regulate minimum wage requirements.'' It's not their
	bailiwick and having them do it creates all sorts of problems.
	Regardless of the level of expertise of the people inside
	the agencies, it doesn't ever seem to be the case that the
	people who are at FTC would be the ones in the best position to
	evaluate those kinds of questions.
	Mr. Cline. Thank you.
	I yield back, Mr. Chair.
	Mr. Massie. I thank the gentleman for his questions.
	We're going to take a short recess to vote. This is a
	special circumstance where there's only one vote, so Members
	can go vote and come back quickly.
	So, the recess I anticipate will probably be about 15 or 20
	minutes, and we'll convene as soon as the Ranking Member and
	myself return, or his designee, and somebody to ask questions.
	So, I encourage the witnesses to take a break, a short
	break. Thank you.
	The Subcommittee now stands in recess.
	[Recess.]
	Mr. Massie. The Committee is now back in order, and we'll
	start where we left off with Mr. Johnson from Georgia. I now
	recognize him for five minutes.
	Mr. Johnson of Georgia. Thank you, Mr. Chair.
	Republicans favor low taxes on the wealthy and less
	government. So, low taxes, less government has been their
	campaign mantra since Ronald Reagan. To accomplish less
	government, just about every Republican, including those on
	this dais, have signed on to the Grover Norquist ``No New Tax''
	pledge. In a 2001 radio interview, Grover Norquist revealed his
	true intention. He said, famously, it's not--``I'm not in favor
	of abolishing the government; I just want to shrink it down to
	the size where we can drown it in the bathtub,'' end quote.
	When Republicans are not cutting taxes, they are cutting
	the ability of Federal agencies to protect the public health,
	safety, and the ability to enjoy freedom and prosperity. The
	REINS Act, which if passed, would prevent agency rulemaking
	from protecting the American public from corporate greed that
	jeopardizes the health and safety of the American people is a
	move toward strangling the Federal Government. In short, what
	the REINS Act does is put profits over people.
	Now, Ms. Ho, you, like the rest of the America, observe the
	congressional dysfunction in its inability to elect a Speaker.
	It took 15 rounds over a five-day period. You witness that had
	spectacle, did you not?
	Ms. Ho. Yes, sir.
	Mr. Johnson of Georgia. The REINS Act would act as a
	chokehold on Federal agencies' ability to promulgate rules that
	protect the health, safety, and welfare of the American people
	like those in East Palestine, Ohio. Isn't that correct?
	Ms. Ho. Yes, that's my understanding, your honor.
	Mr. Johnson of Georgia. Now, there is some people in
	America who trust the Federal Government to make sure that our
	water is safe, our air is safe to breathe. We rely on the
	regulatory system to improve our lives every day, whether
	that's by protecting working families from getting ripped off
	by banks or by ensuring that we have fewer car-related deaths.
	In recent years, we've seen the devastation that comes from
	deregulation. Look no further than the disaster in East
	Palestine or the water crisis in east--in Flint, Michigan.
	Congress can pass laws with broad outlines, but we need
	agencies to translate those laws into actionable policy. Using
	input from scientists, stakeholders, and the public, these
	issues are complicated, and we need experts working on them,
	not Members of Congress who get caught up in congressional
	gridlock and can't even elect a Speaker.
	So, Professor Hammond, we're still discovering the fallout
	from the Norfolk Southern derailment in East Palestine, but we
	understand that residents are already affected by toxic
	chemicals that were released into the surrounding air, water,
	and land. Professor Hammond, will the ability of the Federal
	Government to create stronger environmental safeguards be
	helped or hurt by the passage of the REINS Act?
	Ms. Hammond. Thank you for that question. I believe it will
	be severely hurt. We need those environmental safeguards.
	Mr. Johnson of Georgia. Why is that? Why will the REINS Act
	hurt?
	Ms. Hammond. It's because all the effort that the agencies
	have brought to bear, as you mentioned, with scientific and
	technical expertise, on actually evaluating how toxins do
	impact people's health and the environment, and then actually
	putting restrictions in place to prevent people's exposure to
	those, all that kind of effort, which of course is also
	informed by a participatory rulemaking process, all that would
	be simply extinguished were the REINS Act to be in effect.
	Mr. Johnson of Georgia. So, you said in your testimony that
	we should really be looking at the dysfunction in the courts,
	which you say is straining separation of powers and disrupting
	agencies and carrying out the mandates that Congress has given
	them to protect the people of this country. Can you elaborate
	on that?
	Ms. Ho. Yes. I was referring to the major questions
	doctrine, which picked up some traction in the recent West
	Virginia v. EPA decision. The problem with that doctrine is, as
	I quoted in there, it's a real power grab by the Supreme Court
	to be able to substitute its own policy preferences for that of
	either of the accountable branches.
	Mr. Johnson of Georgia. That's from a right-wing extremist
	Supreme Court?
	Ms. Hammond. Indeed.
	Mr. Johnson of Georgia. I yield back.
	Mr. Massie. The gentleman yields back.
	I now recognize Mr. Bentz from Oregon for five minutes.
	Mr. Bentz. Thank you, Mr. Chair, and congratulations on
	your Chairship, and thank you for selecting this most
	interesting topic for today.
	Back in the small State of Oregon, for eight years, I was
	the Water and Resource Commission, the last two years of which
	I was Chair, and I had many opportunities to review
	Administrative Rules because we wrote the rules for everything
	having to do with water in that State.
	I just have to comment on that because of the remarks made
	earlier about how, if you simply go through the rulemaking
	process, the rule will hue to the statute, because I guarantee
	you, that's not necessarily what happens. It's a totally
	political activity, and it's amazing how much damage can be
	done by the agency as it writes rules. I know because I rewrote
	them personally myself many times and then was overruled
	because of the number of votes I didn't have on the Commission.
	So, let's just say, I don't view the APA as a device
	through which you can place rules and suddenly have them hue to
	the statute. It isn't. The question I would have, I want to go
	back to this West Virginia v. EPA discussion. The way I
	understood it is that case says, quote, ``more than merely
	plausible, textual basis for the agency action.''
	So, Ms. Ho, can you tell us, has the problem been solved
	that we're talking about here today by virtue of that Supreme
	Court opinion? The problem being overreach by agencies. I
	should first--my assumption is that there is overreach. I've
	observed it myself. In your opinion, first, is there overreach;
	and second, has it been resolved by virtue of West Virginia v.
	EPA?
	Ms. Ho. Thank you for that question. I think the way that I
	would put it is I think West Virginia v. EPA is a step toward
	restoring the proper checks and balances and separation of
	powers but certainly isn't and doesn't purport to be a complete
	solution to the problem that this Committee is discussing
	today.
	Mr. Bentz. It also would appear, the more--if we wanted
	less regulations, we would have less laws. We would have fewer
	laws to write regulations regarding. There seems to be a
	massive disconnect between my friends on the other side of the
	aisle and reality. They seem to be saying that we want to do
	away with all statutes and all rules, but that's not the case,
	is it? What we're trying to do is get it right. What would your
	definition of ``right'' be here when it comes to what these
	agencies should be doing?
	Ms. Ho. Well, I think your question highlights--and to get
	back to bringing up West Virginia v. EPA, I think what the
	court said there is a very--it created a rule that has a long
	tradition in this body. There are lots of other clear statement
	rules. It's just saying if we see an agency acting acting in an
	area that it hasn't before in highly politically or socially
	charged circumstances, we want to make sure that Congress has
	clearly authorized that agency to act in that way.
	So, we're going to look for a clear statement, just like
	courts do in sovereign immunity, looks to make sure that
	Congress has waived sovereign immunity, or in the area of
	retroactivity, because our tradition is not to have retroactive
	laws. Courts want to make sure that Congress has done so
	clearly.
	So, I think West Virginia's rule is just one in a series,
	in a tradition of rules where the courts have said, ``Look,
	this is within Congress' authority, and if Congress wants to
	give that authority to an agency, we want to make very sure
	that it has done so clearly.''
	Mr. Bentz. Thank you for that.
	Mr. Wolfson, there has been some assertion that this
	attempt to reign in agencies is unconstitutional, and that
	somehow Congress, by stepping into this space of Administrative
	Rule, is stomping on executive privilege or the executive
	space. What's your thought?
	Mr. Wolfson. So, my understanding has always been that the
	legislature's job is to issue the laws, and the regulatory
	agencies are not really supposed to be writing laws, but
	they're supposed to be enforcing those laws as Congress wrote
	them.
	So, if Congress were to decide that they wanted to pass a
	law that's super vague, then there become challenges for
	implementation and that's where the regulatory State has
	stepped in, but that's not how the Framers designed our
	Constitution. That's shouldn't be the goal. That is kind of
	where we are.
	The fact that we have resulted in a spot where regulations
	have to be written by regulatory agencies, regardless of how
	much expertise those people have, they don't have more
	expertise than the professors at some universities who are
	talking about these topics who you could bring in and speak to
	as Members of Congress to write really clear laws that talk
	about the problems that might be faced.
	Mr. Bentz. Thank you.
	With that, Mr. Chair, I yield back.
	Mr. Massie. The gentleman yields back.
	I now recognize Mr. Ivey from--
	Mr. Cicilline. Unanimous consent?
	Mr. Massie. I'm sorry? Oh, I recognize the Ranking Member
	for a unanimous consent request.
	Mr. Cicilline. Thank you, Mr. Chair. I ask unanimous
	consent to introduce into the record a statement from the
	United Steel Workers; written testimony of Elizabeth Skerry
	from the Regulatory Policy Associate at Public Citizen; a
	letter from the Center for Progressive Reform; a letter from
	the Coalition for Sensible Safeguards, an alliance of over 150
	labor, scientific, research, good government, faith, community,
	health, environmental, and public interest groups; and an
	article from The Hill entitled, ``Buttigieg Calls on Trump to
	Back Reversing Deregulation in Wake of Train Derailment.''
	Mr. Massie. Although these may be unanimous consent
	requests in need of scrutiny, I hear no objection, and so
	ordered.
	Mr. Massie. Who would the Ranking Member prefer I--OK.
	I now recognize Ms. Jayapal for five minutes from
	Washington.
	Ms. Jayapal. Thank you, Mr. Chair.
	On February 3rd, 50 freight train cars carrying hazardous
	material derailed, as we know, in a fiery crash on the borders
	of East Palestine, Ohio, sending toxic chemicals into the
	surrounding air, soil, and creeks. This incident, in my mind,
	highlighted the influence of corporate lobbying on railway
	safety. I have a bill that you've heard about, called the Stop
	Corporate Capture Act, that would lessen corporate influence in
	the rulemaking process and clear a path for increased public
	participation.
	Listening to these comments today, I think the problem is
	not that regulatory agencies don't have the expertise or should
	not have a role in regulation; it's that the leg branch and the
	rulemaking branch both are too often controlled by special
	interests, by big corporate lobbying money. I've got a bill to
	address that larger issue as well on the legislative side. It's
	called the Anticorruption and Public Integrity Act, and it
	addresses the legislative side.
	So, Professor Hammond, I just want to dive into this a
	little bit and see if we can understand exactly what's happened
	here in the railway industry as an example. Powerful railway
	lobbyists have spent over $700 million in the past 25 years to
	cut costs, weaken safety regulations, and strengthen their
	bottom line. This is at the same time they've been making
	record profits, by the way.
	Just as an example, Norfolk Southern paid out $18 billion
	in stock buybacks and dividends, and at the same time, we've
	got this weakening of regulation. I wanted to talk about the
	Obama-era safety rail regulations as an example that arose from
	a 2008 southern California train wreck that killed 25 people
	and injured 135 others.
	Can you give us some insight into how frequently lobbyists
	successfully encourage the administration to scale back or
	delay implementation?
	Ms. Hammond. I don't have an exact number for you, but
	certainly, the evidence is extensive that this is a constant
	effort by the railroad industry in this particular example, and
	then, of course, by other industries with respect to agency
	rulemakings.
	Ms. Jayapal. Talk to me about the PTC, the automated
	braking technology and the PTC, which debuted in 1990. In fact,
	I think it was on the kind of most-wanted list of things to do
	back in 1990 when that technology emerged, but it took 30 years
	to actually implement. Can you give us some understanding of
	what happened in that process?
	Ms. Hammond. Just briefly, what I understand is that there
	was an initial support from the railroad industry, but once it
	became apparent that this would be actually a requirement,
	there was a decades-long effort to resist it.
	Ms. Jayapal. So, in 2014, Obama also proposed stricter
	rules for trains that transport petroleum and other hazardous
	materials. In 2015, he issued a requirement, a regulation that
	required trains carrying highly flammable liquids to be
	regulated. That met with opposition from whom?
	Ms. Hammond. The railroad industry.
	Ms. Jayapal. The railroad industry. In fact, Norfolk
	Southern, among others, said that requiring these brakes was,
	quote, ``not in the public interest.'' Do you know, Professor
	Hammond, what happened next in 2015 when the Republicans came
	in?
	Ms. Hammond. I believe that the rule did not go into
	effect.
	Ms. Jayapal. Correct. The Republicans introduced the FAST
	Act, and it simply proposed a cost-benefit analysis of these
	electronic braking systems that had been out there for more
	than 20 years, but had killed a lot of people, apparently we
	wanted to do a cost-benefit analysis. Then in 2018, the rule
	was repealed by the Trump Administration, and they issued a
	rule to remove the advance braking system. In fact, in the
	House, the new GOP Chair of the Transportation Committee was
	the Chamber's top recipient of industries--or is the top--
	Chamber's top recipient of industry's campaign cash.
	Norfolk Southern's general counsel, do you know what his
	background was?
	Ms. Hammond. I don't.
	Ms. Jayapal. OK. Let me tell you. He was the person who
	pressed for safety waivers, and he is the former Executive
	Director of the National Transportation Safety Board. Tell us
	what the National Transportation Safety Board does.
	Ms. Hammond. It, indeed, regulates the safety.
	Ms. Jayapal. It regulates the safety of these trains. So,
	it's actually the current body that's investigating the
	company.
	So, I guess I want to take this in our last minutes to the
	Stop Corporate Capture Act and ask you, in my bill, we enhance
	the public's notice and comment influence through the Office of
	the Public Advocate. How would an increase in public
	participation improve the rulemaking process?
	Ms. Hammond. Well, it would bring more voices that could be
	counteracting this extensive, very expensive, consistent effort
	by industry to capture the process.
	Ms. Jayapal. Bring us the voices of the people on the
	ground that we are sworn to protect.
	Mr. Massie. The gentlelady's--
	Ms. Jayapal. Thank you, madam.
	Mr. Chair. Also, Mr. Chair, may I ask unanimous consent to
	enter into the record a number of items? The first is a letter
	of support for the Stop Corporate Capture Act; the second is an
	oil and gas--an article on how oil and gas lobby buries the
	findings of negative impacts of fossil fuels; the third is a
	letter from All Board Ohio on Norfolk Southern's influence on
	safety regulations; and the fourth is a study on the presence
	and influence in lobbying on SEC rulemaking that shows that the
	influence of lobby groups outweighs public comments.
	Mr. Massie. Without objection.
	Ms. Jayapal. Thank you, Mr. Chair. I yield back.
	Mr. Massie. The gentlelady yields back.
	The gentleman from North Carolina is now recognized for
	five minutes.
	Mr. Bishop. So, Professor Hammond, I've listened with
	interest to the number of times that the East Palestine
	derailment has been invoked. Do I understand that this existing
	regime of rulemaking under the Administrative Procedure Act
	through the administration is susceptible to influence from
	special interests?
	Ms. Hammond. Yes. That's why I think that Representative
	Jayapal's approach is a good one.
	Mr. Bishop. So, the conclusion that she draws is it would
	be a bad idea to reinvigorate Congress' participation in the
	making of the necessary rules because there would be political
	influence in Congress. There's political influence in the
	rulemaking process under the APA. Isn't that right?
	Ms. Jayapal. Would the gentleman yield? Because you are
	speaking about me.
	Mr. Bishop. No, thank you. No, I won't.
	Ms. Jayapal. Well, you're implying things that I did not
	say.
	Mr. Bishop. No, I'm talking about your question. I'm
	talking about your question which stands for--I'm not arguing
	with you. It's my time.
	Ms. Jayapal. OK. Please don't say--
	Mr. Bishop. It's my time. Would you respect the order of
	the Committee, please?
	Mr. Massie. The gentleman from North Carolina is
	recognized. It's his time.
	Ms. Jayapal. Mr. Chair--
	Mr. Massie. He has not impugned the other Member or her
	motives.
	Mr. Bishop. Can I have time back on my--I've been
	interrupted about 30 seconds of time by disorder from the other
	side of the aisle, Mr. Chair. Could I have my time back?
	Mr. Massie. The gentleman will receive an additional 30
	seconds.
	Ms. Jayapal. Mr. Chair, procedural question?
	Mr. Bishop. The Committee is not in order, Mr. Chair.
	Mr. Cicilline. Well, I raise a point of order, Mr. Chair. I
	would raise a point of order. Does a Member of a Committee have
	a right to correct--
	Mr. Massie. What rule?
	Mr. Cicilline. I'm raising a point--I'm asking you to rule
	on a point of order. Does a Member of the Committee--or point
	of parliamentary inquiry. Does a Member of the Committee have
	the ability to correct a misstatement of a question that was
	posed by one Member? Because without the ability to correct
	that, a witness is then going to be invited to respond to
	something she didn't say, which seems sort of Alice in
	Wonderland-ish and maybe not a great practice. So, is she
	permitted to seek clarity that this be corrected before the
	witness answers?
	Mr. Massie. The Member may ask for the other Member to
	yield, but the Member is not required to yield. If a written
	statement wants to be submitted, we'll accept that.
	Mr. Cicilline. OK. Thank you.
	Mr. Massie. The gentleman from North Carolina is now
	recognized again, and he'll have an additional 30 seconds.
	Mr. Bishop. Thank you, Mr. Chair.
	So, I'm not sure how it stands to reason if allegedly, the
	administrative process has been susceptible to political
	influence that this would be a distinct or different set of
	circumstances if Congress instead were making the laws. Can you
	explain why that's--one--it would be present in one and not the
	other, given what you have talked about East Palestine and the
	Federal regulations on transportation?
	Ms. Hammond. Sir, I have not said that corporate influence
	is present in one and not the other, and I very much am of the
	mind that there can be improvement in both branches. One of the
	differences in the Administrative Branch is that at least we
	have more transparency, which becomes opaque were the REINS Act
	to go into effect.
	Mr. Bishop. Is it possible that the East Palestine
	derailment occurred because of enforcement--because of
	administrative incompetence? That is to say, let's say the
	administration--let's say the Mayor Pete is more interested in
	talking about whether highways are racist and diversity,
	equity, and inclusion then focusing on the nuts and bolts of
	transportation, so you see things like this crop up? Is that
	possible?
	Ms. Hammond. Sir, I'm not aware of facts that support that
	assertion.
	Mr. Bishop. I didn't ask if you were aware of--I asked if
	it's a possible reason contributing. In fact, do you have any
	evidence that it was caused by the lack of a particular
	regulation rather than the administrative distraction?
	Ms. Hammond. I do understand that one of the possible
	failures in that wreck, and I believe the investigation is
	still underway, is equipment that appears to be completely
	unregulated.
	Mr. Bishop. OK. So, it's possible. Either one seems
	possible to me.
	I pulled up quickly the Administrative Procedure Act has
	been enforced since 1946. The five volumes of regulations on
	transportation in part 49 of CFR totals 4,634 pages. If that's
	the case, I mean, that is the state of affairs. What I
	understand is they're arguing that East Palestine is an example
	of why we need to maintain that. How many pages of regulations
	would be necessary in the transportation part so that we
	wouldn't have things like East Palestine?
	Ms. Hammond. I can't give you a page number, but from
	having been involved in writing regulations, it just takes a
	little bit of work to set forth all those technical details
	that are important to clearly understand what is expected and
	to clearly present the protections that are necessary.
	Mr. Bishop. You testified--as I was going back and forth
	and listening on audio remotely, at some point you testified
	that if we had fewer regulations, it would do harm to the
	economy, right?
	Ms. Hammond.
	[Nonverbal response.]
	Mr. Bishop. Are you an economist?
	Ms. Hammond. I'm not an economist, but I read the cost-
	benefit analyses that agencies prepare for their OIA review,
	and in those you can see the extraordinary benefits to the
	economy of many protective regulations.
	Mr. Bishop. So, you haven't felt it an impediment to your
	forming that conclusion or that opinion based on reviewing the
	expertise of others? You haven't found it to be an impediment
	that you lack a specific expertise in the area, right?
	Ms. Hammond. It's written reasonably well so that most
	educated people can understand.
	Mr. Bishop. All of this expertise that exists in all these
	magnificent agencies can be drawn upon by Congress, by
	committees just like this, to be advised upon whether a
	particular rule ought to be made a law, isn't that true, in the
	same way you formed your conclusion from inputs by experts?
	Ms. Hammond. I'm not sure I understand the question, sir.
	Mr. Bishop. OK. Do you understand the question, Mr.
	Wolfson? Do you have a thought about it?
	Mr. Wolfson. I believe that this body or any other body of
	Congress would be able to call experts from across industry,
	from the academy, others who are experts who have worked on
	these areas for a long time, whether they are in the government
	or outside of the government, and could gain the expertise in
	the same way that the regulatory agencies attempt to do through
	the notice and comment process.
	Mr. Bishop. All right. My time is expired. Thanks.
	Mr. Massie. The gentleman yields back.
	The gentleman from California, Mr. Correa, is recognized
	for five minutes.
	Mr. Correa. Thank you, Mr. Chair. I just wanted it noted
	that I returned to the Committee.
	Mr. Massie. It's very much appreciated.
	Mr. Correa. Thank you, sir.
	Mr. Massie. My lobbying was successful.
	Mr. Correa. Yes, it was.
	Mr. Cicilline. Luis, do you want like a formal welcome from
	the Democratic side as well?
	Mr. Correa. I got it from them, Mr. Ranking Member.
	I just want to take my first 30 seconds and yield to my
	colleague, Ms. Jayapal.
	Ms. Jayapal. Thank you so much. I am very happy you're back
	on the Committee.
	I just wanted to correct the record because my colleague
	across the aisle was saying things I didn't say. What I have
	said consistently, and the legislation I have introduced
	consistently, is both to implement reforms so that the
	legislative process works for the people that we represent and
	not for big corporate interests, and to propose regulation that
	would help the regulatory side--or legislation that would help
	the regulatory side to do the same thing.
	Thank you, Mr. Correa, for yielding.
	Mr. Correa. Thank you very much.
	I just wanted to thank the witnesses today for your
	testimony. It reminds me of a law school constitutional class.
	Very interesting.
	Ms. Ho, I wanted to, if I can, ask you and discuss with you
	a little bit of the Chevron doctrine, which is essentially the
	deference doctrine. Did you say something about congressional
	neglect? Was that some of your words, or was that another
	witness that said something to the effect?
	Ms. Ho. I think one of the points that I made in my
	opening, Your Honor, is that when this body, when Congress does
	not act, when it does not exert its role as the maker of laws,
	it sort of leaves a vacuum where other branches, particularly
	the Executive, can step into that void.
	Mr. Correa. Thank you. I ask this because you've got what
	appears to be a conflict challenge here between the Executive
	and our body, rulemaking, and you have a third, which is
	roughly the third branch of our government, U.S. Supreme Court,
	that ruled in the Chevron doctrine. Today we have, as always,
	the Supreme Court changes, new members and new justices. So, is
	there a possibility that in the future, there may be a new
	decision on the Chevron doctrine that maybe affirm it or maybe
	not affirm it?
	Ms. Ho. You know, that's a great question. I know just
	enough about the Supreme Court to know never to try to predict
	what it will do. I do think it's interesting that in a decision
	recently by the court, Justice Kagan authored a decision called
	Kisor, which trimmed back our deference, which involves
	agencies--courts dealing with agencies' interpretations of
	their own regulations.
	The Chief Justice wrote separately in that case to say that
	because the court actually did not overrule Auer in that case,
	that decision should not be understood as closing down requests
	for the court to revisit the Chevron decision sometime in the
	future.
	Mr. Correa. I ask that because I have the highest respect
	for our Supreme Court, our third branch of government, and
	their decisionmaking. In thinking about--we're essentially
	talking about the REINS Act, trying to correct something that
	some of us view as a flawed decision, and that given the case,
	I think it's important to see where the Supreme Court may be
	going in the future.
	Thank you.
	Professor Hammond, I just wanted to ask you, do regulations
	supersede congressional authority?
	Ms. Hammond. No, they don't.
	Mr. Correa. If they do?
	Ms. Hammond. Then a court can strike it down, and, of
	course, Congress can also correct the agency.
	Mr. Correa. What is the Administrative Procedure Act?
	Ms. Hammond. It is the fundamental procedural statute that
	Congress passed, indeed in 1946, to ensure that agencies follow
	various procedural rules to ensure participatory and reasoned
	decisionmaking.
	Mr. Correa. ``Participatory'' meaning transparency--
	Ms. Hammond. That's right.
	Mr. Correa. --input by the public, those that may be
	interested are not in the decisionmaking. All this though
	always being consistent with congressional authority,
	congressional essentially view--go ahead. Go ahead.
	Ms. Hammond. Yes, that's right. The Administrative
	Procedure Act also has provisions for judicial review, and it
	provides that one of the reasons a court can strike down what
	an agency has done is failure to attend to the statutory
	mandate.
	Mr. Correa. Thank you very much.
	Mr. Chair, I yield.
	Mr. Massie. The gentleman yields back.
	Mr. Fitzgerald from Wisconsin is now recognized for five
	minutes.
	Mr. Fitzpatrick. Mr. Chair, I'm going to yield some time to
	Mr. Bishop.
	Mr. Bishop. I thank the gentleman. I'm sorry, Mr.
	Fitzgerald, could you yield to me at the end of your time?
	Mr. Fitzpatrick. Very good. Very good.
	Both this Congress and last Congress, I introduced the
	Separation of Powers Restoration Act, or SOPRA, which would
	displace precedent established in Chevron, the case you're
	talking about, NRDC. As you know, in this case Supreme Court
	required judicial deference to government agency
	interpretations of ambiguous statutes. This bill, I believe,
	would tip the scale back in favor of listening to what Congress
	has to say in its statutes rather than how an agency interprets
	them.
	Ms. Ho, what's your interpretation of the Chevron
	precedent, and do you believe it's worthwhile for Congress to
	try to reclaim some of its power that for years has gone
	through the Executive Branch through agency interpretation of
	statutes and regulations?
	Ms. Ho. Thank you. Let me begin with the last part of your
	question. I certainly agree that it's critical in our system of
	checks and balances and separation of powers for Congress, for
	this body, to exert its lawful authority as the maker of laws
	in our land.
	As to Chevron and somewhat relatedly, I think, one thing
	that is interesting about that case is even though, as it has
	come to be sort of a decision involving administrative
	agencies, that decision nowhere cites the Administrative
	Procedure Act. So, I think a decision that sort of sets forth
	this notion of deference is entirely outside the bounds of what
	this court set out, what some have referred to as the
	constitution of the Administrative State, the Administrative
	Procedure Act. That decision nowhere cites or even engages with
	what this court set into law in the Administrative Procedure
	Act.
	Mr. Fitzpatrick. Very good. Thank you.
	Mr. Chair, I also just wanted to just spotlight an example
	of the politicization of--that's occurring at the Biden
	Administration's FTC right now, that you're well aware. Last
	week, it was reported that Fight Corporate Monopolies, a
	501(c)(4) arm of the American Economic Liberties Project,
	intended to air attack ads on prime-time TV against myself and
	you, the Chair of this Subcommittee, and other colleagues. In
	fact, this organization hired a mobile billboard truck to drive
	through my district due to my opposition to the FTC noncompete
	rule that we've been discussing today.
	Certain groups coming after Members of Congress with
	misleading information isn't particularly new. I was disturbed
	to learn that Ms. Sarah Miller, the executive director of the
	very group I just mentioned, as of Monday, is now working for
	Chair Khan as a senior adviser and is likely to work on the
	very issue she attacked us on just last week. So, you couldn't
	ask for a more current and better example of what's going on at
	the Biden Administration's FTC.
	With that, I would yield the balance of my time to Mr.
	Bishop.
	Mr. Bishop. I thank the gentleman for yielding.
	It does seem to me, pursuant to--or apropos of the
	conversation that happened in part on my time, if that
	process--the notion here is, well, we have to rely on the
	agencies to make rules because the agencies is where expertise
	is brought to bear, and that this will be somehow less
	susceptible to politics.
	I thank the gentlelady from Washington for raising it, the
	administrative process appears--in the creation of rules
	appears to be susceptible to influence from corporate
	lobbyists. Some say a few people have seen a corporate lobbyist
	or two around Capitol Hill.
	So, if you're talking about one or the other, then it seems
	to me a false choice that you're going to get rid of politics
	by leaving it in the administration. In fact, what you're going
	to do is you're going to effectively put lawmaking into the
	hands of executive officials higher up.
	Let me ask you, Mr. Cleckner, some years ago, there was
	Operation Choke Point. Are you familiar with that situation?
	Mr. Cleckner. I am, sir. Yes.
	Mr. Bishop. So, several agencies, the FDIC, Office of the
	Comptroller of the Currency, the DOJ came together at the same
	time to have a new regulation that would encourage banks to not
	do business with entity--with businesses that were in the
	manufacturing arms or something like that. Isn't that correct?
	Mr. Cleckner. That's correct.
	Mr. Bishop. There's no reason to believe that was a product
	of sudden expertise, is it? That was a political thing, yes?
	Mr. Cleckner. Completely political and done secretly for a
	couple of years, until it even came out that it was official.
	Mr. Bishop. So, if you wanted to place lawmaking in the
	hands of people who don't have broad popular support, would
	there be any better way to do it than do it through this
	Administrative Law system?
	Mr. Cleckner. You need it to be done by people who are
	accountable to the American public.
	Mr. Bishop. Professor Hammond, do you believe in the
	principle that government derives this legitimacy from the
	consent of the governed?
	Ms. Hammond. Yes.
	Mr. Massie. The witness may answer, and the gentleman's
	time is expired.
	Does the gentleman yield back?
	Mr. Bishop. Oh, I'm out.
	Mr. Fitzpatrick. I yield back.
	Mr. Massie. The gentleman yields back.
	I now recognize Ms. Scanlon from Pennsylvania for five
	minutes.
	Ms. Scanlon. Thank you, Mr. Chair.
	So, as I understand it, regulatory lawmaking whatever, it's
	not something we talk about usually over the dinner table, not
	something I get a lot of questions about in my town halls. As I
	understand it, this hearing has been called to address concerns
	about the proper balance between Congress and the Federal
	agencies on how we create rules and regulations with enough
	detail to implement and oversee the laws that Congress passes
	for the benefit, presumably, of the American people.
	Those rules have a huge impact on public health and safety;
	when we get in a plane it helps ensure the plane is not going
	to crash; that when we eat food it's safe and--or so is
	medications that we take; businesses can't scam us out of our
	hard-earned dollars; and employers have to provide safe
	workspaces. So, these are all the things that these regulations
	do. As I understand it, we have about 4,000-6,000 of these
	rules published every year.
	To hear what we're hearing in the rhetoric today, these
	Federal agencies are running roughshod over Congress and
	there's nothing Congress can do about it. That's not how it
	works. Basically, an agency convenes, as we've heard, experts
	and seeks public input and publishes rules. There's a whole
	process where people can have input, we can look at this; and
	before these regulations take effect, Congress has to be
	notified.
	With respect to major regulations, which is what this REINS
	Act seeks to address, and there's about 60-80 of them a year,
	it ebbs and flows a little bit, those regulations can't take
	effect for an additional 60 days after Congress is notified.
	So, Congress has this window in which to say, Nope, don't like
	that law, nope, we want to change it in some way, and, in fact,
	is trying to do that as we speak.
	So, if Congress isn't using that authority, it's not the
	Federal agency's fault; it's as people have variously described
	it today, it's a matter of congressional neglect, that there's
	a vacuum, that there's a lack of bandwidth and staffing.
	So, it appears to me a better use of resources that if we
	want to adjust some of the terms of the Act or provide more
	resources to Congress, so Congress can better exercise its
	oversight capability, that's where we should be pushing instead
	of trying to add additional workload to Congress requiring
	passage of more bills through the Senate.
	We do have bipartisan agreement that the Senate doesn't
	work fast enough as it is now. To require it to pass every
	major regulation that the Federal Government needs to put into
	effect for the health and safety of Americans would be a huge
	disservice.
	So, just turning to the practical impact of what we're
	talking about here. It's my understanding that the REINS Act
	could undo multiple major rules, including many that keep our
	kids safe. Professor Hammond, could you give us a couple
	examples of regs that protect our children, whether from
	consumer products or food or medication?
	Ms. Hammond. Yes. Indeed, the one that I mentioned earlier
	with respect to soot, kids, of course, are more vulnerable to
	air pollution and that's a proposed regulation, particularly
	for people--kids who have asthma, as well as others. So, I
	don't have a specific example in mind from some of the other
	agencies, but that's one that I think is a great one.
	Ms. Scanlon. Well, and that particularly resonates with me
	because the Philadelphia area has one of the highest rates of
	childhood asthma in the country. One in four kids in our region
	has environmentally induced childhood asthma. It's a huge, huge
	problem. So, obviously, I, for one, would like our best experts
	looking at these things and trying to figure out how we can
	best ensure the safety of our children.
	With that, I would ask unanimous consent to introduce a
	letter from the American Lung Association, Allergy and Asthma
	Network, National Association of Pediatric Nurse Practitioners,
	and a whole range of folks, expressing their strong opposition
	to the REINS Act because of its harmful impact on our
	communities. With that, I would yield back, after unanimous
	consent.
	Mr. Massie. Without objection.
	Ms. Scanlon. Thank you.
	Mr. Massie. The gentlelady yields back.
	The gentlelady from Wyoming, Ms. Hageman, is now recognized
	for five minutes.
	Ms. Hageman. Thank you, Chair Massie.
	Professor Hammond, do you know what the cost of the Federal
	regulatory burden is in this country on a yearly basis?
	Ms. Hammond. I don't have the number at this time.
	Ms. Hageman. Well, would it surprise you to know that it's
	over $2.1 trillion, and that's just the Federal regulations?
	Ms. Hammond. I wouldn't be surprised. To compare that to
	the benefits, you'd find that it's lower.
	Ms. Hageman. So, I want to go ahead and address some of the
	reasons as to why I'm here and why I actually ran for Congress.
	I've been a water, natural resource, and constitutional
	attorney for over 30 years, and one of the things that I've had
	to deal with on behalf of my clients is the overwhelming
	regulatory burden that they must navigate pretty much every
	single day of their lives.
	The Administrative Procedure Act provides only minimal
	protection from--against agency overreach, but it at least does
	require some form of a process which allows some participation
	by the American public. I recently had a case involving the
	USDA, the United States Department of Agriculture. A couple
	years ago, they posted on their website a two-page guidance
	document, and this guidance document required all our livestock
	producers to start using RFID ear tags and to register their
	ranches with the Federal Government.
	According to the USDA, this would've had a $2 billion cost
	on the livestock industry. It didn't go through a rulemaking
	process. It didn't go through notice and comment. They didn't
	invite the ranchers in to discuss whether it was even feasible
	in a 100,000-acre ranch out in Wyoming, as to whether they
	would be able to use this kind of technology. It was just
	simply issued from on high.
	I can assure you that this happens every day from these
	agencies. Guidance documents, answers to frequently asked
	questions, they have all different kinds of names that they
	use, but the reality is that they're used to circumvent the
	rulemaking process. Are you aware of that, Professor Hammond?
	Ms. Hammond. I'm familiar with guidance documents.
	Ms. Hageman. OK. So, the Trump Administration actually
	worked to address the issue of the agency abuse of guidance
	documents through Executive Orders 13891 and 13892. Notably, by
	the end of the Trump Administration, which all it did was
	require these agencies to post on their websites what guidance
	documents they had issued--the bump stock document, I believe,
	is a--the banning--the ATF's efforts to ban bump stocks, I
	believe, was through a guidance document, since the ATF did not
	have the authority to issue that as a regulation. By the end of
	the Trump Administration, several agencies had actually
	established an online portal, and there were over 70,000
	guidance documents from just a few of those agencies.
	So, Mr. Wolfson, can you please explain for us how guidance
	documents obfuscate these already minimal protections under the
	APA, and further throw into peril the notion of self-governance
	and government accountability?
	Mr. Wolfson. Thank you, Congresswoman.
	Yes, the guidance document problem exists in part because
	the agencies know that's a loophole. So, you've got regulators
	who want to regulate. They may not want their expertise really
	is in understanding the process of how to get regulations done,
	and they know that they don't have to go through the
	Administrative Procedure Act if they have a guidance document.
	The kind of the quintessential example people point to is
	the Department of Education Dear Colleague letter toward the
	end of the Obama Administration. All of these things end up
	basically hinting that there may be regulatory enforcement by
	the agency if certain practices are not undertaken, and this
	changes people's behavior even if there's no legislative
	authority behind that guidance document.
	Ms. Hageman. So, what was interesting is Executive Orders
	13891 and 13892 were just really transparency requirements.
	Isn't that correct?
	Mr. Wolfson. That's absolutely right. When I was at the
	Labor Department, we had to review over 13,000 guidance
	documents, some of which only existed in paper form at the
	library at the Department of Labor.
	Ms. Hageman. OK. Are either of those Executive Orders still
	in place?
	Mr. Wolfson. Unfortunately, no.
	Ms. Hageman. Why is that?
	Mr. Wolfson. I don't know the inside workings, but it's
	unfortunate that I believe that, for example, the EPA no longer
	even has their guidance portal. So, people who want to find the
	guidance documents have to go back to the old method of kind of
	searching through the entire department of--EPA's website to
	find those.
	Ms. Hageman. Well, isn't it correct, Mr. Wolfson, that one
	of the very first things that President Biden did when he took
	office was that he nullified those two Executive Orders?
	Mr. Wolfson. That is correct.
	Ms. Hageman. So, this administration intentionally made it
	difficult for the American citizens to learn about the guidance
	documents that are enforced and affecting these agencies and
	intentionally is hiding the information that is so important
	for the regulated community. Isn't that fair?
	Mr. Wolfson. It certainly would be an assumption one could
	make from what has gone on.
	Ms. Hageman. All right. Thank you. I yield back.
	Mr. Massie. The gentlelady yields back.
	The gentleman from Texas, Mr. Moran, is recognized for five
	minutes.
	Mr. Moran. Thank you, Mr. Chair.
	I'm convinced that the preservation of liberty does not
	just happen through the substantive decisions that we make here
	in Congress; rather, and just as importantly, the preservation
	is a result of structural safeguards that our Constitution put
	in place almost 250 years ago.
	Important structural principles embedded in our
	Constitution and the history of this Nation, like separation of
	powers, checks and balances, federalism, they're critical to
	preserving life, liberty, and the pursuit of happiness. It's
	something I talk about often when I talk to my constituents to
	say, we cannot seek an end, and in the meantime, trample over
	the correct means. We must preserve those structural
	safeguards, and that's what we're talking about here today is
	separation of powers.
	Unfortunately, over the years, both Democrats and
	Republicans have eroded these structural protections in pursuit
	of some substantive end that fits with our, or their political
	agenda, and it's a problem with both parties. It's the American
	people who suffer as a result of that.
	Professor Hammond, I want to start with you. You mentioned
	that there is room to bring more voice to the rulemaking
	process. I think I wrote that quote down correctly. If
	agencies, though, during that rulemaking process run into
	overwhelming opposition to a rule, a proposed rule, are they
	bound to reform the rule to accommodate those comments, or can
	they simply proceed forward in the manner that they would like?
	Ms. Hammond. The requirement is that they respond to
	significant comments raised, and very frequently, agencies do
	adjust their final rules as compared to their proposed rules
	based on the comments that they receive.
	Mr. Moran. I know that's the answer, but the true answer to
	my question is they don't have to. They can simply ignore the
	comments from the public. They can simply move forward with the
	rule that they would like to put in place, and they do not have
	to respond, to react. They're not accountable to the people of
	this Nation. We, the elected officials, are accountable to the
	people in this Nation. We are entrusted with decisionmaking
	when it comes lawmaking. They are not. That is the point that I
	want to make with that question.
	To overturn a rule to put in place--that has been put in
	place, let's talk about that for a moment as well, because
	under the Congressional Review Act, which one of my colleagues
	mentioned, is the method by which we can do that. It's not just
	the House that can do that on its own, but instead we have to
	pass a resolution to disapprove the rule, then we have to send
	it to the Senate, they have to disapprove the rule, and then it
	goes to the President, and he must sign that joint resolution
	from Congress to undo that rule. Isn't that correct, Professor
	Hammond?
	Ms. Hammond. I believe the rule does not go into effect
	without that, so it indeed undoes the rule.
	Mr. Moran. Without that process happening, effectively, a
	veto that must require disapproval by the House and the Senate
	and then to the President who oversees and ostensibly is
	directing the very rulemaking that we're trying to overrule, we
	can't prevent it from going into place. Isn't that true?
	Ms. Hammond. Are you speaking about the REINS Act as
	proposed, or are you speaking about the Congressional Review
	Act?
	Mr. Moran. Congressional Review Act.
	Ms. Hammond. Yes, it is in place.
	Mr. Moran. Yes. The point I'm trying to make here is,
	effectively, we can't undo what an administrative agency is
	actually going to put in place unless we get through that whole
	process. It's nearly impossible because it turns on its head
	the lawmaking responsibility of Congress, because instead of us
	having some almost impossible veto power over an agency, we
	should be, in fact, be in the primary place to put those rules
	in place to begin with or to enact those laws.
	I want to go back to Ms. Ho. I have just a minute. If we
	work to eliminate the Chevron standard, I want you to speak
	more to what you believe should be the replacement standard
	there.
	Ms. Ho. Certainly, I think the replacement is the
	foundational principle of the judiciary, and that is, it is the
	province of the judiciary to say what the law is. So, I think
	that would be a return to the bedrock principle and the proper
	putting the judiciary as well in its proper sphere of operation
	in our system of separation of power and checks and balances.
	Mr. Moran. Thank you.
	It seems so simple, doesn't it, separation of powers. It's
	not a complex concept, but over time, again, I think both
	parties have eroded that, and unfortunately, we're having to
	deal with that today.
	Mr. Wolfson, noncompete clauses, just with 15 seconds, are
	an integral part, in my opinion, to protecting confidential and
	proprietary information for businesses generating innovation
	and investment. Do you agree with that?
	Mr. Wolfson. I think there are places where noncompete
	clauses make a lot of sense. There are probably other places
	that they don't make a lot of sense. For example, there's some
	examples of fast food restaurants that may require line workers
	to have a noncompete. I think that there is a great policy
	discussion that we should be having about this, but the place
	to have those kinds of policy discussions is in the halls of
	Congress, or more appropriately actually is in the halls of the
	individual legislators of the States who can evaluate in their
	particular States are noncompete clauses being used
	appropriately or not.
	Mr. Moran. I completely agree. I yield back. Thank you.
	Mr. Massie. The gentleman yields back.
	I now recognize myself for five minutes. We've had a great
	discussion today about the structure and nature of our republic
	and actually how far we've wandered afield from our original
	Founders' intent of having separation of powers. So much power
	has been concentrated within the Executive that actually the
	lobbyists have gone there now. I don't see many lobbyists here
	today very concerned about what we're doing. They're all over
	at the Executive Branch and at the administration.
	In fact, under the Obama White House, Google was
	coresident. They hired high-level Google people to run the
	patent board, to sit inside the White House. So, I reject this
	notion that somehow the Executive Branch is immune to lobbying.
	We've been at a very high level for the most part today, and
	that's what's made this a really good hearing. We've talked
	about the structure and nature of government.
	Mr. Cleckner, I want you to boil this down to the specific
	example of a recent rule on the pistol brace and what that
	means, how many people it's going to affect, are these civil
	infractions or criminal infractions? Can you tell us about the
	pistol brace rule when it goes into effect and what the
	consequences are of letting an agency write law.
	Mr. Cleckner. Thank you, Mr. Chair.
	I've heard plenty today about profits over people, and I
	think we're putting regulations over people. I don't think
	we're keeping people safe with more regulations. In fact, I
	think regulations and rules like the pistol brace one is
	actually making it more dangerous.
	On one hand, I love the maxim that every bit of gun control
	is a claim that gun control doesn't work because they want more
	gun laws. On the other hand, I see all these regulations are
	making felons out of otherwise law-abiding citizens. So, you
	asked how many; the Congressional Research Service estimates
	between 10-40 millions of these are out there. Most of these
	Americans do not know that this rule is happening, and even the
	Americans that do know the rule is happening cannot interpret
	it because the ATF is using vague, ambiguous language with
	weights similar to this, with a surface area suitable for that.
	The citizens cannot make these determinations on their own.
	We're talking about a piece of plastic that was previously
	approved by the ATF that people bought maybe even unknowingly,
	it might have come on the firearm already, and they're going to
	be made into felons. This is 18 U.S.C. law that ATF is trying
	to redefine and trying to rewrite. Serious crimes, confusing
	regulations, going back and forth, I don't see how that's
	helping anybody.
	Mr. Massie. When does this take effect? When was it
	announced? When does it take effect? Is the government
	undergoing an ad campaign on TV right now telling millions of
	people they're going to become felons in a few weeks?
	Mr. Cleckner. No, sir. It was technically published on the
	Federal Register, but they had 90 days--
	Mr. Massie. Oh, I hit refresh on that page every day.
	Mr. Cleckner. Exactly right. This has changed. They
	approved these. Another thing we have with the guidance letters
	is they've been giving separate guidance to each manufacturer.
	They're not even giving consistent guidance to the industry on
	what they're allowed to do. So, it's conflicting information.
	That was 2012. A few years later, you couldn't shoulder them, a
	couple years later, you could. It changes so much, I don't know
	how someone is going to be able to keep up with what's going
	on.
	Mr. Massie. The people who are going to become felons by
	virtue of an agency making law because there's a different
	President who hates guns, they weren't they assuming and
	weren't the manufacturers assuming--why did they assume it was
	legal to do what they were doing until this rule went into
	effect?
	Mr. Cleckner. They were specifically told by the ATF that
	it was legal and that they could proceed. Matter of fact, most
	of these manufacturers have their version of the letter from
	the ATF on their website that said, these are legal. See, the
	ATF said it. Some of them even include a copy in the product in
	the boxes.
	So, all these Americans relied upon the ATF telling them it
	was good to go, and now they might not even know that it's not,
	and they're risking being a felon, which takes away their right
	to have any firearm once they're a felon.
	Mr. Massie. It seems like our Founders were really wise to
	put the legislative function in this Chamber and in the Senate,
	because we're up for reelection so frequently. Also, I have
	constituents--we haven't said today--nobody said today there
	should be no regulations. My constituents say, just don't
	change them on me. Let me know what the rules are.
	Our Founders said--the way they set it up required four
	concurrent majorities for a law to change. Think about how
	intelligent that is. The House had to agree, a House majority,
	a Senate majority had to agree, and a majority of the electoral
	college had to agree for a President to sign that bill, and
	then it had to pass the Supreme Court.
	How many majorities are required to approve of a bureaucrat
	changing a law or a rule? As Mr. Moran pointed out, they're not
	subject to anybody's approval, any voter's approval. Now, you
	might say the Supreme Court. OK, the Supreme Court has to
	approve the regulation. As Ms. Ho and Mr. Wolfson has pointed
	out, with Chevron deference even that majority doesn't have to
	agree because we'll just defer to the regulators on this. So, I
	think we need to get back to our Founders' intent and put the
	lawmaking authority back in this body.
	With that, seeing no other Members, that concludes today's
	hearing. We thank the witnesses for appearing before the
	Committee today. We know this takes a lot of time to fly here,
	to prepare for this, and to put yourself through this. So, we
	appreciate all of you very much for being here and helping us
	come to an answer, because the answer should come from
	Congress--it should--on who makes the laws. I hope we all
	agree, we should be making the law.
	Without objection, all Members will have five legislative
	days to submit additional questions for the witnesses or
	additional materials for the record, so you could end up with
	homework as well.
	Without objection, the hearing is adjourned.
	[Whereupon, at 11:19 a.m., the Subcommittee was adjourned.]

	All materials submitted for the record by Members of the
	Subcommittee on the Administrative State, Regulatory Reform,
	and Antitrust can be found at: https://docs.house.gov/
	Committee/Calendar/ByEvent.aspx?EventID=115456.

	[all]
	</pre></body></html>