[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                    
          
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                       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:]
    
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    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:]
    
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    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:]
    
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    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.

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