[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]



                     CONGRESS IN A POST-CHEVRON WORLD

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






                                HEARING

                               before the

                           COMMITTEE ON HOUSE
                             ADMINISTRATION

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             JULY 23, 2024

                               ----------                              

      Printed for the use of the Committee on House Administration
      
      


      
      
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                    CONGRESS IN A POST-CHEVRON WORLD














                    CONGRESS IN A POST-CHEVRON WORLD

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






                                HEARING

                               before the

                           COMMITTEE ON HOUSE
                             ADMINISTRATION

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION
                               __________

                             JULY 23, 2024
                               __________

      Printed for the use of the Committee on House Administration






                [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]






                            www.govinfo.gov
                           www.cha.house.gov
                            
                            
                            
                            
                            
                                ------
                                 
                  U.S. GOVERNMENT PUBLISHING OFFICE 

56-595                    WASHINGTON : 2024















                   COMMITTEE ON HOUSE ADMINISTRATION

                    BRYAN STEIL, Wisconsin, Chairman

BARRY LOUDERMILK, Georgia            JOSEPH MORELLE, New York,
H. MORGAN GRIFFITH, Virginia              Ranking Member
GREG MURPHY, North Carolina          TERRI A. SEWELL, Alabama
STEPHANIE BICE, Oklahoma             NORMA TORRES, California
MIKE CAREY, Ohio                     DEREK KILMER, Washington
ANTHONY D'ESPOSITO, New York
LAUREL LEE, Florida

                      Mike Platt,  Staff Director 
                 Jamie Fleet,  Minority Staff Director
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page

                           Opening Statements

Chairman Bryan Steil, Representative from the State of Wisconsin.     1
    Prepared statement of Chairman Bryan Steil...................     3
Ranking Member Joseph Morelle, Representative from the State of 
  New York.......................................................     4
    Prepared statement of Ranking Member Joseph Morelle..........     6

                               Witnesses

Paul J. Ray, director, Thomas A. Roe Institute for Economic 
  Policy Studies.................................................     8
    Prepared statement of Paul J. Ray............................    11
Satya Thallam, senior vice president of government affairs, 
  Americans for Responsible Innovation...........................    21
    Prepared statement of Satya Thallam..........................    23
Kevin Kosar, Resident Senior Fellow, American Enterprise 
  Institute......................................................    28
    Prepared statement of Kevin Kosar............................    30
Wayne Crews, Fred L. Smith Fellow in Regulatory Studies, 
  Competitive Enterprise Institute...............................    35
    Prepared statement of Wayne Crews............................    38
Josh Chafetz, Agnes Williams Sesquicentennial Professor of Law 
  and Politics, Georgetown University Law Center.................    49
    Prepared statement of Josh Chafetz...........................    52

                       Submissions for the Record

Project 2025.....................................................    71
Written testimony of Doug Holtz-Eakin, president of the American 
  Action Forum...................................................   971
Written testimony of Marci Harris of PopVox......................   976

                        Questions for the Record

Paul J. Ray answers to submitted questions.......................   980
Satya Thallam answers to submitted questions.....................   981
Kevin Kosar answers to submitted questions.......................   986
Wayne Crews answers to submitted questions.......................   990
Josh Chafetz answers to submitted questions......................   999

 
                    CONGRESS IN A POST-CHEVRON WORLD

                              ----------                              

                             July 23, 2024

                 Committee on House Administration,
                                  House of Representatives,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:17 a.m., in 
room 1310, Longworth House Office Building, Hon. Bryan Steil 
[chairman of the Committee] presiding.
    Present: Representatives Steil, Loudermilk, Griffith, Bice, 
Carey, D'Esposito, Lee, Morelle, Sewell, and Torres.
    Staff present: March Bell, Parliamentarian; Jackie Bossman, 
Counsel; Annemarie Cake, Professional Staff and Deputy Clerk; 
Rachel Collins, Deputy General Counsel; Kristen Monterroso, 
Director of Operations and Legislative Clerk; Michael Platt, 
Staff Director; Jordan Wilson, Director of Member Services; 
Khalil Abboud, Minority Deputy Staff Director; Jamie Fleet, 
Minority Staff Director; Kwame Newton, Minority Oversight 
Counsel; Matt Schlesinger, Minority Senior Counsel; and Sean 
Wright, Minority Chief Counsel.

     OPENING  STATEMENT OF HON. BRYAN STEIL,  CHAIRMAN OF
       THE COMMITTEE ON HOUSE ADMINISTRATION, A U.S. REP-
       RESENTATIVE FROM WISCONSIN

    Chairman Steil. The Committee on House Administration will 
come to order. I note that a quorum is present.
    Without objection, the chair may declare a recess at any 
time. Also, without objection, the hearing record will remain 
open for 5 legislative days so Members may submit any material 
they wish to be included therein.
    Thank you, Ranking Member Morelle, Members of the 
Committee, and our witnesses, for participating in today's 
panel.
    When drafting the Constitution, the Founding Fathers 
created the legislative branch under article I and created the 
People's House.
    Our Founders envisioned Congress to be the most powerful 
branch of the Federal Government; yet, in recent years, we have 
seen Congress become possibly the weakest of the three 
branches.
    Last month, the Supreme Court decided that must change.
    In 1982, the Supreme Court made a mistake establishing the 
Chevron doctrine. In Chevron v. NRDC, the Court established the 
Chevron doctrine, concluding that the Court should defer to 
unelected Federal bureaucrats for implicit statutory 
interpretation.
    For 40 years, Federal agencies have interpreted and 
implemented laws based on their own definitions, sometimes 
unaligned with congressional intent.
    Under Chevron, executive branch agencies had the central 
role in interpreting Federal statutes. In turn, it took power 
away from Congress and allowed unelected Federal bureaucrats to 
make decisions that impacted hundreds of millions of Americans.
    Last month, the Supreme Court changed course. In the Loper 
Bright case, the Court overturned the Chevron doctrine and 
placed the lawmaking power back where it belongs--with us in 
Congress.
    The Justices agreed with many of the concerns we in 
Congress have voiced for decades.
    In his concurring opinion, Justice Thomas wrote, quote, 
``By giving the force of law to agency pronouncements on 
matters of private conduct as to which Congress did not 
actually have an intent, Chevron permits a body other than 
Congress to perform a function that requires an exercise of 
legislative power.''
    In his concurring opinion, Justice Gorsuch explained, 
quote, ``Even its most ardent defenders have conceded, Chevron 
deference rests upon a `fictionalized statement of legislative 
desire,' namely, a judicial supposition that Congress 
implicitly wishes judges to defer to executive agencies' 
interpretations of the law even when it has said nothing of the 
kind.''
    The Supreme Court's decision in Loper Bright overturning 
the Chevron doctrine correctly restores legislative power where 
the Constitution actually assigns it--in the legislative 
branch.
    Now it is our opportunity to explore how we leverage the 
Supreme Court's ruling.
    Without action, we run the risk of continuing to grow the 
administrative state. We must rein in the administrative state.
    Let us look at the facts.
    There are 439 executive branch agencies that have the 
authority to issue and enforce Federal regulations. There are 
2.2 million non-military executive branch employees. There are 
over 200,000 pages in the Federal Code of Regulations. In fact, 
the Biden administration published over 90,000 pages in the 
Federal Register last year.
    For context, the Bible is 1,200 pages. That means the Biden 
administration has added roughly 80 Bibles worth of material in 
just 1 year.
    The Biden administration's regulations have cost taxpayers 
an estimated $1.4 trillion since he took office.
    How can Congress address the growing administrative state? 
What are the first steps we should take?
    Today, we will talk about how and when Congress should 
engage in the rulemaking process, Congress' capacity to do so, 
and more.
    For decades, the model was simple--Congress established the 
policies by passing laws and agencies provided technical 
expertise through the rulemaking process. The agencies have 
gone far beyond providing technical expertise.
    Now that the Supreme Court has correctly overturned the 
Chevron deference doctrine, we must begin restoring power to 
the legislative branch.
    This is our opportunity to ask important questions about 
the structure of Congress now that our role in the rulemaking 
process has been reestablished.
    In the Loper Bright decision, the Supreme Court has 
provided a real opportunity for Congress to restore itself to 
the People's House once again.
    I look forward to a robust discussion on the important 
topic today.
    [The prepared statement of Chairman Steil follows:]

       PREPARED STATEMENT OF CHAIRMAN OF THE COMMITTEE 
             ON HOUSE ADMINISTRATION BRYAN STEIL

    When drafting the Constitution, the Founding Fathers 
created the legislative branch under article I and created the 
People's House.
    Our Founders envisioned Congress to be the most powerful 
branch of the Federal Government; yet, in recent years, we have 
seen Congress become possibly the weakest of the three 
branches.
    Last month, the Supreme Court decided that must change.
    In 1982, the Supreme Court made a mistake establishing the 
Chevron doctrine. In Chevron v. NRDC, the Court established the 
Chevron doctrine, concluding that the Court should defer to 
unelected Federal bureaucrats for implicit statutory 
interpretation.
    For 40 years, Federal agencies have interpreted and 
implemented laws based on their own definitions, sometimes 
unaligned with congressional intent.
    Under Chevron, executive branch agencies had the central 
role in interpreting Federal statutes. In turn, it took power 
away from Congress and allowed unelected Federal bureaucrats to 
make decisions that impacted hundreds of millions of Americans.
    Last month, the Supreme Court changed course. In the Loper 
Bright case, the Court overturned the Chevron doctrine and 
placed the lawmaking power back where it belongs--with us in 
Congress.
    The Justices agreed with many of the concerns we in 
Congress have voiced for decades.
    In his concurring opinion, Justice Thomas wrote, quote, 
``By giving the force of law to agency pronouncements on 
matters of private conduct as to which Congress did not 
actually have an intent, Chevron permits a body other than 
Congress to perform a function that requires an exercise of 
legislative power.''
    In his concurring opinion, Justice Gorsuch explained, 
quote, ``Even its most ardent defenders have conceded, Chevron 
deference rests upon a `fictionalized statement of legislative 
desire,' namely, a judicial supposition that Congress 
implicitly wishes judges to defer to executive agencies' 
interpretations of the law even when it has said nothing of the 
kind.''
    The Supreme Court's decision in Loper Bright overturning 
the Chevron doctrine correctly restores legislative power where 
the Constitution actually assigns it--in the legislative 
branch.
    Now it is our opportunity to explore how we leverage the 
Supreme Court's ruling.
    Without action, we run the risk of continuing to grow the 
administrative state. We must rein in the administrative state.
    Let us look at the facts.
    There are 439 executive branch agencies that have the 
authority to issue and enforce Federal regulations. There are 
2.2 million non-military executive branch employees. There are 
over 200,000 pages in the Federal Code of Regulations. In fact, 
the Biden administration published over 90,000 pages in the 
Federal Register last year.
    For context, the Bible is 1,200 pages. That means the Biden 
administration has added roughly 80 Bibles worth of material in 
just 1 year.
    The Biden administration's regulations have cost taxpayers 
an estimated $1.4 trillion since he took office.
    How can Congress address the growing administrative state? 
What are the first steps we should take?
    Today, we will talk about how and when Congress should 
engage in the rulemaking process, Congress' capacity to do so, 
and more.
    For decades, the model was simple--Congress established the 
policies by passing laws and agencies provided technical 
expertise through the rulemaking process. The agencies have 
gone far beyond providing technical expertise.
    Now that the Supreme Court has correctly overturned the 
Chevron deference doctrine, we must begin restoring power to 
the legislative branch.
    This is our opportunity to ask important questions about 
the structure of Congress now that our role in the rulemaking 
process has been reestablished.
    In the Loper Bright decision, the Supreme Court has 
provided a real opportunity for Congress to restore itself to 
the People's House once again.
    I look forward to a robust discussion on the important 
topic today.

    Chairman Steil. I am going to recognize Ranking Member 
Morelle in just a second. We, obviously, have votes coming up. 
Just in an operations standpoint, we are going to go until we 
determine we have to head to the floor. We will take a brief 
recess, and we will return.
    Now I will recognize Ranking Member Morelle for 5 minutes 
for the purpose of providing an opening statement.

     OPENING STATEMENT OF HON. JOSEPH MORELLE,  RANKING 
       MEMBER OF THE COMMITTEE ON HOUSE ADMINISTRATION,
       A U.S. REPRESENTATIVE FROM NEW YORK

    Mr. Morelle. Good morning.
    Thank you, Chairman Steil.
    Thank you to the witnesses for being here today.
    Too frequently in recent years the conservative majority on 
the U.S. Supreme Court has reversed longstanding legal 
precedent. These decisions have harmed the American public.
    Take, for example, the conservative majority's decision to 
overturn Roe v. Wade and restrict reproductive freedom in 
America; or, in another instance, this Court further eroded the 
ability for Americans of color to cast a free, fair, and 
meaningful ballot.
    Most recently, the extreme conservatives on the Supreme 
Court reversed the 1984 Chevron v. Natural Resources Defense 
Council decision, which allowed the Government to implement 
reasonable regulations within their expertise.
    This decision is what we are here to discuss today.
    Chevron stood for the common-sense proposition that 
Congress and the executive branch should be the primary 
policymakers in Government because they are accountable to the 
people through the ballot box. The power rests with the people, 
not an unelected court.
    Congress empowers the executive branch to make certain 
policy choices. These choices often involve scientific or 
technical subjects about which agencies have greater expertise 
than Congress and the courts.
    In reversing Chevron, however, the Supreme Court makes it 
more difficult for Congress to exercise its power. In an 
instant, the conservative majority on the Supreme Court 
substituted its policymaking judgment for the elected branches 
of Government. The American people will suffer as a result.
    Let us be crystal clear: This decision did not empower 
Congress. I strongly disagree with my friend and chair, Mr. 
Steil. It empowered the conservative majority on the Supreme 
Court and a legion of Federalist Society-vetted lower court 
judges to make extreme and ill-informed decisions impacting 
every American's daily life.
    Further, the decision is a tremendous gift to the wealthy 
and to special interests. Corporations will bend over backward 
to find cases to undo existing regulations protecting the food 
and drugs our children consume, the quality of the air we all 
breathe, and the cleanliness of the water our families drink.
    Imagine weaker regulations on baby food and baby formula. 
Imagine weaker regulations on brake pads for our cars. Imagine 
weaker regulations for air travel and traffic control.
    This decision will inhibit sensible regulation of 
especially technical policy areas, including nuclear power, 
artificial intelligence, climate and the climate crisis, and so 
much more.
    It is important to understand that this extreme decision 
also plays into the MAGA Republicans' playbook. If Republicans 
are successful this November, they will unleash Trump's Project 
2025 on the American people. We know the harm Trump's Project 
2025 will cause.
    By mass firing civil servants, like the people who work 
every day to ensure our produce is not rotting and our meat is 
not putrid, Trump's Project 2025 will further threaten the 
Government's expertise to address the most pressing issues of 
our day.
    Reversing Chevron and implementing Trump's Project 2025 are 
interconnected. Look no further than today's hearing, which 
includes a witness called by the Republican majority who was 
recognized for, quote, ``devoting a significant amount of 
valuable time to reviewing and editing Project 2025 and for 
providing expert advice and insight on the project.''
    Here we are. In Congress, we are left to deal with the 
fallout. Even before the decision, as documented by the 
bipartisan Select Committee on Modernization, led by our 
colleague Representative Derek Kilmer in the previous Congress, 
Congress desperately needed an infusion of resources, capacity, 
and expertise. Now the need is more urgent.
    If my colleagues on the other side of the aisle are serious 
about preparing us for a post-Chevron existence, we need to 
approve an adequate legislative branch appropriations bill. The 
Republican majority embarrassingly failed to pass the 
legislative appropriations bill last week because they refused 
to work in a bipartisan manner to prioritize our constituents 
and this article I institution.
    Even after catering to extreme MAGA Republicans in the 
legislative branch Subcommittee markup and then during 
Committee at the full Committee, of which I am a Member, all 
that pandering was for nothing.
    Extreme MAGA Republicans defeated the appropriations bill 
on the floor, which funds offices like the Office of 
Legislative Counsel, the parliamentarian, the Congressional 
Research Service, not because the bill did too little, but 
because they believe it provides too much.
    We know what we need to do because we have done it before. 
I am proud of the recent improvements made during Democratic 
control of the House to recruit and retain skilled staff 
spearheaded by this Committee. That included imposing the 
first-ever minimum pay rate for full-time House staff, 
decoupling Member pay and staff pay, which allowed us to raise 
the staff pay cap and retain subject matter experts and policy 
drafters, expanding benefits like the Student Loan Repayment 
Program, increasing resources for the Congressional Staff 
Academy and the Coach program.
    To meet the moment, we need to be clear-eyed about how 
significant an investment is required. This Committee is well-
positioned to lead. I hope we can do so in a bipartisan 
fashion.
    With that, Mr. Chair, I yield back my time.
    [The prepared statement of Ranking Member Morelle follows:]

         PREPARED STATEMENT OF RANKING MEMBER OF THE
       COMMITTEE ON HOUSE ADMINISTRATION JOSEPH MORELLE

    Too frequently in recent years the conservative majority on 
the U.S. Supreme Court has reversed longstanding legal 
precedent. These decisions have harmed the American public.
    Take, for example, the conservative majority's decision to 
overturn Roe v. Wade and restrict reproductive freedom in 
America; or, in another instance, this Court further eroded the 
ability for Americans of color to cast a free, fair, and 
meaningful ballot.
    Most recently, the extreme conservatives on the Supreme 
Court reversed the 1984 Chevron v. Natural Resources Defense 
Council decision, which allowed the Government to implement 
reasonable regulations within their expertise.
    This decision is what we are here to discuss today.
    Chevron stood for the common-sense proposition that 
Congress and the executive branch should be the primary 
policymakers in Government because they are accountable to the 
people through the ballot box. The power rests with the people, 
not an unelected court.
    Congress empowers the executive branch to make certain 
policy choices. These choices often involve scientific or 
technical subjects about which agencies have greater expertise 
than Congress and the courts.
    In reversing Chevron, however, the Supreme Court makes it 
more difficult for Congress to exercise its power. In an 
instant, the conservative majority on the Supreme Court 
substituted its policymaking judgment for the elected branches 
of Government. The American people will suffer as a result.
    Let us be crystal clear: This decision did not empower 
Congress. I strongly disagree with my friend and chair, Mr. 
Steil. It empowered the conservative majority on the Supreme 
Court and a legion of Federalist Society-vetted lower court 
judges to make extreme and ill-informed decisions impacting 
every American's daily life.
    Further, the decision is a tremendous gift to the wealthy 
and to special interests. Corporations will bend over backward 
to find cases to undo existing regulations protecting the food 
and drugs our children consume, the quality of the air we all 
breathe, and the cleanliness of the water our families drink.
    Imagine weaker regulations on baby food and baby formula. 
Imagine weaker regulations on brake pads for our cars. Imagine 
weaker regulations for air travel and traffic control.
    This decision will inhibit sensible regulation of 
especially technical policy areas, including nuclear power, 
artificial intelligence, climate and the climate crisis, and so 
much more.
    It is important to understand that this extreme decision 
also plays into the MAGA Republicans' playbook. If Republicans 
are successful this November, they will unleash Trump's Project 
2025 on the American people. We know the harm Trump's Project 
2025 will cause.
    By mass firing civil servants, like the people who work 
every day to ensure our produce is not rotting and our meat is 
not putrid, Trump's Project 2025 will further threaten the 
Government's expertise to address the most pressing issues of 
our day.
    Reversing Chevron and implementing Trump's Project 2025 are 
interconnected. Look no further than today's hearing, which 
includes a witness called by the Republican majority who was 
recognized for, quote, ``devoting a significant amount of 
valuable time to reviewing and editing Project 2025 and for 
providing expert advice and insight on the project.''
    Here we are. In Congress, we are left to deal with the 
fallout. Even before the decision, as documented by the 
bipartisan Select Committee on Modernization, led by our 
colleague Representative Derek Kilmer in the previous Congress, 
Congress desperately needed an infusion of resources, capacity, 
and expertise. Now the need is more urgent.
    If my colleagues on the other side of the aisle are serious 
about preparing us for a post-Chevron existence, we need to 
approve an adequate legislative branch appropriations bill. The 
Republican majority embarrassingly failed to pass the 
legislative appropriations bill last week because they refused 
to work in a bipartisan manner to prioritize our constituents 
and this article I institution.
    Even after catering to extreme MAGA Republicans in the 
legislative branch Subcommittee markup and then during 
Committee at the full Committee, of which I am a Member, all 
that pandering was for nothing.
    Extreme MAGA Republicans defeated the appropriations bill 
on the floor, which funds offices like the Office of 
Legislative Counsel, the parliamentarian, the Congressional 
Research Service, not because the bill did too little, but 
because they believe it provides too much.
    We know what we need to do because we have done it before. 
I am proud of the recent improvements made during Democratic 
control of the House to recruit and retain skilled staff 
spearheaded by this Committee. That included imposing the 
first-ever minimum pay rate for full-time House staff, 
decoupling Member pay and staff pay, which allowed us to raise 
the staff pay cap and retain subject matter experts and policy 
drafters, expanding benefits like the Student Loan Repayment 
Program, increasing resources for the Congressional Staff 
Academy and the Coach program.
    To meet the moment, we need to be clear-eyed about how 
significant an investment is required. This Committee is well-
positioned to lead. I hope we can do so in a bipartisan 
fashion.

    Chairman Steil. The gentleman yields back.
    Today we have a one witness panel.
    The Honorable Paul J. Ray, former associate director of the 
Office of Information and Regulatory Affairs that is housed 
within the executive branch's Office of Management and Budget, 
where he supervised and reviewed hundreds of regulations. He 
now leads the Heritage Foundation's work on regulatory and 
economic policy as director of the Thomas A. Roe Institute for 
Economic Policy Studies.
    Mr. Satya Thallam is a former senior advisor at OIRA and is 
now the senior vice president of Government affairs for 
Americans for Responsible Innovation. He is a policy expert and 
advisor, having served in senior roles in the congressional and 
executive branches, and is an executive at a biotechnology 
startup.
    Dr. Kevin Kosar is a resident senior fellow at the American 
Enterprise Institute where he studies Congress, congressional 
oversight, and the administrative state. Dr. Kosar has written 
several books, spent more than a decade working for the 
Congressional Research Service, and has previously testified 
before our Modernization Subcommittee.
    Mr. Wayne Crews is the Fred L. Smith Fellow in Regulatory 
Studies at the Competitive Enterprise Institute. His work 
explores the impact of Government regulation on free 
enterprise. Mr. Crews has authored numerous works, such as the 
annual report titled ``Ten Thousand Commandments: An Annual 
Snapshot of the Federal Regulatory State.''
    Professor Josh Chafetz is an Agnes Williams 
Sesquicentennial Professor of Law and Politics at the 
Georgetown University Law Center. Professor Chafetz has 
multiple publications, including his book titled ``Congress's 
Constitution: Legislative Authority and the Separation of 
Powers.''
    We appreciate you being with us today and look forward to 
your testimony.
    Pursuant to paragraph (b) of Committee Rule 6, the 
witnesses will please stand and raise their right hands.
    [Witnesses sworn.]
    Chairman Steil. Let the record show that the witnesses all 
answered in the affirmative.
    You may be seated.
    Let me remind the witnesses that we have read your written 
statements, and they will appear in full in the hearing record. 
Under Committee Rule 9, you are to limit your oral presentation 
to a brief summary of your written remarks.
    We are going to take a brief pause of the Committee before 
we begin opening remarks. I would remind the Members they have 
told us that they are going to gavel down the first vote at a 
hard 20 minutes. We will see if that is the case. Following the 
four votes, we will return promptly.
    The Committee stands in recess.
    [Recess.]
    Chairman Steil. The Committee on House Administration will 
reconvene and come to order where we left off.
    I will now recognize Hon. Paul Ray for 5 minutes for the 
purpose of giving an opening statement.

    STATEMENTS OF PAUL J. RAY, DIRECTOR, THOMAS A. ROE IN-
      STITUTE   FOR   ECONOMIC   POLICY   STUDIES;   SATYA
      THALLAM,  SENIOR  VICE  PRESIDENT  OF GOVERNMENT AF-
      FAIRS,  AMERICANS FOR RESPONSIBLE INNOVATION;  KEVIN
      KOSAR,  RESIDENT  SENIOR  FELLOW,   AMERICAN  ENTER-
      PRISE INSTITUTE;  WAYNE CREWS,  FRED L. SMITH FELLOW
      IN REGULATORY  STUDIES,  COMPETITIVE  ENTERPRISE IN-
      STITUTE;  AND  JOSH CHAFETZ,  AGNES WILLIAMS SESQUI-
      CENTENNIAL  PROFESSOR  OF LAW AND POLITICS,  GEORGE-
      TOWN UNIVERSITY LAW CENTER

                    STATEMENT OF PAUL J. RAY

    Mr. Ray. Chairman Steil, Ranking Member Morelle, and 
distinguished Members of the Committee, it is an honor to 
appear here today. Thank you for the invitation.
    I direct the Heritage Foundation's Roe Institute for 
Economic Policy Studies. From June 2018 through January 2021, I 
served in the Office of Information and Regulatory Affairs 
within OMB. For the last year of that period, I had the double 
honor to serve as Administrator of OIRA and to work with Satya 
here to my right.
    While at OIRA, I had the chance to form views about many of 
the ways our regulatory system succeeds and fails. The views I 
express here are my own and should not be construed as 
representing any official position of the Heritage Foundation.
    Today's topic--the relationship of Congress to the 
agencies--is a vast one. Every year many bills are introduced 
to modify this relationship.
    Today, I would like to offer some thoughts on the 
overarching framework for evaluating such bills. I would like 
to argue that the Founders intended Congress to provide not 
just representation but a certain sort of representation, one 
that imports into the legislative process certain qualities 
that Congress and Congress alone can offer. Congress would 
favor bills that inject these qualities into the administrative 
process.
    The Loper Bright and Relentless decisions have made it 
easier for Congress to play its role successfully, though, 
ultimately, that success has to come down to the actions of 
Congress itself.
    In 1788, Founding Father John Dickinson wrote that under 
the newly proposed American Constitution, quote, ``the whole 
people of the United States are to be trebly represented . . . 
in three different modes of representation.'' Each branch of 
the new Government would represent the people in its own unique 
way. Congress was to channel the people's wisdom and justice; 
the President, their energy; and the courts, their judgment.
    The Constitution brings these three modes of representation 
together in an arrangement that puts to use the qualities of 
each.
    The Founders intended Congress to offer qualities that the 
President and the courts do not. Congress was meant to be the 
people in miniature. In John Adams' words, it would think, 
feel, reason, and act like the people.
    Elections are, of course, one principal way of achieving 
this goal, but there are others. The Founders believed it 
crucial that Members of Congress feel the effects of their 
legislation precisely the same way the people do. They 
emphasized that Members of Congress would be subject to the 
laws they enact just like the people and so would share a, 
quote, ``communion of interests and sympathy of sentiments'' 
with the people, as the Federalist Papers put it.
    The separation of powers preserves that communion, for by 
barring Congress from enhancing its own powers through 
legislation it prevents the distorting incentives to which such 
a possibility would give rise.
    These arrangements serve to channel the people's views into 
legislation, but as the Founders discovered during the 
turbulent first years of independence, the people is no 
monolithic entity. It comprises a vast diversity of interest 
and opinion groups, some of which are all too willing to use 
State power to exploit their opponents.
    The Founders' solution to this problem relied on these very 
same diverse interest and opinion groups. To garner a majority 
of votes, legislation must attract the support of many 
disparate factions and so must appeal either to interests most 
or all Americans share or to our common sense of justice.
    While it is also possible for legislation to achieve 
passage based on its appeal to a majority coalition of 
factions, the multipolar legislative process was intended to 
make the transaction costs of forging coalitions like this 
prohibitively high.
    Now, administrative agencies are not set up to offer the 
benefits of legislative representation. There are two main 
models of administration, which we can call bureaucratic and 
Presidential.
    On the bureaucratic side, agencies are supposed to operate 
rather like policy courts. Indeed, early advocates analogized 
the agencies to courts and argued they should receive the same 
kinds of protections for their independence that courts enjoy.
    The problem with the analogy is that statutes often leave 
substantial policy discretion to the agencies. Agencies, unlike 
courts, must set policy.
    Article III-style representation is hopelessly ill-suited 
to channel the people's policy views. For one thing, agency 
officials are not elected, nor do they live under the 
regulations they issue.
    To the contrary, agencies can enhance their own powers 
through their regulations, which can sometimes give them 
interests that are opposite to the people's, notwithstanding 
the best efforts of the agency staff.
    Nor can Presidential administrations supply the qualities 
of legislative representation. This is mainly because 
Presidential unity exposes the Presidential decision-making 
process to capture by interest and opinion groups, which can 
obtain the executive action they want without persuading 
representatives of many diverse factions, as they must under 
article I.
    Presidential supervision of administrative agencies has 
much to be said for it, but one thing that cannot be said for 
it is that it can substitute for Congress' own role.
    Of currently pending legislation, the REINS Act would go 
furthest toward reviving legislation representation in the 
context of the administrative state. The Act would, in large 
part, subject major regulations to the article I process with 
its electoral responsiveness, separation of powers, antifaction 
protections, and stability-promoting features.
    More broadly, Congress' role with respect to the agencies 
should be to inject into the process those qualities that 
legislative representation was intended to provide. Loper 
Bright and Relentless can help Congress to do so by lowering 
the transaction costs of enacting legislative effects that 
limit agency discretion.
    Thank you.
    [The prepared statement of Mr. Ray follows:]

               PREPARED STATEMENT OF PAUL J. RAY

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    Chairman Steil. Thank you very much.
    I now recognize you, Mr. Satya Thallam, for 5 minutes.

                   STATEMENT OF SATYA THALLAM

    Mr. Thallam. Thank you, Chairman Steil, Ranking Member 
Morelle, and Members of Committee. Thank you for the 
opportunity to testify.
    I will apologize up front. I lost my voice a couple days 
ago. Now I am relegated to sounding like Wilford Brimley or 
something or the coach from ``Major League.''
    My name is Satya Thallam, senior VP at Americans for 
Responsible Innovation, senior fellow at Foundation for 
American Innovation, and perhaps most pertinent for this 
hearing, for a number of years I was a senior staffer at the 
Senate Committee that had primary jurisdiction over the 
Administrative Procedure Act and all regulatory process-related 
issues, and later worked at OIRA, which Paul mentioned.
    In this testimony, I hope to make three basic points.
    First, if you will pardon the slightly obtuse metaphor, 
Federal policymaking follows something like the first law of 
thermodynamics: Energy in a system can move between different 
parts or change form, but it is neither created nor destroyed.
    What this means is if one branch does not energetically 
exploit its prerogative to make policy decisions, those policy 
decisions will be made elsewhere by the other branches.
    Like a balloon, squeezing on one part will simply move the 
gas to another area. Ambition must be made to counteract 
ambition, as Madison said, but apathy is not met with 
symmetrical apathy.
    What the Court has done is used its own prerogative to 
reassert a new equilibrium, and, yes, this has the effect of 
empowering the article I branch. This effect is not self-
executing. It is right now a kind of potential energy waiting 
for a force to be applied turning it into kinetic energy, to 
further torture my classical mechanics metaphor.
    Second, let us remember that the original Chevron decision 
itself ultimately permitted agency discretion in that case in 
what most people agreed was a deregulatory direction. The APA 
had wanted to permit more flexibility in regulatory compliance, 
making the existing rule less constraining.
    The Chevron decision, not the most recent decision but the 
original Chevron decision and now Loper Bright, are neither, 
quote, ``regulatory or deregulatory.'' This formulation makes 
no sense.
    Further on this point, the APA does not contemplate a thing 
called a, quote, ``deregulation'' as something afforded a 
deferential process. The APA defines rulemaking as, quote, 
``agency process for formulating, amending, or appealing a 
rule.'' In other words, everything, any change to the Code of 
Federal Regulations, is similarly situated and is not tilted in 
favor of one or the other.
    Third point, and I believe at least some, if not all, of my 
colleagues on this panel will agree with the need, maybe not 
even limited to responding to this decision, to increase 
congressional capacity.
    As the sole branch of Government constitutionally vested 
with legislative powers, it behooves Congress to be best 
equipped to execute that responsibility. In naive terms, 
Congress is worse off.
    Since this decision, contrary to the hearing's title, it 
has actually returned to the pre-Chevron regime.
    Let us go back. In the 40 years since the decision, the 
total number of congressional staff has actually decreased, has 
actually gone down by a few percent. In the last 30 years, the 
number of Committee staff has gone down by 40 percent.
    Does anyone on the Committee believe Congress' work has 
become less complicated, confusing, and therefore easier since 
then?
    Members of Congress may be wary of the self-aggrandizing 
appearance of accumulating more staff, but human capital and 
expertise are embodied in people, and this kind of a decrease 
in intellectual capacity has only one result in terms of 
productivity and effectiveness. This is, admittedly, a crude 
measurement of congressional capacity, but I hope you get the 
point.
    Finally, an anecdote on this capacity on a slightly related 
thing.
    Many of you are familiar with the Congressional Review Act 
and its requirement that a report be submitted to Congress for 
review for every new rule. Well, in 2020, for obvious reasons, 
the normal processes for submitting those reports, which at the 
time were all done by hard copy, were severely challenged.
    When I inquired with various offices to find a solution, 
like submitting those reports electronically, therefore they 
would have a time stamp of the receipt, and then follow up with 
hard copies, I was told emphatically, ``We do not have the 
capacity to set up such a system.''
    I do not want to be too precious about this point, but if 
Congress has not made even modest administrative updates of 
fairly mundane processes, how can we believe Congress is 
equipped to handle an increasingly complex, unpredictable, and 
fast-moving 21st century?
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Thallam follows:]

              PREPARED STATEMENT OF SATYA THALLAM

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    Chairman Steil. Thank you very much.
    I now recognize you, Mr. Kevin Kosar, for 5 minutes.

                    STATEMENT OF KEVIN KOSAR

    Mr. Kosar. All righty. Chairman, Ranking Member, and 
Members of the Committee, thank you for having me in. I am 
honored to be before you.
    Well, I will limit myself to two points, the first of which 
is evident, but there has been a lot of hyperbolic commentary 
online and in the media.
    The Court's decision in Loper Bright and the Relentless 
cases did not end regulation. It did not slay the 
administrative state. Agencies will continue to interpret the 
law and to issue regulation and guidance and all those sorts of 
documents to try to apply statutes.
    This leads me to point No. 2, which my friend has well set 
up: Congress does not really have an oversight apparatus to 
ensure that when the executive branch engages in regulatory 
actions, that their actions comport with the law.
    article I of the Constitution, as has been said, confers 
all legislative authority, all lawmaking authority, to this 
institution, Congress.
    article II says the President shall take care that the law 
be faithfully executed. Well, how do you ensure that the law is 
being faithfully executed?
    Over the course of the last century, as the scope of 
Federal activities has grown, Congress has made various ad hoc 
investments in itself to do that. It, for example, 100 years 
ago created the General Accounting Office, GAO, to follow the 
money and ensure money was not being spent outside the bounds 
set by appropriations acts.
    It created inspectors general to keep an eye on agency 
personnel----
    Chairman Steil. Mr. Kosar, I am getting a note that it is a 
little difficult to hear you on the stream. We can hear you in 
the room just fine, but I know we have a lot of people 
listening. If you just want to pull that microphone a little 
closer, because I want to make sure everyone online can hear.
    Mr. Kosar. Sure. How is that?
    Chairman Steil. Thank you.
    Mr. Kosar. All right. Thank you.
    Yes, you also created inspectors general in order to keep 
an eye on agency personnel and make sure they were not acting 
outside of the law.
    Nothing has been built to help you all oversee regulation 
and ensure that it is being done in a way that is within the 
bounds of the law. Today regulation is a massive part of 
policymaking. As noted in your introductory statement, we have 
439 agencies, and there are a few thousand rules being issued 
every year, some small, some large. That is a lot of work, and 
nobody is directly tasked with doing it.
    I come to you, a conservative who believes in 
constitutional Government, reviving federalism, smaller 
Government, all those sort of traditional conservative values, 
and I am saying, please create a congressional regulation 
office. Whether it is a freestanding office, whether it is an 
office you tuck inside the Congressional Budget Office is not 
something that matters to me.
    20 years in D.C., it has been my perception that if you 
want something to get done you have to task somebody with doing 
it. I see you all working frantically. I see your staffs 
working especially frantically. Many things to do, so much to 
oversee, so much coming at you. How you can fruitfully engage 
regulatory actions at this point, I do not think you can. The 
capacity is just not there.
    Creating a corps of folks who have legal skills, policy 
chops, but also statistical analysis skills who can look at the 
executive branch as it moves through the regulatory process 
from snout to tail and ensure that what they are doing is 
within the law.
    This is a corps of folks who could help maintain a dialog 
for the Congress with the executive branch as it goes through 
the process, as it works through these nettlesome, complicated 
issues and deals with these unforeseen things that were 
probably not even on your mind as you passed the bill.
    With that, you know what, I have got 50 seconds left. I am 
just going to give back my time and thank you for hearing me.
    [The prepared statement of Mr. Kosar follows:]

               PREPARED STATEMENT OF KEVIN KOSAR

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    Chairman Steil. Unprecedented. The gentleman yields back.
    [Laughter.]
    Chairman Steil. Mr. Wayne Crews is recognized for 5 
minutes.

                    STATEMENT OF WAYNE CREWS

    Mr. Crews. Chairman Steil, Ranking Member Morelle, and 
Members of the Committee, thank you for the opportunity to 
testify on Congress' role in a post-Chevron world.
    My name is Wayne Crews. I am the Fred L. Smith Fellow in 
Regulatory Studies at the Competitive Enterprise Institute.
    Federal spending hogs the spotlight, but the hidden tax of 
regulation affects every aspect of our lives. The Code of 
Federal Regulations tops 188,000 pages. Last year alone 
agencies issued 3,000 rules compared to just 65 laws passed by 
Congress.
    Costs remain unaccounted for, notably those from 
independent agencies now ascendent in whole-of-Government 
pursuits like Net Zero Energy, AI, equity, and competition 
policy.
    Congress must reclaim its lawmaking authority from the 
executive branch, but first and foremost it must restrain its 
own interventionist appetites.
    There are many elements to this in my written remarks, but 
they all require that Congress--and this Committee in 
particular--marshal appropriate resources and personnel to 
perform rigorous regulatory oversight and disclosures, 
replacing the eroded White House variant.
    The end of Chevron deference marks an overdue reaffirmation 
of separation of powers and a break on overdelegation. However, 
it is crucial to recognize the extent to which regulatory 
advocates will mobilize in response.
    While extraordinary extensions of regulatory power occurred 
during Chevron's reign, most of the leverageable administrative 
apparatus was erected before then. Especially since COVID, the 
problem is less about agency interpretation of the ambiguous 
statutes at hand in Loper but agencies' implementation of 
unambiguous statutes.
    The Inflation and Infrastructure and CHIPS laws are 
exceedingly regulatory even before administrators pick up a 
pencil. Workarounds exist for regulatory advocates to exploit 
in a post-Chevron world, including:
    One, more coordination on potent, unambiguous, and purpose-
driven legislation, like the CARES Act and the TikTok ban.
    Two, seducing the private sector with subsidies, grants, 
and partnerships to embrace interventionist legislation and 
cartelization.
    Three, increasing Federal influence with hundreds of 
billions in procurement and contracting.
    Four, replacing notice and comment rules with guidance 
documents and other forms of regulatory dark matter.
    To prepare, an outstanding but neglected new GAO report 
provides recommendations that this Committee should heed, up to 
and including establishing a Congressional Office of Regulatory 
Analysis.
    Done correctly, a CORA could challenge mistaken 
presumptions of agency expertise and avoid the faulty 
presumption that market failure outweighs political failure.
    To reinforce GAO, other needed steps include overturning 
Biden's rewrite of OMB Circular A-4 and ensuring that 
regulatory reform laws already in effect but disregarded get 
enforced.
    Next comes the pursuit of several new legislative reforms.
    One, passing the REINS Act, ideally under its predecessor's 
superior name, the Congressional Responsibility Act.
    Two, taking up the Democrats on their marvelous regulatory 
budgeting idea.
    Three, creating a regulatory reduction commission.
    Four, reinstating one-in, one-out policies and sunsetting 
regulations.
    Fifth, and most importantly, reforms in the use of agency 
subregulatory guidance documents, including banning them.
    Six, the low-hanging fruit should be the annual regulatory 
reporting in the style of the Federal budget's historical 
tables.
    A generation ago, a slate of regulatory reforms benefiting 
State and local government, small business, and consumers 
passed with overwhelming bipartisan support. Today's fusion of 
hyper spending and regulation, Government steers while the 
market merely rose, as our founder Fred Smith puts it, the 
costs of intervention compound even without writing notice and 
comment rules.
    Correcting overdelegation is vital, but the real challenge 
is Congress' own disregard for enumerated powers. Response 
requires decentralizations, federalism, and ending the abuse of 
crises like happened with COVID and the financial meltdown.
    By enhancing resources and fostering reforms, this 
Committee could play a key role in limiting overregulation and 
expanding jobs and wealth. You do not need to tell the grass to 
grow, you just have to take the rocks off of it.
    Thank you again, and I am happy to answer your questions.
    [The prepared statement of Mr. Crews follows:]

               PREPARED STATEMENT OF WAYNE CREWS

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    Chairman Steil. Thank you very much, Mr. Crews.
    Mr. Josh Chafetz, you are now recognized for 5 minutes.

                   STATEMENT OF JOSH CHAFETZ

    Mr. Chafetz. Chairman Steil, Ranking Member Morelle, and 
distinguished Members of the Committee, thank you for the 
opportunity to testify today regarding the vitally important 
topic of congressional responses to the Supreme Court's recent 
Loper Bright decision, which ended the practice of according 
Chevron deference to agencies' interpretations of the statutes 
that they administer.
    Let me begin with a few words about the likely effects of 
Loper Bright.
    First, it is likely to lead to more judicial policymaking. 
The largest study of agency statutory interpretation cases in 
the circuit courts found that use of Chevron deference 
significantly reduced ideological decision making by judges. In 
pre-Loper Bright cases where Chevron deference was not applied, 
political preferences played a much larger role in case 
outcomes.
    One thing we can say about Loper Bright is it will very 
likely free the hands of judges to dispense with regulations 
that they dislike.
    Indeed, we should see Loper Bright as part of a larger 
project by the Roberts' Court of judicial self-aggrandizement 
across administrative law and beyond.
    In context, ranging from the removability of agency 
officials to the availability of in-house agency adjudication 
to the so-called major questions doctrine and more, the Court 
has repeatedly undermined the regulatory regimes that Congress 
has put in place. In their stead, the Court has substituted its 
own preferences as to how Government should be constructed and 
what policies it may enact.
    Loper Bright ignores research demonstrating that Chevron 
was the interpretive tool most familiar to congressional 
drafters, far more so than canons relied upon by the Supreme 
Court with some regularity.
    Drafters were well aware that statutory ambiguity would be 
interpreted as the delegation of interpretive authority to the 
agency, and if they did not want that agency to have that 
authority they attempted to draft with greater specificity.
    Eliminating a doctrine in whose shadow Congress has drafted 
for decades and replacing it with something significantly less 
certain in its operation is not congressional empowerment. It 
is judicial empowerment.
    Agencies, seeing this posture by the courts, are likely to 
respond by preemptively trimming their sails, issuing only 
those regulations that they think are likely to meet with 
judicial approval and refraining from altering old 
interpretations even as new information and new technologies 
become available.
    The flexibility that is a hallmark of the administrative 
state, the flexibility that Congress has designed into the 
administrative state will be substantially undermined, all 
under the flag of supposedly empowering Congress.
    What can Congress do to respond to this judicial power 
grab?
    Well, first, in the realm of bill drafting, Congress can 
write deference into individual bills empowering agencies, or 
it could even draft a standalone bill reinstituting Chevron 
deference.
    Because Loper Bright claims to be an interpretation of the 
Administrative Procedure Act, not a constitutional holding, it 
can be reversed by statute.
    Congress could also choose to draft in ways that clearly 
indicate that it is vesting significant discretion in agencies, 
using words like ``reasonable'' or ``appropriate.'' This, too, 
would be consistent with the language of the Loper Bright 
decision.
    Of course, just because these drafting techniques would be 
consistent with the facial reasoning of Loper Bright does not 
mean that the Court would not find other ways to skirt them or 
strike them down. The general anti-administrative posture of 
the current Court should make us skeptical that it will allow 
Congress to assert itself in these ways.
    The other category of responses to Loper Bright falls under 
the heading of congressional capacity building, and here is an 
area in which I think possibly all of us on this panel agree.
    If the Court is going to insist that Congress make policy 
at ever more granular levels, then Congress will need to build 
an institutional infrastructure mirroring that which currently 
exists at the agencies. This means large increases in the 
number of staffers and diversifying the experience of staffers, 
including hiring many with graduate degrees in the social and 
physical sciences and many more with security clearances.
    It means paying those staffers well enough to retain them 
and giving them access to resources like sophisticated 
information technology databases and perhaps even in some cases 
laboratories.
    The proposals put forward by the Modernization Committee, 
some of which have been adopted, would be a step in the right 
direction, but only a step. Even a massive increase in 
congressional capacity could never fully substitute for 
administrative expertise.
    There is a reason that no modern democratic system that I 
am aware of has its legislature making policy at the level of 
granularity at which agencies regulate.
    Moreover, many governance decisions in the executive branch 
are specific to circumstances that arise after implementation 
has already begun. Asking Congress to resolve those issues ex 
ante is unlikely to succeed.
    In summary, the Supreme Court in Loper Bright, but also 
more broadly across Roberts' Court administrative law 
decisions, has made it harder and harder for agencies to pursue 
the missions that Congress has assigned them. These decisions 
taking power away from agencies do not, the claims of their 
authors notwithstanding, empower Congress. Rather, they empower 
the courts at the expense of both Congress and the agencies.
    There are strategies available for Congress to respond, 
including both bill-drafting techniques and institutional 
capacity building, and these are absolutely worth pursuing. At 
the end of the day, their impact will be limited.
    As long as the judiciary has an anti-administrativist bent, 
making pro-regulatory public policy will remain very much an 
uphill climb.
    Thank you.
    [The prepared statement of Mr. Chafetz follows:]

               PREPARED STATEMENT OF JOSH CHAFETZ

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    Chairman Steil. Thank you very much. We thank all of our 
witnesses.
    I will begin with questions. We will then go to the Ranking 
Member. We will alternate between sides.
    I will recognize myself for 5 minutes for the purpose of 
asking questions.
    The Committee on House Administration, we oversee the 
legislative branch and authorize Committee budgets. The Supreme 
Court decision in Loper Bright sent a clear message that 
lawmaking authority rests with Congress.
    In the wake of that decision, this Committee has a real 
opportunity to ensure that Congress leverages its resources 
effectively.
    Out of the gates question, I am going to come down the row, 
starting with you, Mr. Ray, and we will come down.
    As currently structured, is Congress set up to review the 
rules coming out of the administrative state? Yes or no?
    Mr. Ray. No.
    Chairman Steil. Mr. Thallam?
    Mr. Thallam. No.
    Mr. Kosar. No.
    Mr. Crews. No.
    Mr. Chafetz. No.
    Chairman Steil. No.
    Then the question becomes, how do we restructure Congress 
to take advantage of this opportunity that has been given to us 
to reclaim authority and has been given to us by the Supreme 
Court?
    What I would love is just to go down the row. I am looking 
for a short-term answer. What can we do in the near term? I 
want to come through and ask, what can we do in the long term?
    Short term first, something that is actually accomplishable 
in the short term as we think about the structure of Congress.
    Mr. Ray?
    Mr. Ray. In the short term, hire more staff with relevant 
subject matter expertise.
    Chairman Steil. Mr. Thallam?
    Mr. Thallam. Even easier than that, empower GAO, assign a 
task force to look into doing a pilot project along these 
lines.
    Mr. Kosar. I would be inclined to say hire staff that can 
work within CBO and who can kind of pilot this idea of 
providing regulatory oversight support.
    Mr. Crews. Most of the regulatory reform reports you are 
supposed to be getting are overdue. You can quickly work with 
Judiciary and OGR and get the annual, but it comes out every 3 
years, cost-benefit report. You can get the Paperwork Reduction 
Report. It is 16,000 human lives in paperwork hours every year.
    Also, just making sure that the CRA, in particular, is 
followed. If you look at the flow of rules at the GAO, not 
every major rule is getting reported. I do not know how in the 
world you would determine whether those rules are being 
reported to you all. I do not think there is a single person 
who can tell you that they are.
    A little bit in the Congressional Record on communications 
with the executive branch.
    That is the quick stuff to scoop up.
    Chairman Steil. Thank you.
    Mr. Chafetz?
    Mr. Chafetz. The Committee already has the obligation to 
conduct oversight of all of the functions within their 
jurisdiction. Beefing up Committee staff, and in particular 
Committee staff with substantive expertise in the areas that 
they are overseeing, would allow them to evaluate the 
regulations coming out of the executive branch.
    Chairman Steil. Thank you.
    I am going to come back for slightly more of a longer-term 
look as to how you think we should be thinking about the long-
term restructuring to reestablish congressional control over 
the administrative state.
    Mr. Ray?
    Mr. Ray. I do not see a way for Congress to reestablish 
control so long as it is in a fundamentally responsive posture 
to the agencies and the executive branch generally.
    The key, to my way of thinking, is for Congress to again 
become the first mover it was intended to be under the 
Constitution.
    There are various ways to do that. One would be to pass 
something like the REINS Act, which requires for some subset of 
the most important regulations affirmative congressional 
approval rather than congressional response.
    Chairman Steil. Thank you.
    Mr. Thallam?
    Mr. Thallam. Similarly to how the White House has an 
extensive budget office and Congress does as well, we do not 
view that as duplicative. We find that those are both essential 
elements, that Congress not rely on it.
    I think it is appropriate to in the long-term determine how 
to set up a regulatory office, given actually the scope of the 
work, is something akin to maybe even larger than the budget 
work.
    Chairman Steil. Thank you.
    Mr. Kosar. Precisely what he said.
    Chairman Steil. You are concise, Mr. Kosar. I like it.
    Mr. Crews. I support REINS and a congressional office like 
this, too, but I would urge you all to look at each other and 
what you worked on in the past.
    The last time you had major regulatory reforms was a 
generation ago when you did the unfunded mandates to small 
business, the paperwork amendments, and even the CRA. It was 
Harry Reid of Nevada leading the charge for the Congressional 
Review Act. That would astound you now to think that.
    What was happening at the time was unfunded mandates on 
State and local governments and small business that got 
everyone's attention in this room.
    That is not happening now because those mandates are funded 
through Infrastructure law, Inflation law, CHIPS law, and they 
have got a lot of regulatory strings attached with regulatory 
dark matter and so forth. Eventually that money dries up.
    I would say a lot of the ideas that you have are 
bipartisan. Longer term, regulatory budgeting, sunsetting, 
oversight, that sort of thing. There is a lot of that stuff 
that you all have worked together in the past and you can do 
that again.
    Chairman Steil. Very concisely, Mr. Chafetz.
    Mr. Chafetz. I am a little more skeptical than some of my 
colleagues of an office that is specifically designed to focus 
on regulation. I think, again, I am not sure they would have 
the substantive expertise to review regulations coming from all 
the different parts of the administrative state.
    Again, I would urge long-term capacity building in the 
Committees that already exist.
    Chairman Steil. Thank you very much.
    I think we have a real unique opportunity here post end of 
the Chevron doctrine to really reestablish Congress as the 
primary maker of both law and an overview of the regulation. I 
think the REINS Act would move us dramatically in that 
direction.
    I appreciate all of our witnesses for being here today.
    I will now recognize the Ranking Member for 5 minutes for 
the purpose of asking questions.
    Mr. Morelle. Thank you again, Mr. Chair.
    Thank you to the witnesses.
    You know, I feel a little bit like I am watching--one of my 
favorite programs on TV is ``Love It or List It.'' This is on 
HGTV.
    There is always in the couple one of them wants to sell the 
house and one of them wants to buy--and one of them wants to 
stay. The person who wants to move, when they say, ``Well, what 
is your perfect house? How could we make this one better so you 
would be inclined to stay?'' they say, ``Well . . .'' and then 
they list about 45 things that would cost like a million 
dollars. They say, ``What is the budget?'' ``Oh, 100,000.'' You 
are set up to fail. You cannot actually do it.
    While I appreciate the sincerity of the Members, I would 
just note a couple things.
    When it comes to hiring more staff or building the 
legislative branch--which, believe me, I would go on record, I 
would triple the House appropriation--the congressional 
appropriation. I think we are woefully under-funded. I do agree 
with you.
    Just to note, the appropriations proposed by the House in 
total, non-mandated appropriations proposed by the House right 
now is $1.606 trillion. The amount proposed for the legislative 
branch is $7 billion, or, for those of you who appreciate math, 
four-tenths of 1 percent of the entire Federal non-mandated 
spend proposed in this bill.
    It failed on the House floor last week because it is too 
expensive, too rich, so it could not get enough votes for 
passage.
    I feel again like that, yes, oh, yes, here, it would only 
cost $3 million to do this thing, but you only have $100,000. 
I, for the life of me, do not understand how this would work. I 
appreciate you.
    Which leads me--and I will ask you this, Mr. Chafetz--am I 
pronouncing that right?
    Mr. Chafetz. Chafetz, yes.
    Mr. Morelle. Chafetz.
    You had mentioned in your testimony that rather than 
empowering Congress, Loper Bright empowers courts at the 
expense of Congress. Can you just expand upon that a little 
bit, how it degrades congressional authority over Federal 
agencies? Is it purely because of what I just mentioned, the 
lack of resources, or do you want to go beyond that in terms of 
why it shifts the balance of power?
    Mr. Chafetz. Sure.
    When Congress--first of all, Congress has created these 
agencies. Congress has passed their organic statutes. Congress 
has delegated authority to these agencies. Since 1984, Congress 
has done so in the shadow of Chevron deference.
    This is not just a hypothetical. We have really solid 
research showing that Chevron deference is the tool most 
understood by congressional drafters, by staff in Leg Counsel 
and by staff sort of elsewhere on the Hill. They understood 
they were drafting these statutes in light of Chevron 
deference, and they understood that if they did not want the 
agencies to have interpretive freedom, that they should draft 
with more specificity, and so they did.
    What that means is that by taking this away, essentially, 
the courts are saying this thing that Congress thought it was 
delegating to agencies, which is this interpretive freedom, in 
fact the agencies do not get to have that.
    What replaces that is not power flowing back to this 
institution. What replaces that is the courts giving their own 
sort of de novo interpretations of these statutory regimes.
    It is not passing from unaccountable bureaucrats to the 
accountable Congress. It is passing from somewhat accountable 
bureaucrats to even less accountable Federal judges.
    Mr. Morelle. Thank you for that.
    I want to shift just for a second.
    Again, Professor, we are here to consider ways Congress can 
better serve the American people. Americans agree Government 
should use its power to protect health and well-being, grow the 
economy, and grow the prosperity of all Americans.
    I want to read something from Project 2025 that is 
associated with former President Trump. It says that the 
President has, quote, ``an existential need for aggressive use 
of the vast powers of the executive branch. Success in meeting 
that challenge will require boldness to bend or break the 
bureaucracy to the Presidential will.''
    Among the recommendations, the mass firing of civil 
servants--many of whom, frankly, do the protection of health 
and well-being that I mentioned.
    A buzz saw that President--former President Trump's Project 
2025 takes to civil service, keep Americans safe from the 
dangers such as--you know, I mentioned things that the FDA 
does, for instance, that our administrative system currently 
protects.
    Can you talk about what that impact could potentially have?
    Mr. Chafetz. Sure.
    For the entire 19th century, we did not have civil service 
protections in this country, and we had what was known as the 
spoils system, where every time a new administration came into 
power, they would fire basically every Federal employee and 
replace them with members of their own party.
    This was widely regarded as one of the worst governance 
systems in the world. You see criticisms. You know, you see 
sort of scholars in Europe sort of laughing at this throughout 
the 19th century.
    Finally, as the American State sort of grows in 
sophistication toward the very end of the 19th century and into 
the 20th, it begins implementing civil service reforms, 
becoming a sort of modern administrative nation.
    Sort of undoing civil service protections, returning to a 
spoils system, would sort of return us to a lot of the sort of 
waste and abuse that really characterized 19th century American 
politics.
    Mr. Morelle. Thank you. I yield back, Mr. Chair.
    Chairman Steil. The gentleman yields back.
    Mr. Loudermilk is recognized for 5 minutes.
    Mr. Loudermilk. Well, thank you, Mr. Chairman. It is very 
interesting subject matter, something I have been working on 
since I first came to Congress.
    A little bit of follow up on what Mr. Chafetz was just 
saying and the interaction there. We do have an issue within 
the civil service system. There is such protection that it 
takes up to 2 years to fire a bad employee. That is something 
that has to be addressed.
    This is a bipartisan issue. I first learned of this from 
President Obama's head of--Secretary of Homeland Security, who 
was begging for things to be changed because they are keeping 
employees who had--who basically had committed crimes or had 
disciplinary actions so bad that they could not remove them 
from the--they could not remove them from the payroll.
    They could not continue to do their job because they could 
not keep a security clearance, but they had to keep them on the 
payroll for a year. If they appealed, then it was another year. 
He said we are paying people that are basically getting 2 years 
of unpaid vacation with full benefits.
    This has to change. This has to change.
    I just wanted to bring that up, is it is not going back to 
the old system. I do not know what is in Project 2025, but I 
have legislation that would bring in sensible ways of 
streamlining civil service and making sure that they are 
productive and they are doing their jobs and they are just not 
getting a free ride off the American taxpayer.
    I do think we have to be intellectually honest as we talk 
about these issues.
    To the issue at hand, this is something that I have been 
working on since I came to Congress. Myself, Senator Mike Lee, 
and then-Congressman Jeb Hensarling put together the article I 
Project, which is to re-balance the powers which the majority 
are given to Congress. We saw at the time that there is an 
extensive amount of power since World War II that had been 
extended to the executive branch.
    It was interesting. I was having dinner with Justice Scalia 
one evening, and we were talking about this. I said, I asked 
him, I said, ``What can we do to eliminate or to rein in the 
executive branch from legislating via regulation and the courts 
from legislating from the bench?'' His response was, ``Congress 
needs to do its job. You need to write legislation with more 
specificity.''
    This is the type of thing--it is good timing. Chevron 
deference was one of the issues that we were facing at the 
time.
    My understanding has always been that when an act of 
Government can deprive citizens of property or liberty, it is 
not a rule or regulation, it is a law, and only Congress can 
enact those laws.
    With those things on the table there, Mr. Ray, what 
specific accountability measures should Congress adopt to 
ensure that Federal agencies adhere strictly to legislative 
intent in both the rulemaking duties and enforcement 
activities?
    Mr. Ray. I would say, first and foremost, specificity in 
statutory text, as you just mentioned. Another helpful approach 
is to specify the outcome that Congress is after. When agencies 
are left great discretion, they can pick and choose among the 
outcomes to optimize for.
    When Congress specifies, ``We want the following outcomes 
in this, say, in this particular order,'' then that constrains 
agency discretion in a pretty serious way.
    Mr. Loudermilk. Do you feel like, I mean, for us to give 
specificity in legislation, which I think we should, sometimes 
we are handcuffed because we do not necessarily have the 
experts in the field that--I would make the argument at one 
time they were there in the administrative--or in the executive 
branch. I think in the past few decades political ideology has 
taken over from expertise as who is appointed in these 
positions.
    Is there a way that you can--do you see that that handcuffs 
Congress somewhat, not having experts in fields?
    Mr. Ray. Two points in response to the question.
    First of all, it would certainly be impossible for Congress 
itself to address the topic of every rulemaking undertaken by 
the executive branch. There are several hundred rulemakings 
open for comment right now.
    It could answer or resolve a number of the most important 
rulemakings. It could. There are only a few hundred major 
rulemakings per year, typically. It is conceivable that 
Congress could itself take the initiative in a number of those 
proceedings.
    The second point I would make is that if Congress were to 
narrow the scope of statutes, then States and other lawmaking 
bodies across the country could take up some of the work for 
Congress.
    Mr. Loudermilk. Oh, I like the idea of federalism and that 
plays into it.
    Real quickly, last question, do you think there are any 
mechanisms that we already have in place to do this work, or do 
we just need a new system and new processes be created and 
implemented?
    Mr. Ray. Congress will not be able to exert effective 
control as long as it is just responding to agencies. I think 
there are some existing systems that could be used effectively 
today, but really what is called for is a new approach.
    Mr. Loudermilk. OK. Thank you. I yield back.
    Chairman Steil. The gentleman yields back.
    Ms. Sewell is recognized for 5 minutes.
    Ms. Sewell. Thank you, Mr. Chairman.
    I want to thank our witnesses for taking the time today to 
testify.
    On June 28, the Supreme Court of the United States 
overturned 40 years of legal precedent by wiping out the 
Chevron deference, a doctrine that required courts to defer to 
subject matter experts when a question of law was ambiguous.
    This decision will dramatically impact the way that the 
three branches of Government function because it weakens the 
way Federal agencies are able to weigh in on policies about the 
environment, healthcare, food, work safety, and so much more.
    Justice Kagan mentioned in her dissenting opinion that in 
one fell swoop the majority, quote, ``gave exclusive power over 
every open issue,'' close quote.
    This egregious power grab by the Supreme Court is not by 
happenstance, but rather a larger effort by right-wing 
conservatives to roll out the Project 2025 agenda that will 
fundamentally alter the way that Government functions.
    Congress is a team sport, and we rely on staffers, legal 
counsel, advocates, policy matter experts to create legislation 
that will impact our constituents' daily lives. Congress lacks 
the subject matter expertise it takes to govern our Nation 
alone.
    Policy matter experts at Federal agencies play a very 
critical role on this team because they can break down the 
intricate details of how certain regulatory programs and 
statutes should be administered.
    Professor Chafetz, it was Justice Stevens who wrote in the 
original Chevron opinion, quote, ``Judges are not experts in 
the field, and are not a part of either political branch of 
Government. Courts must, in some ways, reconcile competing 
political interests, but not on the basis of judges' personal 
policy preferences.''
    I would suspect that in 40 years, there were a lot of court 
cases that have been decided using the Chevron deference. Can 
you talk about how this will open the floodgates to further 
litigation?
    Mr. Chafetz. Sure. The litigation--I am not sure to what 
extent it will--that Loper Bright on its own will increase the 
amount of litigation, but it will change the results of some of 
that litigation.
    There is research showing that Chevron deference made a 
significant difference in the outcome of circuit court cases. 
That is, in cases where circuit courts applied Chevron 
deference, the ideological dispositions of the judges on the 
three-judge panel mattered less than in cases where it did not 
apply Chevron deference.
    Now that it has not allowed to apply Chevron deference, we 
should expect to see sort of the ideology of the judges on 
those three-judge panels mattering more in those cases.
    I will also add that there is another case that came down 3 
days after Loper Bright, which is the Corner Post decision.
    Ms. Sewell. Yes.
    Mr. Chafetz. Up until--so the Federal law says that there 
is a 6-year statute of limitations for challenging agency 
actions. It had always been thought that it was 6 years from 
the time the agency action was finalized.
    Ms. Sewell. Right.
    Mr. Chafetz. In Corner Post, the Supreme Court says----
    Ms. Sewell. Not when the person was injured.
    Mr. Chafetz. In Corner Post, right, it says it is 6 years 
from the time that that regulation was applied to that 
regulated entity, which means that every regulation can now be 
challenged indefinitely. There is no point at which a 
regulation has exhausted the----
    Ms. Sewell. What does that mean, coupled with the Chevron 
deference case?
    Mr. Chafetz. It means that--Corner Post means that there 
are going to be just a flood of cases that would not have 
previously been filed. Coupled with Chevron--coupled with Loper 
Bright, in Loper Bright the majority claims that, well, cases 
that relied on Chevron are still good law, we are not going to 
reopen those.
    Those are now available to be challenged again. If the 
judges think that there is some error that goes beyond mere 
reliance on Chevron, then even consistent with Loper Bright, 
those longstanding agency interpretations would be open for 
reevaluation by the courts.
    Ms. Sewell. You said in your testimony that it would--that 
even if Congress builds out our internal team, that it would 
still be--not be able to replace the agencies.
    How do you think that this will hurt potential 
policymaking?
    Mr. Chafetz. Well, it will make policymaking sort of less 
robust, less responsive, less likely to sort of address the 
problems that Congress and that the American people want to 
address, and less responsive in adapting to changes in 
scientific knowledge or in technology in order to sort of 
adjust preexisting regulations.
    Ms. Sewell. Thank you. I yield back the balance of my time.
    Chairman Steil. The gentlewoman yields back.
    Mrs. Torres is recognized for 5 minutes.
    Mrs. Torres. Thank you, Chairman.
    Thank you to the witnesses.
    In recent time, we have seen this conservative, politically 
motivated, and activist Supreme Court overturn settled law, 
like Roe v. Wade, which protected women for more than--for 
almost 50 years.
    Today, we are discussing yet another dangerous Supreme 
Court decision, which reversed the 40-year-old Chevron 
doctrine, a doctrine that ensured experts in their field had a 
say in determining complex questions specific to their 
agencies. This is very dangerous.
    Overlooked, ruling reverses all of that. The result now, 
instead of experts weighing in on our Nation's regulations, we 
will have unelected judges, who do not have policy expertise, 
making decisions that impact our lives.
    I want to share an example of how this will impact the 
people that I represent.
    My district is downwind from Los Angeles and that has one 
of the worst air qualities in the Nation. According to the 
American Lung Association, counties in the Inland Empire have 
some of the worst year-round air quality pollution, and 
children have far above average rates of asthma and long-term 
lung problems.
    Imagine now a world where judges with no background in 
atmospheric science or lung health will make decisions about 
what kind of pollutants companies should be allowed to put in 
our air.
    I would like to give some background on how we have come to 
this, to the place where we are right now.
    Mr. Ray, you were specifically thanked in the 
acknowledgements of Trump's Project 2025, which says that you 
devoted a significant amount of your valuable time to reviewing 
and editing a lengthy manuscript and provided expert advice and 
insight. Is that true?
    Mr. Ray. I did make contributions to the ``Mandate for 
Leadership,'' if that is the question.
    Mrs. Torres. Yes.
    Were you compensated in any way for your work in Project 
2025 financially or otherwise? You cannot remember?
    You are again thanked specifically for your work on chapter 
2, titled the ``Executive Office of the President of the United 
States,'' and that chapter says that a ``great challenge 
confronting a conservative President is the existential need 
for aggressive use of the vast powers of the executive branch . 
. . to bend or break the bureaucracy to the Presidential 
will.'' That is on page 44.
    Were you involved in crafting these extreme proposals?
    Mr. Ray. Congresswoman, I contributed paragraphs to that 
chapter on OIRA review. I would be happy to talk about the 
substance of those paragraphs, if you like.
    Mrs. Torres. Yes.
    Mr. Ray. Ma'am, those paragraphs are not about OIRA review. 
I contributed paragraphs to that chapter----
    Mrs. Torres. I cannot understand what you are saying, sir. 
Yes or no?
    Mr. Ray. I contributed paragraphs----
    Mrs. Torres. You did. OK.
    Mr. Ray [continuing]. to that chapter about OIRA review, 
and those paragraphs are not about OIRA review.
    Mrs. Torres. Trump's Project 2025 also contains efforts to 
promote climate denialism within executive agencies. This 
includes plans to downsize the Environmental Protection Agency 
and the Department of Energy's focus on climate change and 
break up and reduce the size of NOAA, which the project 
describes as ``one of the main drivers of the climate change 
alarm industry.'' That is on page 675.
    By the way, colleagues, I am also a Member of the 
Appropriations Committee. In the Republican budget, they have 
included a 25 percent decrease to this very agency, eliminating 
this agency.
    There is no false alarm here. Dismantling NOAA and its 
ability to address wildfires and other extreme climate weather 
is a very real problem for constituents in my district and 
communities across California.
    Did you contribute to Project 2025's emphasis on climate 
denialism and dismantling of the agency powers to combat the 
very real issue of climate change, Mr. Ray?
    Mr. Ray. Mrs. Torres, I contributed several paragraphs on 
OIRA review. That was my principal substantive contribution to 
the project.
    Mrs. Torres. Your answer is yes.
    Finally, Project 2025 recommends limiting women's access to 
essential reproductive healthcare and reproductive freedom. 
That is also on page 489. Did you contribute to these 
recommendations?
    Mr. Ray. Again, Congresswoman, my principal contribution to 
the project in terms of text for the ``Mandate for 
Leadership''----
    Mrs. Torres. Mr. Chair, since the witness has a mouthful of 
words and no real answers, I would like to request unanimous 
consent to enter all 922 pages of Trump's Project 2025 into the 
record so that the American people can see for themselves how 
deeply terrifying this Trump authoritarian manifesto really is 
and how it is going to impact----
    Chairman Steil. Without objection.
    Mrs. Torres [continuing]. the lives of every single man, 
woman, and child in this country.
    Chairman Steil. Without objection.
    [Project 2025 referred to follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    Mrs. Torres. Thank you.
    Chairman Steil. We will now commence a second round of 
questions, and I know we will have a couple other colleagues, I 
think, joining in this process.
    I want to take a second here and dive in.
    Mr. Crews, you have done great work kind of walking through 
the cost of a lot of the regulations that are put out.
    I am going to jump, though. I want to ask Mr. Thallam and 
Mr. Ray, pulling from your experience at OIRA, how should 
Congress address major rules when they are already final but 
the financial impact of the rule is not realized until years 
after the regulation is final?
    Mr. Ray. I would say Congress has already taken steps to 
achieve that objective by requiring retrospective review. 
Retrospective review could be enhanced quite significantly.
    Under the Small Business Regulatory Flexibility Act, 
agencies are required, with respect to major rules, to go back 
several years after issuance of the rule and assess the impacts 
and continued need for the regulation.
    Agencies regularly skirt that requirement. Congress could 
do much more to give teeth to the requirement and make the 
agencies basically participate in that process more robustly.
    Chairman Steil. Thank you.
    Mr. Thallam?
    Mr. Thallam. Along those lines, one proposal that I worked 
on when I was in the Senate was a bipartisan proposal that 
would require, as part of the rulemaking itself, a prospective 
plan to look back within a fixed number of years and conduct 
that retrospective review.
    It is not just a future promise. It is actually part of the 
rule itself has to contain this plan to say within, say, 5 
years, the agency will look at the following data, these 
indicators to determine to the degree to which the rule is 
accomplishing both their goal and meeting the intent of 
Congress.
    I would also note that we get a little bogged down--I think 
everyone--in that policymaking is Congress goes first, and then 
there is agency action, then maybe there is a court action 
later. It is actually circular, and it is actually a process, 
and it is not just handing off one.
    I spoke to a group of congressional staff on Friday about 
what this means for their job. Congress, congressional staff 
should be engaged from the beginning with the agency and not 
waiting for a proposal to go public.
    Chairman Steil. I am going to build on that.
    Mr. Kosar, in your opening remarks you referenced kind of 
building out the Congressional Research Office. I am thinking 
of other ways that we can pull current staff into this work 
rather than simply just throwing more money at the problem.
    Give me a little more color on that idea, what that would 
look like, or are there areas where we could pull from inside 
the Federal employee group currently rather than simply 
allocating additional resources and hiring more people?
    Mr. Kosar. Boy, I wish I could point to some legislative 
branch support agency personnel and say these folks are not 
doing enough and they should be repurposed to this more 
important thing--which is super, super important--but I just 
cannot.
    When I looked at the numbers, amongst the legislative 
branch civil servants who help with policy or related matters, 
the number of them has gone down since the 1980's, but the 
Federal Government's expanse in the regulatory State has gone 
up. I just cannot figure out how to repurpose.
    Chairman Steil. Understood.
    Does anyone else have an area where they might be able to 
pull from? We have 2.2 million non-military Federal employees. 
It seems like we should be thinking about an avenue. If not, I 
would charge you to all sharpen our pens and to think about, 
inside the rulemaking administrative state, whether or not we 
can reallocate some of those resources back into the 
congressional side.
    Mr. Crews, I will give you very briefly, and then I will 
yield.
    Mr. Crews. Just quickly. You were talking about 
retrospective review. One thing that would force that is if you 
did some form of sunsetting, which has some bipartisan pedigree 
that we talked about, and that would help you figure out where 
you think you actually need to regulate things. You have got 
economic, social, health and safety, paperwork costs, and 
things like that. That would force you to look at some of those 
things, perhaps, and then decide where you ought to regulate.
    Then, remember, most regulations are not written yet, 
unfortunately. One thing you can think about is what the 
workloads are in the future. As Congress takes on more of the 
authority with writing statutes that are directed the way you 
want, that helps you, too, when thinking about what you do on 
the retrospective basis.
    Chairman Steil. Thank you very much.
    I will now recognize the Ranking Member.
    Mr. Morelle. Thank you, Mr. Chair.
    I continue to be really concerned about the size and the 
capacity of Congress to do it and particularly given the 
environment we are in where we have not been able to pass a 
legislative appropriation that is so small.
    I wanted to, if I can, Professor Chafetz, one of the 
things--prior to this decision, agencies were able to use 
existing authorities to issue new rules related to emerging 
challenges or technologies with relative ease.
    I know that during the oral argument in Loper Bright, 
Justice Kagan expressed that overturning Chevron would hinder 
agencies' abilities to--I want to get the quote--``capture the 
opportunities but also meet the challenges of regulating, for 
instance, artificial intelligence,'' which, you know, Congress 
gave the authority to agencies without even knowing what 
artificial intelligence is.
    In some ways how might the decision affect the ability of 
agencies to respond quickly to advances in technology like 
artificial intelligence or other challenges?
    Mr. Chafetz. Well, I would like to begin by noting that 
agencies can do almost nothing with relative ease. I suppose 
you would have to emphasize ``relative'' a great deal. Most 
agency rulemaking takes years.
    The idea that this is something that agencies just sort of 
pop off and create regulations all the time I think is somewhat 
misleading. There is a lot of time and effort and conversations 
that go into producing rulemaking in the first place.
    One of the things that Loper Bright does is it says that if 
agencies want to get any deference at all, even the lesser so-
called Skidmore deference--which is basically just sort of 
respect for the agencies' expertise--if they want to take 
advantage even of that, their interpretation has to remain 
consistent over time. This is a problem because facts on the 
ground change over time.
    When I look back--for example, so Representative Loudermilk 
was referring to Justice Scalia earlier. Justice Scalia was a 
huge fan of the Chevron decision. When I look back to his major 
essay praising the Chevron decision, one of the things he 
praises is its ability to be responsive to changes over time 
such that agencies do not get locked into their first 
interpretation.
    The Supreme Court has now done a 180 on that and said, 
essentially, if you want even minimal respect for your 
interpretation, you have to be locked into the first decision 
you make.
    AI is a great example. The agencies are just coming to 
terms with AI now. Who knows what the state of AI will be in 5 
or 10 years? It seems crazy to lock them into their initial 
interpretations at this point.
    Mr. Morelle. Just to continue along, even prior to the 
overturning of Chevron, I think your work has highlighted the 
recent pattern of what you referred to as judicial self-
aggrandizement.
    This decision would continue that trend certainly. I wonder 
if you could just talk about the broader patterns that you have 
identified in that regard.
    Mr. Chafetz. Sure. Well, I think you can see this across a 
huge number of areas of law, whether we are talking about the 
Supreme Court's cases on congressional oversight or on election 
law.
    Just within administrative law there are a huge number of 
ways in which the Roberts Court has sort of taken it upon 
itself to tell Congress that it is structuring the 
administrative state wrong.
    There have been a bunch of decisions in recent years saying 
that the way that Congress has structured various agencies is 
unconstitutional because it limits the removability of certain 
officers.
    There have been the major questions doctrine cases which 
basically say that the most natural reading of a particular 
statute will not be allowed to go into effect if the Supreme 
Court decides that what the agency has done is major. Of course 
it gives us no real way of determining whether or not something 
counts as major.
    There has been the Jarkesy case, where taking away the 
ability that Congress had given to agencies to do internal 
adjudication in some cases.
    All of these are situations in which Congress tried to 
create certain structures and forms in the administrative 
state, and the Supreme Court has come in and said, ``No, we 
know better. We are going to undo that. The administrative 
state is going to be structured the way we, the Court, wants to 
structure it.'' In my view, the best label for that is judicial 
self-aggrandizement.
    Mr. Morelle. Yes. If I can, one of the interesting things 
about this in much of the conversation that you hear post-
Chevron is that, prior to this decision, that you could not 
overturn an administrative ruling. You still had access to the 
courts prior to Chevron.
    Do you want to just talk about that just in the remaining 
seconds we have?
    Mr. Chafetz. Absolutely.
    Chevron was a two-step test, and step one was, if Congress 
has clearly expressed itself, that is the end of the story. If 
Congress has clearly expressed itself, the agency has to do 
what Congress says. Only if the statute is silent or ambiguous 
under Chevron would there be any deference given by the courts.
    Then, beyond that, the Administrative Procedure Act creates 
a whole host of procedures that the agencies have to go through 
in order to regulate, and if the courts did not think that the 
agencies went through the correct procedures, they could also 
vacate regulations.
    It is not that there was unconstrained regulatory authority 
in the agencies. They had procedural requirements. Of course if 
Congress spoke to the issue, they had to do what Congress said. 
It is only if they went through the correct procedures and 
Congress had been silent or ambiguous that they got any 
deference under Chevron.
    Mr. Morelle. Very good.
    I know I have exceeded my time. I yield back. Thank you.
    Chairman Steil. The gentleman yields back.
    Ms. Lee is recognized for 5 minutes.
    Ms. Lee. Thank you, Mr. Chairman, for holding this 
important hearing.
    Thank you to all of our witnesses for appearing before the 
Committee today.
    The Supreme Court's recent decision in Loper corrects 
decades of regulatory overreach by the executive branch and 
rightfully reasserts the separation of powers as intended by 
the Framers of the Constitution. It ensures that the will of 
the American people is heard through laws written by their 
elected Representatives.
    As a former judge, I agree that the power and 
responsibility of interpreting the law belongs to the courts, 
not unelected Government bureaucrats. The clearer the law, the 
easier it is for judges to faithfully and accurately apply and 
interpret the law.
    Congress therefore has a renewed call to assert its 
legislative authority and write clear and precise laws.
    Dr. Kosar, I would like to begin with you. You have written 
extensively about Congress establishing a congressional 
regulatory office which would likely be a longer-term project 
for us to undertake for the interim or in the case where 
Congress chooses not to establish a permanent office.
    How can Congress strike a balance with its role in the 
rulemaking process that leverages agency expertise while 
maintaining strict legislative oversight and accountability?
    Mr. Kosar. Well, in the short term, if you cannot get the 
purse strings loose enough to do a little pilot, say, within 
the CBO to test it out, particularly, say, within an issue area 
of real concern, you can try to draw upon the existing 
legislative branch folks more aggressively.
    I spent 10 years at the Congressional Research Service. I 
do not recall once in the thousands of requests I got a Member 
saying to me, ``Hey, there is this proposed rule in your issue 
area. What do you make of it? Can you at least write me a memo 
and explain to me what this means and whether I should be 
concerned about the extent of the regulation, whether it is 
proper?''
    That would be one means.
    Ms. Lee. You just touched on what I really was interested 
in as my next question, which is, how can we facilitate--how 
can we better facilitate meaningful collaboration between 
lawmakers, legislative staff, and then agency experts to really 
draw upon all of that collective experience during the 
legislative drafting process?
    Mr. Kosar. Yes. The drafting process.
    Well, I think the drafting process in many instances has 
been bedeviled because there is not a regular order being 
followed. Bills are being slapped together with a lot of other 
bills. You guys are being called to the floor and told it is 
time to vote on the rule and please line up by party and do not 
scuttle things.
    Reorienting, getting back to a more regular process where 
Committees are in the seat and when Committees report out a 
bill those things get preference on the calendar, would allow a 
process by which you could be more deliberative and you could 
draw more on the expertise that is already available to you and 
get it in there.
    Ms. Lee. Mr. Crews, as you know, in 2023 the Biden 
administration released Executive Order 14094 which raises the 
threshold for which regulations are considered highly 
significant and drastically increase regulatory cost.
    How would you compare the Biden administration's approach 
to regulatory action with that of the previous administration?
    Mr. Crews. Well, the Trump administration was defined by 
basically a regulatory cost budget. The one-in, two-out 
mechanism put that into place, and, according to the data 
released, it worked.
    You could say there was low-hanging fruit there, and once 
you got rid of some low-hanging costly regulations, it was hard 
to do others.
    Things have changed with respect to Biden in the sense of 
we used to consider a regulation economically significant if it 
was $100 million.
    That term has completely disappeared. If you go onto the 
OIRA website now and go to the database of rules and 
regulations in the Unified Agenda, the term is completely wiped 
out and it is replaced with section 3(f)1 significant rules. It 
is not as poetic anymore.
    You can still find those $100 million major rules purely 
thanks to the majorly bipartisan Congressional Review Act. You 
guys still have something that you can sink your teeth into 
with respect to tracking major rules and some of these other 
projects you were indicating with respect to looking back.
    I can tell you, the new Unified Agenda came out--late 
again, as we were discussing earlier--the new Unified Agenda 
came out, and you would expect that under--with the $200 
million threshold that the numbers of rules would come down a 
good bit that were section 3(f)1. You would expect that to 
curve, but no.
    In this current push the CRA gives an incentive to an 
outgoing administration--or potentially outgoing 
administration, because it is an election year--to jack up the 
number of rules, and that is exactly what we saw.
    In the new Unified Agenda, there is a big jump in $200 
million rules above what you might have expected, but you still 
need to monitor the ones that are beneath that level as well.
    Ms. Lee. Thank you, Mr. Chairman, I yield back.
    Chairman Steil. The gentlewoman yields back.
    Mr. D'Esposito is recognized for 5 minutes.
    Mr. D'Esposito. Thank you, Mr. Chairman.
    Good morning--or, I guess, now good afternoon, everyone.
    Something that Members do not regularly do is participate 
in the formal comment period for a rule. Should Members of 
Congress or the chairs and Ranking Members of Committees file 
comments during the notice and comment period of a rule to 
express their disagreement or even agreement with the contents 
and direction of the rule? It is really open for all of you.
    Mr. Thallam. I think this is an incredibly undervalued tool 
for Members, and I, for the life of me, do not understand why 
Members do not more frequently.
    In my time on the Hill, I encouraged Members to participate 
in the process. There was maybe--and I do not want to speak for 
Members of Congress--but it felt like, ``That is for the 
public, we are not the public, and so it is beneath us,'' 
maybe. I may be overstating that.
    I do not think you should see that as the case. I mean, 
this is the agency receiving all input.
    By the way, courts would put a fair amount of deference to 
what Members of Congress say--especially Members of a Committee 
of jurisdiction--in saying this looks like what we asked you to 
do, or this does not look like, or we hope you consider these 
factors.
    Mr. D'Esposito. Mr. Crews?
    Mr. Crews. I would just say this is a little bit of a 
chance to maybe squeak something in, because there has been a 
lot of talk today about expertise. I would submit to you that 
what agencies provide is not always expertise. A free market 
does not just mean companies go out and do whatever they want.
    You have got businesses, you have got upstream suppliers, 
downstream business customers, media, advertisers, consumers, 
all these forces that regulate, so to speak, businesses that 
potentially misbehave. You do not want to just jump in with a 
regulation if you are undermining the other kinds of 
disciplines that emerge.
    Companies do not operate in a vacuum. They have all of 
those forces. Part of the free enterprise system is creating 
not just the new product or service but also the disciplinary 
measures that go alongside.
    I would submit to you that a lot of expertise on AI is not 
in agencies. The expertise with respect to allocating drone 
traffic in airspace does not exist at agencies.
    Part of your commentary, if you take up that kind of a 
project, would be to challenge the notion of expertise, which 
is also going to play into the notion of a congressional office 
of regulatory analysis, too.
    Mr. D'Esposito. Anybody else?
    Mr. Kosar. Yes. I would just say that absolutely, I again 
agree with this fellow. The real trick is being able--not just 
able to send it in, but having the knowledge base to deal with 
this stuff.
    I mean, pull out the Federal Register, and you start 
looking at these regs, and your eyes glaze over. Your head 
hurts. I mean, there is just no way, unless you just happen to 
have somebody in your office or working for your Committee, 
that you can meaningfully comment on this.
    This would take weeks and weeks and weeks to study. Like 
this HUD rule that I am looking at here, 22 and 28 pages, just 
the proposed notice.
    Mr. D'Esposito. To that point, GAO has written about a 
potential new legislative branch known as the Office of Legal 
Counsel. Are you in favor of that? Do you think that that could 
help with this process? I guess, could anybody explain what you 
think that would look like?
    Mr. Kosar. Sure. Briefly. Yes, I have read that report.
    I guess it depends on how you view the challenge of 
legislators meaningfully participating. If it is, well, we need 
to draft better, we need to be more precise so we do not 
inadvertently delegate authority away, yes, that could be quite 
helpful.
    When it comes to the substantive knowledge of the issue 
area and the ability to double-check the numbers that executive 
agencies give when they do the benefit-cost analysis and say, 
``Hey, this reg is going to be wonderful for America,'' you do 
not have anything. I am not sure that sort of knowledge would 
rest in the Legislative Counsel Office.
    Mr. Thallam. I would tag on to that just briefly. I would 
generally support anything that increases congressional 
capacity.
    If I can reference the Ranking Member's comments about the 
inability to add on appropriations and staff, and also his 
penchant for ``Love It or List It,'' I am more of a ``Say Yes 
to the Dress'' kind of guy.
    The point of the show, I think, is that we look for 
reasonable opportunities for improvement. GAO already has a 
statutory role as part of the Congressional Review Act. CBO has 
a number of analysts, and they have a mechanism for analyzing 
specific proposals. Those things exist even short of a whole 
new Committee or a whole new office or 2,000 new staff.
    Mr. D'Esposito. My time has just about expired.
    Mr. Chairman, I yield back.
    Chairman Steil. The gentleman yields back.
    This concludes our questions.
    I thank all of our witnesses today. It has been a really 
interesting conversation about how we prepare to structure 
Congress in a post-Chevron doctrine world.
    Members of the Committee may have some additional questions 
for you, and we ask that you please respond to those questions 
in writing.
    I will also submit written testimony from Doug Holtz-Eakin, 
president of the American Action Forum, and from Marci Harris 
of PopVox into the record.
    [The testimony referred to follows:]
    
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    Chairman Steil. Without objection, each Member will have 5 
legislative days to insert additional material into the record 
or to revise and extend their remarks.
    If there is no further business, I thank the Members for 
their participation.
    Without objection, the Committee stands adjourned.
    [Whereupon, at 12:23 p.m., the Committee was adjourned.]

                    QUESTIONS FOR THE RECORD
                    
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