labour government had pushed through pfi deals without offering any alternative and often regardless of expense or value for money. the result has been to cost the taxpayers billions of pounds too much. does the prime minister share my view that there should now be a full investigation of why and how this happened? >> i think the public accounts committee can do a lot of that work in unveiling frankly some of the appalling decisions that were off-balance accounting rather than good value for money. and i see the shadow chancellor nodding at that stage. frankly he was in the treasury when this happened. what we're going to find the mistakes we're going to have to pay for are the responsibility of gordon brown's two henchman sitting before us. >> allen michael? >> thank you, mr. speaker. the prime minister used to talk rather a lot about fairness but he hasn't done so well on performance so here's a test for him. the banks have walked away from

the talks on bankers' bonuses. what's he going to do about it? >> the talks are ongoing. i'll tell you what i want. i want the banks to pay more in tax and they will pay more in tax up to from $18 billion last year to $20 billion last year. these talks are ongoing and i want to see the taxes go up, the bonuses come down but vitally the lending increase and i'm confident we'll achieve all those three goals. >> i know the prime minister it as a special place as indeed educational background. does he not agree with me it's about time it's unique status as a first working class resort should be worked out with unesco status? >> the i do have a warm feeling whenever, i think, of blackball because of the many conferences i've attended there. and the time i spent there. i understand as i know he does

the pressures it faces because of changing patterns of tourism and development. and this government is committed to helping black pool to map out a strong input. >> thank you, mr. speaker, with the economy shrinking by 5% inflation rising. [laughter] >> that's next quarter. >> that's next month. having followed ireland on the path of cutting too fast and too deep, are we not now in danger of following ireland further down that slippery slope? >> i'm sorry to tell the honorable lady the 5% reduction was under her government, not under this government. if the former shadow chancellor primer has gone missing perhaps she will be able to get a hold of a copy. the point i'd make is this. when we came to office in may,

the idea that there was some acceptable plan to reduce the deficit is a complete fiction. let me just give her this one figure. if we went ahead with the plan of halving the deficit in four years, in four years' time, our deficit would be bigger than portugal's is now. does anybody think that is a credible path back to growth and confidence? it isn't. >> thank you, mr. speaker. one of the most important strands in the government's growth strategy has been the creation of 75,000 additional apprenticeships. does the prime minister agree with me that the forthcoming apprenticeships to get students to earn while they learn especially in the manufacturing sector which are growing faster now than anytime under the previous government? >> my honorable friend makes a good point. we had to take difficult decisions particularly difficult

decisions on welfare and on pay. as a result we're able to expand the number of apprenticeships to a record level an extra 75,000 and we can see, yes, the growth figures are disappointing but manufacturing is up, exports are up and we are starting to rebalance the economy away from the unsustainable booms that we had under the party opposite. >> order. urge question -- >> here on c-span2, we'll leave the british house the commons now as they move on to other legislative business. >> you've been watching prime minister's question time aired live wednesdays at 7:00 am eastern while parliament is in session. you can see this week's question time again sunday night at 9:00 eastern and pacific on c-span. you can also watch recent video including programs dealing with other international issues.

>> the c-span networks, we provide coverage of politics, public affairs, nonfiction books, and american history. it's all available to you on television, radio, online and on social media networking sites. and find our content anytime through c-span's video library. and we take c-span on the road with our digital bus and local content vehicle. bringing our resources to your community. it's washington your way. the c-span networks now available in more than 100 million homes created by cable, provided by a public service. >> now a hearing on congressional oversight of new executive branch regulations. this house subcommittee is looking at a proposal called the reins act which would require an up or down vote by congress on every major federal position before it's passed.

>> the subcommittee will come to order. i was going to welcome all the new members to the subcommittee but mr. cohen and i appear to be it so good to have you on board, mr. cohen. and mr. gowdy on my right. ground rules, folks. i like to start on time. and i like to end on time and i hope that is agreeable with everybody. you are familiar perhaps with the 5-minute rule and the 5-minute rule, folks, is not done in any way to frustrate debate but rather to facilitate the process. i mean, our jurisdictional bounds are broad indeed and we will hustle along and do the best we can. so when you see that red light appears, that will be your signal that your 5 minutes have elapsed. now, mr. cohen and i will not call in the u.s. marshal on you

then. but you need to wrap up. the 5-minute rule also applies to members of the subcommittee. we will try to adhere to that as well. i want to give my opening statement and then i'll recognize mr. cohen for his opening statement. other opening statements will be made part of the record at the conclusion. is that agreeable with everybody? >> yes, sir. >> today marks the first hearing of the newly constituted subcommittee on courts commercial administrative law. and i think we're going to have mr. smith to be with us. he's not here yet. chairman smith has provided our subcommittee with jurisdiction over a number of important matters that i hope our subcommittee will address during the 112th congress. in my view one of the most important matters -- well, strike that. let me pull that out of the way. one of the most important matters -- i lost my place here. hang on a minute.

is to fine-tune our regulatory process, hence, the introductory oversight hearing on the reins act. many in the private sector have alleged that the obama administration has cast a cloud of regulatory uncertainty over some parts of the economy. while it's no secret that our economy is still soft, perhaps even dismal, unnecessary or unreasonable regulatory burdens will continue to drive business investments in my way of thinking abroad. it's prevalent in every sector of government regulation. for instance, the department of health and human services implementation of president obama's health care reform, the financial agency's implementation of the dodd-frank financial reform bill, the epa's campaign against carbon dioxide, the fda's approach to herbicide and the federal communication commission drive to regulate the internet and allocate spectrum.

i only mention these examples because they're wildly recognized and the fact of the matter is, that fine-tuning is needed across the entire regulatory horizon. our current regulatory regime has deep historic roots. since the days of the new deal and especially during the '60s and the '70s, congress has delegated more and more of its legislative authority to its federal agencies. this has been drawn through broadly stated law and leave it to the various agencies fill in the crucial details through regulations. the final risk on the wrong decision thus falls on the agencies and, of course, the economy and america's job creators. congress too often escapes both responsibility and accountability. the republican majority that came to congress in 1994 attempted to address this problem through the congressional review act. that act, you may recall, gave

the congress greater tools to disapprove agency regulations that harm the economy, destroy jobs or otherwise were counterproductive. over its history, however, the congressional review act has not fulfilled its potential. during the 108th and 109th congress, the subcommittee on commercial administrative law examine ways to improve the congressional review act and better assert congress' authority over legislative regulations. one of the -- one of the leading ideas for reform was to amend the act to preclude regulations from going into effect until congress actually approved them. that is precisely what the act does for the biggest regulations federal agencies issue, those imposing $100 million or more in costs on our economy. today more than ever we must consider and enact reforms that vindicate congress' authority

over the laws. they are front and center among those reforms. before referring the balance of my time i would like to extend a warm welcome to our former colleague, congressman david mcintosh good to have you back on the hill as well as other witnesses. and mr. cohen, i said this before our other colleagues came in, but it's good to have all members, republican and democrat alike on this subcommittee and now i'm pleased to recognize the distinguished gentleman from tennessee, memphis to be specific, mr. cohen. >> thank you, mayor. i appreciate that tennessee was originally north carolina so in some ways we're colleagues beyond being colleagues here. and i would like to first pay specific attention to for the new members and others to my ranking member of the committee, the distinguished, the venerable, the honorable, the legendary john conyers. nice to be with you. and chairman smith and all the other members.

i look forward with serving with each of you as well. he's not legendary yet but he's honorable and a few of those other things that we'll incorporate by reference. thank you. >> would the gentleman yield just a moment? i didn't realize chairman smith didn't come in. is mr. conyers here as well? chairman, good to see you. i yield back. >> thank you. i would like to start by offering my congratulations to mr. copeland who has assumed the chairmanship of the committee and when i was chairman he was probably -- he was as nice as anybody was to me. everybody was nice but he was particularly nice and i was appreciative of that and you're a gentleman. and mr. franks was an outstanding ranking member and we worked together nicely and i look forward to work with him. i'm honored to be working as ranking member although i would rather be working as chairman. but that's this congress. today's hearing provides us with the opportunity to debate the merits of h.r. 10 the regulations from the executive in need of scrutiny act. our reins. it also gives a chance to discuss the appropriate role of

federal regulations in american life, a conversation i suspect will continue in the subcommittee in the 112th congress although they did not explicitly say proponents of the reins act is that all regulations are bad. all their arguments focus on the purported costs the regulations impose on society. based on this premise we've heard rhetoric about job-killing, that stifle economic growth and impair personal freedom. with such arguments do not seem to fully appreciate as the regulations can benefit the economy by policing private sector behavior that could undermine the well-being and came very, very close to doing it like the regulations and the economy of the world was on a precipice. pulled off by president bush and bipartisan members of congress in passing the t.a.r.p. and successive legislation with the stimulus act. we can look back to the great depression when there was even more independence of regulations

and lack of regulation and see what followed there, the great depression. the regulations can facilitate activity to provide clarity where the applicable statutory language may be too broad or too vague and lead to confusion. regulation can serve societal values that may outway economic growth. most importantly regulations help protect the health and safety of every day americans including our children, our neighbors, our colleagues, our grandparents and ours and the public at large. the federal regulations help ensure the safety that we eat the air we breathe the water we bring, the products we buy, the medications we use, the cars we drive, the planes we fly and the places we work. indeed, most americans are able to take for granted the safety of these things because the existence of federal regulations. the reins act threatens to make it harder for such beneficial regulations to be implemented under the act congress must approve a major rule one having economic impact of $100 million or more by passing a joint resolution of approval through

both houses of congress with 70 legislative days after the rule is submitted to congress. the president must sign the joint resolution of approval before the rule can go into effect. at the most practical level i question whether the reins act could work. i've been in congress long enough to understand that the precipice before us will more often prevent us from giving due consideration and approval to the rules that may be beneficial and even ultimately enjoy the widespread report. the neural state that the reins act seeks to amend this idea may seek better in the abstract than it will be in practice. of course, i'm not ready to say the reins act is a good idea even in the abstract while i appreciate the agency rulemaking, there are some separation of powers that i think is spoken to in members of congress about recently. and justice scalia i think led that took and there could be constitutional objections and powers to the reins act which we'll hear from our witnesses. there is a role for us. there's a role for the

executive. there's a role for the judiciary. i look forward to our witnesses' testimony and i look forward to working with chairman coble and others in the congress in the 112th congress. and i yield back the remainder of my time. >> some cohen, i thank you for your generous remarks at the opening. i appreciate that. the statements of all members will be made a part of the record without objection. and i am told that mr. smith and mr. conyers would like to make opening statements and i recognized the distinguished gentleman from texas the chairman of the full committee, mr. smith. >> thank you, mr. chairman. and mr. chairman, thank you for chairing this particular hearing which i think is going to be one of the most important of the year. as you said, i also welcome our former colleague david mcintosh and david, i hope we get to talk a little bit more later on but appreciate you being here, too. mr. chairman, the american people in november voted for real change in washington. one change they want is to stop the flood of regulations that

cost jobs and smothers job creation. yet, another is to make washington and congress more accountable. the reins act makes that change a reality. unelected federal officials for too long have imposed huge costs on the economy and the american people through burdensome regulations. today these regulatory costs are estimated to be a nearly incomprehensible 1 3/4 million dollars. because they are not elected they cannot be held accountable by the american people. the reins act reins in the costly overreach of federal agencies that stifles job creation and slows economic growth. it restores the authority to impose regulations to those who are accountable to the voters. their elected representatives in congress. the obama administration has under consideration at least 183 regulations that each would

impose costs of $100 million or more on the economy. and when businesses had to spend these vast sums to comply these massive regulations they have less money to stay competitive in the global economy and to hire new employees. these costs get passed on to the american consumers. in effect, these regulations amount to stiff but unscene taxes on every american. last week in a new executive order president obama reiterated the existing authority of agencies to call outdated rules on the books and consider jobs. this order sounded encouraging but added little to the rules that already guide the process of regulations. in the executive order, quote, distributive impacts and, quote, equity are specifically identified among benefits to be maximized, job creation is not. the executive order is specifically written not to

include regulations issued to implement the administration's health care legislation. and it carves out independent industry charges on the dodd-frank legislation and it won't halt the environmental protectionees agency's drive to exercise authority it was never granted. the most burdensome and costly regulations are exempted. the executive order, i hope not, may have been all style and no substance. until the executive order produces real results, it is just a string of empty words. we must watch what the administration does, not what it says. in 1994, congress passed a congressional review act to reassert congress' authority over the regulation of the federal government. the act has been used just one time to disapprove a regulation. the regulatory tide continues and rises even higher. the reins act is needed to free up businesses to create jobs and

make the federal government more accountable. thank you, mr. chairman. and i'll yield back. mr. chairman, before i yield back entirely, i'd like to recognize a colleague sitting in the back of the room, jeff davis, who has been absolutely instrumental in promoting, advancing and writing this legislation that we're discussing today. >> i thank the gentleman. the chair is pleased to recognize mr. conyers. >> thanks, chairman coble. i join in welcoming our former colleague, mr. mcintosh back here. it's very important. i'd ask unanimous consent that author of the bill, representative davis, come forward. i think he should be able to

make a couple of comments about the bill. i'd welcome his signatures at the table since there are only three people there anyway. there's plenty of room. but -- >> mr. conyers, i would be pleased indeed to have mr. davis come forward. i don't believe, though, he would be eligible to comment but we'll be glad for him to come forward to the table if he'd like. >> you say he can't comment? he can't comment on his own bill? in the judiciary committee, the keeper of the constitution? >> well, conyers he was not called as a witness and that's why i made that statement. >> oh, okay. well, i've got a few questions i'd like to ask him after the hearing then if i can.

i'll be looking forward to doing that. i've got a statement that i'll put in the record so we can get to our witnesses, but the most important part of my statement is that i think we have a constitutional problem on our hands. and our former colleague alluded to it himself in his statement. and it's found in article 2, section 1 that i refer all of the distinguished lawyers on this committee to. i'm sure we'll have enough time to go into this. the second consideration i'd

like us to keep in mind as we go through this important hearing is that the reins act may not be tailored to the problems that it's supposed to address. we've got some big problems with whether this is feasible. the feasibility of this act -- well, let's put it like this. this will affect every law on the books. it's not prospective. but it would involve every law that is on the books currently. now, i don't want to suggest that the congress isn't up to its work.

but do you know how much time that that would take to go through all of the laws to get them -- the regulations to the laws okay'd? by the house and the other body as we delicately refer to them? it doesn't seem -- it doesn't seem very probable that could happen. but if you consider the fact that we don't have the author of the bill testifying, and we're glad he's here, of course, but we also don't have the administration testifying. why isn't somebody from the administration here? i mean, how can we be doing

this. i've been told by staff that we're going to try to report this bill next week sometimes so chairman coble, i'd like to -- with all due respect, ask an opportunity to discuss with you the possibility of an additional hearing on this matter. >> this is an oversight hearing as we know that. and there will be a legislative hearing subsequently. >> oh, okay. well, that's -- that's consoling. i'm glad. now, this is a great new process of order. we do the oversight hearing first and then we have a hearing on the bill? that makes a lot of sense. why don't we have a hearing on the bill first?

are we oversighting the condition that it's caused the bill to be created; is that right? >> this is the oversight hearing. the legislative hearing will be scheduled. >> okay. all right. well, then i don't have to ask for another hearing. there's going to be another hearing on the bill so i'm glad to know that because i've got a witness or two in mind that i'd like to have partake with all the other distinguished friends of us -- of ours that are here today. so i thank you very much, chairman coble. >> thank you, mr. conyers. >> i yield back the balance of my time and ask that my statement be included in the record. >> and all statements of the members of the subcommittee will be made a part of the record

without objection. we're pleased to have our panel of three witnesses with us today. as has been mentioned previously mr. mcintosh, good to have you back on the hill. mr. mcintosh now practices at mayor brown llp at washington. focusing on issues before congress and the executive branch. he's a graduate of the university of chicago school of law and a cum laude graduate of yale university. professor jonathan adler teaches at the case western reserve school of law where he is the director of case western center for business law and regulation. professor sally canton is a visiting professor at new york university school of law and and the professor also serves as senior advisor for the pedestrian group. good to have each of you with us and we'll start with mr. mcintosh and we recognize you, sir, for five minutes. >> thank you, mr. chairman. [inaudible]

>> turn on your mic. >> thank you. it's a pleasure to be back. i'm learning the technology. and thank you, mr. cohen and mr. conyers for your remarks. let me commend the committee for taking up this question in the oversight hearing of the regulatory process and the urgency for looking are there ways of making it work better to reduce the cost of regulations. and i want to commend representative davis for his work in introducing the reins act. when i was a member the speaker asked me to chair a subcommittee just on regulations on the government reform committee and we looked at a lot of the different regulatory programs, looked at the overall cost on the economy. and i have to say as i was preparing for the testimony

today after i received the invitation, i was startled that the magnitude of the costs of the federal regulations, $1.75 trillion annually, costs imposed on the economy, it's about 15,000 per household and in particular on jobs where for large businesses, it cost $7700 per employee to hire a new employee, to follow the regulatory dictates of the various federal programs and for small businesses it's even more. it's over $10,000 per employee. as mr. cohen pointed out, those are the costs you need to look at the benefits of regulations when you're making policy decisions. and congress does that as it passes the laws and the agencies are required to do that under long-standing executive orders. but the problem that i see that's happened that -- and we worked on the congressional

review act as a way of addressing that balancing act of the particular type of mandatory requirement that get set in a regulation versus the benefits doesn't come back to congress for review once the legislation has been enacted and regulatory agencies have been empowered to act. we passed in 1995 the congressional review act as one way to increase that formally. but as was pointed out earlier, it's only been used one time. and it's difficult for the political configuration to work where typically you've got to have a resolution of disapproval go through both the house and the senate and signed by the president. i think the only time it did work was when president clinton's administration had proposed a rule and congress acted and presented a bill to

president bush about that regulation and so you saw the political baton being handed from one party to the other and willingness for congress and the president to act. .. strengthening that effort. it is not applied to all regulations. this carefully tailored to major regulations that have a significant and major impact on the economy. in many ways it addresses some of the constitutional questions that come up from time to time in the various regulatory programs. specifically whether congress has delegated too much authority to the regulatory agency and needed to retain some of that authority in the legislative branch in order to perform its article one dvds. and also as i . out in the testimony there are some enhancements for pres mac also since for presidential authority under article ii as mr. conyers mentioned you have a

unified executive because the bill applies to regular agencies in the executive branch and also these so-called independent agencies which the president would have some greater authority over as a result of reins act. is carefully tailored to fit into what this committee is an expert at which is thinking about the processes that should be used for federal regulation. it merely says congress is going to withhold part of its delegation and give itself an option to approve a final result before that has the force of law. it is in addition to the administrative procedures act and carefully written to be narrowly tailored for that procedural change. parties still have their rights under the the minister of procedures that for other problems that may come up. the command the committee for taking this up. i urge congress to favorably

consider the reins act and be glad to answer any questions when you need me to. >> thank you for the invitation to testify today. i appreciate the opportunity to appear before the subcommittee to enhance regulatory -- is an important issue. is accumulated for provisions. in 2009 alone federal agencies finalized 3500 federal regulations. the growth of regulation giving costs of american consumers and businesses. according to estimates, < mentioned several times to look cost of federal regulation exceeds a trillion and approaches $2 trillion a year. this is more than americans pay in individual income tax. in so far as substantial costs

they operate like a hidden tax. regulations may be necessary. they may address public bills and public benefits, but these benefits may be worthwhile to have these regulations but that doesn't mean they are free. the fact the regulations like taxes can impose substantial costs and generate substantial benefits makes it that much more important that there be political accountability for federal regulatory decisions. increasing the scope of federal regulation was facilitated by the legislative practice of delegating substantial regulatory authority and policy discretion to the administrative agencies. all agency authorities to issue regulations comes from congress. such delegation may be necessary at times but also has costs. delegation can undermine political accountability for regulatory decisions and allow regulatory agencies to adopt policies that do not align with congressional intent or public

concerns. too often federal regulatory agencies use the statutory authority to pursue policies that are unpopular or unwarranted and all too often congress is unable to do something about it. this is magnified by the fact agencies are exercising authority granted years if not decades ago. one example is discussed already today, the epa is accounting regulations to control greenhouse gases even though congress never voted to support such regulation. the epa is utilizing the authority enacted decades ago. the clean air act's basic architecture was enacted in 1970 and the act has not been significantly modified since 1990. the greenhouse gas regulation warranted a decision that is made by congress. nonexecutive agency act alone. the reins act offers an mechanism for disciplining federal regulatory agencies, enhancing congressional accountability for federal

regulatory decisions requiring congressional approval for economically significant rules taking effect and congress takes responsibility for that handful of regulations usually several dozen. then impose major costs and hopefully provide major economic benefits. adopting an expedited legislative process like that used to trade authority insurers transparency and prevents a congressional review process from unduly delaying these. such an approach can enhance political accountability without sacrificing the attendees and the expertise and specialization. require regulations to be approved by a joint resolution presented to the president also satisfies the constitutional requirement for present and. the provision of the reins act is the lead to a proposal made by judge steven briar in the 1984 election. he noted that congressional authorization requirements are constitutional way to replicate the function of a legislative veto. requiring congressional approval for the adoption of new

regulatory initiatives imposes on congress a degree of visible responsibility. the reins act provides excessive for unwanted regulation but not an obstacle to regulatory measures supported by the public. agencies are generally discharging their obligations in a sensible manner. the reins act will have little effect. the public supports specific regulatory initiatives the act will not stand in the way. it would enhance the legitimacy of regulations congress approved by making clear set initiative commands the support of the legislative and executive branches. above all else the reins act provides the means of enhancing political accountability for regulatory -- thank you for the invitation to testify and i am open to any questions you may have. >> you beat the red light. thank you for that. you're recognized for five minutes. >> thank you. i appreciate the opportunity to

testify today. as is clear from my written statement i am not a fan of h r 10. is presented as necessary and desirable to combat of control regulatory process but the bill in my view is not tailored to the problem is intending to solve. it is not well founded and it will have serious adverse unintended consequences including fundamentally changing our constitutional structure of government. we have heard a lot this afternoon about the cost of regulation and citing the one$.5 trillion which is the high end of extremely controversial estimates. very few have talked about the benefits in monetized form. as someone who goes -- i was a former administrator during the clinton administration i did cost-benefit analysis. look and both sides of the equation. during the obama administration

and the bush said ministration, file reports to congress in which it monetized and quantified and monetized the cost and benefits and consistently over time, demonetized benefits exceeded the cost by a substantial amount. consistently producing benefits for the economy and our society. we cut back the rules, we lose the benefits. second, not all rules, not even all major rules are like a. into our tenth exempts the migratory bird because without that rule, you can't shoot the birds as they fly to and from canada but there are lots of other rules. the regulated entities want pan i have given my written

statement. there are rules that give life to programs. programs like agricultural subsidies, small business loan guarantees or medical reimbursements. without the eligibility and accountability provisions which come in the form of major rules you don't have a program even though congress has authorized it or modified it. no rules, no program. other rules may be good because they reduce burdens. the infamous boat show will everyone scorned has to rule on cranes and derricks which reduced the burden, minimize the cost. industry asked for a negotiated rulemaking and supported clarification yet all of these rules would be caught by the age are 10 net. supporters say they will all go through. with respect, our experience

during the 111th congress suggests it is not easy. the drafters of h r 10 changed h r 3765 from allowing ten hours of debate on the debate abolishes to two hours of debate. you still have the vote and nondebatable motions which could take four five hours. for 65 to 95 major rules each year, for senate is not going to find that time. is unable was due respect to find lots of time to process nominations of administration officials or even judgees so the result is meritorious rules. important rules will not get through even though months, years have been spent with enormous resources devoted to sorting out the science and technical difficulties with

public participation, with analyses of all sorts of aspects. with numerous checks throughout the administration and subject to judicial review. what happens if the senate doesn't get to them? all the time and effort and resources go for naught, the same rule cannot be modified without starting a rulemaking process over again. to say there's no effect is not to understand the industry of process. at a minimum, introduces additional delay and uncertainty to and already lengthy and complicated process. finally for the reasons i set forth in my paper i believe there are serious constitutional issues that are raised that fundamentally challenge the separation of powers principles our founding fathers incorporated on the constitution.

i hear people referring to justice briers's speech since 1983 and his response, there has been a lot of law in the supreme court. this is really critical. i know i'll have five minute and my light is red. i thank you but i hope somebody will pursue this during the questioning so we can look at some of the existing law and factors in this field. >> thank you. we will have members questioning the witnesses. we will apply the five minute rule to ourselves as well. at recognize myself for five minutes. mr. mackintosh. in your view what current regulatory efforts most highlight the need for reform, reforms like those in the act and why -- in the reins act and

why? >> one is regulation of carbon dioxide. in my memory, we tried to present to the previous epa the full legislative history of the clean air act amendments that made it very clear carbon was not to be regulated and there was a lot of back-and-forth and ultimately the courts have forced their hand but to me that shows an example where congress had a procedure in place. they could reassert that intent even when the courts are driving the agency in a direction that perhaps the agency itself wasn't initially intending to go down. a second one would be the net neutrality regulations that the fcc has proposed. there will be a lot of litigation about the agency exceeding its statutory

authority. if congress had a procedure in place where they could easily pass that bill, you could see bipartisan support for a bill nullifying that regulation under the reins act procedure. that would save a lot of time and uncertainty in the private sector as that litigation goes forward. talking to my partners and specialized the bridge will very likely could be thrown out. once again would be a great example of how congress could ensure economic progress is made by paying attention to and having a part to play in that regulation. >> in improving upon the congressional review act, not requiring congress to approve some agency rules, the next logical step and in taking that step what are the keys to

ensuring that the reins act or any similar reform remains constitutional under the rule of ins? mike? >> i think it is the next logical step. a mechanism that forces congress to say yes or no to substantial regulatory proposals is the next logical step to ensure there is political accountability for major regulatory decisions. in terms of the constitutional question. it is very clear that all is required is representative. supreme court said time and again that it is axiomatic that all of 40 from a federal agency to adopt a legislative regulations comes from congress and agencies have no such authority to add -- so unlike the enforcement of 40 or leads to some context there is some

residual of executive or inherent authority these agencies may have. there is no inherent authority on any federal agency for regulatory type rules at congressional delegation and if congress wants to delegate less and put conditions on the exercise of delegated authority it surely can. not only does judge briar note this on the constitutional law professor at harvard who into recently was an official in the obama justice department likewise said of a requirement that is purely constitutional. the last point i will make fairly quickly is we have seen this already in areas that are far more sensitive than regulation. in the trade context using this sort of process for fast-track trade authority is a greater

intrusion on -- [talking over each other] >> unlike to cut the red light -- you indicated the executive order already constrained the discretion to promulgate too many rules but those orders have not prevented a flood of regulation and can be withdrawn by the president. can they not? >> an executive order can be withdrawn by the president or his successor. 2866 has been in existence in september of 1993. there may be a flood of rules that have been issued. as i said, they have documented during the bush administration as well that the benefits exceed the costs consistently over

time. i would just mention mr. smith mentioned last week, president obama reaffirmed the executive order in his own executive order and in fact the very first sentence says that in order to promote public health, safety and the environment while protecting economic growth, innovation and job creation, first sentence of his executive order so the record should be clear. >> my time has expired. to mr. cohen. >> appreciate it. let me ask one question. i made a understand this fully. as i understand it mr. davis introduced this in the 111th, 112th congress. was introduced to your end and -- knowledge before that? the 111th.

before that was introduced? >> i don't know if it was exacting language but similar proposals have been proposed at various times. >> that required a positive approval by congress? >> the article that -- >> let's come back to recent history. >> i don't know prior to last congress when the proposal introduced -- congressman dick smith from michigan has an article about legislation. >> one was that? >> 1996 or 1997. >> do you know of anything? >> i am not aware. >> during the bush years it was wonderful and nobody thought about this and the executive authority was great. only since mr. obama was elected president do we need to do this. that is the situation. for eight years it was mr. bush and the executive did everything

great. you said this doesn't present a problem. congress can do it. you understand they held up 60 judges. and you know what a blue slip is? can you imagine the senators, that is don't ask don't tell. you don't ask what you get for it or tell. they still have that in the senate. how is that going to work? all these regulations they do a blue sweater. heinie a part of my subdistrict, done. won't that invite what i would think some nefarious type -- one senator can hold about. is that right? one senator can hold up appointments and rules and regulations. >> the way the rules are typically applied they can but blue slips are accorded home state senators for nominations. they're not legislation. my reading of the bill would not allow -- >> are you suggesting we can write a bill over here that will restrict to change the senate

rules? >> the house and senate both passed a bill, that codifies changes for both chambers as has been done to the exposure commissioner fast-track trade authority. >> one senator can hold up a bill. >> if the rules allow for it yes. there are probably a dozen examples of the house and senate passing legislation, limiting rules to prevent those holds by limiting debate by requiring a vote to occur in the most prominent examples being the exposure commission and fast-track trade authority. >> thank you. you were here when we read the constitution. did you watch as read the constitution? >> i did. >> i don't know who read it. i am sure it was somebody. article ii section 1. something about all power be invested in executive to carry of the laws.

tell us about those, what that means about the executive and can they have this ability to execute our laws with our rules? could they do it without having any rules? >> that is a serious problem. section 1 of article ii says all executive power. that power includes the power to take care that the laws be faithfully executed. when congress passes a law is up to the president and the subsequent president and subsequent president after that, whether they agree with that law or not to carry out the law. for over a century, administrative agencies have been implementing or carrying out the law by issuing

regulations. for that reason, i believe an attempt by congress strips the president of that authority with respect to major rules, is tantamount to the act of congress. i am using chief justice william rehnquist's words, of one branch, self aggrandizing at the expense of another branch. again using chief justice william rehnquist's words the act of congress that would interfere with the president's exercise of his constitutionally appointed function. these are serious questions. i would be so presumptuous as to say i know how the supreme court would rule but if they want to invoke justice briar i would refer them respectfully to justice scalia as well among all the justices has been the guardian of the president's

powers. >> i yield back the remainder of my time. >> you didn't have violated too badly. the chair recognizes the gentleman from south carolina. >> mr. chairman, i would like to make a statement part of the record with your consent. i want to thank all three of our panelists. mr. mackintosh, i will start with you. what in your judgment is the proper balance between the executive branch and legislative branch when it comes to rulemaking and enforcement? >> it also constrains county executive branch writes its regulations. it must use before they have the force of law. there is a long tradition in modern history of congress asserting constrained on hall the president and the executive branch can issue a regulation.

it is fully compatible for congress to say before this regulation you are proposing, mr president or the agency, has to come back to congress, and the content of that regulation. it is in congress's power to do that. for the century prior to the last century there were no regulatory authorities or bodies and the president was fully capable of exercising his duty under the constitution to take care that the laws were faithfully executed. this act perhaps would be who barista said goes as far as to say it will restrain the

president's executive authority. this involves the independent agencies. >> you said there would be 35 regulations promulgated in the past. >> the exact number is 3503. several dozen of those are major. that number was all regulation. >> forgive me for not knowing much about civil law. the violation of a federal regulation, at a civil suit. >> that depends. depends on the nature of the issue but there are instances in which that could be evidence of

that. it would depend on a lot of factors including what the state applause are. >> are there any criminal penalties connected with violations of federal regulations? >> criminal penalties -- >> how can congress abdicate its response for criminal enforcement to a non elected entity? >> is that for expedience delegating lots of authority to administrative agencies to develop rules of congress -- conduct in complex areas. what we overlook is it is ultimately congress that is responsible for that authority. especially when you have rules that will carry criminal sanctions or in the case of the reins act, rules that are estimated to have a substantial effect on the economy which is a rough proxy for major decisions to affect a large part of the

country. it is unreasonable to say that people who are the source of legislative power in the first place where all legislative power is vested in article 1 is accountable for that decision. representatives it was not a good idea. >> you do not challenge the constitutionality of congressional oversight. correct? you don't even challenge the wisdom of congressional oversight. >> i endorse it. >> when you mention there are constitutional infirmities in this bill which as i read it is congress reclaiming its responsibility/authority for oversight. what do you mean about constitutional infirmities. >> i think the reins act goes beyond oversight. the chairman talked about fine-tuning the regulatory system.

i think the reins act is a blunt instrument that goes beyond oversight. what it says his congress must affirmatively approve an action that is already delegated. a lot of work, effort and resources have been spent in refining and developing and issuing a rule. >> congress could reclaim that delegation in the first place. >> through the congressional review act does exactly that because it satisfies the bicameral portion and says congress is saying you can't do that. that is different from saying before you do anything in this area you must come back. even though we already delegated to you you must get our permission. >> what is the distinction between the two? >> i apologize, mr. chairman. >> significant difference between the two. that is why the congressional

review act was originally passed as it was. to be a change of the law, not a filter before which implementing a pre-existing law can go forward. >> thank you, mr. chairman. >> thank you. my ex prosecutor colleague asked why the congress doesn't enforce the laws. as mcintosh and davis and i know, we passed the laws. wheat oversight the laws. we do not enforce the laws. a federal agency called the department of justice that

enforces the law. that is my criminal justice lesson for the day. this $1.75 trillion annually has been raised here. i would also like to ask miss katz and, how does it comport with issues of the congressional budget office which has a different set of figures here. major regulations promulgated over the ten year period between

1998-2008 are estimated to have cost between $51 billion, and $60 billion. >> i would love to answer the question but the red light will go off before i get halfway there. 1.75 comes from the study presented in the mid 90s that immediately raised flags. both the assumption, methodology, a very careful analysis which i will commend to use airshows different problems that exist. congress ordered the omb to do a real study. what omb did is come up with -- and through the costs and benefits. as you talk about what

$4,355,000,000,000 in cuts, was a $616 billion in benefits. to use the highest end of the cost, lowest end of the benefits, net benefits of $73 billion. >> who was it that made this authoritative statement, allegedly, about a trillion dollars. >> originally came from the johns hopkins study, a gentleman whose name -- >> do you know? >> these agencies exclude non major rules on 90% to finalize this year. >> mr. mackintosh, do you know?

[inaudible] >> discuss the cost of federal regulation. >> somebody said it. that is about it. the want to add anything to this? >> they are the co-authors. and $7.5 trillion. if this reins act -- reins act which is on the list of new

leadership agenda, what would this do to health-care reform? how would you take an enormous piece of legislation like this and obamacare is going to be a congratulatory remarks in history. would it stop in its tracks? >> it depends on the majority of those in both houses of congress. the majority of congress, it ensures the american people get the sort of regulatory policy the american people want.

the step towards greater political accountability and -- >> with a minute. the majority of the congress already passed the bill and the president signed into law. >> congress revoked statutes and altered statutes and one of the problems is you don't have legislation -- >> i ask unanimous consent for one additional minute. look, gentlemen and ladies. anyone who wants to challenge a regulation. little all they have to do is go into federal district court and sue away. they modify or kick down. what is wrong with that? >> the policy merit, costs are worth the benefits the american

people support. will the rules follow? those are two questions. >> we just pass healthcare months ago. we go back and look at it again. >> major legislation or implementing that legislation. [talking over each other] >> sounds like a backdoor way of legislating. we are just making rules to implement a bill already signed into law. thank you very much. >> thank you for your generosity. >> thank you. i would like to follow up on a comment just made by mr.

conyers. the individual, whoever is objecting to the rule can sue away. who pays for that? has to bring that lawsuit? usually is a small-business owner, objecting to that regulation. i will ask mr. mackintosh. >> private party has been affected by regulations. the recourse is very limited. they have to argue the agency failed to follow its own procedures or access to arbitrarily or capriciously, not that they disagree or feel it is unfair that the regulation imposes a burden on wheat farmers but not corn farmers. the law says to the agency, the department of agriculture, you go and allocate what should be planted on the land and do it in a way that maximizess the return

towards agriculture. if the farmer who is adversely affected by that wants his day in court all he can say is they allocated it but didn't give me my allocation. you lose. they had to make that decision. mr. conyers's later remark reflects correctly that that decision, who gets which allocation should actually be a legislative decision. in many ways direct constitutional deficiency that is inherent on the program. legislative decisions like those never come back to congress. >> correct me if i am wrong, bureaucrat is not an elected official. >> no. he would be a civil servant or signed by a person appointed by

the president. >> when i talk to my small business constituents or my farmer in my district and he objects to the policy i can't go to him and we will vote that guy out next time around because we disagree with that. he is stuck with that will other than the courts that are available. is that a fair assessment? >> his political resources would be voting congress to change the law or vote a new president who would change the regulation. >> i appreciate that. there is a lot of objection that i am hearing in this testimony that one of the problems is the workload that would be put on congress finding the time to go through and develop that. wouldn't we face that problem if we go through the enabling legislation? wouldn't that be a tremendous workload on congress? no one objects to the fact that congress would have the

authority to do it. we could go back to that piece of legislation changing the enabling authority and clarify what we meant from congress. that burden on congress would be bigger, i would argue. m i far-fetched for that conclusion? >> yes it would. with brad about you all. the senate continues to mystify me. they get things done by unanimous consent ultimately. it can be done. >> thank you. i yield the balance of my time. [inaudible] >> thank you, mr. chairman.

isn't it correct that regulations that pertain to clean air, these are the regulations you are speaking of, being able to stop? >> any regulations -- >> air quality, water quality. [talking over each other] >> i want you to answer my question. water quality, air quality. [talking over each other] >> what about food safety? >> members of congress should be held accountable. >> what about growth safety? >> members should be held accountable by voting on whether those regulations are a good idea. >> what about financial reform? >> i don't think members of congress -- >> these are regulations that

are brought to bear. industry primarily. >> they were accountable -- >> so things like the health and safety of workers. they won't be able to stop those regulations from becoming a vote force -- >> i want my member of congress to have to vote on that decision. [talking over each other] >> tell me now. you contend that $1 trillion per year is what all these regulations cost? how many new regulations are promulgated yearly that have that economic -- >> that is the aggregate, major regulation between 2009, the number -- has been between 50, and 80.

>> you are familiar with the attributes of the senate, in terms of doing their work. [talking over each other] >> you are aware that one of those attributes is not the ability to move quickly. is that correct? you have heard that before and you know that to be a fact. is that correct? the senate does not move quickly. >> the senate has to be forced to move quickly and the reins act -- >> so an obscure regulation, you think, would be enough to cause them to set aside all the judicial appointments and other important treaties that need to be ratified. the legislation that mr. mackintosh gives us credit for producing here in the house but because of an obscure regulation

they would spring into action. is that what you want this to believe? >> i don't think regulations on clean air or clean water, more than $100 million a year by the executive branch in regulation. [talking over each other] >> let's talk about obscure regulations. who would decide, or how would it be decided that a regulation should be subjected to the congressional review? >> cost estimates would determine that? >> who would bring that to the attention of congress? >> the reins act has a procedure where that is transmitted to both houses of congress when the regulation wasn't finalized. >> who would do that? >> i would have to check. >> the comptroller general that has to be on the accountability

office is responsible for submitting that to both houses and with an three days legislation is automatically introduced in both houses. that is the last trap by recall. >> there's some ability for politics to in fact the process of actually producing the legislation. >> the way it is -- [talking over each other] >> it would be a government bureaucrat that would do that. >> i spent a lot of time in legislative policy. [talking over each other] >> back room deals and regulatory agencies on the floor -- [talking over each other] >> how do we get politics out of the rulemaking process? and art week by subject in the rulemaking process to congressional dictates, by the very nature of what we do in the

house, subject in these rules to politics and influence, political influence with campaign contributions and what not? >> rules that govern private behavior are things political officials should be held accountable for and sunlight is the best disinfectant requiring members of congress support down, far less subject to manipulation in the halls of regulatory agencies. small homeowner is spending time at the sec or epa lobby and on regulations. [talking over each other] >> we want to remove all regulatory action here in congress. less government, regulation, and let's allow the members of the u.s. chamber of commerce and other large businesses that

traditionally shut out small-business -- and whatever will be will be. i appreciate it. >> the chair recognizes the gentleman from arizona. >> thank all of you for being here today. mr. mackintosh, my first question is to you. it occurs to me that not only the process but the mind set in which agencies write their regulations could be one of the most significant advantages of the regulation. if i were director of an agency and i were writing regulations, subjected to the scrutiny and oversight of congress and congress has to prove it. i have to be careful how i wrote that. i need to make sure regulation would comport with a lot of common sense to withstand the rigors of the legislative process itself.

with that, since it only requires congress to approve major rules but it can affect and change the culture of the agency, in what way will that approved rulemaking or a mile wet here? >> you are exactly right. the prospect of having the work product the agency does developing regulation, scrutinize the debate in congress and voted up and down will have as it does on every other decision the agency makes where congress expresses some interest has an impact on their thinking and calculation about it providing more accountability ultimately to the citizens who vote on members of congress. the same accountability is also in the congressional review act. it is more attenuated. you can still buy having a discharge position in the house to stop a rule rather than

production of it going forward or 30 members of the senate can have a discharge position. the mere prospect of a debate if everyone assumes that won't has, can also have a cellular tory effect on the agencies and their deliberations but i am encouraging members of congress when you are deliberating the reins act to use your authority under the congressional review act as well. it comes down to sunshine, bringing things out of the public debate has a tremendous benefit of all the actors involved. >> i know there is already manifest here some debate as to the constitutionality, i am

convinced it is constitutional. executive powers invested in the president and many would invoke article 1 section 1, regulation is sternly has the same characteristics as legislation. if you make that case it is important to consider but in constitutional terms, is there any substantive difference between the reins act and the statute and that treats new regulations as simply propose recommendations for legislative action. >> i don't think there's a significant difference and both are fairly constitutional. >> i would like to give mr. kasten and opportunity in a moment but i want to find out why you postulate this is constitutional. anything you would point out? >> requirements have to be

satisfied. the supreme court has made clear repeatedly has have lower courts that all authority to issue regulation must be -- there is no residual authority to issue regulations that come with other grants and agencies. it is something that for the most part the majority of federal agencies would not enjoy since the 1970s. the presumption had been unless agencies are expressly granted the authority, the legislative type rule has an authority is a lack and congress is not obligated to delegate that authority and if congress wants to restrain that authority in some way as it does here there is no constitutional problem and doesn't create concerns that might be raised if for example congress sought to impose similar limits on the exercise of prosecutorial discretion or other things that are closer to the core. >> that is a good answer.

just as brier and professor tribe of harvard are supporting the reins act as constitutional. you know that but can you specify what you think mr. adler is wrong and just as brier and professor tribe are wrong? >> thank you for the open invitation. the light is red. if i may answer -- >> briefly if you will. >> i will try. i think justice briar --breyer is indulging in what he does, extremely creative and more theoretical than practical analysis in this article which i have read very carefully and one of the most important things is that he sees as a replacement for the one house veto which was invalidated, as a case by case

going through each of the statutes rather than across the board, blanket provision but most importantly when he finishes he is a very clear that he is neither practical nor desirable. he questions the wisdom of that. if you read the entire article, we do this kind of stuff or think about these things. >> in other words he thinks it is stupid but constitutional. >> but this was before the last several decades of supreme court decisions. the court has been very clear that separation of powers has a life beyond. they're looking at a functional basis. >> the time is expired. please read it up. time is expired. the gentleman from illinois. >> i am relatively new here but i learn something new every day.

today i learned it is not good when someone who is not elected is enforcing our laws especially criminal ones. so the next time a police officer stops me i am going to say who elected you? or fbi agents or state attorneys or go on down the line. in the end the only person elected in the executive-branch is the executive. at the county level and state attorney. there is some delegation. this isn't 1776. it is a far more complicated world. i see respectfully suggest or defy you to say i won't think about regulation today. when i get on a commuter airliner i won't wonder or worry about how many hours of sleep that part got last night. when you come to my home town in chicago the morbidity and mortality, capital of the united

states for asthma, if you drink our tap water in chicago which has chromium levels not in the lake but in the drinking water, three times higher than the new regulation proposed in california. you can decide now or when you have your eggs in the, a million cases, salmonella last year. i understand what we all understand. the president was trying to strike a balance. over 200 year friction between the executive branch and the legislative branch. is not on you when you don't like what they do. you want to change the rules when it bothers you. so i looked at it. i talked about the president's balance. mr. mackintosh, mr. adler, how

many rules do you think this president's epa has proposed or finalized in the first twenty-one months? you can guess if you want to. major rules for all rules? the epa only. clean air act. >> possibly under a dozen. >> much higher. 87. i was appalled. i couldn't believe it. who could be more liberal than that? the clinton administration. first two years what do you think his numbers were? 115. it shows a trend here. i looked further. george w. bush. first two years. 146. 1 46. mr. mackintosh. you used the expression -- i

don't want to misquote you, the courts forced their hand on carbon. does that mean you disagreed with them? >> no. what i meant by that was the court incorrectly interpreted the bill. >> back to the constitution now you are disagreeing with two out of three branches. the constitution says the executive and forces and the supreme court interprets. you are upset with both of them now. >> at the time the executive branch didn't share the court's interpretation and there was a fair amount of evidence to legislative history that congress didn't intend that when they passed the clean air act amendment. >> if i could let me read you the language you had a problem with. in its