terminate implementation of the aca as soon as he took the oath of office. that would violate the laws and that would violate his constitutional obligations. but good faith, prudent, reasonable phasing in adjustments are routine and appropriate. i should emphasize briefly in these remarks that applicable judicial precedent places these kinds of timing adjustments well within the executive branch's lawful discretion. agencies are compelled to initiate required actions when they have been unreasonably delayed. courts have found delays to be unreasonable only in rare cases where unlike this one interaction lasted for several years and the agency could offer neither a persuasive excuse nor a credible end to its dithering. in the leading case, the late chief justice renquist rules

that unless, quote, an agency has adopted a general policy that's so extreme as to amount to an abdomen occasion of it's statutory responsibilities. neither are regulatory delays implementing the employer mandate an affront to the constitution. i think we should take a look at the text of the take care clause. particularly, the words faithfully and even more striking phrase, take care. the framers could have prescribed simply that the president execute the laws and the legislative history of the constitution shows that they

deliberately chose not to do this. why did they add the words faithfully and especially take care? defining the president's obligation in this fashion seems to me incorporates that the concept that the president's duty is to execute laws in good faith and to exercise reasonable care in doing so. scholars concur that this phrasing is that exercise judgment and handle his enforcement duties with fidelity to all laws and the entire law that he's enforcing, the entire aca, not just to a specific provision of it, including, indeed, the constitution. so when the professor says he's worried about what the next president might do and how this kind of authority could be abused, that's perfectly sound concern and indeed past presidents have abused that

authority. there certainly are examples of presidents claiming that they are merely making these kinds of adjustments, but in fact, what they're doing is stonewalling an implementing law all together. i have a few examples of those in my written statement. i'm not going to go into them. it's a problem, but that doesn't mean that we should try to interfere with an administration's ability to responsibly implement laws when that is, in fact, what they're doing. so, in sum, i would say that the president has authorized a minor temporary course correction regarding individual aca provisions that's necessary in his judgment to faithfully execute the overall statute, other related laws like medicare and medicaid, and the purposes of the aca's framers as a legal as well as a practical matter that's well within his job description. thanks very much. >> mr. lazarus, thank you very much. welcome to the rules committee.

we're delighted that you're here. the gentleman is recognized. >> mr. chairman, i'd like to begin with something that you said in your opening remarks this morning when you noticed that this was not a democratic or a republican issue. i think that is certainly true of the issues we are debating and discussing. i've been struck by how many conservative commentators and professors and former office holders have taken the position that the idea that house or its speaker to go into court and sue the president for how the president administers the law is a bad idea and is not going to be successful. take for example, jack goldsmith who was the chief legal officer of the department of justice under the recent president bush. jack wrote that, quote, conservative legal thought used to maintain that standing was a vital element of the separation

of powers and conservative legal thought used to resist institutional congressional lawsuits against the presidency, but apparently not anymore. professor goldsmith said he agreed with the national review online that the lawsuit will almost certainly fail and should fail for lack of congressional standing. this is no technicality. this is a profound part of what limits the role of the judiciary in our country. the court announced it had the authority to make determinations of constitutional law but it didn't have inherent superior claim over other branches of government to interpret and enforce the constitution, but it had a job to do. and that job was resolving disputes between litigants who had a real personal stake in the outcome. the court said we have to

resolve those disputes according to law and the constitution is law. so we have to interpret the constitution when we resolve lawsuits between litigants. but we don't make up a lawsuit. we don't make up a personal injury where none exists. just in order to have a lawsuit. i think as recently as june 24th, 2013 when the court decided two cases, they made it clear that eight of the nine justices flatly reject the theories put forward by my distinguished colleagues on this panel who would suggest that there's some merit to this notion. in holingsworth which is the california gay marriage case, five members of the court held that those who had sponsored the

referendum had no standing to litigate that matter in the supreme court. the reason they did it is their job was over. when they sponsored the referendum and it was passed, their work was over, just as the legislature's work is over, the court has said, just as the legislature's work is over when it passes legislation. its job is done. it has no institutional interest in how the law is administered that would allow it to bring suit. as the chief justice roberts said, to have standing a lit gant must seek relief for an entry that affects him in a personal and individual way. this is an essential limit on our powers. the chief justice said it ens e ensures that we act as judges and do not engage in policy making properly left to the elected branches of the government. justice scalia, one indication

of how this is not a partisan divide is how powerfully the conservative justices have opposed the notion that institutions can sue one another. justice scalia wrote in windsor also june of 2013 that the framers, quote, rejected a system in which congress and the executive can pop immediately into court in their institutional capacity whenever the president implements a law on a matter that is not to congress's liking. i think that between the five justices who took the position in holingsworth and in windsor, only justice alita has suggested that he would support such a theory and i think my distinguished colleagues here being quite capable and widely admired scholars are able to

come up with a constitutional system that makes some sense, but i think they recognize they are criticizing and both have been critics of the supreme court's decision in the standing area, that they're not suggesting what's now the law but what they would propose to be the law. chief justice renquist said in the case of rains versus byrd which rejected that members of the house and senate could sue about how the president implemented a law. he said there would be nothing irrational about a system of granting standing for the president and congress to sue one another. he said some european constitutional courts operate under one or another variant of such a regime, but it is obviously not the regime that is obtained under our constitution. they're proposing essentially a variant of the european model in which the courts resolve

disputes between the chief executive and the legislature, instead of leaving those disputes as they properly should to the political process. a court's authority, as justice scalia said, we perform the notion of constitutional rules incidentally, by accident that is, because we have the job to do of resolving lawsuits and that comes up as part of our job. now, the critical point here as the supreme court has said, is that once congress makes its choice in enacting legislation, its participation ends. that's why the subpoena cases are different. when you're in the process of engaging in law making and in aid of that law making capacity you issue a subpoena, you have the authority to do that. you don't have a role in how the executive branch administers the law. what's quite striking for professor foley's testimony is

that she believes that her theories would fully support the president being able to sue the congress. that's not the system we have in this country. just today the news reports that the house is proposing budget cuts in tax enforcement that the white house says would cripple its ability to carry out the affordable care act. i have no idea what the merits of that contingent are, but it's not reasonable to think that the president should bring suit in federal district court to the house of representatives to provide the sufficient funding so that they don't repudiate the president's ability to carry out his function. my colleagues suggest four criteria for determining where there's litigation. i think that's not the law.

the notion that the workings of political branch of the government are nullified would give them the authority to suit i think fails for many reasons. first of all, as i said, their job is over. secondly, this is not the legislature. the proposal here is for one branch to bring a lawsuit. it's not -- we don't have a uni legislature. one house could not bring it. indeed, the house that would bring this lawsuit is not even the house that passed the affordable care act that included the provisions that required businesses to have complete coverage and had certain effective dates in it. that was the 111th congress. that is, i believe, the 113th congress. that is perhaps a small point but it goes to show that this is

not a kind of institutional injury. the 111th congress, god bless them, has gone upon its way. some of the members came back, some of the members didn't. different parties are in control, but the idea that this is an institutional injury when it is essentially just a dispute about how the president interprets a law. let me respond briefly and i will close with this. professor turley uses his considerable rhetorical powers to paint a picture of an uber-presidency where there's rule by majority of one and the legislative process is displaced. i see nothing like that in any of the tales about which we speak. neither the president nor the treasury department has asserted any prerogative to disregard the law, to suspend the law. yes, the president will accomplish some things by

executive action he would prefer to accomplish by statutes by statutes are permanent but the president has has to have statute authority. nobody believes the president has authority to issue dictate. and they find the authority in the statutes themselves. mr. lazarus, my colleague, has laid out in his testimony all of the arguments for why this fits within the regulatory authority conferred by the congress on the treasury department to implement statutes. what we are talking about here is, as he says, whether it is understood, particularly in light of the background where other presidents have taken effective dates and have allowed transition extensions in those effective dates, whether it's assumed that the administration would have such authority in carrying into place a complex

new statutory regime. there's nothing remarkable about that. finding its source in the very authority conferred by congress on the administration. this is an instance where there are remedies on behalf of congress, as justice scalia said, if majorities in both houses care enough, they have innumerable ways to compel executive action without a lawsuit, from confirming presidential pointies to eliminating funding. so in closing, let me say that i think history here should be your guide, and what you see from history is silence. chief justice renquist recounts all the great balance between the president and the

legislature throughout our history and he notes that never did it seem appropriate for one of them to sue the other for how they were carrying out their functions. i think it's quite dramatic that the professor believes that the president could bring suit if they thought that the speaker of the house had assumed the role of commander in chief. the point here is not who has the better reading on this particular question of whether there's an implicit transition authority to smooth the transition to the new requirements. the critical fact that this is merely a debate about the best way of construing legislation and the house has no legal interest in that. now, whatever the right answer, this may be an important matter in terms of extending healthcare to 25 or 30 million americans and making sure that business has time to comply with the new requirements as business desired and as i believe this house

overwhelmingly supports. that's what this transition is carrying out. i think it's safe to say that never in our history has such a radical change in the role of the judicial branch been proposed to deal with such a routine question of add minute administrative process, allowing this kind of suit by the congress every time it disagreed with how a president carried out the law would be a radical liberalization of the role that the judiciary has played and it is a transformation that this committee and the house should decline. thank you, mr. chairman. >> thank you very much. to the committee witnesses, thank you very much. we're now going to move to the third section that we have today and that is to the members who will have questions for the committee. and i will yield myself such time as i consume. mr. lazarus, this question will be for you, but it refers back to professor foley's, what i

believe was her example of case law of the four specific criteria that she believed that must be met. i know there was disagreement by you, mr. dylan jer about the significance of that case law or those four pieces, bullt i do defer to you the words institutional interest and the word reasonable was used and that you believed among other things when talking about medicare part d prescription drug was the example where under president bush what might be george w. bush, there was an example that the president, through mr. levitt, who is his secretary of health and human services evidently waived or put off sections of the law. so coming back to then professor foley's ideas and perhaps mine,

was there a disagreement by the united states congress, either the house or the senate, where they passed legislation, or were they objected as a body, not as an individual, but as a body at the time? >> i'm going to rely upon your viewpoint there. you say the president did this action. was there not agreement with the bodies of congress? >> well, i can say that congress did not in some collective way respond to what the president did. if there had been an agreement by both houses of congress that what the president was doing in terms of implementing the medicare prescription drug benefit, the remedy would have been to pass a law that changed what it was that the president was doing. that was not done. that would have been the appropriate thing to do. certainly no one suggested that

they run to the courthouse and ask the court to tell the president not to do what he was doing. that would have failed for the reasons that my colleague here has said and would have been very misguided. so the answer then would have been to pass a law and that would be a part of the answer now. >> well, my response then to the gentleman would be, there was consent, there was agreement. there was not disagreement on what the president was doing. it was viewed as being a part of what was not only necessary and regular but what was consental between the body that passed the law and the president of the united states. we're here today because of a disagreement. we're here because we believe the president has extended his authority, notwithstanding individuals interest of the institution or reasonableness. i am aiming back and attempting

to the constitution of the united states that i believe has an overriding interest in what we do today. i believe institutional interest is important and that's what we're attempting to establish here today. mr. turley, the crux of what i think this lawsuit is about is because the president has violated what i believe is a core principle of the constitution. i believe it's the separation of powers, and following to faithfully execute the laws of the country. how do you view the difference between congress article one powers and the powers the president has under article two? >> it's a critical difference because the madisonen system creates three equal branches, but like animal farm, some are more equal than others. i've always said that congress is the thumping heart of the system. this is where the magic occurs.

this is where factional disputes are supposed to be worked into a ma jor therrien compromise. the stability of the system happens in article one and you can see that reflected in the amount of effort the framers put into article one, the delicate balance that occurred in the bicam ral system. all of that is a reflection of that function. by the way, it produces better products. when you have legislation go through the very difficult process of the congress, it tends to cut off the edges. it tends to create a broader base of support. when you have presidents who govern alone, that's when you produce the very thing the framers wanted to avoid. in that sense i will certainly confess to what my friend walter said, all my academic writings tend to favor congress in the system and i tend to jealously

protect congressional authority where i disagree with my friend and it's hard to because whenever i hear walter speak i end up finding myself in agreement until i catch myself and check for my wallet. where i disagree is i think there is a fundamental difference in terms of particularly these cases by the way. when you look at holingsworth. what was involved were people who were pro opponents of a state referendum. i'm not sure how walter gets to eight. i can't count up to eight. i can count up to eight but i don't count eight justices. he is certainly correct about justice scalia's position on legislative authority but i extend your question. but i disagree with some of the cases that tend to mind the line between article one and article two. >> thank you very much. part of the testimony this

morning seemed to indicate prior congress's past law that really we should not stand behind or really had no inherent interest as an institution, and that would tend to say nor should the president have to follow what i believe was law. i came to congress, went to a small school in texas, southw t southwestern. the law of the land is what we have agreed in the oath of office that i take, that the president takes, the law, rule of law. please discuss this issue about maybe that was a couple congresses ago and maybe this

president is not bound by the same set of laws. >> first of all, i disagree with walter's view that that was the 111th congress and you're a different congress. to be fair to walter, that wasn't a big part of his presentation, but this is the same congress as an institution. it's true that the makeup of this body changes. but the problem that i see actually is that members of this body increasingly are disconnected to their institutional interests, that they don't identify themselves with the legislative branch. you not only have a right but a deep obligation to protect what previous congresses have done even at times when you may disagree with the current policy, there was a time when this building was filled with people who fought for institutional interest even over their own party. that's what the framers actually anticipated. the framers believed that regardless of who was in the white house, that you as a body

would fight jealously to protect constitutional turf. what happened is that has resulted in recently a more passive attitude and the executive branch has bled away a lot of authority. this is a body that's anemic. what mr. lazarus was talking about is certainly also true, many judges are hostile to giving access to this body. instead, they stand around like hey praise doctors saying heal yourself with an anemic patient. this is not going to happen by itself. it requires judicial review. it's the equivalent of faith healing. there's no guarantee that the patient is going to get better. so where we have a difference and i think that this is an important point. we have a different view of the function of the courts. i view the courts, perhaps its most important responsibility, is to mine the lines of separation. it is not a political question

when this body goes to court and says the president has exceeded his authority. it has very little to do with what the president's policy is. you're not asking the court to help us come up with a better aca. you're simply asking the court to determine who is the correct branch to make this decision. in my view, that's not a political question. >> very interesting. i grew up in a household where my father became a federal judge for a number of years and understood his love of the law and a balance that existed of the three branches of government. i'm an eagle scout. i studied the merit badges that we took about governance, cities, states, the national government. and i whole heartedly believe, as you have testified here today, that really what we're looking at is three co-equal branches of government with

different obligations under the constitution. in this case, the judiciary is there to resolve differences to rule on the law. with that said, professor foley, there are some who have talked about that they're concerned about asking the third branch of government to adjudicated differences between these two branches of government, the executive and the legislature. is that what the court is there to do? >> the court's job, go back to chief justice marshall many years ago, it's most emphatically the province and the duty of the supreme court to say what the law is and its highest duty is to interpret the constitution when constitutional questions are presented. look, the courts have waded into this water already. the supreme court in coleman versus miller decided that a group of 21 out of 40 which is a

majority of the kansas state senate had legislative standing to assert an institutional injury when the lieutenant governor of that state broke a tie on a proposed constitutional child labor amendment the congressional subpoena cases again show that the courts are quite comfortable wading into disputes between the congressional and executive branches when they believe an appropriate institutional injury is put before them, which certainly refusal to enforce a subpoena would be. it's a denial of oversight power, oversight power is a subset of investigative power and that's a subset of your legislative power. finally, i'll point out that the 10th circuit case that was decided in march of 2014, kerr versus kickin' looper is another case where the federal courts felt comfortable wading into the

disputes between the branches. in that case it was a group of i believe five colorado legislators, all democrats by the way, who sought legislative standing before the federal courts to sue the governor of that state, governor hicken looper, for executing the taxpayer bill of rights that that had opposed politically. the 10 circuit held that they had under the federal constitution standing to assert their legislative nullification, institutional injury claims. by the way, that 10th circuit panel consisted of three federal judges, all of whom were nominated by democratic presidents. >> interesting. well, i came at this issue through a process in my own mind of trying to look at the inherent authority and responsibility, not just of congress but really of the

bodies as we know in reading the constitution, the senate has authority and responsibility among other things in dealing with treaties and how they authorize and approve presidential directives including the statutory authorization of cabinet members. i viewed that the house has original jurisdiction so to speak on budgetary matters. i viewed that our standing was not something that we should take lightly but rather that we would have to basis. so i've had to come through these calculations myself and i want to thank each of you for being here today. >> we go now to the vice chairman of the committee, the

gentle woman from north carolina, mrs. fox. >> we're all concerned about the time here and not saying things that don't need to be said. i want to agree with the opening statement of the chairman and not repeat the things that they said. i think it was an excellent opening statement, and i want to say i agree with him. i also want to say that i have always been concerned about maintaining the rule of law and our constitutional system. that's always been a priority of mine. i believe it should be a priority of all of us in the congress. i agree with mr. turley that we should be very concerned about the prerogative of the congress. no matter who's president. i think john adams best described our system when he said ours is a government of laws and not of men. that has stood us in good stead

in this country since its founding and today we have an excellent opportunity to explore the options, to reaffirm the rule of law and the constitution in the face of what i see is increasingly presumptive executive action, as mr. turley has outlined. professor turley, you've talked a little bit about the legal and societal ramifications of a weakened rule of law and of the president taking on the responsibilities of the legislative branch. i wonder if you might want to make a couple of more comments about that, that you might not have made or that you want to emphasize from your comments. >> thank you very much. the implications of this dominant presidency which has i

think accelerated under president obama are hard to overstay. what we're seeing increasingly is not just in in case a president pledging to go alone but in fact a president who can go it alone. the implications of that are significant. it turns this body into something that's discretion naer. what is happening is not just the rise of the dominant presidency. we have a shift towards what i refer to as a fourth branch. this is a very large federal agency system now which has given prediscretion. really with the aca you see the implications of that branch. we have a tri par tide system with three branches. when you introduce a major player, it obviously has serious implications. but look what happened here. the aca went to the administration, and what came back were substantial changes, including delays but also changing of some of the meaning of provisions. what the agencies did is they

treated what came out of this house as sort of aca 1.0 and what came back was aca 2.0. what the agencies decided would make for a better system. they actually may be right in that. i'm not an aca expert. but they really do not have that authority. they are insulated from the public. so what is happening in the system is we're already seeing a problem where people feel disconnected to members of this body but increasingly disconnected to the government as a whole. that's quite accurate. many of the decisions that govern people today are made in an ins lar fashion by federal agencies. what you're seeing in the aca is typical of that. this lawsuit is enormously important for that reason. at some point this body has to take a stand and try to realign these branches. if it doesn't, i think that this system is going to change in a very significant and in my view dangerous way.

>> well, i really appreciate those comments because one of the concerns that i have had again since being in elected office is the habit of unelected bureaucrats writing the rules and regulations based on sometimes very nebulous laws. it has been my position here that congress has, in the past, aggregated some of its responsibility by allowing that to happen. i believe that in the legislation we write and certainly i have been attuned to this and have worked on this in legislation i have put forward is that we do not allow the discretion by the executive branch to implement laws in ways that do not represent what i believe congress intended when

it passed the law. and so i appreciate very much your emphasis on this, because i think you're right. we do have a fourth branch of government that has developed. i think max vaber said it over 100 years ago, the bureaucracy would essentially take us over. it is a very, i think, dangerous situation that we have, and it is something that the congress needs to jealously guard because we absolutely have got to write the laws more clearly and to stop that practice by the executive branch. >> i just wanted to add and emphasize something that you said and that is my friends simon and walter talk about the past role of agencies. they also talk about the use of the power of the purse. one of the things i address in my testimony is that there's a growing mythology around the

power of the purse. as you talk about taking efforts to try to restrict discretion, one of the controversies of the aca was the movement of $454 million from an appropriate rated purpose to a different purpose. the question is who has the right to contest that type of shift? who has standing under these rules? those types of problems that involve huge amounts of money, the same thing is involved in the state exchanges. you have agency changes that are committing essentially the government to potentially billions of dollars of tax credits. those strike at the power of the purse. >> i glad that you brought that issue up because i get letters every day from constituents who say, okay, you have the power of the purse, now cut off the funding. b what they forget to note is that

when the laws pass the house, they also have to pass the senate. so it is not a unilateral authority that we have in the house. that term about raising revenue has become power of the purse to the public. they don't quite take it to its logical extension. i'd like to ask you also, professor turley, in light of the considerations you've brought up in the president, is there a point that you can identify where the president goes from crossing the line of appropriately exercising discretion to violating his duty to faithfully execute the law? >> yes. i have said that some of the controversies involving president obama i think wrongly accuse him of violating separation of power.

an example of that are some of his environmental changes. under the clean air act, the law is written in a way that gives a great deal of authority to the epa. i said at the time, in fact one of the earlier hearings when asked about it that i thought that was within the strike zone. you can question whether it's a good thing for the president to create a massive new regiment or regulatory system without the approval of congress, but the way that you wrote the law in terms of the role of the epa i thought gave him that authority. i don't feel that way about other areas where he has acted. the aca i think is actually a very good area to look at. i'm happy to see that the committee restricted this lawsuit to the aca. the degree to which this ends up a pedalers wagon with every grievance against the president, you will guarantee it's failure,

the aca has areas which i think are on the other side of that law. some of the changes that were made when we talk about deadlines are really not just deadlines. one of the deadlines that was moved, that deadlines made certain insurance policies unlawful after that time. so congress said you all spent a lot of time debating that after this point you can't sell certain insurance policies. they're unlawful. so this wasn't just some tweak as to whether you have to file papers on this date or not. this was a significant change. but as i say in my testimony, that's not necessarily the strongest. i think that's strong, but there are other changes the administration made that i do not see. in all respect to my colleagues, i do not see it as the type of standard agency work. if it is considered standard, then we have a serious problem because it means that

legislation that you pass is just simply bills 101 waiting for the real legislation to come back from the agencies. >> i want to ask another question about change, focus a little bit about -- the justice department has claimed that the president can refuse to enforce or implement laws that he believes are unconstitutional. both you and professor foley have given us some very good history lessons here today, so i'd love for either or both of you to comment on, have we had situations in the past where the attorney general or the justice department very made the claim that a president can merely refuse to enforce the law when

there is a disagreement about a particular policy? >> the answer to that is yes. i do actually think -- i point out in my written testimony that if you think of it was a six-pointed star, one of the points in that star is the ability of the president to express disagreement with the constitutionality of certain laws. so for example you asked have other presidents done that. president bush, for example, in numerous signing statements suggested that various provisions of congressional enactments, the one that comes to mind is the ndaa, the national defense authorization act. it expressed disagreement with the constitutionality of some of those provisions that required a congressional notification and the like. so presidents have done that. this president, president obama, has done something quite similar with his refusal to defend in

court the defense of marriage act. presidents have done that. i think that's probably within the realm of presidential power because they have an independent duty to defend the constitution. if that's what they believe, they have an obligation not to defend a law that that think is unconstitutional. when it comes to the aca, this president has not taken the position that the aca is unconstitutional. in fact, he fought it all the way to the supreme court, so that wouldn't be applicable here to this resolution. >> let me finish up here by saying much of what we do here at the rules committee is process oriented because we do believe in the house that process matters. we also work to protect the

rights of the minority and guarantee a particular process for operation of the house. we also have procedures designed to apportion its power as limit the power of specific individuals in it, and we've talked about that with professor turley. in spite of that, the president has refused to enforce the law in some instances, ignored the law in others and even changed the law all together. have these actions made our system less stable? i think you said that. i don't know if you wanted to add to that? >> i think people need to keep in mind that it's very easy, obviously, to ignore the separation conflicts when a president stands before congress and says i'll get this done. people can certainly see the more relevant and immediate benefits of changes in this law or that law. it's not your ox being gored.

what you're doing is creating a presidency where you may find in a very short time that the next president directs his or her attention on laws that you value. it's very hard in constitutional law to make this cat walk backwards. if you give power to a president, they will jealously protect it. the presidency has done a greater job in the last few decades protecting constitutional territory, including territory that they took from you. they are very aggressive in that sense. the canning decision was one of the few and long overdue. it moves by the court to reject that. unfortunately, one of the criticisms i gave in the judiciary committee is that i viewed -- i testified on those recess appointments after they were made and i said that i believe they were flagrantly unconstitutional. one of the things i was shocked

about was "the office" of legal council issuing an opinion that i thought was incredibly flawed. it's a great disappointment to me to see them produce something like that. they could not garner a single vote on the united states supreme court for that particular violation of the separation of powers. >> thank you, mr. chairman. i yield back. >> most interesting gentlemen -- >> chairman, just as a matter of courtesy, we might inquire of our witnesses in light of the fact that we have a long ways to go. we've been here now coming up on an hour and 40 minutes and i used to take recesses for a few minutes. sometimes there are requirements. i do have a matter that would not cause us to lose time by allowing our witnesses to have five minutes if they would need or like to go to the rest room. >> i appreciate, in fact, the gentleman helping me out, because i view it as help. so i would ask the panel, would

any of you like to take a five-minute break? there's no pressure here. how about in ten minutes when mrs. slaughter finishes, then we will take a five-minute break -- all i'm suggesting is -- >> i was really trying to help. >> i think you are. so i'm going to accept the help. so the chairman will decide this issue. that is, when mrs. slaughter finishes her questioning, it will come back to me and we will take a five-minute break. the gentle woman is recognized. >> before i start, i'd like to ask our two witnesses if they have comments on anything that you've heard up to now that you would like to speak to. >> is this working? >> i think you better use the other microphone. >> i would like to make this --

just to address the context of this disagreement between at least some members of the house and the administration on implementing the affordable care act. what is the nature of the dispute and what is the right institutional response of the house? the nature of the dispute is the authority to issue regulations in carrying this out includes the authority post effective date of certain requirements to work with business and give them extension of time. that's the nature of the issue. at every level of government you have something like that. if north carolina were to adopt a new requirement for automobile equipment and it turns out that there are not enough mechanics in the county to get every car fitted, the sheriff says to his deputies, we're not going to ticket anybody for the first few

months. just give people warnings. effective date is july 1. that's essentially what's going on here and as mr. lazarus showed, there's an process of administration that says we can't meet these deadlines, it's not practical, is that within the scope of authority to defer it. i'm not saying that's an arguable question. what's the right institutional response? the right institutional response is to say you can make inflexible deadlines. here you've got an effective date and we know that you can't impose any burdens on citizens before the effective date. they get to go into court because they're injured. you can't make me do this before january 1 when the law takes effect. can you grant a grace period? what's the right institutional response? there's absolutely no reason to think that the treasure department or the president wouldn't comply with a revision

of the law that said when we have this effective date, you cannot give any relief to business, here are the sanctions that will follow if you do. but as the vice chair of the committee said and tells her constituents, laws have to pass the house and the senate. because if you think there should be a rigid deadline and i don't think anybody does think business ought to be under a rigid deadline but if there were, it would have to pass the house and the senate. what is happening here is in lieu of having a law passed by the house and the senate saying that these new requirements have to take effect with no grace period, no transition, instead of passing that law, if you don't have the political basis or will to do it, the house alone is going into court. instead of passing a law to say we want these requirements on business to take effect immediately.

it seems to me that's the inappropriate response to bring in the five guys on the supreme court to resolve this matter instead of having the house and the senate together deal with it. i'm sorry, i didn't mean to take so long. >> first of all, i also wanted to address a point that was made by vice chair foxx about people feeling around the country cut off from the cities by officials in washington. i'd just like to point out that this lawsuit attacks the obama administration, as walter just stated, precisely for going through a very extensive process of consultation from the health providers, the businesses, patient advocacy groups, insurers, all the people who are going to be affected by the new

law -- i don't know whether you heard that. and making adjustments in the law in response to their suggestions and their kerps. so i really -- i have a little trouble understanding why congress would want to ask the supreme court to tell the administration not to do that. i have to say to professor turley who was concerned about the problem of the so-called fourth branch, we do have a big government but that's been for about the last century. i mean, it was 100 years ago that the congress began creating major regulatory agencies like the federal reserve so it's a reality that we have to deal with and putting some flexibility in the way laws are carried out, unless congress absolutely says you can't

possibly be flexible, seems to me to be a very sensible thing to do. i want to comment on one other point and that is that professor turley referred to one of the areas in which the president's critics are charging him with violating the law, and that is with respect to the administration's interpretation of the affordable care act to ensure that people who purchase insurance on exchange can have tax credits and subsidies to enable them to afford the insurance, whether in their states the exchange are run by the state government or by healthcare.gov, the federal government. professor turley is referring to these lawsuits and saying that this was a serious violation by the president. professor turley did not mention that the only two courts that have actually heard this charge

have summarily dismissed it. that was a district judge, respected veteran, clinton appointee in the district of columbia and a very respected reagan appointee in the federal court in richmond, virginia. so there's very, very, very strong case that the obama administration correctly interpreted the law. so saying that this is an example of how he has violated his constitutional duties seems to me to be with all respect, all spacious. >> thank you very much. mr. chairman, before i begin i'd like to ask consent to insert into the record a statement from mr. charles teefr, a long time house general counsel, former senate counsel, baltimore law professor. he explains that the three house speakers he served never brought a suit like this because it is legally groundless. he calls it, quote, an

embarrassing loser, end quote. because of our lack of standing and he also notes the quote, vul ger political, under quote nature of the suit. >> without objection i would enter that into the record. >> i would ask consent to insert a comment warning us that this lawsuit would, quote, distort the system of checks and balances that has stood our republic in good standing for over two centuries end quote. >> without objection i will enter that into the record. >> i wanted to make sure because i have not done it up until now, i don't want anybody listening to this to come away with the idea that we are not concerned about issues of overreach. we know they're there. modern presidents, we all believe in congress has shifted the power. a number of us have been vocal

on that point in the past. the problem is that that's not what this lawsuit is about. it's an election year, we believe, political tact that masquerades a defense of the constitutional principle of separation of powers. this is the wrong lawsuit because president obama had the authority to phase in the affordable care act. we are the wrong plaintiff because congress has not suffered an injury, and courts are the wrong forum to resolve the parties and political dispute between us because the founding fathers gave to the legislative branch the weapons to defend itself without running to the court. so we just commented on the fact that we have certain powers of our own enabling us to guard against encroachment of executive power. in grade school we were taught that these were checks and balances and congress gets to write the laws, including the laws to say no money may be spent on this policy or that.

congress gets to repeal laws and write laws and disapprove of rules and regulations issued by the executive branch. the members of the other body across the capital building have a chance to put nominees' feet to the fire before confirming or rejecting their nominations. we investigate, hold oversight hearings and sometimes impeach. these are some of the tools that we have as the majority used in your view exhausted these tools when it comes to the supposed objections to the implementation of the fast? >> i think -- i'm sorry. >> i wish we had a new microphone. >> we're all right. i would say some of this money might go into new mike focrophm. just a suggestion. i think you're exactly right that chief justice renquist, justice roberts, scalia have all said repeatedly that there

shouldn't be lawsuits brought by legislative members, legislative bodies when they have all the tools that you mentioned at their disposal, most particularly including the ability to write new laws if they want to take away -- if they want to in the area where prior presidents have thought in administering the law, they had the authority to delay the effective date of some provisions that were burdensome to american citizens or businesses. if congress wants to deny that authority or make it clear that it did not intend the president to have that authority, congress can do so by legislation. and the fact that there simply is not the political will or the political judgment by two houses and the president to pass such legislation is not a problem for the courts to step in and resolve and effectively pass that legislation at the behest

of one house and five members of the supreme court instead of the legislation passed by congress that would take away discretionary authority to extend any of the effective dates. >> i couldn't agree with you more because i think if we start relying on judges instead of the powers, the tools the constitution gives us, that is not just a -- as what we most worry about, turning it over to the executive, but we are simply giving the courts the ability to judge for us. so we're giving away our power to the courts. is that -- would you say that's correct? >> i think this would be a dramatic expansion of the power of the courts if the courts got to decide, not the house and the senate, what ought to be the further articulation of the level of administrative discretion in carrying out these laws. and it is quite striking that the proponents of this lawsuit

also acknowledge that if their theory were adopted, presidents could sue the congress. and i think that -- about how congress carries out its responsibilities. i think either of those would entrust with the unelected judges a power they ought not have in the american system. >> i think if we began to think about that as really a massive dumping of our power on to the court, giving away what the constitution has given to us, we weaken the constitution to such a great degree that it would hardly be relied on anymore. and mr. lazarus, we saw every single republican in congress voted against the affordable care act. not a single vote for it. and then we saw the house -- the republican house vote to delay it or repeal it at least 50 times, said it was the worst piece of legislation in the history of the republic. they shut down the government to

try to stop it. now they're trying to speed it up. at least that's the argument that was happening here, that the president failed to enact it fast enough after they had thrown every roadblock at their disposal in his way. is that a fair summary from your view point of what we've been doing here in the past years? and do you find any reason in that to sue the president of the united states? >> well -- >> or do you think that maybe congress has not done its job? >> well -- >> am i putting you on the spot? >> you are putting me on the spot, but i will certainly -- that's what i'm paid to deal with. as i've said before, i think it is curious that the objection here is to putting some flexibility into the pace at which one part of the affordable care act is implemented from

members who quite sincerely believe that the affordable care act has not -- is not a sound piece of legislation, although i strongly disagree with that. but it is a little bit curious. i guess i'd have to say in all sincerity that the propensity of members of the judiciary, including the supreme court, to view with skepticism the question whether they should take jurisdiction over such a lawsuit is likely to be enhanced by a perception that the last thing in the world that some of the proponents of this lawsuit really want would be to see faithful execution of the affordable care act. be that as it may. so i guess that's an answer. >> every president since teddy roosevelt, almost every

president since teddy roosevelt has tried to implement this kind of health care act. and we are the only industrial country in the world that does not have it. provide health care for our citizens. and president obama was successfully doing that. i think that has created somewhat of a backlash. but unless this suit's dismissed for lack of standing at the outset, wouldn't we see these lawsuits over and over? >> well, i think that is a big problem. and walter has already talked about that. but i thought i would respond. o mr. chairman worried quite appropriately about the lack of the limiting principle on the president's discretionary authority. there's a limiting principle issue here about this lawsuit. if this lawsuit were to be accepted, wouldn't it be true that every time one house of congress thought the president was implementing some minor or not implementing some minor

provision in a 5,000-page appropriatio appropriations omnibus bill that they popped into court, as justice scalia said, it would create a mess on a scale that it's hard for any of us to even think about. and i think that is a really important and obvious reason why you probably are going to get at least eight justices to say, no, we're not taking this case. >> mr. dellinger, do you believe we could see a possibility of the senate trying to sue the house? >> i don't see any limit to the principle that would be behind this house suit. i could see that if we were to start down that road, the president could go into court and sue the senate for failing to give him an up or down answer on nominees as the constitution contemplates that they actually advise and consent or reject but

give him a vote. i could imagine the house suing the senate because a certain bill the senate was considering didn't originate in the house as the chairman's session noted. the house has that authority over taxing and budget matters. so if the senate were considering a bill, would you go into federal district court and seek a mandamus to make the senate not proceed with a revenue measure that failed to originate? i just think these are not matters that the courts ought to be deciding. >> i often marvel at the foresight of the people who wrote this constitution. it certainly stands today is what they were thinking at that point is what we need to follow today exactly. conservative writer andrew mccarthy says the consequences would be that now, quote, we would be subjects of a judicial oligarchy. all future presidents, no matter

how lawful their actions, would be subject to congressional lawsuits and court directives from the judiciary. judges in charge of all policy matters in our body politic. and he goes on to rightfully point out that both parties would use this to harass presidents of the other party, which would be a terrible thing for our country and what i think is happening here. mr. dellinger, you've explained the system established by the constitution that the courts do not settle disputes between political branches, but you noted we certainly could have an american legal system and constitutional principles that allow our highest court, which would frighten me personally to death, to settle disputes between the other branches of government. in fact, as you and others have explained, that's how they do it in europe, particularly in france. now, why do you suppose that the majority party wants to turn our legal system into the french system? it seems to us that our 200-plus

years of what we've been doing has worked very well for us. >> you know, i do think that it has been very much a part of our system that our court is limited to resolving cases. in 1793 at the very beginning, r president washington asked the supreme court for its opinion on whether a given treaty was within the treaty power, and the justices responded in a very seminal opinion that we're not going to answer that question because there's not a lawsuit here. what the speaker is really asking is to have a right that ordinary american citizens don't have. they don't get to go into court if they disagree with something that's being done by the government unless they're injured. they have to show they have an injury. they have to generally, with some exceptions, pay their own lawyers as well. what the speaker is getting is the right to go into court without showing any institutional injury. >> well, let me quote andrew

mccarthy again. the conservative columnist i mentioned. he called this lawsuit feckless. >> feckless, was that the word? >> feckless, uh-huh. >> he's good with words. >> he's good. he writes that, we quote again, boehner would turn to the courts, notwithstanding that, a, the congress has its own constitutional weapons to rein in a lawless president, b, the judiciary has no power to issue advisory opinions about the president's behavior outside the context of an actual case or controversy, and c, the judiciary is not the president's superior, and d, the judiciary has no power to enforce its judgments and would have to rely on the executive power to carry out its orders. for me, i think that sums that up very well. do you agree? >> i do, and i think we haven't even gotten into the fact that if this lawsuit were contrary to

my expectations to make it to the supreme court, i'm not sure what the remedy would be since the period of the grace period would have largely expired, completely expired and the requirements would be in effect. i mean, i think what we have here is a lot of rhetoric about an uber presidency that doesn't fit with reality. congress' general capacity over funding the executive branch of the government gives congress lots of authority to rein in the president. presidents have used their statutory authority in very large ways. the framers of the constitution came close to giving us a legislatively centered government. but in august of 1787 in a very dramatic period at the very end of the constitutional convention led by governor morris of

pennsylvania, rufus king of new york, they gave the president independent authority. they gave the president for the first time the authority to negotiate treaties. they gave the president the power to nominate judges, which previously had been the purview of the senate in earlier drafts. they created an independent executive branch because they saw that this government was going to be entrusted with large responsibilities, and you needed a strong executive. that's what we've seen through washington and lincoln and roosevelt and others, that this country settled the west, we ended the great depression, we played a critical role in the second world war, we achieved the civil rights movement all under strong presidential leadership, always subject to the overriding authority of congress, but that system, without judicial intervention, has served us awfully well for two centuries. that's a pretty good record of accomplishment. >> one last question. you all appear before the courts, certainly the supreme court. give me some idea of a timeline that you think that this process

could take to its final conclusion. >> well, unless there were extreme expedition, this case would not get before the supreme court this term. this term that begins the first monday in october. so it would be before the court in the following term if the court thought this of any magnitude, a decision would likely not come down until june of 2016, by which time i assume it would have been dismissed at moot since the period allowing this is more time to accommodate to these requirements what already have passed. so i don't know what would happen. that's a sense in which i meant that though the extensions may be important to the administration of the act, the particular legal question comes to so little for the first time to alter our history about the role of the courts. >> well, thank you very, very

much. appreciate it. mr. chairman, thank you. >> the chairman had indicated we'd take a break. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] >> you can watch the rest of this rules committee hearing on our website, and comment on our facebook page, where we are asking, should the house gop seal president obama? one viewer writes -- jeff comments, they are only making him enforce his own law. you can join the conversation at facebook.com/cspan. c-span, the head of

the centers for disease control discusses an accident report and 80 workers were exposed to anthrax. republican leaders comment on the 2014 midterm elections, and house democrats present their economic agenda. >> tomorrow night, live coverage of new jersey governor chris christie in davenport, iowa at a fundraiser for fellow governor terry branstad. part of our road to the white house 2016 coverage. at 7:00 p.m. eastern time on c-span 3 and www.c-span.org. >> july 20 marks the 40th anniversary of the first lunar landing. the space correspondent on the life of neil armstrong, saturday night at 10:00 p.m. eastern on "afterwords."

>> for over 35 years, c-span brings public affairs events from washington directly to you, putting you in the room at congressional hearings, a vent -- white house events, and complete gavel-to-gavel coverage of the u.s. house, all as a public service from private industry. brought to you as a public service by your local satellite provider. watch as in hd, like us on facebook, and follow us. >> in june, it was revealed 80 workers at the centers for disease control may have been accidentally exposed to anthrax. a subsequent investigation found additional safety lapses at the atlanta facility. at a house hearing, the head of the cdc discussed how the agency handles dangerous pathogens. this hearing is two hours and 40 minutes.

>> good morning. the subcommittee today examines the center for disease control anthrax incident last month that potentially exposed dozens of researchers to live anthrax because established cdc policies were not followed. last friday, the director announced corrective actions being taken. the review identified a

fundamental flaw -- the agency had no written plan to ensure the safety of workers and proper handling of live biological agents. the department of agriculture investigation revealed more disturbing detail. during the investigation, workers could not locate some anthrax samples and it took more than a year to get management to track down samples in cdc custody. agricultural inspectors uncovered that edc was transferring -- cdc was transferring dangerous material in ziploc bags. the disinfectant they used was expired. this is troubling, and completely unacceptable. the center for disease control is supposed to be the goals and are -- gold standard of the u.s. public health system, and it has been tarnished. we rely on cdc to protect us, but the recent anthrax event and incidents have raised serious

questions about the cdc ability to safeguard agents in its own labs. the director called the exposure a wake up call. this is not the first wake-up call. i am not even sure wake-up call is the proper term. it is a gross and dangerous understatement. it would be potentially very dangerous. a wake up call is catching something before the danger exists. once a person is exposed to the serious pathogen, the danger is of a much higher magnitude. in 2006 bioterrorism labs sne anthrax on the mistaken belief it was enacted. later, mistaken procedure led them to ship live agents to an outside lab. in 2009, they learned a strain that can cause a highly contagious infection has been shipped to outside labs and --

since 2001 because researchers believe it was a last dangerous strain. one must question the scientific altercations of the scientists. these are not isolated incidents. the inspector010 general issued three reports documenting concerns cdc labs were not ensuring physical suring of agents and en personnel receive required training. scientistound a discovered agents in a drawer in an unsecured lab, and another freezerents in a leftover from an outbreak investigation many years earlier. this is reminiscent of the recent discovery of smallpox hiles in storage on the nig campus. it was discovered by accident.

not011, oig bound cdc did monitor certain agents at federal laboratories. in addition to the inspector general audit, several gao reports have raised concerns about oversight of high containment labs, including those at cdc. despite the red flags, these incidents keep happening. we learned last friday scientists delivered an influenza strain that was contaminated with a very deadly flu virus. the cross-contamination was discovered may 23, but it took six weeks for this to be reported to cdc leadership. what we have here is a pattern of reoccurring issues, of complacency, and a lack of a culture of safety. this is not sound science, and this will not be tolerated. these practices put the health of the american public address. it is sloppy and inexcusable. i thank you for

testifying today. i question if the corrective measures you have announced will solve the problem, and i look forward to the testimony. taking personal actions will not address problems that appear to be systemic. toneeds tod -- cdc needs ensure that procedures are followed. you said you were distressed by the delay in notification over shipment. i want to know if you have reason to believe workers may be afraid to report incidents. cdc will not solve human errors unless it gets as much information as possible. since 2007, there have been 17 reports indicating a worker was potentially exposed to an agent or toxin. as far as we are aware, no one has become sick from improper handling, but 'sthese nts will continue.

sooner or later, someone will get very sick or die. the risks require failsafe mechanisms and redundancy similar to those used in contexts such as handling weapons. the subcommittee will review the oversight of laboratories and explore the possibility of an independent agency. i thank all the witnesses testifying, and now recognize the ranking member. >> thank you very much, mr. chairman. last month i visited the cdc laboratories -- the cdc laboratories in atlanta made a series of mistakes. they transferred anthrax to two other labs, potentially exposing dozens of individuals to anthrax. luckily, no one has yet fallen ill. i am deeply troubled by what we learned about this incident. how did it happen? cdc conducted its own internal

investigation that identified numerous failures. there was no standard operating procedure for the analysis conducted by the cdc scientist. there was no study plan. the scientists used a pathogenic strain of anthrax when a non-pathogenic strain could have been used. the scientists used unapproved sterilization techniques for pathogenic anthrax and then transported the material without confirming it was inactive. this was obviously an alarming series of failures, but there were other problems at cdc that made this incident worse. cdc has provided to the committee a disturbing report from the u.s. department of agriculture, animal and plant service.spection after the incident, they conducted their own investigation of the facility. inspectors identified serious problems in lab procedures and he can attain -- decontamination procedures.

they reported the agency was inadequately prepared to handle the cleanup or treat those potentially exposed. i think we can all agree that reports on this incident are bad, but what is even more troubling to me is that in xont -- context they reveal a broad problem with cdc safety culture. we received report after report aphisao, hhs, aig, and offering a multitude of warnings and recommendations on operations of high containment labs. the report identified four other cases in the last decade where cdc shipped dangerous pathogens off site. the democratic committee staff repaired a memo describing the results from six different inspections at the cdc facility in 2013 and 20134. overall, in six inspections, s and invite dozens of

concerns. 29 related to equipment, 27 39ated to security, and related to recordkeeping. in some cases, the observations revealed that what appeared to ,e on the paperwork problems i but in other cases they found serious problems. reports of scientists using torn gloves and exhaust blowing fumes in the wrong direction. none of these inspections gave cdc a totally clean bill of health. i want to make this part of the record, mr. chairman. the record shows cdc had ample warnings and should have been focused on the problems in high containment labs long before the june anthrax release. i just don't understand why they did not heed those warnings. dr. frieden has indicated he was as surprised as anybody by the scope of the problem, and the fact he worked so surprise is a problem in and of itself.

it shows there is a fundamental problem with the culture of identifying adn reportin -- and reporting safety problems up the chain of command. i'm sorry to say, these lab safety issues are not new to me or the committee. this is one of the detriments of having been on this committee for 18 years. we have had multiple hearings on this problem at the cdc over the years. 2007, we had terrible problems at the cdc facility in fort collins, colorado, just north of my district, where we had vectorborne diseases being very sloppily handled. fortunately, we build a new facility since then in fort collins. a beautiful facility. and we are able to handle these diseases. but these issues are not resolving themselves, and so while you have a strong record at the cdc, i know you have

answers and recommendations and your -- i appreciate it, we all appreciated. is what we all need to know we cannot legislate a culture change. it has to come from within the agency. i'm glad to have gao and aphis witnesses here, because you're warnings were prescient and should have been taken more seriously. i can assure you, the warnings are being taken very seriously. not just by the agency, but by the people here on this panel. >> i recognize mr. upton for five minutes. >> thank you. this is a very serious hearing, for sure. two years ago after allegations about problems in cdc building 18, home of the andliest agents

pathogens, investigations about compliance in the operation of its main lab facilities. in response to concerns, cdc sent thetom frieden committee a letter. the letter outlined the agency's efforts to ensure better oversight in safe handling of select agents at cdc labs, including rigorous training, constant review of safety measures, and multiple layers of systems. the letter stated that a senior official who was not identified would be designated to report directly to the cdc director on safety at cdc labs. these measures sound very similar to the corrective actions dr. frieden outlined last week to address the current lab crisis. why should we believe this time that things are in fact going to be different? we asked cdc two years ago to invite each bi-safety issue that

afety issue--bio-s that had taken place since 2005. cdc provided us with a list in 2012, but we now know from the internal investigation released last friday that the list was not complete. improper shipments of pathogens in 2006, including anthrax, were not included in the cdc list of safety incidents that in fact was provided to this committee. cdc staff has no knowledge that shouldidents reported have been included. we don't know why they weren't. this raises receiving all of the information about its own biosafety systems. add to the possible anthrax exposure that delayed notice

provided the cdc notice leadership and the discovery of smallpox, vials in a cardboard box, in an fda storage room on at nih campus, and these incidents no longer appear isolated. a dangerous, very dangerous pattern is emerging, and there is a lot of unknowns out there, as well. when dealing with passive vince unknowns are, frankly, unacceptable. what you do not know can hurt you. these events keep happening? cdc needs to solve this problem now as a team. the agency needs to get as much as possible from its workers about true safety, biosafety, the true state of biosafety at cdc and keep this committee and the american public fully informed. there is zero tolerance for unlocked refrigerators and ziploc bags.

those days have to be over. the chairman for yielding. i want to thank the panel for being here. as you can hear on a bipartisan basis, we have plenty of questions for you. we are deeply concerned about the incidents that have occurred at the federal labs that are run by the department of health and human services. specimens,he anthrax dr., we appreciate the time you spend with us last week, but i think we have plenty of questions about the safety and the turf create you know, we would think that the priority and caring and making certain that you are tending to that culture of safety within these labs. nih, with the vials of smallpox and the fact that this was in an unused portion of a storage room , who all would have access to that? and then, of course, the

cross-contamination of the influenza sample. we have all talked about the three of these events, and the fact that they have occurred within this framework of time, the fact that there seemed to be a dismissiveness of the serious occurrences, the fact that the cdc's own report pointed out some of the contribute in factors in this and the lack of a standard operating procedure and best practices, and the fact that this is not known among the employees at that agency, we know that there are some remediation measures that have been implemented, but the culture of safety or lack thereof continues to be a concern to us for public health. i yield back my time.

mr.hank you, and we go to waxman. >> the possible release of these on the campus in atlanta, and i was on the committee, and we held hearings after the 2001 anthrax attacks. we looked at the safety of postal workers and the public in and the the mail, it postal service with the cdc response to those attacks, and we had hearings again in 2003 and 2005, where we found there were still gaps in biological detection of anthrax and in communicating test results to the public. showed why cdc's work on identifying and containing public health risks on these types of biological elements is so important. but this work could also pose

risks, and that is why this oversight hearing is important. in 2009, when i was chairman of the full committee, we held a hearing on the proliferation of high containment bio labs and the lack of oversight over such facilities. mr. dingell also held a hearing in 2007, so this is not our first introduction to this subject. request, we also looked into lab safety. it was reported in a number of studies, recently as 2013, the withems were associated the government's fragmented, piecemeal dealing with these labs. no single agency has oversight over all high containment bio labs. there are no national standards for operation, and we have no record of how many labs even exist.

the health and human services inspector general also issued numerous reports on high containment labs and their handling of select agents. the inspector general identified issues with the treatment of select agents and the safety of the individuals working with these dangerous pathogens. the ig recommended that the centers for disease control labs for individuals handling select agents, improve record-keeping, and take appropriate measures to improve safety. count on thepeople centers for disease control to protect them, and we want to be able to assure them that the cdc is conducting its research in safe and secure ways. supportive of the doctors efforts at cdc. we have worked with him on numerous issues over the last five years, and he has shown

himself to be an effective leader and a strong communicator, and i appreciate the quick actions that he has this in response to incident. i am encouraged to see that dr. appointed dr. michael bell to oversee safety protocols and procedures. this investigation has shown us the cdc needs to change its safety culture, and i hope that can help instill a new mindset at the agency. still, i am concerned that it took exposure of dozens of cdc staff to anthrax to finally spur we wantction, so actions from the cdc about how this incident was allowed to happen in the first place, and i look forward to hearing from gao and others about the problems they have identified in the past, how cdc should implement their recommendations moving forward, and what role congress should play in making sure that

happens. mr. chairman, this is not the first hearing on the subject. we have looked at it before. be sure thatd to all of the recommendations we have had are put in place so we can stop something like this from happening again. thank you, and we yield back my time. >> thank you. i would like to introduce the witnesses in the first hearing. eden,, dr. thomas fri accompanied by the deputy director for emergency preparedness at the center of disease control. the doctor works with the plant inspection services, and dr. works at thery accountability office, and, dr., did you want to introduce somebody else from your district? you forhairman, thank the opportunity.

i know this witness is on the second panel, and it will be a little while before we hear from the second panel, but it is an honor and a pleasure to introduce off of the second kauffman, part of a company called behavioral-based improvement solutions. his background is long-term beforeent with the cdc forming his own company in my district, the 11th congressional district of georgia, in woodstock, georgia, and i would encourage all members on both sides of the isle, if you have not had the chance -- i know we try to read all of the testimony, but sometimes we skip one or two w along the way, but i will guarantee you that the testimony from mr. kaufman really hits the nail right on the head in regards to the overall issue, and i will

commend it to you, and i am proud to introduce him to you in anticipation of the second panel. mr. chairman, thank you very much, and i yield back. >> to the panel, you are aware that there is an investigative hearing, and they are used to taking testimony under oath. you any of you have objections under oath?stimony it indicates no. the chair advises you you are under the rules of the house and committee, and you're entitled to be advised by counsel. do any of you wish to be advised by counsel during today's testimony? all of the witnesses indicate no. in that case, please rise and raise your right hand, and i will swear you in. do you swear the testimony you are about to give is the whole truth and nothing but the truth? thank you. all of the witnesses answered in the affirmative. title 18, section 1001 of the united states code, and you may now give a five-minute written

summary of your statement. dr. frieden. >> chairman murphy, ranking member degtette. chairman murphy, ranking member of the, members subcommittee, thank you for letting us appear before you. -- me i will review the problems that have come to light in the past month and tell you what we are doing now to address improving lab safety. the fact that it appears that no one was harmed and that there were no releases does not excuse what happened. what happened was completely unacceptable. it should never have happened. if i leave you with just one thought about today's hearing as it relates to c.d.c., it is this, with the recent incidents we recognize the pattern at c.d.c. where we need to greatly

improve the culture of safety and i'm overseeing sweeping measures to improve that culture of safety. c.d.c. works 24/7 and our scientists protect americans from threats like ebola and mrsa and manmade threats such as anthrax. but we must do that work more safely, and we will. there's a recap of the recent incidents that summarized in our report, which has been completed and we are just at the outset of our investigation of the flu contamination. sterile. use of a strain when a nondangerous form would have

been appropriate. in the flu cross-contamination, we are trying to ups how it it occurredtand how and investigating how there could have been such a long delay in notification. the risks to employees from the anthrax exposure was at most very small, and the risk of release to the public was nonexistent but that does not change the fact that these were unacceptable events. they should have never happened. in the past as the committee has outlined, there were a number of specific incidents, and i do believe that c.d.c. staff worked hard to address the specific findings of past investigations but i think we missed a critical pattern.

instead of just focusing on those when we issued the anthrax report, we provided not only these two incidents but the prior episodes of what has happened because what we are seeing is a pattern that we missed, and the pattern is an insufficient culture of safety. we're now implementing every step we can to make sure that the problems are addressed comprehensively in order to protect our own work force and to strengthen the culture of safety and continuing our work protecting americans. i have taken a number of specific steps. i have a moratorium on the transfer of all biological materials out of all 3 and 4 laboratories at c.d.c. i have closed the two laboratories that were involved in this situation until we're sure they can be reopened safely. i have appointed dr. michael bell, a senior scientist, to be

director of laboratory safety reporting directly to me as a single point of accountability. he will review the moratorium and lift it lab by lab when we and willdent facilitate expansion and use of that safety culture throughout c.d.c. scientists are world famous for their rigor in scientific investigation and we will apply that same rigor to improving the same safety in our own laboratories. i'm convening a high-level working group inside cdc, internally to advise us on every , step of the process and external working group to take a fresh look to see what we can do to do better. and we are looking at protocols and improve them as needed. we'll look at future incidents if they occur with a command structure which should have been used earlier in the anthrax exposure. i will ensure that appropriate disciplinary action is taken as indicated by our investigations

and will apply lessons learned from this experience to our function as a regulatory agency and our select agents' regulatory program. in hindsight, we realize we missed a pattern of incidents that reflected the need to improve the culture of safety at c.d.c. but as with many things, recognition is only the first step and we are taking a number of additional actions to establish and strengthen a culture that prioritizes the safety of our own staff, encourages reporting of actual and potential situations that may place staff and others at risk, openly assesses those risks and implements redundant systems to keep risks at the absolute minimum. part of that culture will be increased reporting of problems or potential problems. one of the aspects of an effective culture of safety is rapid reporting of problems. so if we do uncover problems in the coming weeks and months,

this may well be the result of strengthening our culture of safety rather than failing to address it. we have concrete actions under way to change processes that allow these incidents to happen, reduce the likelihood of an occurrence in the future. and apply the lessons broadly. we will do everything possibly to live up to the high standard that congress and the american public rightfully expect us to achieve. i look forward to your questions and thank you for inviting me to testify today and your interests in this important topic. >> thank you, doctor, you are next. make sure your microphone is on a very close to your mouth. thank you. it is not on. greenlight. there you go. thank you. >> mr. chairman and members of the subcommittee, thank you for the opportunity to testify today about the animal and plant health inspection services inspection into the release of possibly live anthrax at the c.d.c.'s campus.

i'm dr. jerry dick. associate administrator within usda. we conducted a thorough inspection of the incident to learn how it happened and determine appropriate remedial measures. we will continue to monitor the c.d.c.'s response to ensure all necessary corrective action is taken and that when work resumes at the laboratories, it will be done in full compliance with the health and safety of the employees and the public at the forefront. usda was designated as a partner with cdc in the oversight of select agents because of our expertise and experience safely working with select agents over the past entry through our efforts to prevent diseased

agents from impacting u.s. agriculture ap the environment. for decades, it has safely operated high containment laboratories that handle select agents including those for concern for human health. our personnel and experts in the effective of high containment laboratories. to ensure objectivity, we signed a memorandum of understanding in october of 2012, which makes aphus is the lead agency. -- lead inspection agency for cdc entities. since the m.o.u. was finalized, aphus has carried out 11 inspection of the four c.d.c. laboratories. aphus takes any potential release of a select agent or toxin very seriously with a goal of quickly ensuring that the release is contained and determining what led to the release to ensure no future

incidents. on june 13, c.d.c. officials discovered a potential release of anthrax and notified us. c.d.c. voluntarily closed impacted labs on june 16. we made the inspection a priority and quickly began its work to make sure all agents were secured and no other breaches in biosafety or bio security. trained inspection team of veterinarians and a plant pathologist spent nearly two weeks beginning on june 23, conducting a facility review of the laboratories and interviews with c.d.c. personnel. we briefed c.d.c. officials on july 2, outlining deficiencies so they could immediately begin taking corrective actions.

aphis found that the laboratory did not use an adequate activation protocol and did not even sure that the protocol was in fact validated. the initial response to this incident by the c.d.c. laboratories was inadequate. both in securing as well as disinfecting laboratories. for example, individuals without approval to handle select agents were able to access space containing or potentially contaminated with anthrax at least four days after the incident was discovered. we also found that employees did not have appropriate training in some instances. we found no clear management oversight of the incident at the labs and no clear single manager overseeing the overall c.d.c. incident response, which resulted in employee confusion about how to respond. in addition, c.d.c.'s occupational health clinic was not prepared to respond to the potential exposure of a large number of workers.

aphis currently have in place a cease and desist order with select agents and the toxins -- at the two impacted select agent laboratories. we will require that corrective actions be taken to ensure the integrity of these research programs. we have directed c.d.c. to provide aphis with its plan for coming into compliance by july 25. and before allowing c.d.c. to resume select agent work in the laboratories, we will conduct a re-inspection to ensure that all corrective actions have been taken. mr. chairman, this concludes my testimony. i would be happy to answer any questions that you or members of the subcommittee have. >> thank you, dr. dick. y, please point the

microphone very close to your mouth. closer than that. >> pardon me? >> ring the mic -- bring being mic really close. >> is that better? thank you very much for inviting us to come to talk to you about some of our past work on biosafety issues. as mr. waxman noted in his statement, we have been doing this work for quite a while. we started with the original anthrax attacks, and we have gone on to a number of other issues over the years. our past work has a couple of major themes. one of them is a lack of strategic planning and oversight of the whole picture of biosafety laboratories. aphis and cdc are only a part of that picture and since 2001, there have been an increasing number of biosafety laboratories both within that sector and also across the whole government. there are six or seven different agencies involved and no one entity has been charged with developing a strategic plan.

we became particularly concerned about that as budgets began to shrink recognizing that the management and operation of these laboratories is an expensive venture and if they are not properly maintained, other kinds of problems can arise. we have also observed that there is a continued lack of national standards for designing, constructing, commissioning and operating these laboratories. there is guidance. the biosafety and microbiological and biomedical laboratories guidance is available, but it's not required and there is no process by which an entity needs to make sure that they are following that guidance. we think this broader government perspective about both how many of these laboratories we need and for what purpose and also a better framework for oversight is still needed.

we have done some work since this episode became -- since the most recent episode became public. we did take a team to atlanta. n andt to thank dr. friede his staff. and 10 days notice is a bit of a challenge for us, but his staff was very good at providing everything we asked for. i'm not going to add very much to that debate. i think the two previous witnesses have covered the details pretty well. the one thing i would add, however, is while we agree there is a requirement to have standard operating procedures that are reviewed at appropriate levels for biosafety, we believe it's important that those procedures be validated, by

that, we mean independently tested so we can be assured if these procedures are followed, there will be no further episodes. so i will add that one thought to the debate about the incident itself. thank you very much, mr. chairman. that concludes my statement. >> i recognize myself for five minutes. frieden, is -- anthrax a biological agent that could be used in warfare? >> yes. >> and the mishandling of it, if someone was sickened, what would the symptoms be? >> the most severe forms are respiratory anthrax, which can cause severe illness or death. >> i have an image of some workers handling testing for anthrax, et cetera. one sees that -- i don't know if this is a lab but some other workers investigating. but when i toured labs the number of levels there what's required for breathing, covering clothes before and after. pretty severe. i got to ask these questions, a zip-locked bag and i have to

think what would go through the minds thinking that a zip-locked bag is enough when you have other incidents of the clothing that someone has to wear. have you talked to these personnel about transporting anthrax and why? >> i have been directly involved in the investigation and i will be directly involved in the remediation of the problem that we find. many of the issues that are mentioned in the findings relate to what was done with the material that was believed to have been inactivated. so once the laboratory has say killed anthrax, it was handled in the lower containment laboratories as if it were not infectious. thatubsequent studies were it is likely that it was not,

but the core there was the failure -- >> this is like saying i didn't know the gun was loaded but somebody got shot. but you should always assume that it is. for someone to say i didn't assume it was live. quite frankly, i wonder if you have the ability to not only reprimand such personnel, but to fire them, suspend them or quite frankly, do they understand the extent to this they could have been charged with criminal negligence or negligent homicide or reckless endangerment? do they understand the seriousness to the american public health? >> i think first your idea, mr. chairman, of a two-key system as is used in other circumstances is quite appropriate here. both within the high containment laboratories and to verify this stuff coming out safe if it does come out because stuff has to come out of those laboratories to be tested or worked with elsewhere.

in terms of disciplinary proceedings, what we want to do is strike the right balance. on the one hand, we recognize the need to make sweeping improvements in our culture of safety and part of that means staff need to feel comfortable any time saying hey, there may be a problem here, coming forward. at the same time if our investigation finds that there is negligence that people knowingly failed to report or took actions that were likely to or should have been known to endanger themselves or others, then we will take appropriate actions. >> dr. dick said people who were not approved were able to access space possibly contaminated at least through june 17 four days after the incident was discovered. now my assumption these , scientists are pretty smart people but it is extremely disturbing to think they are not thinking -- well, let me ask this, it has been a week since you learned about the march,

2014 shipment of the influenza and six-week delay in notifying. did you find out why there was a six-week delay and was there a cover-up involved in that or the bureaucratic hurdles too high? what was the cause? >> i only got preliminary information on that but i will make a general point, however. when we look at emergencies in emergency departments or intensive care units in the health care sector, the biggest problem usually isn't a failure to respond to this activity when people recognize there is an emergency. but we haven't completed our investigation of that and we will look at all possibilities. >> is there any kind of notification offer alarm system that lets people know when there has been a release or a problem there? >> there are multiple alarm systems. within cdc. in this case it was a cross con -- cross-contamination of a culture and somehow, and we haven't figured out how yet, a

one crossed with another one. >> i get more alarms when you walk out of wal-mart with a shirt that wasn't paid for. is there a cover-up not wanting employees know? >> no, we have not seen any evidence of a cover-up, but we do see the need to strengthen the culture of safety that encourages reporting, any time there is a problem or potential problem, so we can assess it and take rapid and prompt action. >> thank you. i recognize ms. degette for five minutes. >> you testified that there is an increasing number of labs that are handling these bioagents, correct? correct, and you say there is no one agency in charge, is that correct? >> correct. >> now -- you said that today, but in 2007, the g.a.o.