Top Takeaways from Full Committee Hearing on Congress in a Post-Chevron World

WASHINGTON - The Committee on House Administration held a Full Committee Hearing today titled, "Congress in a Post-ChevronWorld."

Witnesses:

• Mr. Wayne Crews, Fellow in Regulatory Studies, Competitive Enterprise Institute
• Dr. Kevin Kosar, Resident Senior Fellow, American Enterprise Institute
• The Honorable Paul Ray, Director, The Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation
• Mr. Satya Thallman, Senior Vice President of Government Affairs, Americans for Responsible Innovation
• Dr. Josh Chafetz, Agnes Williams Sesquicentennial Professor of Law and Politics, Georgetown University Law Center

In case you missed it, here are the top takeaways:

1. Is Congress currently structured to review the rules coming out of the administrative state?

Chairman Bryan Steil (WI-01): The Committee on House Administration, we oversee the legislative branch and authorize committee budgets. The Supreme Court decision in Loper Bright sent a clear message that lawmaking authority rests with Congress. In the wake of that decision, this committee has a real opportunity to ensure that Congress leverages its resources effectively. So out of the gate question, I'm going to come down the row starting with you, Mr. Ray and we'll come down - as currently structured is Congress set up to review the rules coming out of the administrative state? Yes or no?

The Honorable Paul Ray: No

Mr. Satya Thallum: No.

Dr. Kevin Kosar: No.

Mr. Wayne Crews: No.

Dr. Josh Chafetz: No.

Click the image or here to view Chairman Steil's Q&A.

2. What measures can Congress take to ensure federal agencies adhere to legislative intent?

Rep. Barry Loudermilk (GA-11): What specific accountability measures should Congress adopt to ensure that federal agencies adhere strictly to legislative intent and both the rule-making duties and enforcement activities?

The Honorable Paul Ray: I would say first and foremost, specificity in statutory texts as you just mentioned. Another helpful approach is to specify the outcomes that Congress is after. So when agencies are left great discretion, they can pick and choose among the outcomes to optimize for. When Congress specifies, we want the following outcomes in this particular order, then that constrains agency discretion in a pretty serious way.

Click the image or here to view Congressman Loudermilk's Q&A.

3. How can Congress better utilize existing Legislative Branch staff?

Rep. Laurel Lee (FL-15): Dr. Kosar, I'd like to begin with you. You've written extensively about Congress establishing a Congressional Regulatory Office, which would likely be a longer term process to undertake. In the interim, or in the case where Congress chooses not to establish a permanent office, how can Congress strike a balance with its role in the rule-making process that leverages agency expertise while maintaining strict legislative oversight and accountability?

Dr. Kevin Kosar: Well in the short term, if you can't get the purse strings loose enough to do a pilot, say within the CBO to test it out particularly within an issue area of real concern, you can try to draw upon existing Legislative Branch folks more aggressively. I spent 10 years at the Congressional Research Service - I don't recall once in the thousands of requests I got from a member saying to me, "There's this proposed rule in your issue area, what do you make of it? Can you at least write me a memo and explain to me what this means and whether I should be concerned about the extent of the regulation and whether it's proper?". That would be one means.

Click the image or here to view Congresswoman Lee's full Q&A.

4. How can members of Congress utilize the notice and comment period of a rule?

Rep. Anthony D'Esposito (NY-04): Something that members do not regularly do is participate in the formal comment period for a rule. Should members of Congress, or the Chairs and Ranking Members of committees, file comments during the notice and comment period of a rule to express their disagreement or even agreement with the contents and direction of the rule?

Mr. Satya Thallman: I think this is an incredibly undervalued tool for members and I for the life of me don't understand why members don't more frequently. In my time on the Hill, I encouraged members to participate in the process. There was maybe, and I don't want to speak for members of Congress, but it felt like, "that's for the public, we're not the public, so it's beneath us." I may be overstating that, but I don't think you should see that as the case. I mean, this is the agency receiving all input, and by the way, courts would put a fair amount of deference to what members of Congress, especially members of a committee of jurisdiction, saying, "this looks like what we asked you to do" or, "this doesn't look like what we asked" or "we hope you would consider these factors."

Click the image or here to view Congressman D'Esposito's full Q&A.

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