Amending Executive Order 12866: Good Governance or Regulatory Usurpation?

Opening Statement By Chairman Brad Miller

I want to welcome all of you to this first hearing of the Investigations and Oversight Subcommittee of the Committee on Science and Technology. For purposes of this hearing on the growing role of the Office of Information and Regulatory Affairs (OIRA), Mr. Costello will serve as the Vice Chairman.

There has not been an investigations and oversight subcommittee of the Science and Technology Committee for a dozen years, and I look forward to working with all of you on a very active, very engaged subcommittee.

We will work to expose abuse of power, corruption and waste. A great American political scientist, Woodrow Wilson, called that the “informing power” of Congress, and said that it was probably more important than Congress’ legislative powers. The light we shine will often be unwelcome by those whose conduct we illuminate, but unflattering scrutiny from Congress should be a healthy deterrent to the abuse of power.

Today’s hearing is part of our oversight duties, to consider broader public policy questions that need the attention of Congress.

I’ve heard the phrase “it takes an act of Congress” all of my life, but it has taken on new meaning for me in first four years of my service in Congress. When Congress enacts legislation--to protect public health, the environment, safety, civil rights, privacy, and on and on--Congress cannot possibly anticipate every circumstance that will arise, and Congress cannot possibly address every new circumstance by new legislation.

So Congress has long delegated to federal agencies the power to enforce the laws that Congress passes, and to adopt regulations that address circumstances within the intended protection of the legislation, but not specifically addressed.  

Federal agencies frequently rely on scientific research, whether applied or basic, to inform their decisions. Scientific research within the jurisdiction of the Committee on Science and Technology, research by NOAA, EPA, NIH, the Departments of Labor and Agriculture, is properly part of rule-making decisions, as are the standards and guidelines work at NIST and the Department of Transportation. We spend billions on that research; we should certainly examine how it’s used in rule-making.

Rule-making decisions should properly be based on expertise, but that does not mean those decisions are beyond challenge. The authority of federal agencies should not amount to government by Platonic guardians, experts better informed and wiser than we are and untroubled by tawdry political concerns. Congress and the President should pay close attention to when agencies act, and to when agencies fail to act, and we should pay close attention to the reasons for agency action or inaction.

To what extent is agency action or inaction based on considerations of scientific expertise, such as environmental or public health consequences, and to what extent is agency action or inaction based on economic or political considerations? When agencies act, they must explain their decisions and allow public participation in the decision. But are decisions not to act being made in back rooms, based upon considerations that would never withstand public scrutiny?

Does Executive Order 13422 create an almost insuperable bias in favor of agency inaction, even in the face of a clear need for action and a clear statutory directive to act? Does the Order shield decisions at agencies from the scrutiny they should receive? And does the Order shift to the President powers that the framers of our Constitution intended be exercised by Congress?

I welcome the testimony of our distinguished panelists on these issues.

I also look forward to working with our very distinguished Ranking Member, James Sensenbrenner. Mr. Sensenbrenner served for four years as Chairman of the Committee on Science, and for six years on the Judiciary Committee. I hope he does not feel that after being a star player in the big leagues, he has now been sent back to the minors.

We very much welcome his experience and his expertise.

And I now recognize Mr. Sensenbrenner for his opening remarks.

Witnesses

Panel

1 - Sally Katzen
Visiting Professor of Law George Mason University School of Law George Mason University School of Law
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2 - David Vladeck
Associate Professor of Law Georgetown University School of Law Georgetown University School of Law
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4 - Rick Melberth
Director, Federal Regulatory Policy OMB Watch OMB Watch
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3 - William Kovacs
Vice President, Environment, Technology & Regulatory Affairs U.S. Chamber of Commerce U.S. Chamber of Commerce
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