Jerrold Nadler

Mr. NADLER

Mr. NADLER. Madam Speaker, I reserve the balance of my time.

Mr. NADLER. Madam Speaker, I continue to reserve the balance of my time.

Mr. NADLER. Madam Speaker, I continue to reserve the balance of my time.

Mr. NADLER. Madam Speaker, I yield myself the balance of my time. This legislation would allow judges to undermine and second-guess the carefully crafted and scientifically based regulations issued by our expert administrative agencies. It would upset decades of Supreme Court precedent just to further the extreme antiregulatory agenda of the Republican majority, which puts the health and safety of all Americans at risk. Madam Speaker, I urge my colleagues to oppose this dangerous legislation, and I yield back the balance of my time.

Mr. NADLER. Madam Speaker, I claim the time in opposition.

Mr. NADLER. Madam Speaker, as agency heads have stated time and time again, guidance documents, general statements of policy, and other agency guidance do not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance. This amendment would unnecessarily require judicial review, de novo or otherwise, of guidance documents that have not been interpreted by courts to be given the force of law. Before I discuss how guidance documents and rules differ, let's take a minute to consider the pure breadth of materials this amendment would cover: interagency statements, bulletins, policy statements, questions and answers, frequently asked questions, statements of policy, and advisories. Rules and guidance from agencies are not only given different weight in court, but they also are developed through entirely different processes. Rules are made under the Administrative Procedures Act and, thus, follow a structured process for soliciting public comments, the review of those comments, and the release of any final rule. Agency guidance documents, by contrast, are not made under the APA process. Guidance documents are not subject to public review and comment. When you consider the range of materials that falls under the category ``guidance,'' this, naturally, makes sense. A frequently asked questions page on an agency website cannot and should not be placed in the same category as rules that undergo months and years of review and development. Not only is it wrong as a matter of law to conflate these two classes of documents, but it would also signal to the judiciary that Congress sees them on equal footing; that is, rules and guidance on equal footing, which would muddy the judicial review of agency action. I imagine the amendment sponsor did not intend for her amendment to accidentally expand what kinds of instruction from agencies should be given the force of law by expanding the Separation of Powers Restoration Act in this fashion, but in any case, that is what this amendment would do. If agency guidance were treated the same as a rule, as wrong as that might be, agencies would be chilled and warned against providing much- needed information to the individuals and businesses who seek more feedback on an agency's point of view. They would be very hesitant to answer questions on question lines. Finally, as I noted in response to a similar amendment to the REINS Act yesterday, by requiring agency guidance documents to receive the same review as rules, this amendment would create confusion among businesses subject to oversight from our executive branch agencies as to how much weight they should give agency guidance. Expanding this bill to also require any guidance the agency gives to businesses about how the rules will be enforced is a drastic expansion of the Separation of Powers Restoration Act and would ensure that agencies provide less guidance for businesses, thus creating more uncertainty for businesses. This amendment is an overstep that would further stifle the work of our agencies. I, therefore, oppose this amendment and urge my colleagues to do the same. Madam Speaker, I reserve the balance of my time.

Mr. NADLER. Madam Speaker, judging from what the gentlewoman just said, the gentlewoman does not understand the process at all. Courts do not enforce guidance, so we are not prohibiting them here from doing what they do not do to start with. Courts do not enforce guidance. Guidance simply tells people how the courts will enforce the rules promulgated by the agencies. So to say that you can't have guidance is to say that people must act in ignorance and bet their businesses on what the agency will do without knowing it because the agency can't tell them. That is absurd. Madam Speaker, I reserve the balance of my time.

Mr. NADLER. Madam Speaker, the gentlewoman is accurate as to what SOPRA would do, and for all the reasons I stated before, it is a terrible bill, as terrible as REINS is. I am not going to repeat those arguments. As to this amendment, I don't have to have practiced law recently. I know how to read a bill. There are lawyers on my staff who know how to read a bill and we know, as I said before, that courts don't enforce guidance. There is no such thing. Guidance issued by agencies tells the courts how to interpret the rules promulgated by those agencies. That is a simple fact. It is not debatable. Similarly, to have an amendment that says there shall be no guidance is to have an amendment that says businesses should operate in the dark and bet their businesses on what an agency might do. That is ridiculous and harmful to business, and I urge my colleagues to oppose this amendment as I urge them to oppose the bill. Madam Speaker, I yield back the balance of my time.

Mr. NADLER

Mr. NADLER. Mr. Speaker, on that I demand the yeas and nays.

Mr. NADLER

Mr. NADLER. Mr. Chairman, I claim the time in opposition to the amendment.

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. This amendment requires the Comptroller General to include an estimate of a rule's effect on inflation in the congressional review report. I oppose this amendment because it requires an estimate of a rule's effect on inflation, which would require the Comptroller General to speculate, based on limited evidence, how rules that likely have little to do with the economy would affect inflation. The GAO has already reported to Congress that they would be unable to assess a rule's impact on the economy with the limited information available, and in any case, the 15 days provided for major rule reports do not allow for the GAO to make a determination on a rule's effect even if they had the necessary information. Adding more requirements for various officials to estimate a rule's effect on the economy when they lack the necessary time and information to provide a concrete answer will not heighten the efficacy of this bill but will, rather, create more unnecessary estimates for Congress to weigh in their review of agency rules. In addition, the nonpartisan Congressional Research Service has previously noted that estimating the total cost of regulations is inherently difficult and that such estimates of the cost of regulation should be viewed with a great deal of caution. Like the OMB, CRS has noted that there are significant methodological challenges to estimating and aggregating the total costs and benefits of rules. I oppose this amendment because it focuses only on the cost of regulatory protections while completely ignoring the monetary benefits of those critical rules and because it asks the Comptroller General to do what is impossible to do. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, it is very nice to say that we should examine the inflation that has occurred and the spending that has occurred, but that is not what the amendment calls for. The amendment requires the Comptroller General to include an estimate of a rule's effect, a rule that presumably hasn't yet been issued, on inflation in the congressional review report. Now, I stated before why it is impossible to do that, why the CRS and the OMB say that there are significant methodological challenges to estimating and aggregating the total costs and benefits of rules. Therefore, we shouldn't be asking the impossible. It certainly has nothing to do with looking at prior expenditures or prior borrowing. Mr. Chairman, I yield back the balance of my time.

Mr. NADLER. Mr. Chairman, I claim the time in opposition to the amendment.

Mr. NADLER. Mr. Chair, as I noted in our debate on the REINS Act last night, the REINS Act is aimed at undermining and frustrating the purpose of government by grinding Federal rulemaking to a halt. By lowering the threshold of this dangerous bill from $100 million to $50 million, this amendment would make the REINS Act even more destructive. I accordingly oppose this amendment for the same reasons I oppose the REINS Act at large. By requiring Congress to vote to approve and for the President to sign a resolution of approval for any major rule from the executive branch, we will be putting our constituents in harm's way. Just last week, we saw how a small faction of far-right Republicans can hold the legislative process in the House hostage, all to make a point to the Speaker. I oppose this amendment and the efforts of the majority to make the functions of government more political and subject to the whims of individual Members of Congress. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time. The central fallacy of the REINS Act that I noted last night is that Congress can possibly legislate on all the things, on all the regulations that we have. There are thousands of regulations, and there must be for the safety of our people. How many parts per billion of arsenic in the atmosphere are safe? Is it 15? Is it 20? Is it 200? No one in this body has the expertise to say that, but there are experts in the agencies who are trained to do that. How much exposure to radiation from x-rays is safe for an individual? We are not competent to decide that. That is why Congress has delegated over the years these decisions to agencies to make on our behalf. We write the general law, and we delegate the general power to decide these specific questions, and they do. The central fallacy of the REINS Act is that it would make us try to make decisions in all of this. That is bad enough. The REINS Act now says you have to have Congress vote on every decision over $100 million. That is bad enough. This amendment would make it over $50 million, which makes it even worse. Mr. Chair, I oppose this amendment as I oppose the act, and I yield back the balance of my time.

Mr. NADLER. Mr. Chair, I demand a recorded vote.

Mr. NADLER. Mr. Chair, I claim the time in opposition.

Mr. NADLER. Mr. Chair, the nonpartisan Congressional Research Service has previously noted that estimating the total cost of regulations is inherently difficult and that such estimates of the cost of regulation should be viewed with a great deal of caution. Like the OMB, CRS has noted that there are significant methodological challenges to estimating and aggregating the total costs and benefits of rules. I rise in opposition to this amendment as it requires the OMB to make a specific determination of a rule's impact when they already say it is difficult to make an estimate of the impact. This amendment requires the OMB to do the impossible, to make a specific finding when OMB and CRS have already said that even estimates are very difficult and inherently unreliable. To request a finding is to request the impossible, and, therefore, I oppose this amendment. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chair, I have expressed my opposition to the entire REINS Act because, as I said before, we are not competent. Congress cannot possibly decide how many parts per billion of arsenic is safe in the air for people to breathe or how many rads of radiation are safe to have in x-rays before it causes cancer. We don't know that. That is why we write general laws, and in those laws, we have delegated the power to make specific rules to agencies who are staffed by thousands of experts in each particular field. That is why the REINS Act is so pernicious, because it would stop this. It would make us make those decisions. We have no competence to make those decisions. The REINS Act is bad enough, but this amendment, which says that OIRA must issue a finding for each rule determining whether the rule has a significant economic impact, given that OMB and CRS have both said that it is very difficult to make even estimates, you can't make a finding. A finding implies exactitude. Given the fact that even the estimates are very difficult and unreliable, a finding is impossible. The amendment should not require that someone do the impossible. Therefore, I oppose the amendment, and I yield back the balance of my time.

Mr. NADLER. Mr. Chair, I claim the time in opposition.

Mr. NADLER. Mr. Chair, this amendment is unnecessary. Congress already has many ways to control agency rulemaking. We can delegate authority to agencies with specificity, thus limiting the scope of an agency's authority. We can impose restrictions on rulemaking through appropriations. We can influence rulemaking through oversight activities. If all of these measures fail, we also have the blunt tool of the Congressional Review Act. Therefore, we do not need the oversight the REINS Act offers, but we also do not need to open the door to revising rules that have been in place for years. Doing so would create uncertainty for businesses who have adapted to rules that were passed years ago and continue in force. The current Congressional Review Act only allows Congress to roll back rules within a short time period. The CRA was drafted with a short period of review intentionally, and to open the door to reviewing years of rules would be a huge expansion of the CRA, and it would create too much uncertainty for businesses and for all other economic actors. For these reasons, I oppose this amendment, and I reserve the balance of my time.

Mr. NADLER. Mr. Chair, the gentleman said that rules tell Americans what kind of cars they can drive. No, they do not. They do provide for the safety of the cars that Americans drive. They provide for all of the safety mechanisms that must be in the cars. Again, Congress does not have the competence to know what safety mechanisms ought to be in the cars. That is why we have delegated rulemaking authority to agencies which have experts on how many parts-- I keep using this example--how many parts per billion of arsenic can be in the air, what safety measures must be in a car, et cetera. The REINS Act violates this and is very dangerous to the American people. This amendment makes it even worse by essentially saying every rule has to be reviewed in 5 years by Congress. Congress can't possibly review all of these rules. Therefore, this amendment will make Americans even less safe in many ways, and I oppose the amendment. I urge a ``no'' vote, and I yield back the balance of my time.

Mr. NADLER. Mr. Chairman, I rise in opposition to the amendment.

Mr. NADLER. Mr. Chairman, we have a very clear difference of perspectives here. The gentleman talks about the right to life. I talk about the right to freedom. The right to reproductive freedom is a core human right that is protected by our Constitution. The majority of the work our agencies do has little to do with the private decisions women make with the consultation of their doctors. In an effort to continue the culture wars, my colleagues have added this purposefully politicized amendment to signal that they, contrary to their supposed beliefs, do think that Big Government is good and that Big Government's reach extends to a woman's private decisions about what to do with her body. All the rhetoric about the REINS Act is that Big Government is bad, that we should have less government. That is all the rhetoric of the Republican Party, generally. Yet, here they are, saying that government should reach into the private decisions of a woman with respect to her own body that were made in consultation with her doctor or perhaps with her husband or whomever. It is up to her, and government shouldn't determine her decision for her. Mr. Chair, I oppose this amendment and the Republicans' crusade to create more laws about what we can do with our bodies and our reproductive decisions because government should not be in the business of dictating private decisions to private people. Mr. Chair, I reserve the balance of my time.

Mr. NADLER. Mr. Chairman, the Republican Party claims to be the party of freedom, but not when it comes to women and the decisions they make with respect to their own bodies. It is then the party of government repression and dictation. You cannot do what you decide to do. You cannot do what you think is best. You must do what government thinks is best--namely, not have an abortion. I proudly support the right to abortion. I believe abortion should be safe and legal. Whether it is rare is up to the individuals. It is a personal freedom. The Democratic Party supports personal freedom, unlike the Republican Party, which while claiming to support personal freedom seeks to repress it. They are a party that says you cannot decide what to do with your own body, a party that says you cannot read what we don't want you to read, a party that says: Let's ban books. Let's ban plays. Let's take them out of the school libraries and out of the public libraries. Some freedom. Mr. Chair, I oppose this amendment. It is another example of the Republican Party's attempt to suppress freedom, and it must not pass. Mr. Chair, I yield back the balance of my time.