Ranking Member Trent Franks Opening Statement For The CAL Subcommittee Hearing

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Mr. Chairman, it is a pleasure to be here with you today as the Subcommittee on Commercial and Administrative Law meets for the first time in the 111th Congress. I extend a warm welcome to our witnesses. And I welcome the opportunity to begin our consideration of administrative law issues during this Congress.

The Commercial and Administrative Law subcommittee spent next to no time on administrative law last term. The Subcommittee spent more time on commercial law, but still, that is not what absorbed the majority of the Subcommittee's attention. Instead, the Subcommittee spent the greatest portion of its time on bashing the Bush Administration and the Bush Administration's Department of Justice.

Mr. Chairman, I hope that today we can turn a new page. Presidents of both parties, and Presidents in most modern administrations, have promulgated an increased number of regulations during their final months in office.

In fact, it was President Jimmy Carter whose administration's end-of-term activity gave birth to the phrase "midnight regulations." And President Clinton published even more.

The George W. Bush Administration, looking back on the Clinton debacle, took some concerted and constructive steps to introduce order into the end-of term process. It called for all new regulations planned for the last part of its tenure to be proposed by June 1, 2008. And it called for all of these regulations to be promulgated by November 1, 2008.

The Bush Administration's policy provided for exceptions, and some exceptions, in the end, were made. But on the whole, the process was more orderly than the chaos that attended the final days of the Clinton Administration.

Accordingly, let's not spend our time bashing the Bush Administration for doing less of what all recent administrations have done. Let us instead devote ourselves to a more important task. Presidents are elected for four years, and unless we are to craft a prohibition on all regulatory activity during a second term, we should use this hearing as an opportunity to begin to build upon the improvements to the regulatory process that the Bush Administration undertook, building on the improvements of previous administrations.

Let us therefore ask: "How can we reform the entire regulation-writing process?" Because midnight regulations are just one symptom of a dysfunctional and outdated administrative law system, governed by the 63-year-old Administrative Procedure Act.

Throughout the process of writing regulations, we need to improve procedures. We need to insure:

universal and better cost-benefit analysis;

sounder science;

more transparency;

better public participation;

more negotiated rulemaking;

widespread "e-rulemaking;"

stronger review of the agencies' regulatory development processes; and

an end to the proliferation of supposedly non-binding "guidance" that seeks to make an end run on the requirements of rulemaking.

These are just some of the improvements that we can make to the rulemaking process that governs so much of the federal government's law-making activity. If we can make progress on these improvements, we will reduce the controversy over end-of-administration rule-makings by bringing more transparency and objectivity to the entire rule-making process, no matter when it occurs during the course of any administration.

Other worthy reforms include improving our review of agency regulations under the Congressional Review Act. And, of course, above all, Congress can dedicate itself anew to writing clearer, more detailed, and more definitive statutes. In this way, Congress can better exercise the policy-making authority entrusted to it by the Constitution - and not transfer that authority excessively to administrative agencies accountable to the people only indirectly through the President or, in the case of so-called independent agencies, even more indirectly.

In the 108th and 109th Congresses, we considered these topics so important that we embarked on a special project, the Administrative Law, Process, and Procedure Project for the 21st Century. This project generated a number of good proposals. We have yet to conclude our important work in this area. Yet the 21st Century marches on, and the burden of regulations imposed under an outdated system grows.

So Mr. Chairman, again, I am glad that we are here today, and that the topic of administrative law is the first to which we turn this term. I hope that this will be a fruitful field of bipartisan endeavor this term, and I look forward to working with you.

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