Segment 1 Of 2     Next Hearing Segment(2)

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93–774 PDF

2004
REAUTHORIZATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

HEARING

BEFORE THE

SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 20 AND JUNE 24, 2004

Serial No. 109

Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary

COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina
JEFF FLAKE, Arizona
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JOHN R. CARTER, Texas
MARSHA BLACKBURN, Tennessee
STEVE CHABOT, Ohio
TOM FEENEY, Florida

MELVIN L. WATT, North Carolina
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York

RAYMOND V. SMIETANKA, Chief Counsel
SUSAN A. JENSEN, Counsel
DIANE K. TAYLOR, Counsel
JAMES DALEY, Full Committee Counsel
STEPHANIE MOORE, Minority Counsel

C O N T E N T S

HEARING DATES
May 20, 2004
REAUTHORIZATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

June 24, 2004
WHY IS THERE A NEED TO REAUTHORIZE THE CONFERENCE?
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OPENING STATEMENT

May 20, 2004

    The Honorable Chris Cannon, a Representative in Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law

    The Honorable Melvin L. Watt, a Representative in Congress From the State of North Carolina, and Ranking Member, Subcommittee on Commercial and Administrative Law

    The Honorable Howard Coble, a Representative in Congress From the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary

June 24, 2004

    The Honorable Chris Cannon, a Representative in Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law

    The Honorable Melvin L. Watt, a Representative in Congress From the State of North Carolina, and Ranking Member, Subcommittee on Commercial and Administrative Law

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    The Honorable Howard Coble, a Representative in Congress From the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Tom Feeney, a Representative in Congress From the State of Florida

WITNESSES

May 20, 2004

The Honorable Antonin Scalia, Associate Justice, Supreme Court of the United States
Oral Testimony
Prepared Statement

The Honorable Stephen G. Breyer, Associate Justice, Supreme Court of the United States
Oral Testimony
Prepared Statement

June 24, 2004

C. Boyden Gray, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, on behalf of the American Bar Association
Oral Testimony
Prepared Statement

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Professor Gary J. Edles, Fellow in Administrative Law, American University Washington College of Law, and General Counsel, Administrative Conference of the United States (1987–1995)
Oral Testimony
Prepared Statement

Professor Sallyanne Payton, William W. Cook Professor of Law, the University of Michigan Law School, on behalf of the Executive Organization and Management Standing Panel of the National Academy of Public Administration
Oral Testimony
Prepared Statement

Professor Philip J. Harter, Earl F. Nelson Professor of Law, Center for the Study of Dispute Resolution, University of Missouri Law School-Columbia School of Law
Oral Testimony
Prepared Statement

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

May 20, 2004

    Prepared Statement of the Honorable Chris Cannon, a Representative in Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law

    Letter from William Funk, Chair, the American Bar Association Section of Administrative Law and Regulatory Practices
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June 24, 2004

    Prepared Statement of the Honorable Chris Cannon, a Representative in Congress From the State of Utah, and Chairman, Subcommittee on Commercial and Administrative Law

    Letter from Professor Richard Chernick, Esq., Chairman, American Bar Association Section of Dispute Resolution

    Letter from Professor Paul R. Verkuil, Benjamin N. Cardozo School of Law, Yeshiva University

    Prepared Statement of Professor Sally Katzen, The University of Michigan Law School

APPENDIX

Material Submitted for the Hearing Record

June 24, 2004

    Response to post-hearing questions from C. Boyden Gray

    Response to post-hearing questions from Professor Gary J. Edles

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    Response to post-hearing questions from Professor Sallyanne Payton

    Response to post-hearing questions from Professor Philip J. Harter

    Letter from Michael Herz, Professor of Law and Co-Director, and David Rudenstine, Dean and Co-Director, Floersheimer Center of the Benjamin N. Cardozo School of Law, Yeshiva University

REAUTHORIZATION OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

THURSDAY, MAY 20, 2004

House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:06 p.m., in Room 2141, Rayburn House Office Building, Hon. Chris Cannon (Chair of the Subcommittee) presiding.

    Mr. CANNON. The Subcommittee will please come to order. I expect we will have several other Members who told us they would like to join us will join us soon.

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    It is indeed an honor and a pleasure to welcome to our Subcommittee today two of our Nation's most esteemed jurists. I am informed that it's fairly rare to have a Justice from the Supreme Court, let alone two Justices, testify before Congress, particularly with respect to matters not pertinent to the judiciary's funding or operations. According to the Congressional Research Service, the last time a Supreme Court Justice testified before the House Judiciary Committee was in May 1971, when Associate Justice Potter Stewart discussed legislation concerning the Federal Judicial Center and the Administrative Office of the United States. The presence of Justices Breyer and Scalia, I believe, underscores the significance of today's hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States.

    For those of you who are not familiar with the work and accomplishments of the Conference, let me briefly explain.

    Over the course of its 28-year existence, the Conference issued more than 200 recommendations, some of which were Government-wide and others were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to judicial review of agency actions and encouraging less costly consensual alternatives to litigation.

    The fruits of these efforts included enactment of the Administrative Dispute Resolution Act of 1990, which established a framework for the use of ADR. In addition to this legislation, ACUS served as the key implementing agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, the Congressional Accountability Act, and the Magnusson-Moss Warranty Federal Trade Commission Improvement Act.

    The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a key role in the Clinton administration's National Performance Review with respect to improving the regulatory systems. Further, ACUS served as a resource for Members of Congress, congressional Committees, the Internal Revenue Service, Department of Transportation, and the Federal Trade Commission.
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    With respect to specific agencies, the Conference, for example, during the 1970's undertook an exhaustive study of the procedures of a single agency, the Internal Revenue Service, which resulted in 72 proposals concerning the confidentiality of taxpayer information, IRS settlement procedures, and the handling of citizen complaints, among other matters. The IRS ultimately adopted 58 of these recommendations.

    Some may ask: Why should we reconsider—or consider reauthorizing the agency at this time or the Conference at this time? We've gotten along without the Conference over the last 8 years—I might say, not very well. How can we justify re-establishing the agency at the attendant expenditures, especially in a fiscal belt-tightening environment? The answer, at least to me, is obvious. Just this week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 373–54. This legislation is intended to assist Congress in its review of final agency rules under the Congressional Review Act and to improve the quality and quantity of information provided in the annual regulatory accounting statement prepared by the Office of Management and Budget.

    While a good bill, problems with the current administrative law environment are much greater than either the Congress or OMB by itself, or even jointly, can address. According to the Congressional Research Service, there are growing patterns of evasion among agencies with respect to notice and comment requirements. An increasing number of regulations are being successfully challenged in courts. An informal study by CRS indicates that 51 percent of these rules were struck down by the courts. Needless litigation hurts everyone. It slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars, a lot more than the budget that we're proposing here.
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    Another serious area of concern is the need to have a coherent approach among the agencies with respect to emerging issues and technologies. These areas include issues dealing with privacy, national security, public participation in the Internet, and the Freedom of Information Act. There are also concerns about the need to have peer review and to have regulations based on sound science.

    Our Nation's people and business communities depend upon Federal agencies to promote scientific research and to develop science-based policies that protect the Nation's health and welfare. Integral to the Federal regulatory process is the need to assess the safety, public health, and environmental impact of proposed regulations. Regulations lacking sound scientific support can present serious safety and health consequences, as well as cause private industry to incur unnecessary and burdensome expenses to comply with such regulations. Restoring the Conference in some form, from my perspective, would provide a cost-effective, highly valuable solution to these problems. It is my hope that today's hearing will be the first step toward establishing a strong evidentiary base to support the reauthorization of the Conference.

    [The prepared statement of Mr. Cannon follows:]

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

    The Subcommittee will please come to order.

    It is indeed an honor as well as a pleasure to welcome to our Subcommittee two of our nation's most esteemed jurists. I am informed that it is a fairly rare event to have a Justice of the Supreme Court—let alone two Justices—testify before Congress, particularly with respect to matters not directly pertinent to the Judiciary's funding or operations. According to the Congressional Research Service, the last time that a Supreme Court Justice testified before the House Judiciary Committee was in May of 1971, when Associate Justice Potter Stewart discussed legislation concerning the Federal Judicial Center and the Administrative Office of the United States.
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    The presence of Justices Breyer and Scalia—I believe—underscores the significance of today's hearing, which focuses on the value of reauthorizing the Administrative Conference of the United States. For those of you who are not familiar with the work and accomplishments of the Conference, let me briefly explain.

    Over the course of its 28-year existence, the Conference issued more than 200 recommendations—some of which were government-wide and others that were agency-specific. It issued a series of recommendations eliminating a variety of technical impediments to the judicial review of agency action and encouraging less costly consensual alternatives to litigation. The fruits of these efforts include the enactment of the Administrative Dispute Resolution Act in 1990, which established a framework for the use of ADR.

    In addition to this legislation, ACUS served as the key implementing agency for the Negotiated Rulemaking Act, the Equal Access to Justice Act, the Congressional Accountability Act, and the Magnusson-Moss Warranty-Federal Trade Commission Improvement Act. The Conference also made recommendations regarding implementation of the Congressional Accountability Act and played a key role in the Clinton Administration's National Performance Review with respect to improving regulatory systems. Further, ACUS served as a resource for Members of Congress, Congressional Committees, the Internal Revenue Service, Department of Transportation, and the Federal Trade Commission.

    With respect to specific agencies, the Conference, for example, during the 1970s undertook an exhaustive study of the procedures of a single agency—the Internal Revenue Service—which resulted in 72 proposals concerning the confidentiality of taxpayer information, IRS settlement procedures, and the handling of citizen complaints, among other matters. The IRS ultimately adopted 58 of these recommendations.
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    Some may ask, ''Why should we consider reauthorizing the Conference at this time?'' We've gotten along without the Conference over the last eight years. How can we justify re-establishing an agency with the attendant expenditures especially in this belt-tightening environment?''

    The answer—at least to me—is obvious. Just this week, Congress passed the Paperwork and Regulatory Improvements Act by an overwhelming bipartisan vote of 373 to 54. This legislation is intended to assist Congress in its review of final agency rules under the Congressional Review Act and to improve the quality and quantity of information provided in the annual regulatory accounting statement prepared by the Office of Management and Budget. While a good bill, problems with the current administrative law environment are much greater than either the Congress or OMB can singularly or even jointly address.

    According to the Congressional Research Service, there are growing patterns of evasion among agencies with respect to notice and comment requirements. An increasing number of regulations are being successfully challenged in the courts. An informal study by CRS indicates that 51% of these rules were struck down by the courts. Needless litigation hurts everyone—it slows the rulemaking process, encourages agencies to try to circumvent public comment requirements, and costs taxpayers millions of dollars.

    Another serious area of concern is the need to have a coherent approach among the agencies with respect to emerging issues and technologies. These areas include issues dealing with privacy, national security, public participation and the Internet, and the Freedom of Information Act. There are also concerns about the need to have peer review and to have regulations based on sound science. Our nation's people and business communities depend upon federal agencies to promote scientific research and to develop science-based policies that protect the nation's health and welfare. Integral to the federal regulatory process is the need to assess the safety, public health, and environmental impact of proposed regulations. Regulations lacking sound scientific support can present serious safety and health consequences as well as cause private industry to incur unnecessary and burdensome expenses to comply with such regulations.
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    Restoring the Conference in some form—from my perspective—would provide a cost-effective, yet highly valuable solution to these problems. It is my hope that today's hearing will the first step toward establishing a strong evidentiary basis of support for reauthorizing the Conference.

    Mr. CANNON. I will now turn to my colleague, Mr. Watt, the distinguished Ranking Member of the Subcommittee, and ask him if he has opening remarks.

    Mr. WATT. Thank you, Mr. Chairman, and I will take a brief moment here just to thank the Chairman for convening today's hearing and to welcome our distinguished guests, Justices Breyer and Scalia.

    As I indicated to the two Justices, this must be my Supreme Court day because we—a judicial caucus has now been started in the House, and its first visitor just before this meeting was convened was Justice Rehnquist, Chief Justice Rehnquist. So I think I've had more exposure, direct, personal exposure to Justices of the Supreme Court in one day than I have in my entire life, although I guess most people know I've had quite a bit of exposure, not personal but in other respects, with the Justices. So I'm delighted to be here and honored that you would share your insights on the topic of this hearing.

    The purpose of the hearing is to determine whether the state of administrative law and procedure warrant the reauthorization of the Administrative Conference of the United States. And as we know, the Administrative Conference was initially established in 1964 as a permanent body to serve as the Federal Government's in-house adviser on and coordinator of administrative procedural reform. It enjoyed bipartisan support for over 25 years and advised all three branches of Government before being terminated in 1996.
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    Through the years, the Conference was a valuable resource providing information on the efficiency, adequacy, and fairness of the administrative procedures used by administrative agencies in carrying out their programs. This was a continuing responsibility and a continuing need, a need that, certainly in my opinion, has not ceased. So the topic before us today is one that has truly been nonpartisan, bipartisan, and I think we are blessed to have these two distinguished witnesses who—both of whom have personal experience with the Conference and its workings. And I understand also that the Chairman is expecting to have additional hearings to further information the Subcommittee and the Judiciary Committee about the need for the Administrative Conference, and I look forward to those hearings.

    Again, I welcome Justice Scalia and Justice Breyer, and I bring you the regards of your Chief Justice from the prior meeting. Thank you for being here.

    I yield back.

    Mr. CANNON. The gentleman's time has expired.

    We would like to thank the Members who have joined us here: Mr. Coble from North Carolina; Mr. Chabot from Ohio; Mr. Watt, of course, from North Carolina, the Ranking Member; Mr. Delahunt from Massachusetts; Mr. Conyers from Michigan; and Mr. Scott from Virginia. We appreciate your attendance.

    We received a letter from the American Bar Association expressing its support for the reauthorization of the Administrative Conference, and without objection, we will submit that for inclusion in the record. So ordered.
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    [The information referred to follows:]

    Mr. CANNON. Without objection, all Members may place their statements in the record at this point. Is there any objection? Hearing none, so ordered.

    Mr. Coble has asked for a quick 1-minute opening statement. We're pleased to yield to the gentleman.

    Mr. COBLE. Mr. Chairman, I will not exceed 1 minute. I just want to reiterate what Mr. Watt said. I was with Mr. Watt, Mr. Scott, and other colleagues with the Chief Justice at a meeting today. We very much enjoyed having him here, and we very much appreciate you two Justices being with us.

    And, Mr. Chairman, I regret it but I've got another meeting going on now, so I may have to bolt before you conclude. But I thank you for having called this hearing.

    Mr. CANNON. I thank the gentleman, and we appreciate that many things are going on.

    Mr. Conyers, did you——

    Mr. CONYERS. Mr. Chairman, could I be permitted a brief welcome to——

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    Mr. CANNON. Absolutely, Mr. Conyers. The Ranking Member of the full Committee, Mr. John Conyers from Michigan.

    Mr. CONYERS.—the two distinguished Justices. I'm so glad that you're here. And I just wanted Justice Scalia to know that you look much more friendly in our setting than you do in your own. [Laughter.]

    Justice SCALIA. It's the black robe.

    Mr. CONYERS. That might have something to do with it as well.

    I have also about several hundred questions which, regrettably, are not appropriate to this hearing. But you might want to extend to the Ranking senior Member of Judiciary an invitation to lunch or something else to examine my viewpoint and I yours. And we might reach a greater degree of comity than exists at the present moment.

    Thank you very much.

    Mr. CANNON. Thank you, Mr. Conyers.

    Mr. WATT. Could I ask the gentleman to yield just for a second?

    Mr. CONYERS. Of course.

    Mr. WATT. Just long enough to invite him to become a member of the newly established Judiciary Caucus, which had its first meeting today and met with Justice Rehnquist. So we're trying to encourage comity and exchange across judiciary and——
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    Mr. CONYERS. Excellent idea.

    Mr. CANNON. Is this a bipartisan caucus?

    Mr. WATT. Yes, it is. It's chaired, actually, by Representative Schiff and Representative Biggert, Republican and Democrat.

    Mr. CANNON. This is a caucus that goes beyond the Judiciary Committee itself?

    Mr. WATT. Yes.

    Mr. CANNON. Okay. Thank you.

    Without objection, the Chair will be authorized to declare recesses of the Subcommittee at any point. Hearing none, so ordered.

    I ask unanimous consent that Members have 5 legislative days to submit written statements for inclusion in today's hearing record. So ordered.

    I also want to remind my colleagues of the obvious: Our witnesses are guided by Canon 3 of the Code of Conduct for United States Judges, which advises the judiciary to avoid making public comments with respect to the merits of pending or impending actions. We should endeavor to respect those constraints and limit our questions to the matter of our hearing. Adherence to this admonition will promote a greater dialogue, I think, at this point in the hearing and encourage the judiciary to participate in future hearings.
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    Although I'm now pleased to introduce our witnesses for today, I'm sure that our colleagues are very well acquainted with their extensive accomplishments.

    Justice Antonin Scalia was nominated by President Ronald Reagan to the United States Court of Appeals for the District of Columbia Circuit and assumed the bench in 1982. Thereafter, he was nominated by President Reagan as Associate Justice of the United States Supreme Court and took the oath of office on September 26, 1986.

    Prior to his service in the judicial branch, Justice Scalia was general counsel for the Office of Telecommunications Policy in the Executive Office of the President from 1971 to 1972 and Assistant Attorney General in the Office of Legal Counsel at the Justice Department from 1974 to 1977. Between those two assignments, and of particular relevance to today's hearing, Justice Scalia served as chairman of the Administrative Conference from 1972 to 1974. In addition, he chaired the American Bar Association Section of Administrative Law from 1982 to 1983.

    Our next witness is Justice Stephen Breyer. Justice Breyer began his illustrious legal career as a law clerk to Justice Arthur Goldberg during the Supreme Court's 1964 term. He then served as special assistant to the head of the Justice Department's Antitrust Division from 1965 to 1967. In 1973, Justice Breyer, having by this time worked for the judicial and executive branches of the Federal Government, now applied his talents to the legislative branch, where he worked as assistant Watergate special counsel in 1973, special counsel to the Senate Judiciary Committee in 1975, and as the Committee's chief counsel from 1979 to 1980. Thereafter, he was appointed Judge to the United States Court of Appeals for the First Circuit. President Clinton nominated him to the Supreme Court, and he took office in August 1994. Justice Breyer has authored numerous books and articles in the field of administrative law and regulation.
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    I extend to each of you our warm regards and appreciation for your willingness to participate in today's hearing. In light of the fact that your written statements will be included in the hearing record, I request that you limit your oral remarks to 5 minutes, but we are not going to be very hard on that time frame. We are mostly interested in your comments and ideas. Accordingly, please feel free to summarize and highlight the salient points of testimony.

    You'll note that we have a lighting system. It starts with green, goes to yellow, it stays yellow for a minute, and then we'll sort of ignore it if it turns red.

    On the other hand, because we have a number of Members, we'll try and keep the questioning to about 5 minutes using the same system, and I'll tend to tap the gavel when the 5 minutes runs, just so people are aware. I don't think that we'll have a problem with people going over time today.

    Justice Scalia, would you now proceed with your testimony?

STATEMENT OF THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES

    Justice SCALIA. I would be happy to. Mr. Chairman, Members of the Subcommittee, Congressman Conyers, I'm happy to be here today to provide information about the Administrative Conference. I obviously think it was a worthwhile organization and I guess demonstrated that belief by devoting 2 years of my life to it.
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    I've described the organization of the Conference and some of its accomplishments, particularly during my tenure as Chairman, in my written testimony, and I will not go over that.

    I was Chairman from September 1972 until August 1974. Like the first two Chairmen, who were Professor Jerre Williams of the University of Texas Law School and Professor Roger Crampton of the University of Michigan Law School, and like my successor, Professor Robert Anthony of Cornell Law School, I was an academic and at that time on leave from the University of Virginia Law School. And, frankly, it was very much an academic job. I viewed it somewhat as returning from an online executive branch job, which I had had before then—I was general counsel of an agency—to a job that mainly dealt with examining procedures within the executive branch, trying to line up consultants (generally academic consultants) who would be competent to assist our committees in studying those procedures, and then assisting the full Assembly in preparing recommendations.

    I found the Conference to be a unique combination of talents from the academic world, from within the executive branch—because many of the members of the Conference were representatives of the agencies, usually general counsels—and, thirdly, from the private bar, especially lawyers particularly familiar with administrative law. I did not know another organization that so effectively combined the best talent from each of those areas.

    I think the Conference's ability to be effective hinged in part on the fact that we were a Government agency, and when we went to do a study at an agency, we were not stonewalled. Very often, a member of that agency was on our Assembly, and so the agency would cooperate in the study that we did. I think it's much harder to do that kind of a study from the outside. The agencies tended to look upon us as essentially other people from the executive branch trying to make things better.
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    I think we were successful in improving many procedures throughout the Government. Very little of it made headlines. Most of the changes had to be made agency by agency. Nobody who was not involved in the particular work of that particular subsection of that particular agency would even know that any changes had been made. But, all in all, I think the Conference was successful in improving the efficiency and the economy of the executive branch in many areas.

    Mr. Chairman, at the Court we really don't let counsel blather on without being interrupted by questions for very long, so I feel constrained to set the example myself. I will just refer you to my written testimony for the rest. I'm mainly here to answer your questions.

    [The prepared statement of Justice Scalia follows:]

PREPARED STATEMENT OF THE HONORABLE ANTONIN SCALIA

    Mr. Chairman and Members of the Subcommittee:

    I am happy to accept your invitation to provide information concerning the Administrative Conference of the United States. I was the third Chairman of the Conference, and served in that capacity from September 1972 to August 1974. Like the first two Chairmen (Professor Jerre Williams of the University of Texas Law School, and Professor Roger Crampton of the University of Michigan Law School), and like my successor (Professor Robert Anthony of Cornell Law School), I was an academic—at that time on leave from the University of Virginia Law School. The Conference was then, and I believe continued to be, a unique combination of scholarship and practical know-how, of private-sector insights and career-government expertise. My testimony will generally pertain to the time period in which I served as Chairman, since I did not follow the Conference's activities closely after moving on.
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    At the outset, let me describe why the Conference was instituted and how it was organized. The Administrative Conference of the United States was established as a permanent independent federal agency by the Administrative Conference Act, signed by President Lyndon Johnson in 1964; and it was activated by the appointment of its first Chairman in January 1968. Its purpose was to identify the causes of inefficiency, delay, and unfairness in administrative proceedings affecting public rights, and to recommend improvements to the President, the agencies, the Congress, and the Courts.

    The Conference was composed of three parts: a Chairman, a Council, and an Assembly. The Chairman was appointed by the President, with the advice and consent of the Senate, for a term of five years. He was the Chief Executive of the Conference. He presided at plenary sessions of the Assembly and at Council meetings, and was the official spokesman for the Conference in relations with the President, the Congress, the Judiciary, the agencies, and the public. His most important responsibility, however, was to identify subjects appropriate for study by the Conference, and—if the relevant Committee of the Assembly was willing to pursue a particular subject—to line up an academic consultant qualified to assist in the research. It was also the Chairman's responsibility to seek implementation of Conference recommendations—a task that required some diplomacy and charm, since needless to say the Conference had no enforcement powers over the agencies, much less over the President and Congress if the recommendations were directed to those quarters. The Chairman was served by a small permanent staff whose principal duties were to furnish administrative and research support to the Assembly of the Conference and its Committees, to follow and assist in the work of consultants, and to help the Chairman in securing implementation of recommendations.

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    The Council of the Conference consisted of the Chairman and 10 other members who were appointed by the President for three-year terms, of whom not more than one-half could be drawn from Federal agencies. Its functions were similar to those of a corporate board of directors. It had the authority to call plenary sessions of the Conference and to fix their agenda, to recommend subjects for study, to receive and consider reports and recommendations before the Assembly considered them, and to exercise general budgetary and policy supervision.

    The Assembly of the Conference was composed of the entire membership, which by statute could not be less than 75 members nor more than 91. The Chairman and the other members of the Council accounted for 11 of this number; the remaining members fell into the following groups: First, the Act conferred membership upon the Chairman of each independent regulatory board or commission, or an individual designated by the board or commission. Second, the Act granted membership to the head of each Executive Department or other administrative agency (or his designee) named by the President. The final group consisted of the public members, appointed by the Chairman with the approval of the Council for two-year terms. These members, who had to comprise not less than one-third nor more than two-fifths of the total membership, were selected in such a manner as to provide broad representation of the views of private citizens of diverse experience. They were chosen from among members of the practicing bar, prominent scholars in the field of administrative law, and others specially qualified by knowledge and experience to deal with matters of federal administrative procedure.

    The Assembly, which had ultimate authority over all activities of the Conference, operated much like a legislative body. It adopted By-laws establishing nine standing committees: (1) Agency Organization and Personnel, (2) Claims Adjudications, (3) Compliance and Enforcement Proceedings, (4) Grant and Benefit Programs, (5) Informal Action, (6) Judicial Review, (7) Licenses and Authorizations, (8) Ratemaking and Economic Regulation, and (9) Rulemaking and Public Information. These committees were the real work-horses of the Conference. They met periodically to direct and supervise research by academic consultants and by the Conference's professional staff. On the basis of that research they framed proposals for consideration by the Assembly at its annual meeting. When a study or tentative recommendation had been prepared, it was circulated to the affected agencies for comment and reexamined by the committee in light of the replies. After final committee approval, a proposed recommendation would be transmitted to the Council and then to the Assembly for final action in plenary session. The Assembly could adopt the recommendation in the form proposed, amend it, refer it back to the committee, or reject it entirely.
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    The purpose of the Conference was to apply the talents of its diverse group of agency officials, practitioners, and academic members to improving the efficiency and fairness of the thousands of varieties of federal agency procedures. In my judgment, it was an effective mechanism for achieving that goal—usually through voluntary acceptance of its recommendations by the affected agencies. Inefficiency and unfairness in agency procedures often exist simply by reason of bureaucratic inertia, and a well reasoned study and recommendation, prepared with the cooperation of the affected agency, can often produce desirable change. A few of the Conference's projects have had major, government-wide impact—for example, its recommendation leading to Congress's adoption of Public Law 94–574, which abolished the doctrine of sovereign immunity in suits seeking judicial review of agency action. For the most part, however, each of the Conference's projects was narrowly focused upon a particular agency problem, and was unlikely to attract attention beyond the affected community. This should be regarded, not as a sign of ineffectiveness, but as evidence of solid hard work. Administrative procedure is not a one-size-fits-all operation; most procedural regimes are unique, and have to be fixed one-by-one.

    The Administrative Conference made several important strides in the area of implementation and saw some of its earlier recommendations bear fruit. Some examples that come to mind are the Justice Department's almost verbatim adoption of the Conference's guidelines for implementation of the Freedom of Information Act; the Civil Service Commission's publication of proposals substantially applying the Conference's recommendation concerning adverse actions against Federal employees; the Board of Parole's indication of its readiness to adopt the Conference proposals concerning parole procedures; and the Department of Labor's adoption of a field memorandum that substantially implemented the Conference's proposals regarding labor certification of immigrant aliens. Agencies that engaged in publicity as a regulatory tool adopted procedures conforming to the Conference's recommendations for protecting against unfair publicity that could harm a private party. The Conference's recommendations regarding procedures for resolution of environmental issues in licensing proceedings were embodied in regulations adopted by five of the six affected agencies.
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    Some of the Conference's work also bore fruit at the legislative level. The Parole Commission and Reorganization Act of 1976, P.L. 94–233, implemented Recommendation 72–3's call for a right to counsel in parole proceedings, and other procedural guarantees recommended by the Conference. The 1974 Freedom of Information Act Amendments, Pub. L. No. 93–502, adopted many of the Conference's recommended improvements to FOIA. The Conference's encouragement of granting agencies authority to impose civil money penalties has had a major, and I think beneficial, impact. Many separate statutes implemented the Conference's recommendation regarding the appropriate standard of pre-enforcement judicial review of rules of general applicability. (That recommendation was also cited by court opinions that looked to it for guidance. See Ass'n of Data Processing Service Organizations, Inc. v. Board of Governors of Federal Reserve System, 745 F. 2d 677, 684 (CADC 1984); Home Box Office, Inc. v. F. C. C., 567 F. 2d 9, 57 n.130 (CADC 1977).) Some recommendations were effectively implemented through a combination of congressional and agency action. For example, the Department of Treasury agreed to carry out most of the provisions of Recommendation 73–4, which called for increased access to customs representatives, greater disclosure, and written findings; and 1974 legislation implemented the suggested improvements in coordination between Customs and other relevant agencies. Of course some recommendations were framed not in terms of what to do, but rather in terms of what to avoid—for example, the recommendation cautioning against Congress's imposition of complex rulemaking procedures, which has been followed with few exceptions.

    The Conference made itself useful in ways beyond specific proposals for legislation, or executive or judicial action. As Chairman, I gave testimony before Congress on legislation pertaining to the Freedom of Information Act, the procedures of the U. S. Board of Parole, the establishment of a Consumer Protection Agency, possible amendments to the Federal Food, Drug, and Cosmetics Act and the Fair Packaging and Labeling Act, and the opening of the administrative process to the public. The Conference responded to numerous informal requests for advice from congressional committees and committee staffs on a wide variety of procedural matters.
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    Agencies also sought the Conference's informal advice and assistance, particularly in connection with their initiation of new programs or procedures. I regarded this sort of pre-implementation advice as a particularly beneficial activity, since it is obviously preferable to get things started on the right foot than to criticize the deficiencies of a program already in operation. During my first year alone, the staff and consultant resources of the Conference were called upon for advice with respect to several programs under development—for example, the Department of Transportation's program to facilitate public participation in their rulemaking process, and the Justice Department's congressionally mandated study into the feasibility of a special court for environmental matters. Especially noteworthy was the study which the Chairman's Office prepared, at the request of the Office of Management and Budget, covering the procedural provisions of what was then the most significant piece of regulatory legislation that had been adopted in years, the Consumer Product Safety Act. This study was completed before the members of the new Consumer Product Safety Commission had yet been named, and was therefore a prime example of applying the Conference's expertise at the point where it is most useful—before procedures have been adopted and institutional commitments made. The Conference also conducted seminars for agency attorneys, emphasizing those aspects of administrative procedure that had special relevance to the attorneys' agency, but also refreshing the attorneys' recollection of basic administrative law principles to which they had had no systematic exposure since law school.

    The Conference also conducted studies that, while not producing recommendations in and of themselves, were useful in enabling particular administrative functions to be understood and evaluated. An example of this is the study completed during the first year of my chairmanship by the Committee on Informal Action, systematically examining, for the first time, the agencies' practices in providing advice to the public. Or the study by the Chairman's Office concerning the various means by which agencies handle citizen complaints.
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    One way of judging the worth of the Conference without becoming expert in the complex and unexciting details of administrative procedures with which it deals, is to examine the roster of men and women who have thought it worthwhile to devote their time and talent to the enterprise. Over the years, the academics who have served as consultants to or members of the Conference have been a virtual Who's Who of leading scholars in the field of administrative law; and the practitioners who have served as members have been, by and large, prominent and widely respected lawyers in the various areas of administrative practice.

    I would not presume to provide the Subcommittee advice on the ultimate question of whether, in a time of budget constraints, the benefits provided by the Administrative Conference are within our Nation's means. But I can say that in my view those benefits are substantial. The Conference was a proved and effective means of opening up the process of government to needed improvement.

    Mr. CANNON. Thank you, Mr. Justice. That was very enlightening, raised points I hadn't considered in the past. We have strict rules here because there's a tendency that we blather on, and so we will adhere at least on our behalf. Thank you very much.

    Mr. Justice Breyer, would you mind presenting your testimony now?

STATEMENT OF THE HONORABLE STEPHEN G. BREYER, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED STATES

    Justice BREYER. In the Court, when the red light goes on, people stop. [Laughter.]
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    Mr. CANNON. We'd like to inject some of that DNA around here, but we've long since given up.

    Justice BREYER. Mr. Chairman and Members of the Committee, I'm very pleased to be here with my colleague Justice Scalia. I think we're completely in agreement. I think it's a very good thing that you're looking into the question of reauthorization. The reason I think it is good is I think Americans have problems that call for some Government solutions. They might need Social Security. They might need a permit in the environmental area. They might need—they might be veterans. There are just millions and millions of interactions between ordinary citizens and Government.

    If you tell the citizens that they just have only to do what the Government says or go to court, their life becomes impossible because courts are too expensive and they take too long. So we have administrative processes which are supposed to be simple and they're supposed to be less expensive. That's where the Administrative Conference comes in, because it's hard to create those processes—very hard. And it's done at a level that's highly technical. You could say, ''What person actually cares about separation of functions rules for rulemaking?'' All you have to do is mention that phrase, and they're already asleep. But, in fact, whether you have one set of rules or another set of rules matters. And if you were to say, ''What's the right set of rules?'' I couldn't tell you in theory. In theory, there is no right set. You have to have people who know about it. And I have been an academic for many years, and I will absolutely swear that they don't know.

    We are very good in the academy at getting theories, but we're not necessarily so good in finding out how they operate in practice. This is where the Administrative Conference came in.
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    My first book I ever wrote, a book that I think was extremely popular—I think it sold 23 copies. But it was aimed at certain questions: How do people actually set rates at the Federal Power Commission? Do you remember the Federal Power Commission? Well, that was back in the 1960's, and that was FERC before FERC was born.

    So Paul McAvoy and I actually went to the Federal Power Commission. It was impossible in Washington to find anyone who knew where it was. We found it. We found the administrators who actually set the rates. It was a woman named Georgia Ledaukis. I remember her. I said, ''How do you set a rate?'' And she explained it. No one had ever asked her that question. But it was that system that only she, I think, at the Federal Power Commission knew about. and that was really the system that they, in fact, used.

    So, I think that was a good idea. And what the Administrative Conference did was formalize that kind of thing. There were four kinds of members: there were actual commissioners. I can remember when—it was Dean Burch—do you remember Dean Burch who was Chairman of the Federal Communications Commission? And he would tell us about the problem of ex parte communications in practice. Would you like to know what he said? It's sort of interesting. He said—I can remember this talk. He said, ''You know, I was from Arizona. I was appointed Chairman of the Federal Communications Commission. My neighbors congratulated me. And then I came to Washington. I thought I was a pretty important person. But I discovered nobody was the slightest bit interested. Oh, no,'' he said, ''there was one group of people, one group of very polite, very charming, really hospitable people who seemed to be interested in everything I said. They were lawyers, and they worked for the communications company.'' He said, ''No, that was in really practical form the problem of ex parte communications.''
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    Well, I'm just giving you examples. But I'm saying when you put the academics together with the agency staffs, the agency commissioners, the heads of the agency, and then some lawyers who are actually practical people outside the agency who know what it is to deal with them every day. And they discuss things at a technical level, sometimes things can change—a little bit for the better.

    What kinds of rules should we have for a proceeding of informal rulemaking? How formal should informal rulemaking be? Should it be very formal, like formal rulemaking? Hardly formal? Somewhere in the middle? The same for every agency? Have exceptions, as we do sometimes for some of these procedures?

    The Conference would try to address that kind of question. Someone would write a report. The report would be criticized. It would be discussed. Something would emerge, and then recommendations would flow, either to the agencies themselves or to Congress. When they passed Congress—and sometimes they did—it was not because people thought there was a lot of political force behind it one way or the other. It was because they thought it was simply good Government. That's what the commission—that's what the Conference did. It is a matter of good Government. Its recommendations were not perfect, but I think they helped. And it's a great forum for bringing people together and discussing what will really happen, not what the politics or the general policy is about procedure and at a technical level.

    So I'm very glad you've looked into this. I'm glad you're doing it. I very much hope you reauthorize the Administrative Conference.

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    [The prepared statement of Justice Breyer follows:]

PREPARED STATEMENT OF THE HONORABLE STEPHEN BREYER

    Mr. Chairman and Members of the Subcommittee. Thank you for the invitation to comment upon the Administrative Conference of the United States. I participated in its activities from 1981 to 1994 as a ''liaison'' to the Administrative Conference from the Judicial Conference. I believe that the Conference was a unique organization, carrying out work that is important and beneficial to the average American, at low cost.

    During that time, the Administrative Conference primarily examined government agency procedures and practices, searching for ways to help agencies function more fairly and more efficiently. It normally focused upon achieving ''semi-technical'' reform, that is to say, changes in practices that are general (involving more than a handful of cases and, often, more than one agency) but which are not so controversial or politically significant as likely to provoke a general debate, say, in Congress. Thus, it would study, and adopt recommendations concerning better rule-making procedures, or ways to avoid legal technicalities, controversies, and delays through agency use of negotiation, or ways of making judicial review of agency action less technical and easier for ordinary citizens to obtain. While these subjects themselves, and the recommendations about them, often sound technical, in practice they can make it easier for citizens to understand what government agencies are doing to prevent arbitrary government actions that could cause harm.

    The Administrative Conference was unique in that it developed its recommendations by bringing together at least four important groups of people: top-level agency administrators; professional agency staff; private (including ''public interest'') practitioners; and academicians. The Conference would typically commission a study by an academician say, a law professor, who often has the time to conduct the study thoughtfully, but may lack first-hand practical experience. The professor would spend time with agency staff, which often has otherwise unavailable facts and experience, but may lack the time for general reflections and comparisons with other agencies. The professor's draft would be reviewed and discussed by private practitioners, who bring to it a critically important practical perspective, and by top-level administrators such as agency heads, who can make inter-agency comparisons and may add special public perspectives. The upshot was likely to be a work-product that draws upon many different points of view, that is practically helpful and that commands general acceptance.
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    In seeking to answer the question, ''Who will control the regulators?'' most governments have found it necessary to develop institutions that continuously review, and recommend changes in, technical agency practices. In some countries, ombudsmen, in dealing with citizen complaints, will also recommend changes in practices and procedures. Sometimes, as in France and Canada, expert tribunals will review decisions of other agencies and help them improve their procedures. Sometimes, as in Australia and the United Kingdom, special councils will advise ministries about needed procedural reforms. Our own Nation developed this rather special approach (drawing together scholars, practitioners, and agency officials) to bringing about reform of a sort that is more general than the investigation of individual complaints yet less dramatic than that normally needed to invoke Congressional processes. Given the Conference's rather low cost (a small central staff, commissioning academic papers, endless amounts of volunteered private time, and two general meetings a year), it is indeed a pity that by abolishing this Conference, we have weakened our federal government's ability to respond effectively, in this general way, to the problems of its citizens.

    I have not found other institutions readily available to perform this same task. Individual agencies, while trying to reform themselves, sometimes lack the ability to make cross-agency comparisons. The American Bar Association's Administrative Law Section, while a fine institution, cannot call upon the time and resources of agency staff members and agency heads as readily as could the Administrative Conference. Congressional staffs cannot as easily conduct the technical research necessary to develop many of the Conference's more technical proposals. The Office of Management and Budget does not normally concern itself with general procedural proposals.

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    All of this is to explain why I believe the Administrative Conference performed a necessary function, which, in light of the cost, should have been maintained. I recognize that the Conference was not the most well known of government agencies; indeed, it was widely known only within a fairly small (administrative practice oriented) community. But, that, in my view, simply reflects the fact that it did its job, developing consensus about change in fairly technical areas. That is a job that the public, whether or not it knows the name ''Administrative Conference,'' needs to have done. And, for the reasons I have given, I believe that the Administrative Conference was well suited to do it.

    I hope these views will help you in your evaluation of the need to re-establish the Conference. I highly recommend that Congress do so.

    Mr. CANNON. Thank you very much, Mr. Justice Breyer.

    Mr. Coble, would you like 5 minutes?

    Mr. COBLE. Thank you, Mr. Chairman. And, again, I apologize for my imminent departure, but it's good to have both of you with us.

    Justice Scalia, should ACUS in your opinion be established as a part of another agency such as Department of Justice or GSA, for example, A? And should it be privatized, B?

    Justice SCALIA. A is easy. I don't think it would be effective if it were a part of any other agency. It was set up originally as an independent agency, and I think it has to be that in order to have the confidence of the other agencies with which it's dealing. As you know, there are some interagency jealousies and reservations which I think would make its studies more difficult if it were a subunit of some other department. Besides which, I think being accountable to a Secretary of some Department or to the Attorney General would eliminate its independence, which is its whole value. It's not supposed to reflect the view of the current Administration or of the current Justice Department. It's supposed to represent the intelligent, informed view of those who are expert within the academic community, the practicing bar, and the Government. So if you want to have that, I think you have to make it an independent agency. I think it would hurt it to put it under something else.
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    Now, the second question, should it be privatized? I'm not sure what you mean by that. I think it has to be within the Government because, as I indicated in my initial comments, you have an entree to the agencies. No agency likes to be studied. Anybody who says, you know, ''We welcome a study,'' they're kidding you. Everybody would like people to go away and leave me alone.

    But if you have an agency that has the respect of other agencies and in which a representative from that agency itself is on the Conference, which was usually the case, your chances of being able to do a thorough study with the cooperation of the agency are vastly increased. That could not be done by a private operation.

    Mr. COBLE. Thank you, sir.

    Justice Breyer, in this town much is made over, oh, it must bipartisan. Well, I'm an advocate of bipartisanship as well, but by the very nature of this city, it's the capital city of a Republic of 50 States, and some issues by their very nature and make-up are going to be partisan. Justice Scalia I think answered this, but let me put it to you, if I may.

    How important is it to preserve the bipartisan, nonpolitical nature of ACUS?

    Justice BREYER. It's fairly important. I can't recall in the time I was there—I don't want to say none, but I can't recall any significant number of issues coming up where partisanship made much of a difference. You know, there could have been some, but it's at a level where what is the partisan view of separation of functions in rulemaking? You know, for most—that's not true 100 percent, but most of it, it doesn't take place in the discussion at a partisan level.
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    Mr. COBLE. Thank you, sir.

    Mr. Chairman, I want you to take judicial notice that I beat the red light, and I yield back my time. And thank you, again, gentlemen, for being with us.

    Mr. CANNON. I thank the gentleman.

    Mr. Watt, would you like 5 minutes?

    Mr. WATT. Thank you, Mr. Chairman.

    Justices, reading from the briefing memo that the Committee Members got, just to establish a foundation for a question that I want to follow up with, the Administrative Conference was established as a permanent, independent agency in 1964 and became operational 3 years later. The Conference was created to develop recommendations for improving procedures by which Federal agencies administer regulatory, benefit, and other Government programs. It served as a private-public think tank that conducted basic research on how to improve the regulatory and legal process. After failing to be appropriated funds for fiscal year 1996, ACUS ceased operations as of October 31, 1995, and the statutory provisions establishing ACUS have not been repealed.

    Justice Breyer gave us a great snapshot of some of the things that the Conference did to formalize and clarify procedures that were absolutely necessary. I sense that we are probably continuing to benefit from the work that the Conference did over the years of its existence in establishing knowable and uniform procedures.
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    I'm wondering if either of you may have examples of some of the problems that have been created since 1995 when the Conference went out of existence that might have been avoided had the Conference been in place.

    Justice BREYER. We won't know. I remember one of the things they were working on earlier when I was—it was before I was appointed to the Supreme Court. I was on the court of appeals. A question that's always been a tough one, but very interesting, is the problem of negotiated rulemaking. Rules take us sometimes a very long time to write, and the problem they deal with almost goes away by the time they get them written and through the courts. And there was an idea that we could produce a negotiated process, and that's not an easy thing to do because sometimes there are people left out of the table.

    They've done studies on that, and maybe that's made a lot of progress without them. Maybe it hasn't. I haven't heard too much about it.

    Mr. WATT. That was still a work in progress at the end of the——

    Justice BREYER. I think a continuous set of works in progress. But the short answer is I don't know.

    Justice SCALIA. That's my answer, too, Congressman. And it's not easy to know. The biggest part of my job when I was Chairman was precisely identifying problems to study. Most of them are under the surface. They don't leap out at you. If they leapt out at you, there would be legislation covering the problem. That's usually not the case. It takes some work to discover what the real problems are and to discover how to solve them.
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    Anyway, you know, I have been out of that business for a while now. I'm now in the business of creating problems rather than solving them. [Laughter.]

    Justice BREYER. That's what I was thinking. I was thinking that since we've both been on the Court, my guess is that we could get a pretty good agenda for them.

    Mr. WATT. I would sense that maybe the people who would be most knowledgeable about the problems that may be surfacing as a result of not having the Conference in place would be ordinary citizens who are trying to work their way through a process that there's really—or improve a process that there's really no formalized procedure in place at present to improve. So I——

    Justice SCALIA. Either citizens, Congressman, or the specialized bar that services that particular segment of the community—maybe the immigration bar or the bar that handles Veterans Administration appeals, things of that sort. That's where you usually get the signals from.

    Mr. WATT. Now, the ABA's letter has certainly been vigorously in favor of doing this. It may be that some of their committees have stepped into that void and they'd like to get back out of it and formalize it in a different sense, or be participants in it but not necessarily the only voice that's being heard in that——

    Justice BREYER. That's exactly right, because the Administrative Law Section of the American Bar Association has always been active in this area, and both, they co-existed. But what the Conference could do that the Ad. Law Section couldn't do is just what Justice Scalia is talking about: they could get the access to the information inside the Government and the off-the-record reactions of people in charge of those agencies. So it produced a conversation that you can't have as easily just through the ABA.
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    Justice SCALIA. I was Chairman of the Ad. Law Section for a year, and there's a big difference between showing up at an agency and saying, ''I'm from the American Bar Association, I want to know this, that, and the other,'' and coming there from the Administrative Conference which has a statute that says agencies shall cooperate and provide information. It makes all the difference in the world.

    Mr. WATT. Thank you, Mr. Chairman. I've always wanted to question Supreme Court Justices and be on the other side of the fence.

    Mr. CANNON. This is actually pretty cool, isn't it?

    Mr. WATT. Yes, this is nice. [Laughter.]

    I will yield back. I'll resist the temptation to go well beyond the 5 minutes. I thank both witnesses and thank you for being here, and I yield back.

    Mr. CANNON. The gentleman yields back.

    The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes.

    Mr. FEENEY. Thank you, Mr. Chairman. I apologize for being a little bit late, but I want to also thank Justice Breyer and Justice Scalia for all that you do to help our country in administering the third branch of Government under article III. I want to tell you that I think everybody on this Committee, regardless of their partisan nature, wants to work with you to find ways to facilitate the administration of justice in a manner that best serves our country under the principles of the Constitution.
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    And I guess to try to throw you what I hope will be a soft ball, maybe in my short time—I've read your testimony and we appreciate just how far we've come since 1946, for example, in the Administrative Procedure Act. I'd like to ask both of you, given that you're not only, you know, great Justices but that you've got a great historical background in terms of the judicial system and with the changes from Justice Marshall right up through today, if you would maybe give us some predictions about what our court system will look like not 50 years ago but 50 years from now as we continue to evolve as a society. Maybe you could some forward thinking for us, if it's not asking too much.

    Justice SCALIA. I'm hesitating, Congressman, because Justice Breyer and I came here to talk about the Administrative Conference, and I am afraid that if I answer your question, I am going to be on what is known as the slippery slope. We really didn't come to talk about the courts, and——

    Mr. CANNON. May I just suggest, we were just talking with staff, and, frankly, we would appreciate it if all the Members of the Committee would focus on ACUS. I don't mean to correct you because that's a fascinating question that I'd like to——

    Mr. FEENEY. In that case, I'll withdraw my question

    Mr. CANNON.—sit around with a root beer and talk to the Justices about.

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    Justice BREYER. I'll say one thing about the difference. An administrative process, by and large, is individuals dealing with a bureaucracy. It's absolutely necessary, it's supposed to be accessible, and it's supposed to help. The judicial branch is the last place, I think—maybe Congress still is—where an individual who has a problem with the Government comes into a courtroom and looks face to face at the sole individual, usually a district judge, who is going to make that decision.

    Now, to me, that's an incredibly valuable thing. And to me as well, although the judicial process is too expensive and it takes too long, I think it's essential to preserve its nature, which is not an administrative bureaucracy. And there is room for both. So I can't predict but I can hope, and I hope that 50 years from now the judicial branch will still not be a bureaucracy; it still will be a place where the individual comes face to face with that high Government official who will decide his or her case; and I also hope it will be a lot less expensive and will be run more expeditiously.

    But as I say, those are hopes and they are not predictions.

    Justice SCALIA. He's provoked me now. [Laughter.]

    If I were going to compare the two, one of the great things about our judicial system is that our courts are not a bureaucracy. It is the principal difference between our judicial system and the judicial systems of most of the civil law countries. In the Anglo-Saxon system, a judge becomes a judge, at least on a prestigious court such as a Federal district court or any of the Federal courts, at the summit of a successful legal career. He not only has not been a bureaucrat his entire life, he has usually been litigating against the Government. So he comes on to the bench with a really independent mind. He is not inclined to swallow everything the Government tells him and so forth.
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    In the civil law system, you become a judge right after law school. You pick your career. If you want to become a judge, you start off as a baby judge and you get promoted through the whole judicial system. This creates a wholly different mindset. The strength of our courts is precisely that they are not a bureaucracy. And that's why they can help the citizen confronted with a sometimes misunderstanding bureaucracy. But I don't want to talk about the court——

    Mr. CANNON. If the gentleman yields back, let me just point out that the comments from the panel are very important in the context of what we're doing here because, before you get to a judge, you often have to go through a very long process. And the fact that a judge who may be a little bit contrary to the Government, has an independent streak, is going to oversee that, is a remarkably important part of the process. But, of course, how we get that person through the process, his claims are adjudicated, are dealt with early, saving him time and money is very, very important. So we appreciate that.

    I'd like to inform the panel that we expect five votes within about 10 minutes from now, so I am going to actually tap the gavel at 5 minutes. And I hope that we have—Mr. Delahunt, did you want to take 5 minutes?

    Mr. DELAHUNT. I will try to limit myself.

    Mr. CANNON. Let me just poll the panel here. I take it, Mr. Conyers, you'd like to ask questions. Mr. Scott, yes. Good. Let me recognize Mr. Delahunt. We'll go to Mr. Scott. If there is some time left, I will wrap. But we do have votes coming, so let's watch the clock.
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    Thank you, Mr. Delahunt.

    Mr. DELAHUNT. Thank you, Mr. Chairman. And welcome to both judges, and a particularly warm welcome to Justice Breyer, who served, as you've indicated and as he's alluded to, in the First Circuit, where he served so well and earned the admiration of the Massachusetts Bar and the citizens of Massachusetts and obviously other States encompassed in it. It's good to see you, Judge.

    Justice BREYER. Thank you.

    Mr. DELAHUNT. Clearly, both of you indicate, you know, support for reauthorization, and as we discuss it among ourselves, I dare say there's a consensus that when it was functioning, it served a very valid purpose. I think both of you have at least implicated that it resulted in efficiencies, improvements that translated into savings—savings of tax dollars.

    I'd speculate that this panel and most likely the full Committee would support reauthorization. I think that's the inclination of the Chair of the Subcommittee. I can't find any reason not to. Is there any reason not to? Let me pose that question to you.

    Justice SCALIA. Well, there's always money, but I guess nobody's mentioned, and I meant to mention at some point in my testimony, that I think the Administrative Conference was an enormous bargain because you are really getting the benefit of the legal advice of, I think, some very good private lawyers whose time nowadays probably goes out at 500 bucks an hour or something like that. Their time was contributed. They got no compensation for serving on the Assembly of the Conference. The only expense to the Government was their travel expenses to come to Washington for the meetings. But they expended a considerable amount of time in committee meetings, in preparing drafts of recommendations—and all of this was provided to the Government gratis.
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    Mr. DELAHUNT. It's a good investment. You know, earlier, I think it was you, Justice Scalia, that indicated—I mean, this is not an issue that's attracting a standing-room-only crowd. You know, it's tough to keep your eyes open.

    Justice SCALIA. I'd worry for the country if it did, Congressman. [Laughter.]

    Mr. DELAHUNT. Right. And I would concur with those sentiments. But I think it was you, Justice Breyer, that indicated that during your tenure there and during the course of the AC's existence, you know, there were significant savings, that it's a good investment. It wasn't just a question of taking advantage of high-priced talent, but the results translated into efficiencies that, in fact, saved considerable dollars.

    We have to—if this Committee at some point in time should have legislation before it and it leaves here, our responsibility is going to be to sell it to our colleagues to ensure passage. And I think what our responsibility is—and I think your testimony, both of your testimony here today have provided a record to be able to honestly relate that this is a way to save money, as well as to make it more streamlined.

    Mr. CANNON. Would the gentleman yield?

    Mr. DELAHUNT. Sure.

    Mr. CANNON. Justice Scalia, you just said that you compared the value or the cost to the Government with the value of the inputs, that is, a $500-an-hour lawyer. And I think Mr. Delahunt is moving toward another perspective, which is that we got a lot of value out. We would just love, for the record, if you have some way to give us a comparison between, say, the $3 million we're looking at authorizing and the value Government gets as product.
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    Justice BREYER. Suppose, for example, that you—and I think this is a fair example. In a world where it did at one point take an average of several years from the time a rulemaking was considered until the time it went into effect as a result of improved procedure you cut a month or two off that process, as undoubtedly regulatory rulemaking negotiation, even where imperfect, did, and cut off far more than that, well, you've saved your $3 million right there.

    Mr. CANNON. That might be billions of dollars.

    Justice BREYER. It could. It easily could, a major environmental rule, and that's not even taking account of the fact that the environment will then be protected that much sooner. So there is huge saving directly to the public, I think, through a more efficient set of rules.

    Mr. DELAHUNT. Mr. Chairman, what I would recommend is that you, along with the Ranking Member, request either the CRS or some appropriate agency to conduct a review, if you will, that could prospectively provide us at least a vague range of the savings that could be effected if it was reauthorized, and maybe we could end up passing this, getting it on the suspension calendar, and go where we should.

    Thank you. Thank you, Judge.

    Mr. CANNON. We expect to have another panel at some point in the future. Maybe we can get that cost/benefit then. But let me just say for the record now, it appears to me that we're talking about a few million dollars compared to billions of dollars in cost to industry, and as Justice Breyer pointed out, a failure to implement protections to save the environment which may be incalculable in value.
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    Justice Scalia, I think you——

    Justice SCALIA. I was just going to say, don't judge it just on how much money it saves, because not all of its recommendations are money-saving recommendations. There are two values involved here: one is efficiency, the other one is fairness. Sometimes you have agencies' procedures that are just unfair, and it might take a little more money to make them fair. But you'd want to do that.

    So I don't think you can just judge it on the basis of financial cost saving, although I wouldn't be surprised if it ended up having saved money overall in its recommendations.

    Mr. CANNON. Thank you, Justice Scalia.

    We've had Mrs. Blackburn from Tennessee join us. We have a short—time is—we have a vote coming up, and I was going to recognize Mr. Watt first, if that would be okay with you—pardon me. My Ranking Member is so prominent in my mind that I sometimes mistake that. Mr. Scott, would you like to be recognized for 5 minutes?

    Mr. SCOTT. Thank you, Mr. Chairman.

    When Justice Breyer talked about a rate setting, it reminded me of that line in ''A Man for All Seasons'' when Sir Thomas More was charged more than the regulated rate for a boat trip, and the response from the boatsman was that the fee coming this way downstream is the same as the fee going back upstream. Whoever set the rate doesn't row a boat. [Laughter.]
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    Justice SCALIA. I remember that line.

    Mr. SCOTT. And I've remembered that.

    The Conference presents nonpartisan, well-documented facts and analysis. We ought not be afraid of intelligent experts' advice, even if it disagrees with our political position. And so I've always been a supporter of the Conference.

    Let me just ask one question. The members of the Conference don't fall out of the sky. The executive branch, the President appoints the Chairman. Who appoints the others? And should that be looked at?

    Justice SCALIA. That's in my testimony. The Chairman is confirmed by the Senate, so it's not just a Presidential appointment. The private members of the Conference are appointed just by the President. And—I think that's right. Yes. And I think one of the jobs of the Chairman is to make sure that the organization does not become a partisan organization, that it is not used in order to further the policies of the current Administration. If that happens, it is deprived of all of its usefulness.

    Mr. SCOTT. Is there something we can do in the appointment—membership appointment process to make that more likely?

    Justice SCALIA. I think you have to be very careful in selecting the Chairman. I think it's the Chairman's job. You have to remain friendly to the Administration. You know, if the Administration thinks that you're a bomb thrower and, you're going to be hostile to them, you're not going to get the kind of access you need. But, on the other hand, you cannot let the Administration load up the Conference with people who don't have the expertise that you want or with people who have axes to grind. It's up to the Chairman to fight against that. And to the extent he's unsuccessful, the Conference will not be what it ought to be.
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    Justice BREYER. You might, Congressman, put a word ''bipartisan'' somewhere, you know, appropriate as an objective. I used to attend the meetings when President Carter was President and then again when President Reagan was President. And so I saw that change of Administrations. I don't think it makes a big difference. It made some difference. I wouldn't say zero. But I don't think it made an enormous difference to the output of the Conference.

    Mr. SCOTT. Were Chairmen reappointed?

    Justice BREYER. No. There were different Chairmen, and it was viewed as a prerogative of the Administration. But as I say, the nature of the entity was such that they were searching for bipartisan members. It mostly—there were law professors and there were private practitioners. So that's why I say—I didn't think it was a problem, but I can't say it's a zero impact. So urging I think helps. I don't think it's necessary to legislate it.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Justice SCALIA. I take back what I said earlier. The public members were appointed by the Chairman with the approval of the Council. So it wasn't a matter of the President appointing the private members. The Chairman did have good control over who went into the body of the Conference. And so long as he was able to resist any untoward pressures from the Administration to appoint people that they for some reason—I don't know—owed a debt to or wanted to put in there so that they could push Administration policies, it was the job of the Chairman to resist that. And he had the power to do it because ultimately he was the one who nominated the members of the Assembly. And it worked very well in that manner, for as long as I knew it anyway.
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    Justice BREYER. I would hope that they would go back for the first set of appointments and look for some people that have a historic memory—there are a lot of them around—to try to reconstruct the mores of the institution.

    Mr. CANNON. It is my sense that the power of the Administrative Conference is actually derived from the credibility of the members, and that if you ever got in a partisan situation, it would destroy the reputation of the Chairman, principally, and would set the Conference back a year or two or three before you would get it changed out and get new people in. And no man or woman who is of the stature to become Chairman of the Administrative Conference is going to allow his or her reputation to be destroyed over partisanship when, in fact, no matter how partisan you are, the rules are the critical thing here. And administrative interests are best protected by having clear rules that then the Administration and political people can play with.

    Justice SCALIA. That is absolutely true. And let me mention one other factor. As I said in my prepared testimony and in my opening remarks, the initial Chairmen of the Conference—and I think this continued for a long time—were academics. And you can't push academics around too much because, you know, ''I'll just go back to teaching, which is a great racket. I don't have to stay in Washington.'' So, that was, I think, one of the strengths of the Conference, that it usually had an academic as the Chairman. You just can't push them around too much.

    Justice BREYER. I agree.

    Mr. CANNON. Thank you. That is a bell for votes. We have 15 minutes. That should leave us time. Mrs. Blackburn?
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    Mrs. BLACKBURN. Thank you, Mr. Chairman.

    Mr. CANNON. The gentlelady is recognized for 5 minutes.

    Mrs. BLACKBURN. Thank you, Mr. Chairman. And we do have the vote, and we need to get out of here. And I've enjoyed listening to your comments.

    I would just say very quickly, you've talked a little bit about the importance of the bipartisan, nonpolitical nature of the ACUS, and what I—and I'll have to say this: sometimes in the day and age in which we live, when our constituents hear about trying to eliminate waste and red tape and reports from the GAO and the CRS and Government reform and the Inspector Generals and the CFO and the CFO Act, many times their eyes just glaze over. And so we appreciate you all and your concern and your attitude toward this and toward the hearing.

    What I'd like to hear from you very quickly is, in light of all of this and looking at the bipartisan, nonpolitical nature, if you will, of the ACUS, what would you see as being the top priorities for a reconstituted ACUS?

    Justice SCALIA. I think it's similar to a question that was asked earlier, and my response to that was I have been out of the business for too long to know what the first things I would investigate are. Probably the most difficult job of the Chairman was precisely to identify those areas that are worthy of study. That's what I spent most of my time doing; it doesn't jump up at you. You have to take some time to speak to a lot of people and find out what are the most pressing concerns in the administrative field—which, as you point out, is a very dull field that not many people are interested in. But there are those of us who love it.
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    Justice BREYER. Yes. We are administrative law buffs. [Laughter.]

    I can't say what's the most important for the same reason, but it does come to mind the fact that we in our Court have divided about five ways about the correct meaning of a case called Chevron, which has significance. And if I were running that now, I think maybe one thing I might like to do is to ask the agencies whether the five different things that we have said have mattered. Has it hurt them? Has it helped them? That's a subject they might look into.

    Mrs. BLACKBURN. Well, I agree with you. I think those could be instructive. And for those of us in each branch of Government and across the field that do appreciate an effective, efficient administrative process, it would be a question worth answering. And I think we will depart for the votes, and, Mr. Chairman, I thank you for the time.

    Mr. CANNON. Thank you. I do have a couple of questions to follow up.

    Just along this line, while I recognize that you both are out of this business, it seems to me there's some large trends in society that might be appropriate for the Administrative Conference. For instance, litigation has increased, especially in some of the environmental areas. We have a phenomenal flourishing of science in America, and we're not integrating that very well, I don't think yet, into our administrative process. We have communication processes that are remarkable, online processes that allow people to keep track of everybody's comments and everybody's input and communications between people within and without an agency. And, of course, there's always the need to create an environment where we can have more transparency, and there are probably limits on that.
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    So it would seem to me that some of those areas—and there may be others in your mind—where as a matter of broad scope, the nature of society has changed, and, therefore, the focus of ACUS may be appropriate to be adjusted to look at those things.

    Justice SCALIA. Well, I would certainly tell the new Chairman, one thing you might look into is whether teleconferencing couldn't be used by agencies more than it is. I don't know whether that's something that is taken advantage of as much as it ought to be. Certainly there have been enormous strides in the facility of that procedure, the cost of it, and how close it comes to being in the same room. I don't know if the agencies are doing enough with that. Maybe that's one thing the Conference might look into. Instead of having lawyers and citizens come to Washington or to Peoria—wherever they have their hearings—maybe things could be done over the phone. I don't know.

    Justice BREYER. I think science is a very, very good idea, good subject, because scientists disagree about a lot of things, but, still, the serious scientists are within a range of disagreement. And how to create a process that focuses the actual controversy within what I would call the consensus range is a hard topic to do. It's been very difficult in the courts. We've had cases trying to focus on that issue. In Britain and in continental Europe, they've had major studies and major efforts to reform their judicial system in that respect, and they've proved reasonably successful.

    So there's a lot to look at, and I think if you could make progress in that area, that would be very helpful to everyone.

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    Mr. CANNON. Do either of you have an opinion as to whether it would be useful to have Members of Congress on the Administrative Conference?

    Justice BREYER. I'm not sure that it would.

    Justice SCALIA. I don't know any Member of Congress who is an expert in administrative procedure. And I don't want anybody on the Conference who's not an expert in administrative procedure.

    Justice BREYER. The nature of the job is so different. I mean, the nature of the job as a person in Congress is to respond to those issues that are at a level where they have a generalized response—a generalized impact upon——

    Mr. CANNON. You're cutting me out of the process, which is sort of painful, I might say, with all due respect. [Laughter.]

    Justice SCALIA. You have enough work to do, Mr. Chairman.

    Mr. CANNON. What I was thinking, actually, is perhaps Members of—or Chairmen of the Committees that deal with administrative law may have an ad hoc or some other sort of role.

    Justice SCALIA. Well, they're welcome to attend all of the plenary sessions, and I'm sure any of the committees would be delighted to have a Member of Congress sit in on the committee meeting. I think maybe one useful thing that could be done is to keep Congress informed of when all of these committee meetings occur. If they want to attend, fine.
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    Justice BREYER. Congressional staffs I think did sometimes come.

    Justice SCALIA. Staff did come to the plenary sessions. I'm sure of that.

    Mr. CANNON. Let me just ask then a very general question. Are there any recommendations you would have for how to change what was the Administrative Conference as we go forward in the future?

    Justice BREYER. No, I haven't thought about that.

    Justice SCALIA. I haven't given thought to it, Mr. Chairman, and I don't want to do it off the top of my head. Nothing immediately occurs to me. The most important thing is what I mentioned earlier. You have to be very, very demanding in the selection of the chief executive officer. I think it makes a big difference if you get people like Jerre Williams and Roger Crampton, good, solid people who will keep it on the right track.

    Mr. CANNON. I must say that I—you've said many of the things that I have wanted in this record. We appreciate that. The Administrative Conference has been great and been effective because of the kind of people that have run it and the kind of people that have contributed their time. I certainly would like to see it reestablished. I think it would have a great benefit to the American people, far beyond the nominal costs that we're looking at right now.
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    We thank you very much, both of you, for coming down. You honor us with your presence, and you've done great service to our cause of bringing back the Administrative Conference to America. Thank you.

    Justice BREYER. Thank you.

    Justice SCALIA. Thank you, Mr. Chairman, Members of the Committee.

    Mr. CANNON. We will now be adjourned. Thanks.

    [Whereupon, at 3:08 p.m., the Subcommittee was adjourned.]


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