Though none of us is entirely satisfied with all the provisions of this regulation implementing title IX, our duty is to examine the provisions, in particular the three cited as inconsistent in the concurrent resolution, to determine their consistency with the authorizing statute.

[Text of H. Con. Res. 330 follows:]

CONCURRENT RESOLUTION

[H. Con. Res. 330, 94th Cong., 1st sess.]

Whereas the Secretary of Health, Education, and Welfare on June 4, 1975, submitted to the President of the Senate and the Speaker of the House of Representatives certain regulations for the implementation of certain sections of title IX of the Education Amendments of 1972, pursuant to the Secretary's duty under section 431 of the General Education Provisions Act; and Whereas the Congress, in the exercise of its authority under article I of the Constitution and in accordance with the procedure established by said section of the General Education Provisions Act for the safeguarding of that authority, has reviewed said regulations and finds certain of them inconsistent with the Act from which they must derive their authority, as follows:

(1) subsections 86.3 (c) and (d), requiring each recipient educational institution to conduct a self-evaluation and maintain records thereof, are inconsistent with the Act since there is no authority contained in the Act for such a requirement,

(2) section 86.8, requiring each recipient to adopt and public grievance procedures providing for resolution of student and employee complaints is inconsistent with the Act, since there is no authority contained in the Act for such a requirement, and

(3) section 86.12 (b), requiring an educational institution to claim a religious exemption is inconsistent with the Act, since section 901(a)(3) specifically exempts educational institutions from coverage under subsection (a) and would not require an institution to be forced to petition or claim such exemption from the Department of Health, Education, and Welfare: Now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That those regulations, submitted to the Congress on June 4, 1975, proposing to add subsections 86.3 (c) and (d) and section 86.8 and section 86.12(b), part 86 to title 45 of the Code of Federal Regulations, for the implementation of title IX of the Education Amendments of 1972, are disapproved by the Congress on the grounds of their inconsistency with the Act from which they derive their authority, as set forth in the preamble to this resolution, and are returned to the Secretary of Health, Education, and Welfare to be modified or otherwise disposed of as provided in section 431(e) of the General Education Provisions Act.

Mr. HAWKINS. As our first witness this morning, the subcommittee. welcomes the chairman of the Subcommittee on Postsecondary Education, and the author of House Concurrent Resolution 330, Mr. James G. O'Hara, the Representative from the 12th District in Michigan. Mr. O'Hara, I am quite sure that Mr. Buchanan will be joining us very shortly. Unless you wish to delay the start of hearing until he arrives, I would certainly welcome at this time your statement in support of the resolution.

STATEMENT OF HON. JAMES G. O'HARA, U.S. REPRESENTATIVE FROM MICHIGAN

Mr. O'HARA. Thank you very much, Mr. Chairman, for this opportunity. I will proceed now, and I certainly will be happy to answer any questions that Mr. Buchanan might have with respect to matters about which I will have testified before his arrival.

Mr. Chairman, I appreciate this opportunity to appear at your subcommittee's hearing on House Concurrent Resolution 330. This concurrent resolution deals with an important subject matter in and of itself, but the procedural and constitutional questions involved are even more significant. So I will turn my attention first to those issues. House Concurrent Resolution 330 is the first example of the exercise by Congress of a new procedure, created by law in the summer of 1974, designed to safeguard the exercise by the Congress of its most fundamental constitutional duty.

The very first sentence of the Constitution of the United States says: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

That Constitution, which we have taken an oath to protect and defend, gives the executive branch the duty to see that the laws are faithfully executed, and it gives to the judiciary the right to determine cases and controversies arising under those laws.

But to the Congress, and to the Congress alone, it gives the right to make law.

This was not an accident, Mr. Chairman. The men who wrote the Constitution knew from bitter experience that the authority to make law had to be kept jealously guarded in the hands of those who could be held responsible to the people.

They did not assume that the Congress would be necessarily possessed of greater wisdom than the employees of the executive branch, or the judges. They did not believe that the Members of the Congress would be more benevolent, more understanding, more selfless than their fellow citizens. It was not for any of these reasons that they gave the exclusive and unshared legislative power to the Congress.

They gave that authority to the Congress because the Congress is answerable, at very frequent intervals, to the people from whom all government power is borrowed, and to whom its use must always be accountable.

That fundamental constitutional concept of separation of powers has frequently been under attack. And for most of the time any of us have been in this Congress, it has been under unremitting attack. The attacks were not begun in this administration, nor in its ill-fated predecessor. But the efforts of the executive branch to assume the power to make the law, to rise above the law when its policies suggested it, and to violate the law when it thought it was doing so in a good cause, certainly rose to a crescendo in the last 6 years-and led directly to the constitutional crisis which was so narrowly avoided less than a year ago.

The attack on the right of the Congress to make the law, and on the duty of the executive branch to abide by the law, did not, of course, take the form of a violent coup d'etat. There were no 7 days in some recent May, with armed hordes of GS-12's charging Capitol Hill to oust the Representatives and Senators from their work. It didn't even take the form of flamboyant defiance of the express prohibitions of the law.

The assault was more insidious and more difficult to resist than an outright confrontation. The bureaucracy doesn't simply tell us to buzz off while they do what they think is right. No: very politely and with a great outward show of deference, they take the laws and busily

write regulations, explaining the laws to themselves, defining the terms already defined in the laws, adding exceptions and exemptions and explications and explanations until what the public is told to do by regulation bears only a general resemblance to what the law tells them to do.

We are always assured, Mr. Chairman, that the regulations are only what is necessary. We are frequently assured that they are only meant to carry out the "intent of the Congress." And we are constantly assured that these regulations, these "improvements" in the text of the law, are so desirable, so righteous, so necessary for some high cause or another that they transcend the need of mere legality.

Secretary Weinberger expressed that frame of mind very eloquently in his testimony on the recent title IX regulations when he appeared before my subcommittee. He said of the process of developing those regulations: "It has been extraordinarily difficult, first, to interpret the intent of Congress, and secondly, to accommodate the concerns of a wide diversity of interest groups and individuals."

In other words, the Secretary of HEW, in devising a set of regulations designed to carry out the law, and deriving all of their authority from the law, has felt himself empowered not only to follow the law, but also to exercise the separate legislative function of trying "to accommodate the concerns of a wide diversity of interest groups and individuals."

And this bureaucratic attitude leads beyond the mere rewriting of statute. It leads to the widespread view that the only real law in town. is the regulation, and that until some GS-15 has explained the statute, there is no real law out there to concern anyone.

Title IX is a good, but not the only, example. Many of the individuals and groups who supported us when we enacted title IX have accepted without serious argument the incredible proposition that a law, enacted by the Congress and signed by the President in 1972, has not yet become effective, and will not until and unless a set of regulations is issued by the executive branch.

"The Congress may propose, the President may endorse, but until the bureaucracy has acted," runs the theory, "there is no law worthy of the name."

It was with the phenomenon of administrative lawmaking in mind, Mr. Chairman, that a year and more ago I offered in this very committee an amendment to a then pending education bill. My proposal, which was unanimously agreed to by the Committee on Education and Labor, and which became law with a few minor changes, but without serious opposition on either side of the aisle or in either House, is now section 431 (d), (e), and (f) of the General Education Provisions Act. I ask unanimous consent that the text of section 431 be inserted at this point in the hearing record, but I will summarize their impact. [Text of section 431 follows:]

SUBPART 2-ADMINISTRATION: REQUIREMENTS AND LIMITATIONS

RULES: REQUIREMENTS AND ENFORCEMENT

SEC. 431. (a) Rules, regulations, guidelines, or other published interpretations or orders issued by the Department of Health, Education, and Welfare or the Office of Education, or by any official of such agencies, in connection with, or affecting, the administration of any applicable program shall contain immediately

following each substantive provision of such rules, regulations, guidelines, interpretations, or orders, citations to the particular section or sections of statutory law or other legal authority upon which such provision is based.

(b) (1) No standard, rule, regulation, or requirement of general applicability prescribed for the administration of any applicable program may take effect until thirty days after it is published in the Federal Register.

(2) (A) During the thirty-day period prior to the date upon which such standard, rule, regulation, or general requirement is to be effective, the Commissioner shall, in accordance with the provisions of section 553 of title 5, United States Code, offer any interested party an opportunity to make comment upon, and take exception to, such standard, rule, regulation, or general requirement and shall reconsider any such standard, rule, regulation, or general requirement upon which comment is made or to which exception, is taken.

(B) If the Commissioner determines that the thirty-day requirement in paragraph (1) will cause undue delay in the implementation of a regulation, thereby causing extreme hardship for the intended beneficiaries of an applicable program, he shall notify the Committee on Education and Labor of the House of Representatives and the Committee on Labor and Public Welfare of the Senate. If neither committee disagrees with the determination of the Commissioner within 10 days after such notice, the Commissioner may waive such requirement with respect to such regulation.

(c) All such rules, regulations, guidelines, interpretations, or orders shall be uniformly applied and enforced throughout the fifty States.

(d) (1) Concurrently with the publication in the Federal Register of any standard, rule, regulation, or requirement of general applicability as required in subsection (b) of this section, such standard, rule, regulation, or requirement shall be transmitted to the Speaker of the House of Representatives and the President of the Senate. Such standard, rule, regulation, or requirement shall become effective not less than forty-five days after such transmission unless the Congress shall, by concurrent resolution, find that the standard, rule, regulation, or requirement is inconsistent with the Act from which it derives its authority, and disapprove such standard, rule, regulation, or requirement.

(2) The forty-five-day period specified in paragraph (1) shall be deemed to run without interruption except during periods when either House is in adjournment sine die, in adjournment subject to the call of the Chair, or in adjournment to a day certain for a period of more than four consecutive days. In any such period of adjournment, the forty-five days shall continue to run, but if such period of adjournment is thirty calendar days, or less, the forty-five-day period shall not be deemed to have elapsed earlier than ten days after the end of such adjournment. In any period of adjournment which lasts more than thirty days, the forty-five-day period shall be deemed to have elapsed after thirty calendar days has elapsed, unless, during those thirty calendar days, either the Committee on Education and Labor of the House of Representatives, or the Committee on Labor and Public Welfare of the Senate, or both, shall have directed its chairman, in accordance with said committee's rules, and the rules of that House, to transmit to the appropriate department or agency head a formal statement of objection to the proposed standard, rule, regulation, or requirement. Such letter shall suspend the effective date of the standard, rule, regulation, or requirement until not less than twenty days after the end of such adjournment, during which the Congress may enact the concurrent resolution provided for in this subsection. In no event shall the standard, rule, regulation, or requirement go into effect until the forty-five-day period shall have elapsed, as provided for in this subsection, for both Houses of the Congress.

(e) Whenever a concurrent resolution of disapproval is enacted by the Congress under the provisions of this section, the agency which issued such standard, rule, regulation, or requirement may thereafter issue a modified standard, rule, regulation, or requirement to govern the same or substantially identical circumstances, but shall, in publishing such modification in the Federal Register and submitting it to the Speaker of the House of Representatives and the President of the Senate, indicate how the modification differs from the proposed standard, rule, regulation, or requirement of general applicability earlier disapproved, and how the agency believes the modification disposes of the findings by the Congress in the concurrent resolution of disapproval.

(f) For the purposes of subsections (d) and (e) of this section, activities under sections 404, 405, and 406 of this title, and under title IX of the Education Amendments of 1972 shall be deemed to be applicable programs.

56-300-75-2

(g) Not later than sixty days after the enactment of any part of any Act affecting the administration of any applicable program, the Commissioner shall submit to the Committee on Education and Labor of the House of Representatives and the Committee on Labor and Public Welfare of the Senate a schedule in accordance with which the Commission has planned to promulgate rules, regulations, and guidelines implementing such Act or part of such Act. Such schedule shall provide that all such rules, regulations, and guidelines shall be promulgated within one hundred and eighty days after the submission of such schedule. Except as is provided in the following sentence, all such rules, regulations, and guidelines shall be promulgated in accordance with such schedule. If the Commissioner finds that, due to circumstances unforseen at the time of the submission of any such schedule, he cannot comply with a schedule submitted pursuant to this subsection, he shall notify such committees of such findings and submit a new schedule. If both such committees notify the Commissioner of their approval of such new schedule, such rules, regulations, and guidelines shall be promulgated in accordance with such new schedule.

(20 U.S.C. 1232) Enacted April 13, 1970, P.L. 91-230, Title IV, sec. 401(a) (10), 84 Stat. 169; renumbered June 23, 1972, P.L. 92-318, sec. 301 (a) (1), 86 Stat. 326, amended August 21, 1974, P.L. 93-380, sec. 509 (a), 88 Stat. 566, 568.

Mr. O'HARA. In effect, these subsections provide that whenever rules, regulations, or guidelines are issued to govern a Federal education program, they shall lay before the Congress for the last 45 days prior to their going into effect. And during those 45 days, the Congress can review them to find if they are, in fact, consistent with the statutory authority from which they must derive all of their force.

If the Congress makes a finding of inconsistency, the regulations, to the extent they are inconsistent, may be returned to the agency by a concurrent resolution. The resolution must specify the findings of inconsistency, and the agency has the option to return those inconsistent regulations to the Congress, modified to meet the objections, for another review.

Section 431 does not give the right to change statute by concurrent resolution, of course. That would be in violation of the Constitution. It does not give us the right to amend regulations. It does not give us the right to return regulations because we don't like them, or because they are just plain dumb, or because we have changed our minds since we wrote the law, or because we think we can do the work of the bureaucrats better than they can. We must make a finding of inconsistency with the law, and we may not apply that finding to any of the regulations except to those which it fits.

I had no particular law or set of pending regulations in mind when I offered section 431. It was a bipartisan effort to stem the phenomenon I have described above--the attitude one might call the spirit of San Clemente.

And although there have been no concurrent resolutions offered under section 431 until now, there have been several sets of regulations submitted to the Congress in accordance with its provisions, and to the extent they have been brought before my subcommittee, they have been carefully examined with section 431 very much in mind.

The title IX regulations are the first to which these procedures have been applied to the extent of actually developing a resolution of disapproval and conducting public hearings.

Let me now turn to the specifics of what the resolution of disapproval finds wrong with the title IX regulations.

House Concurrent Resolution 330 would disapprove four of the regulations contained in the June 4 submission to the Congress.