Of “Workarounds” and Bureaucrats

From: The Regulatory Review

Civil service reformers should consider changes to lengthy, single-agency employee tenures.

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Verkuil might also have noted another, related problem, this one arising in part from long careers in a single agency. Many civil servants work in cloistered and self-referential interpretative communities. A common result is that they stand resolutely on entrenched agency interpretations of rules—not all of them even reasonable, let alone compelled—that can deprive the system (often other affected agencies) of the flexibility to respond to new circumstances and embrace suggestions for better ways of doing things. There is seldom effective recourse to outside interpreters—federal judges, lawyers at the U.S. Department of Justice’s Office of Legal Counsel, officials at OMB—to tell an agency that its own interpretation of the law may not be the only, the best, or even a reasonable one.

GAO: Federal Reserve at Risk of Regulatory Capture

From: GAO Report GAO-18-118, “LARGE BANK SUPERVISION: Improved Implementation of Federal Reserve Policies Could Help Mitigate Threats to Independence.”

“Optimal Ossification” — My New Paper

Editor’s Note, from Professor Nielson’s paper:

it does not matter whether an agency likes a procedural requirement; if the agency does not comply with the requirement, a court or OIRA will be there to enforce compliance.

From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice

by Aaron Nielson

A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.*

Here is the abstract:

Slow-Rolling, Fast-Tracking, and the Pace of Bureaucratic Decisions in Rulemaking

From: The Journal of Politics

Volume 79, Number 3 | July 2017

University of Virginia

The slow pace of administrative action is arguably a defining characteristic of modern bureaucracy. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats’ ineptitude. I offer a different perspective on delay in one important bureaucratic venue: the federal rulemaking process. I argue that agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight by Congress, the president, and the courts. That is, when the political climate is favorable, agencies rush to lock in a rule, but when it is less favorable, they wait on the chance that it will improve. I find empirical support for this proposition using an event history analysis of more than 11,000 agency rules from 150 bureaus. The results support the interpretation that agencies strategically delay, and that delay is not simply evidence of increased bureaucratic effort.

Scrutinizing Deference to Administrative Agencies

Editor’s Note: See, The Evolution of Chevron Deference: The Need for Public Involvement.

From: The Regulatory Review

A forthcoming article by Christopher J. Walker, a law professor at The Ohio State University Moritz College of Law, surveys recent arguments in favor of scaling back or eliminating judicial doctrines under which federal courts defer to agency interpretations. Walker disclaims any attempt to “break major new ground” in the debates over whether deference should be modified by the courts or which arguments for doing so are strongest. Rather, Walker aims in his article to “provide a literature review of sorts concerning the arguments that have been advanced in recent years to eliminate or narrow” the courts’ deference doctrines. Recognizing “a growing call to eliminate—or at least narrow—administrative law’s judicial deference doctrines regarding agency interpretations of law,” Walker assesses recent arguments against Chevron and a related doctrine known as Auer in an effort to help “judges, legislators, litigants, and scholars better focus arguments for reforming how federal courts review agency interpretations of law.”

Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions

From: US GAO

Report to the Chairman, Subcommittee on Regulatory Affairs and Federal Management, Committee on Homeland Security and Governmental Affairs, U.S. Senate

Federal agencies can design their regulations in many ways. For example, some regulatory designs establish an outcome but allow flexibility in how to achieve it, while others are more prescriptive and require certain technologies or actions.

We looked at how some agencies choose among the regulatory designs and compliance and enforcement tools available to them, and how they evaluate those choices. We also identified key considerations and questions that can help decision makers identify, assess, and evaluate options when designing federal regulations and encouraging compliance.

APPAM Panel Paper: Presidentially Directed Policy Change

Editor’s Note: The complete paper “Presidentially Directed Policy Change” is available here.

From: APPAM

Saturday, November 4, 2017

Simon Haeder, West Virginia University and Susan Webb Yackee, University of Wisconsin
U.S. presidents—working through the Office of Information and Regulatory Affairs (OIRA)—influence administrative agencies by directing agencies to modify their regulatory policy proposals before finalization. We identify two competing hypotheses from the literature to explain this presidential intervention. First, some scholars hypothesize that presidents are more likely to change proposals when the submitting agency’s political ideology differs from the president’s. Second, others argue that presidents are more likely to correct ideologically extreme agencies of either political ideology. Neither claim has been adequately investigated. We study almost 1,500 final regulations reviewed by OIRA between 2005 and 2011. In the end, neither hypothesis garners support. Instead, we demonstrate that regulations proposed by liberally-oriented agencies are more likely to be changed—and the content of the rules changed to a greater degree—than conservative agencies. These results provide suggestive support for a provocative third hypothesis: presidentially-directed deregulation via OIRA review.

Regulatory Reform Should Be About Strengthening Legislative Responsibility

From: The Regulatory Review

The Trump Administration’s deregulation efforts have so far made some progress in stemming the growth of federal rulemaking. New analysis from the Heritage Foundation finds that the Office of Information and Regulatory Affairs, which conducts reviews of agency analyses of significant new regulations, has carried out the fewest reviews of new rules since record-keeping began in the 1990s.

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Improving Regulatory Analysis at Independent Agencies

From: SSRN

Cary Coglianese

Internal Administrative Law

From: Michigan Law Review

Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239 (2017).