The Resurrection of the Congressional Review Act

Heretofore the Congressional Review Act (CRA) was a sleepy statute that was awakened periodically with the departure of an incumbent Administration to invalidate midnight regulations. Recent actions taken by two federal agencies acting independently of each other have converted the CRA into a 24/7 oversight mechanism.

First, the Office of Information and Regulatory Affairs in the White House Office of Management and has issued a directive to federal agencies requiring that all guidance documents be submitted to OMB before they are promulgated.

The Long Shadow of Grass Root Advocacy

Sometimes the smell of  burning of shoe letter, assisted by the use of social media, is more potent than peer reviewed science, principled economics and established law, see this post,

Two of the Most Contentious Regulatory Initiatives in Recent History

Apart from the establishment of centralized regulatory review in OMB, a regulatory initiative with a near twenty year incubation period followed by several nationwide initiatives resulting in the unfettered and widespread use of medical marijuana and related substances, there are two regulatory initiatives which rank among of the most contentious in recent history.

The first regulatory initiative includes rulemakings associated with addressing climate change.  A key obstacle to addressing climate change is the compliance cost associated with the resultant program. In particular it is very difficult to convince one nation to employ a climate change program if other nations who are often its international competitors do not make a similar commitment.  Just recently the Center for Regulatory Effectiveness has expressed its views on this matter, see this editorial in Inside EPA.

The Four Major Regulatory Procedural Accomplishments of the Trump Administration

Mid-term in any presidency Washington is abuzz with seminars on the accomplishments of the incumbent Administration. With respect to regulatory pacesetters, we believe the following fulfill the criterion of a pacesetter:

Regulatory Budget

It has been nearly forty years since the Carter Administration proposed the first regulatory budget; the Trump Administration actually put one in place. Many believe the 2-for-1 component of the Trump Regulatory Budget is integral to the concept of a regulatory budget, it need not be.

Kudos to DOT for Elevating the Data(Information) Quality Act within the Government

DOT has issued a landmark directive dealing with the development of regulations within the agency. There are a number of noteworthy components but none anymore  path-breaking than the following:

Section 12 d (2):

 Mandatory hearing for high-impact rule. In the case of a proposed high-impact rule, the responsible OA or OST component shall grant the petition for a formal hearing if the petition makes a plausible prima facie showing that-

(a) The proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other complex factual issues that are genuinely in dispute or that may not satisfy the requirements of the Information Quality Act;

An Attention-Getting History of the “Hard Look” Review by the DC Circuit Historical Society

Review of Agency Rules in the D.C. Circuit: Back to the Future?

In the 1970 influential judges on the D.C. Circuit engaged in a well-publicized debate about the appropriate scope of judicial review of federal agency rulemaking. One faction led by Chief Judge Bazelon believed that judges were experts on procedure not the substance of regulation and wanted the courts to ensure that agencies used whatever procedures were necessary to make the best decision and build the sort of record necessary to make the best decision. On the other hand, Judges Leventhal and Wright believed that mandating additional procedures, beyond those required in the Administrative Procedure Act (APA), would lead to over-proceduralization and would ultimately slow down the rulemaking process. They believed that, instead, judges should examine and try to understand the technical matters at issue in the rulemaking in order to determine whether the agency had exercised reasoned discretion. This review, conducted under the arbitrary-and-capricious test of the APA, was labeled “hard look” a term coined by Judge Leventhal.

OIRA and Regulation of the Social Media

Editor’s Note: In an article under preparation( p 43; fn 126) the author quotes a statement made by the  Council on Foreign Relations  that the United States has relinquished its position as the world leader in the development of mechanisms to improve the administrative state. The aforementioned result occurred because OIRA  is operating at a staff level of only 50% of the level it had at the time of its establishment nearly 40 years ago. That said OIRA should have its foot in the door with respect to the regulation or non-regulation of the social media. The absence of the US participation in this debate and the emergence  of the UK subsequent to its discussions with US social media interests reinforces the position of the Council on Foreign Relations. 

OIRA: Past, Present and Future

CRE is most appreciative of the comments we have received on the paper: OIRA Past Present Future. April 2. We encourage the public to continue to submit their comments by contacting CRE.

The public will be able to present its views on the paper at a meeting sponsored by the
Boyden Gray Center for the Study of the Administrative State: September 13, 2019—Cost-Benefit Analysis and the White House Approach to Regulatory Oversight.

Press inquiries at 202.265.2383

A Guide to Those Conducting Research on Executive Branch Operations in the Administrative State

The family of websites developed by the Center for Regulatory Effectiveness should be on the list of databases utilized when conducting research on Executive Branch operations in the administrative state.

Unlike many think tanks the overwhelming majority of the source content therein is not produced by CRE but instead includes must read high quality research conducted by others and so designated as a governing publication by CRE whether or not CRE is in agreement with its content. The material presented therein has been assembled over the half century which lead to  centralized regulatory review in the Executive Branch.

Benefit-Cost Analyses and the Regulatory Budget

See Notice and Comment