A Comment on: Administrative Law from the Inside Out—Essays on Themes in the Work of Jerry L. Mashaw

After a number of weekends the Editor has finished reading a very informative book written by a score of talented scholars and edited by Professor Parrillo of Yale University on the works of an administrative law legend, Professor Mashaw.

Selfishly we often read articles from the perspective of issues we are working on, in this instance centralized regulatory review and the Data Quality Act.

The text states:

For a generation, Jerry L. Mashaw, the most boundary-pushing scholar in the field of administrative law, has argued that bureaucrats can and should self-generate the norms that give us a government of laws.

The Impact of Public Citizen on Federal Regulatory Policy

Last evening I had the good fortune of being invited and attending the annual reception of Public Citizen. During the course of the event a number of discussions centered around the Old Washington, when we accorded those who differed with our position the respect they deserved. Notwithstanding our occasional differences on federal regulatory policy I recounted the enormous impact the organization had on public policy.

Most noteworthy was the Public Citizen’s work to convince the Supreme Court to overturn the one-house veto of regulations in the Chadha Decision. The decision was of far reaching impact because during my tenure as a career federal employee the one-house veto of regulations vested  Congressional committee staff with an enormous power to influence the content of federal rulemakings. The intervention of Public Citizen brought this toxic practice to an end.

From Lawfare– Case Closed: The Justice Department Won’t Stand Behind Its Report on Immigrants and Terrorism

Editor’s Note: Case Closed, really?  It should be noted  that notwithstanding the precedent-setting accomplishments of the plaintiffs that five years hence the report will continue  to  be available in its uncorrected form on the DoJ website unless the plaintiffs file for judicial relief. [ CRE has not reviewed the report in detail and consequently is addressing this matter solely as a procedural–not a substantive– issue under the Data (Information) Quality Act; CRE’s interest is in demonstrating that a court can review the denial of a DQA petition ].

The Annual ABA Section on Administrative Law Regulatory Summit

The Editor attended one of the most impressive of all annual events ever sponsored by the ABA Section on Administrative Law: The 2018 Administrative Law Conference: November 1-2, 2018 at the Washington Convention Center, Washington, DC.

The attendance was record breaking as was the quality of the topics addressed and the attendant presentations. The agenda addressed the pace-setting issues of the day.  The discussants were well prepared and included those of differing views.  A common refrain echoed throughout the summit was that the agenda was so enticing that it was impossible for a particular attendee to attend two panels at the same time.

OIRA Should Review Executive Orders Before They Are Promulgated

Historically OIRA, the Office of Information and Regulatory Affairs housed in the White House Office of Management and Budget, has not  reviewed Executive Orders. The review process is usually reserved for the White House Counsel’s office and the Department of Justice. Both of the aforementioned institutions are staffed by extremely high caliber individuals; nonetheless they lack the day-to-day operating knowledge of OIRA with respect to the intricacies of the administrative state.

History and Understanding the Significance of Regulatory Events

Those who are ignorant of history either overstate or understate the significance of current events.

Nothing could be truer than an examination of the evolution of centralized regulatory review. In the venting of this post it was surprising to learn that many individuals believe that centralized regulatory review is an entitlement in lieu of an earned right.

 

Response to a Comment on the “50th Anniversary of Centralized Regulatory Review”

We received a number of comments on our post on  Notice and Comment.

One comment that was shared by a number of commentators was that the formulation and implementation of centralized regulatory review as reported in the press was at times not-transparent and overly forceful.

The aforementioned statement is a fair one.  But in itself is a statement as to the need for the many regulatory practitioners who believe that centralized regulatory review is an entitlement and who have a nanosecond interest in history to spend some time learning of its maturation.  Starting from its initial conception during the Johnson Administration continuing through the Reagan Administration there was outright hostility in some areas of the government to the idea of centralized regulatory review.  Consequently it became very obvious if one were going to launch the Good Ship OIRA it was not going to happen by holding hands and singing kumbaya.

An Another View: Taming White House Review of Federal Agency Regulations

Editorial Note:  The following from the American Constitution Society

 

Our first proposal is to return the White House review process to the understanding articulated when President Reagan issued the first executive order creating a systematic process of White House review. In 1981, soon after he entered office, President Reagan issued an executive order providing for an approval process quite similar to the one that exists today under a Clinton-era executive order. The Office of Legal Counsel in the Department of Justice reviewed Reagan’s executive order for legality. In its opinion confirming the legality of the executive order, the OLC emphasized that the executive order did not purport to displace the authority of the acting agency. The OLC stated that “a wholesale displacement might be held inconsistent with the statute vesting authority in the relevant official.”

The Muscular Presidency and Executive Orders: The Challenge for Centralized Regulatory Review

Three recent Presidents, George W. Bush, Barack Obama and Donald Trump have utilized to the fullest the issuance of Executive Orders to implement their programs. There is a significant likelihood that the use of Executive Orders will continue to increase, probably at a rate considerably greater than most observers realize.

The Presidency is not subject to the Administrative Procedure Act, nor should it be; but what is the role of centralized regulatory review, the review of “regulations” by OMB, in this emerging environment? There is no demonstrable database that suggests that  OIRA has been the given the  opportunity to review Executive Orders before they are released.

The Potpourri of Executive Orders