The Office of Information and Regulatory Affairs (OIRA) these days has a bipartisan fan base, but as regulatory review was being established as a presidential power in the 1970s and early 1980s, this was not the case. This paper draws extensively on archival documents to examine the origins of regulatory review in an effort to understand how it established itself as a constant of presidential management. Successful institutionalization is not simply a matter of structure and process – that is, adding a box to an organizational flow chart – but requires resources ranging from staff, autonomy, political leverage, and expertise.
White House Review of Independent Agency Rulemaking: An Essential Element of Badly Needed Regulatory Reform
Editor’s Note: See, A Blueprint for OMB Review of Independent Agency Regulations (CRE, 2002).
From: The Heritage Foundation
Heavy-handed federal regulation acts like an excessive tax on the American economy, stifling economic growth and innovation. In order to enhance its effectiveness in paring back overregulation, the Office of Information and Regulatory Affairs (OIRA) should extend its cost-benefit oversight to rules proposed by “independent” federal agencies, which are responsible for a large proportion of onerous regulations. President Trump, therefore, should promulgate an executive order directing independent agencies to submit their major rules for OIRA analysis, consistent with his constitutional authority to take care that the laws be faithfully executed. That Order should also require independent agencies to undertake additional regulatory reform initiatives that the President recently has placed on executive branch agencies.
Tables of Executive Order Requirements (to later include OMB guidance and statutes)
In the table below, the Administrative Conference has identified a comprehensive list of extant executive orders that apply to most agencies’ informal rulemaking activities (i.e. rulemaking pursuant to Section 553 of the Administrative Procedure Act (APA)). Three of the executive orders: 12866 (Regulatory Planning and Review), 13132 (Federalism), and 13175 (Consultation and Coordination with Indian Tribal Governments) are briefly described in the main table, but also have their own tables to which the main table links.
From: The Regulatory Review
Civil service reformers should consider changes to lengthy, single-agency employee tenures.
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.
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
Here is the abstract:
From: The Journal of Politics
Rachel Augustine Potter, 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.
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.”
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.
Editor’s Note: The complete paper “Presidentially Directed Policy Change” is available here.
Saturday, November 4, 2017