Management of the Administrative State via ACUS

We often use the term “Management” of the administrative state to emphasize a difference with the term the “Operation” of the administrative state. We have not been as articulate in defining “Management” of the administrative state as we have been in defining the “Operation” of the administrative state.

By the operation of the administrative state we mean the central work products of two dominate professions; the work of the economic profession to improve the accuracy of benefit-cost analyses and the work of the legal profession to improve the judicial review of final agency actions.

Recognizing the longevity of the adage “one picture is worth a thousand words”, one might conclude that the management of the administrative state is best personified by the CY 2022 work plan of the Administrative Conference of the US (ACUS) which includes but is not limited to the following:

Draft Report on Contractors in Rulemaking

Automated Legal Guidance at Federal Agencies

Improving Notice of Regulatory Changes

In recognition of the continued leadership of ACUS in the management of the administrative state, CRE has recommended that the Congress designate ACUS as the managing agency for Congressional Review of Judge-Made  Law, an integral component of the Common Law Initiative.

                                                               A Point for Discussion

“The APA petition mechanism is a potentially efficient (and arguably underused) means for an individual or stakeholder to call on an agency to take a particular action. “Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule” (5 U.S.C. §553(e)).

In our view ACUS issues advisory opinions, not suggestions; the former are not binding but there is a rebuttal presumption in favor of their adoption. Consequently the general public and stakeholders could use the aforementioned petition process, which as noted above is sanctioned by the APA, to request an agency to comply with a specific recommendation of ACUS.  Any resultant disputes could be called to the attention of OIRA.

NB    Please consult this repository which includes recommendations made by CRE which were implemented and so documented by third parties over a period of eleven Presidential Administrations.

 

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