Agency Enforcement Flashcards
Enforcement + Executive Power
- Take Care clause - doesn’t mean executive doesn’t have discretion on whether to enforce
- prosecutorial discretion - selective enforcement in interest of justice
- b/c Pres has this power though, policy preferences and priorities can be advanced by the way regs are enforced
Enforcement and Congress
Congress is organized in a way that separates authorizing function from appropriate function
- Most committees when we talk about passing legislation are authorizing committees – responsible for shepherding through the process laws that authorize the executive to act
- Vs. appropriations committee makes the decisions about how much money each agency gets to fulfill all the responsibilities the authorizing agencies give them
- Structure is set up so that appropriations later decides what money you get to do the things authorizations told you to do
Enforcement and Funding
- executive branch winds up with a lot of enforcement responsibilities that it hasn’t been allocated funding to carry out
- Prof says this is where advancing policy through prosecutorial discretion comes into play
Prosecutorial Discretion - Individual vs. Systemic
- b/c of funding constraints, a lot of executive prosecutorial discretion winds up being more systemic -> policy preferences come into play
- individual decisions more influenced by concerns of justice, vs. systemic ones more based on admin policy
Debate of How Much Enforcement Discretion is Okay
- someone noted potentially makes more sense if there’s obvious rationale or principle behind the resource allocation decision (though this seems to leave open q of what the principle is)
- deprioritizing vs. blanket rule – more comfortable with deprioritizing certain things
- issue of whether political or career staff should get final say
Factors for Agencies to Consider on Enforcement
- Legal effects – does the policy create binding obligations for the public or the agency itself? If yes, probs needs to go through regs
- Does it apply broadly, or with specific, concrete standards? (more specific means more likely it needs to comply with APA)
- Predictability – does the policy provides clear guidance on how the agency will enforce the law, or is it more flexible + discretionary?
Political Staff vs Agency Staff
- Prof noted this was a big debate in her White House days
- often, Secretary expresses policy preference or agency leadership identifies priority (often based on data or stakeholder input)
- agency staff push back - don’t like political input on enforcement decisions
- Prof kind of landed on systemic enforcement more political, vs. individual decisions up to agency staff
Enforcement vs Regulation
- enforcement issues are effectively a subset of guidance v. regulation topic
- q of how specific your enforcement policy can be before it crosses into realm of regulation
- may be lots of reasons why agency doesn’t want to go through full notice and comment (Prof noted disclosure not necessarily your friend when trying to nudge behavior)
Chamber of Commerce v. DOL - Background
- there are about 1,800 OSHA inspectors with responsibility for inspecting almost 11 million workplaces -> resource allocation is a big and difficult task for OSHA -> needs to figure out how to focus its enforcement resources
- sometimes tries to incentivize compliance to save resources -> freedom from inspection based on good behavior, trying to concentrate inspections on places that present the most risk for employees
Chamber of Commerce v. DOL - Facts
- “the Directive” – OSHA identified high priority sites for inspections (put them on a primary inspection list of 12,500 sites)
- There are also complaints from workers where OSHA is required to investigate (OSHA doesn’t have discretion on these inspections)
- to deal w/ resource issues, OSHA creates cooperative compliance program - if you comply, you get off the list
-> most of the reqs were just complying w/ standards, but one was NOT (needed comprehensive safety + health program)
Chamber of Commerce v. DOL - Chamber’s Arg
- says the program is effectively a standard for employers on the primary list to adopt comprehensive safety and health plan
Chamber of Commerce v. DOL - OSHA’s Arg
- no legal consequences for not participating in CCP, + not much of a substantial impact – only voluntarily electing to participate in the CCP
- Nobody will get a civil money penalty for not having a CCP -> therefore, not a standard that required notice and comment, just a voluntary thing (doesn’t use the coercive powers of the state, i.e. no penalties for non-compliance)
- Prof says there’s also the not addressing specific hazards argument, but she thinks that one is silly
Chamber of Commerce v. DOL - Court’s Ruling
(1) directive was an OSHA standard'' subject to review in Court of Appeals;
(2) directive was not mereprocedural rule’’ or ``general statement of policy’’ exempt from Administrative Procedure Act (APA) notice and comment requirements; and
(3) because directive was substantive rule, OSHA was required to conduct notice and comment rulemaking proceeding before issuing it
Chamber of Commerce - Reasoning
- no formal legal consequences, but basically using coercive powers –> because the inspections are so onerous, the functional effect of the regulation is that it’s coercive (takes a lot of time, super inconvenient, loss of time for employees + managers + time = $)
-> Practical equivalent of a rule that obliges compliance or forces employer to suffer consequences
-> Not just looking at whether it impacts rights of employers, looking at their interests
Chamber of Commerce - General Statement of Policy
General statement of policy determined by:
- whether has only prospective effect
- whether leaves agency decisionmakers free to exercise informed discretion in individual cases
- in this case, no prospective effect and no discretion left for officials -> not a general statement of policy
- also concept that this doesn’t only impact how OSHA does its work -> influences regulated entity decision whether to create CCP (effectively imposed on them)
