Federal Regulation - Overview

Question 1

Intro to Regulatory Process - Broader Points to Know

Answer 1

• doctrinal q’s - very present right now as policymakers think through what space hey have to promulgate regulations
• how + why do agencies do cost-benefit analysis, + how is the Biden Admin changing this?
• Paperwork Reduction Act

Question 2

Prof’s Overall Comment on Regulatory Process

Answer 2

• most people don’t come into admin jobs psyched to engage in regulatory process, but anyone who doesn’t understand it will be less effective at getting stuff done

Question 3

Semi-Annual Regulatory Agenda

Answer 3

• comprehensive projection of all the regulatory + deregulatory actions exec branch expects to take over next 12 to 18 months
• administration is required to promulgate twice a year, although there are no related enforcement mechanisms (for publishing this, for following this)
• Senators sometimes use this to plan their oversight activities

Question 4

Process for Putting Regulatory Agenda Together

Answer 4

• OIRA desk officers work with agency staff months in advance (lots of spreadsheets)
• once draft exchanged, political appointees in White House and agencies get involved - do meetings to hash out submissions, review highlights w/ Chief of Staff’s office
• once a yr, the reg agenda also includes the regulatory plan (each agency’s vision statement for their regulatory work)
  -> Prof mentioned that this helps make sure the agency hears from the public not just once everything has been drafted

Question 5

Steps for Promulgating a Regulation

Answer 5

1 - notice of proposed rulemaking
2 - agency needs to decide whether or not they need to send the reg to OIRA (depends on 12866 - typically, if it’s a novel or controversial policy issue or above a certain threshold, needs to go through OIRA)
3 - if it does go to OIRA, OIRA circulates 2 drafts - one in domestic offices of Pres, + second to exec branch agencies w/ equities in the subject matter -> comments then go back to OIRA, + OIRA acts as mediator + holds final pen on resolving internal comments w/in White House
4 - Also usually sent to DOJ Legal Counsel
5 - all substantive comments must be answered before final reg can be issued
6 - Once final reg issue, still need to wait for effective date before it’s really official policy

Question 6

Notice of Proposed Rulemaking

Answer 6

• first step in promulgating regulation

Includes:
- explanation of what you’re going to do
- clear statement of authority for the regulation
- where to send your comments
- cost-benefit analysis (not statutorily required, though some q of whether Supreme Court has a different view on this though)
-> BUT at least required by Clinton Executive Order 12866
- regulatory text - what are you doing, + section by section explanation
- explanation of impact on small businesses (required by statute)
- also any federalism issues raised by the regulation must be addressed (statutorily required)

Question 7

OIRA

Answer 7

• Office of Information and Regulatory Affairs
• this is a statutory part of the Office of Management and Budget, w/in Executive Office of Pres

Described on White House page as US gov’s central authority for:
- review of Exec Branch regulations,
- approval of gov info collections (under Paperwork Reduction Act),
- establishment of gov statistical practices
- coordination of federal privacy policy

• OIRA Administrator is appointed by the President + confirmed by the US Senate

Question 8

Where do policy ideas for regs come from?

Answer 8

• Need some kind of statutory hook, but that’s a big universe
• rulemaking petitions (petition process is in APA – anybody can petition an agency to undertake a rulemaking)
• If Pres says on campaign trail – good place to look for priorities for regs
• If Congress fails to do something – might consider whether agency can do it
• Might try to reinstate something repealed by the last admin
• Promises cabinet secretaries make in their confirmation hearings (sometimes extracted by members of Congress)
• Prompt lever – request by the White House that agency consider taking a particular regulation
• President can direct agencies through exec order
• Lobbyists – Prof says this is a big one, pay a lot of money to take lots of meetings with people in exec branch to push for regs (note to self, keep in mind how this fits w/ critiques of APA)

Question 9

Choices Involved In What to Put in Regs

Answer 9

• cost-benefit analysis,
• political costs,
• ease + speed of implementation,
• unstated reasons such as PR or outside pressure or politics

Question 10

Who has the authority to make the final decision?

Answer 10

• Prof referenced unitary executive debate

Question 11

Theories of Allocation of Exec Branch Power

Answer 11

• Unitary theory of exec says only Pres has option to make final decision re exec power (“Take Care” clause; presidential removal power; don’t want Congress dividing + subverting exec power)
• cabinet secretaries - question of whether agency head has authority separate + apart from the President
• independent agencies - sometimes established by Congress to protect certain agencies from policy disputes
• Prof said practically speaking, Pres has final word among cabinet secretaries, aside from independent agencies (which tend to be pretty protective of their special status)

Question 12

Cabinet Members and Power (Prof’s Aside)

Answer 12

• cabinet members often disappointed - come in thinking they’re in charge, Pres has all the power
  -> don’t really control reg agenda
  -> White House = very political place (Prof said unwritten rules are as important as those written in the Constitution - regardless of whether cabinet officials think Constitution gives them the last word, they usually recognize that politics means they cede to White House final call)
• Prof said most successful cabinet members know when to pick their battles

Question 13

What can cabinet secretaries do to exercise power?

Answer 13

• use their expertise
• slow-walk things (passive aggressive response)
• make public statements to pressure Pres
• quit (Prof said this is the big thing)

Question 14

Role of Oversight in Relationship Between Pres + Cabinet

Answer 14

• Prof pointed out that agencies subject to Congressional oversight + need to answer questions truthfully -> good Presidents are wary of this + exercise authority carefully

Question 15

Legal Basis for Presidential Directive Authority

Answer 15

• When statute expressly delegates authority to president → Congress’ authorization of presidential action is clear
• More often though, statutes delegate authority to a Sec of a Department or a head of an agency and president is not mentioned → Q of whether president has independent constitutional authority to control the policymaking at issue and whether relevant statutes should be read to allow such a role

Question 16

Marbury

Answer 16

• early case, predates modern admin state
• Marshall ascribes presidential control to situations in which acts of exec officers like the Sec of State “are his acts” + there can be no power to control that discretion

Question 17

Myers

Answer 17

• also predates modern admin state
• Degree of president’s guidance in discharge of duties varies with character of their service as prescribed in the law under which they act; most important duties are those in which “they act for him” and they are exercising his discretion not theirs; for other ordinary duties of officers president by supervise and guide to ensure execution of laws but there may be some duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a Q whether the president may overrule or revise the officer’s interpretation of his statutory duty in a particular instance

Question 18

Lessig + Sunstein on Pres Authority

Answer 18

-Massive changes in national gov and presidency
-Today a strong presumption of unitariness is necessary to promote the original constitutional commitments
-Framers didn’t constitutionalize anything like this vision of the exec, though

Question 19

Strauss View on Pres Authority

Answer 19

• Art II locates all exec power in the president but the constitution twice refers to duties of other officers… When Congress has assigned function to a named agency subject to its oversight and the discipline of judicial review, the President’s role (like that of Congress and the courts) is of overseer and not decider
  -Difference btw oversight and decision is subtle but it matters

Question 20

Metzger View on Pres Authority

Answer 20

Take Care Clause → (1) From the passive voice and sheer practical impossibility of any other result, we infer that actual execution of laws will be done by others. (2) Presidential oversight role is mandatory.
-These two points imply a hierarchical structure for fed administration where lower officials act subject to higher-level superintendence
-Art II’s other provisions echo that hierarchy
->Appointments clause differentiation btw officers
->Opinion clause conveys importance of oversight
-Broad claim of presidential power to control all exec branch officers or at least have at-will removal under unitary theory elides the president’s right and DUTY to supervise law execution with scope of that supervision

Question 21

Democracy Forward Guest Speaker

Answer 21

• importance of thinking out how a move will play out if challenged + doing things during admin process to guard against this
  -> making sure you’re giving agency support it might need
  -> are there people on the regulated side who might be supportive, instead of straight divide?
  -> whose voices being heard + whose aren’t at the table
• q of political valence - speaker emphasized importance of making sure the process is being followed in a democratic way

Question 22

General Concept on Choosing Tools (Guest Speaker Note Re Student Debt)

Answer 22

• w/in admin, trying to balance what the impact will be + what the timing will look like w/ how likely it is that a policy will survive
• also trying to think through how to insulate from legal challenge (ex - thought would be difficult to have standing)