The Regulatory Process

and the Presidents Power

National Press Foundation
June 21, 2017
What Is the Administrative State?
Whats Wrong With That Picture?
Congress and courts also constrain agencies
Not just the President
Open question whether President is overseer
or decider
President not boss of independent agencies
 Rules for Agencies
Constitution: separation of powers
Administrative Procedure Act (1946)
Specific statutes (organic acts)
e.g., Clean Air Act
Regulatory Accountability Act?
 Administrative Procedure Act (APA)
Rules
Adjudication
Policy statements and interpretive rules
(guidance documents)
 Rules vs. Adjudication
Rule: agency statement of general or
particular applicability and future effect
designed to implement, interpret, or prescribe
law or policy
Order/adjudication: everything else
Legally binding
Different procedural and analytical
requirements
 Rules vs. Adjudication: Examples
Rule: Clean Power Plan
Adjudication: Permit for Dakota Access
Pipeline
 Rulemaking Process
Notice of Proposed Rulemaking
Data relied on
Public Comment
60-90 days
All comers
Final Rule
Foreseeable in light of proposal (WOTUS)
Response to comments
Reasoned explanation
Permissible interpretation of statute
Chevron: clarity, ambiguity, deference (?)
Not a Referendum
 White House Review
Executive Orders
OIRA
Cost-benefit
Interagency process
Issue with changes; delay; stop
 Where to Find Information
Notice, Data, Comments, Final
Regulations.gov
Notice, Final
Federal Register
OIRA
reginfo.gov
Regulations.gov
 Adjudication
Benefits: Social Security disability
Enforcement: SEC
Formal hearings if required by statute
Like a trial
Much consternation now over ALJs
Biased? Not appointed correctly? Cant be fired?
History of noninterference by White House
But see Dakota Access Pipeline EO
 President Trumps Executive Orders
2 for 1
Regulatory budgets
Costs alone
No statute authorizes?
Energy
Infrastructure
WOTUS
 Presidential Power
Acting without Congress
Overseer or decider?
Congress trumps (mostly)
 Deregulatory Toolkit
Statutes
Including appropriations
Cross-cutting reforms to process, evidence (RAA)
Resolutions of Disapproval (CRA)
Executive Orders
Presidential Memoranda
Memoranda from Agency Heads to Staff
Personnel/budgets
Undo rules (hard)
Cease/slow down enforcement (easy)
Ask court for stay or remand of litigation
Change position in litigation