Executive Power

Susan E. Dudley National Press Foundation Nov. 4, 2019

Paul Miller Fellows
 Agenda
• Constitutional separation of powers
• Delegation of legislative authority
• Milestones in regulation
• Role of three branches in rulemaking
• President Trump’s regulatory record

Susan Dudley
@RegStudies
2 RegulatoryStudies.gwu.edu
Regulation & the Three Branches

Legislative Executive Judicial

Execute
laws Adjudicate
Make
laws laws

Laws

Susan Dudley
@RegStudies
3 RegulatoryStudies.gwu.edu
3
 Lawmaking vs. Execution
• Legislative Branch – Constitution Article 1
– “Make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers vested by
this Constitution in the Government of the United
States, or in any Department or Officer thereof”
• Executive Branch – Constitution Article 2
– “Shall take Care that the Laws be faithfully executed”
• Delegation of legislative power to the executive
– Contrary to the Constitution? or
– Necessary for resolving complex technical issues in a
less political manner?

Susan Dudley
@RegStudies
4 RegulatoryStudies.gwu.edu
Administrative Procedure Act of 1946
• Response to concerns over “delegation” of
legislative authority to Executive branch
• Agency can only act within limits set by statutes
• Agency must follow specified procedures
– Public notice & comment
– Logical outgrowth
• Agency actions must be
– Reasonable (supported by record)
– Not arbitrary and capricious
– Not an abuse of discretion

Susan Dudley
@RegStudies
5 RegulatoryStudies.gwu.edu
 EOs
RFA, EOs 13771;
PRA 13563; 13777
120000
Some EO
EO
13579
12044
100000
Regulatory EO
12291
12866
UMRA,
Milestones DOE PRAA

1940-2018
80000
CPSC
OSHA
60000
NHTSA

40000 EPA
SBREFA, CRA,
APA DOT
RRTK
20000
Deregulation

Susan Dudley
@RegStudies
6 RegulatoryStudies.gwu.edu
 U.S. Rulemaking Process
Legislative

Congress passes Congress may

law authorizing/ review final rule
requiring and pass
regulation. resolution of
disapproval.

Unified Agenda Agency Agency publishes

Executive

OMB reviews Agency Agency reviews OMB reviews

presents develops the proposed publishes rule in final rule in
public comments final rule.
upcoming “proposed” rule if Federal Register. Federal Register,
and incorporates into
actions. rule. “significant.” and rule goes into
“final” rule.
effect.

Rule may be
Judicial

challenged in
court.

Court may
Public
Public “vacate” all or
notice part of rule.
hearings;
Public

Meetings on Public notice and Meetings on

Stakeholder Stakeholder request comment request
input/ input/
consultation consultation

Susan Dudley
@RegStudies
7 RegulatoryStudies.gwu.edu
 Independent Regulatory Commissions
• CRS distinction
– “Independent Agencies”
– “Independent Regulatory Agencies”
• Nominally in executive branch
• Commissioners
– Appointed by President
– Confirmed by Congress
– Dismissible for “good cause”
• Not subject to executive order or OIRA review
– E.O. 13579 an exception
– Paperwork Reduction Act
Susan Dudley
@RegStudies
8 RegulatoryStudies.gwu.edu
 Role of Congress
• Delegate initial authority
• Oversight committees
– Letters
– Hearings
– Investigations
• Appropriations
– Prevent final rule
– Prevent resources to develop or enforce rule
• New legislation
– CRA
Susan Dudley
@RegStudies
9 RegulatoryStudies.gwu.edu
 Role of Judiciary
• After judicial review, courts may
– Reverse
– Remand
• Grounds for reversal/remand
– Constitutional
– APA violation
– Consistency with law
• “Chevron deference”
• Decisions influence statutory interpretation
– OSHA (“significant risk” & “substantially reduce”)
– NAAQS (“protect public health…”)
– Greenhouse Gases (Mass v. EPA)
– Michigan v. EPA (“appropriate”)

Susan Dudley
@RegStudies
10 RegulatoryStudies.gwu.edu
 Executive Actions
• Executive Orders
– Numbered, published in FR
– Force of law on executive branch only
– Trump 129 to date (48/yr)
• Presidential Memoranda
– Similar but less formal
– Not numbered

Susan Dudley
@RegStudies
11 RegulatoryStudies.gwu.edu
President Trump

Susan Dudley
@RegStudies
12 RegulatoryStudies.gwu.edu
12
 “Historic effort to reduce job-
killing regulations”
• We have set a record on killing regulations.
• No administration has knocked out as many
as us, and we have a long way to go.
• I think within a period of about another
year, we will have just about everything that
we've wanted.
President Trump, October 2018 meeting with workers on
“Cutting the Red Tape, Unleashing Economic Freedom”

Susan Dudley
@RegStudies
13 RegulatoryStudies.gwu.edu
 Fewer New Regulations
Federal Register Pages, Number of
120000
2001-2018 Regulations Issued
100000
in 1st Two Years
80000 8000
60000
6000
40000
4000
20000
0 2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
0
Bush '43 Obama Trump

>$100 Million
Regulations
1st Two Years
200

150

100

50

0
Bush '43 Obama Trump
Susan Dudley
@RegStudies
14 RegulatoryStudies.gwu.edu
 Economically-Significant Rules
120

Obama
100
Bush ’41 Clinton Bush ’43
80
Reagan

Trump
60

40

20

Susan Dudley
@RegStudies
15 RegulatoryStudies.gwu.edu
16
 Trump Deregulatory Initiatives
• Executive Order 13771
– Two-for-One
– Regulatory budget constraint
• Regulatory Reform Officers (EO 13777)
• Guidance Documents
– Transparency & preadoption notice (EO 13891)
– Civil Enforcement & Adjudication (EO 13892)

Susan Dudley
@RegStudies
17 RegulatoryStudies.gwu.edu
 First 2 Years
• 15 Resolutions of Disapproval
• 57 major regulations
4
– 19 deregulatory
– 11 regulatory
– 27 exempt or “other”
• Court setbacks 54

Institute for Policy Integrity

Susan Dudley
@RegStudies
18 RegulatoryStudies.gwu.edu
 Continuity?
• E.O. 12866 (Clinton 1993)
• Office of Information & Regulatory Affairs
• Regulatory Impact Analysis
– Regulate only to address compelling public need
– Examine alternative approaches
– Maximize net-benefits
– Consider distributional impacts

Susan Dudley
@RegStudies
19 RegulatoryStudies.gwu.edu
 Challenges ahead
• Supporting analysis
• Judicial challenge
• Congressional oversight
– CRA exposure in 2020
• Interest group pressures

Susan Dudley
@RegStudies
20 RegulatoryStudies.gwu.edu
Contact Us: Susan Dudley
@RegStudies
@SusanEDudley
RegulatoryStudies@gwu.edu
Regulatorystudies.gwu.edu