The Federal Regulatory Process

Lisa Heinzerling
National Press Foundation
November 4, 2019
What Is the Administrative State?
What’s 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; Federal Trade Commission Act
• Executive orders
– Typically not judicially enforceable
 Constitution:
Current Disputes
• Seila Law v. CFPB
– One director, independent from president
– Removal only for cause
– Severability
• Financial Oversight & Mgt. Board for Puerto Rico
– Appointment of Board members
– De facto officer doctrine
• Gundy v. United States?
– Nondelegation
• Deference to agencies’ legal judgments
– Chevron
– Auer
 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
• Rules:
– EPA’s greenhouse gas standards for cars
– FCC’s net neutrality rule
• Adjudications:
– Pipeline permits
– Social Security benefits proceedings
 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
 APA:
Recent Disputes
• Department of Commerce v. New York
– Citizenship question on Census
– Reason “contrived”
• NAACP v. Trump (3 cases)
– Reversal of Deferred Action for Childhood Arrivals
– Reviewability
– Lawfulness
• Reasoned deliberation
 White House Review
• Executive Orders
• OIRA
• Cost-benefit
– Cost-nothing?
• 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
• Constitutional status of administrative law judges
– Appointment: Lucia v. SEC: appointment by civil
servants unconstitutional
– Removal: need closer ties to president?
• History of noninterference by White House
– But see Dakota Access Pipeline EO
 President Trump’s Executive Orders
• “2 for 1”
– Regulatory budgets
– Costs alone
– No statute authorizes?
• Energy, Infrastructure, etc.
 Presidential Power
• “Acting without Congress”
• Overseer or decider?
• Congress trumps (mostly)
– Adverse possession by executive order
– Deference to agencies’ legal interpretations
– Deference to agencies’ scientific judgments
• Requirement of reasoned deliberation
 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
• Delay rules
• Undo rules (hard)
• Cease/slow down enforcement (easy)
• Ask court for stay or remand of litigation
• Change position in litigation