National Press Foundation December 4, 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; Federal Trade Commission Act Regulatory Accountability Act? Constitution: Two Current Fights CFPB: two acting directors Dodd-Frank: deputy shall be acting director Federal Vacancies Reform Act: exclusive unless other statute expressly designates officer or employee to be acting official Constitutional tie-breaker? Patent validity: inter partes review Non-Article III courts hear disputes over patent validity Violates Article III? 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: EPAs Clean Power Plan FCCs Net Neutrality rule Adjudications: Permit for Dakota Access Pipeline 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 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, etc. 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 Delay rules Undo rules (hard) Cease/slow down enforcement (easy) Ask court for stay or remand of litigation Change position in litigation