Executive Oversight and Regulatory Review in Government

1. Chapter 7 Part III

2. Inferring Tenure • What is the assumption if there is no term of office? • If there is no term of office, the starting assumption is that the official serves at the pleasure of the executive • What if it says good cause? • This is true even if there are conditions such as good cause on removal - otherwise the official could stay in office forever

3. How does this change if there is a term of office? • If there is a term of office, then there is stronger argument that the executive cannot remove at will, but this really depends on the court deciding whether there is a policy reason that the appointment should have some freedom from executive control • Thus independent agencies would get more protection than the executive's staff

4. Acronyms • OMB - Office of Management and Budget • OIRA - Office of Information and Regulatory Affairs the division of OMB that does agency oversight.

5. Executive Oversight – 492 • Can the president personally do oversight? • Should the president have broad power to conduct oversight through OIRA? • Does this imply that he has to act through OIRA?

6. Executive Order 12866 • Executive Order 12866 Regulatory Planning and Review • OIRA must review rules that have an impact of more than 100M aggregate or substantial impact on a segment of the economy or any thing else.

7. The Regulatory Philosophy • Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.

8. CBA under 12866 • Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. • Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach. • Pretty simple? :-)

9. What must the agency provide OIRA - I • An assessment, including the underlying analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy and private markets, the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;

10. What must the agency provide OIRA - II • An assessment, including the underlying analysis, of costs anticipated from the regulatory action (such as, but not limited to, the direct cost both to the government in administering the regulation and to businesses and others in complying with the regulation, and any adverse effects on the efficient functioning of the economy, private markets (including productivity, employment, and competitiveness), health, safety, and the natural environment), together with, to the extent feasible, a quantification of those costs;

11. What must the agency provide OIRA - III • An assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, identified by the agencies or the public (including improving the current regulation and reasonably viable nonregulatory actions), and an explanation why the planned regulatory action is preferable to the identified potential alternatives.

12. What are the potential effects on agencies of these mandates? • Does this undermine the intent of their enabling laws? • Does this undermine agency expertise? • How can the president do this without legislation?

13. 12866 and Rulemaking • [some of this is carried over from Chapter 5] • What if the statute says no CBA - can the president impose it anyway? • Why is there a special provision for analyzing impact on small businesses?

14. Limitations of OIRA • The problem is that OIRA is a bunch of economists without technical knowledge, which undermines the role of the agency • The advantage is broader perspective • Do you really want to limit CO2 emissions when CA cannot keep the lights on?

15. Politics of OIRA • This was very controversial during the Reagan and Bush I administrations • Could this be because most legal academics are left wing democrats? • Clinton really did nothing with the review - OIRA let EPA try to ban chlorinating water!! • Less of an issue in Bush II - too many other things going on

16. Legality of Oversight • Cannot use it to undermine the notice and comment process • Should OIRA reviews and documents become part of the record and be published in the FR? • Cannot use it extend the authority of an agency beyond its enabling legislation • Can mostly limit/kill/delay rules • Can be a problem when there are deadlines for issuing a rule • What if Congress says that the agency is immune from review?

17. Independent agencies • 12866 exempts independent agencies • Clinton included them in regulatory planning, but there is little evidence that he did any so there was no controversy

18. States • Some states use the federal model • Some, like CA, have an agency that coordinates and approves all rules • To the extent that it is seen as helping the agencies, who might have staffing and other problems in doing rulemaking, it has been seen as a success • Some states require that the governor approve rules before they go into effect

19. Unfunded Mandates • What is an unfunded mandate? • How is this stealth regulatory reform? • Unfunded Mandates Act of 1995 - Agency must do a CBA if the costs exceed 100M • What would be the impact of banning unfunded mandates? • What are the types and impact of unfunded mandates on public schools?

20. Intro to FOIA • Why have FOIA at all? • Why not make it like discovery? • Who was supposed to benefit? • Who really benefits? • What is the impact on national security?