Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a deliberate bias against regulation by reason of its additional roadblocks to and delays in adopting regulations. This bias was clearly intentional in the origin of the centralized review by President Reagan, who famously said, “government is not the solution to our problem; government is the problem.” However, even when Democrats became President the bias remained. President Clinton’s E.O. 12866 begins with a statement …

Environmentalists know about the Environmental Protection Agency’s Water Transfer Rule. See 40 CFR § 122.3(i). It states in essence that discharging polluted water from one body of water to another unpolluted body of water is not a discharge of a pollutant under the Clean Water Act. According to the EPA, this action would not be regulated by the Act, because no pollutant is being “added” to the “waters of the United States.” There may be an addition of a pollutant to a particular body of water, but that is not enough, the EPA says. There must be an addition to the “waters of the United States” as a whole. This is also known as the “unitary waters” approach.   

This issue has arisen in a number of different cases, perhaps most notably in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S …

On November 9th the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment subject to this chapter, which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirements or …

Cross-posted from ACSblog.

The Supreme Court will hear arguments on November 3 in a potentially important preemption case, Williamson v. Mazda Motor of America. In Williamson, a child was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries. The young Williamson, however, suffered severe abdominal injuries and internal bleeding because her body jackknifed around the lap belt. The Williamsons sued Mazda asserting that the van was defectively designed by providing only a lap belt in the center rear seat. When the van was built, the National Highway Transportation Safety Administration's Federal Motor Vehicle Standard (FMVSS) 208 only required lap belts in the center seat, even while it required lap-shoulder belts in all other seats. Mazda moved to …

In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.

Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures …

Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know …

On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law. These agencies included the National Highway Traffic Safety Administration, the Federal Railroad Administration, the Consumer Product Safety Commission, and most notably the Food and Drug Administration. The FDA's broadest claim -- that its drug labeling regulation preempted state tort law -- was rejected by the Supreme Court earlier this year in Wyeth v. Levine.

In a November 2008 White Paper, CPR Member Scholars called for the President to amend or strengthen the existing Executive Order on Federalism to reverse this Bush policy and to re-establish the presumption that federal regulations protecting health, safety, and the environment …

There are few areas where the difference between the Republican and Democratic parties is more stark than that of the Freedom of Information Act. The FOIA, of course, requires agencies to provide copies of their records to any person upon request unless the record fits within one of nine specific exemptions. Among the most important of these are the exemption for classified information, inter-agency or intra-agency communications containing advice or recommendations, information compiled for law enforcement purposes, and private commercial information. Nevertheless, the Supreme Court has made it clear that the FOIA is a disclosure statute; nothing in the FOIA requires an agency to withhold records even if they fall within an exemption, although it is possible that some other statute might.

In 1977, the Attorney General under President Jimmy Carter issued a memorandum to heads of departments and agencies announcing that henceforth the Justice Department would …

There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for expert testimony, substantive due process limitations on punitive damages, and preemption of state tort law are three of the ways the Supreme Court is attempting to handcuff plaintiffs in tort actions. The present administration, despite its continuance in effect of Executive Order 13132 that attempts to limit preemption, has adopted a policy of having agencies assert preemption claims as amici in courts as well as in preambles to new regulations. Congress, the actor with the most power in this play, has been incapacitated by the lack of a filibuster-proof majority in the …