Rethinking Presidential Administration
This post was originally published on Legal Planet. Reprinted with permission.
Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.
Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.
The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff care only about the president’s policy and political agendas. From their perspective, the law actually passed by Congress only matters to the extent it might let courts get in the way of those other agendas. Only the agency itself has an affirmative institutional commitment to the statute it administers.
Kagan admitted in …
This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.
This initiative begins from the recognition that in the near term, such progressive regulatory reform will need to be accomplished administratively, as opposed to legislatively, given the divisive politics of the issue and ongoing congressional dysfunction more generally. Using such administrative tools as executive orders and memoranda, the president in particular has considerable influence over how the regulatory system operates, and appropriately so given his (gendered language intended, unfortunately …
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the …
Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.
The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill …
Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis.
Meaningful public participation is one of the bedrock principles upon which our regulatory system is based. Among other things, by enlisting the dispersed expertise of the public, it ensures higher-quality regulatory decision-making, and it imbues the process and its results with a crucial measure of credibility and legitimacy.
This goal of meaningful public participation is most notably enshrined in the Administrative Procedure Act’s requirement that agencies provide members of the public …
Originally published on Legal Planet.
Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue.
But what if the Democrats win? Then things are more complicated. A lot depends on the identity of the Democratic nominee. Regardless of who that person may be, however, some parts of cost-benefit analysis will survive …
Sunday marked the 25th anniversary of the issuance of Executive Order 12866, but it was hardly a happy occasion. For all intents and purposes, though, the order, which governs the process by which federal agencies develop regulations under the supervision of the White House Office of Information and Regulatory Affairs (OIRA), is dead. Despite all the glowing praise over the years and all the exaltations of its supposed durability, its health had been in decline for several years. It was just a matter of time before something like the Trump administration came along and put the final nail in its coffin.
The precise date of Executive Order 12866's demise was January 30, 2017. On that day, recently inaugurated President Donald Trump issued what was in effect its death warrant, Executive Order 13771.
According to its defenders, Executive Order 12866 was all about promoting better regulation, and it …
Today, 18 CPR Member Scholars and staff sent a letter to Sen. Elizabeth Warren expressing their support for her recently introduced bill, the Anti-Corruption and Public Integrity Act, in particular its provisions to reform the regulatory system so that it works for all Americans. These provisions are just one component of the bill’s comprehensive effort aimed at restoring the principles of government “of the people, by the people, and for the people” to our policymaking institutions by ridding them of excessive corporate influence and by eliminating unnecessary barriers that defeat meaningful public participation in our governing processes.
As CPR has documented for more than 15 years, our regulatory system has become grossly unbalanced, with its procedures and outcomes increasingly tilted to favor the protection of corporate profits at the expense of public health, safety, financial security, and environmental integrity. The Regulatory Reform Title of Warren’s …
Yesterday, six senators, led by Sen. Maggie Hassan of New Hampshire, criticized Trump administration "regulatory czar" Neomi Rao and her office for what appears to have been a slapdash review of a highly controversial Environmental Protection Agency (EPA) draft policy designed to stifle the agency's progress on advancing environmental and public health protections. Rao is the administrator of the White House Office of Information and Regulatory Affairs (OIRA), a small but powerful bureau located within the Executive Office of the President. For nearly four decades, OIRA has enjoyed broad and largely unchecked authority to interfere in pending rulemakings and to secretly quash or water down those measures that might be politically inconvenient for the president.
In a letter to Administrator Rao, the senators identified several irregularities with OIRA's review of EPA's proposed rule on the use of science to inform regulatory policy. Taken together, these irregularities suggest …
Last week, the White House’s Office of Information and Regulatory Affairs (OIRA) approved a survey to be conducted for the Occupational Safety and Health Administration (OSHA) as part of the agency's efforts to develop an Injury and Illness Prevention Program (I2P2) standard. Surveys, like this one, have to be approved by OIRA according to the Paperwork Reduction Act, and the lengthy approval may stall development of the I2P2 standard for four or more months for no apparently good reason. OIRA made only minor changes to the draft documents.
The I2P2 standard is OSHA’s signature regulatory initiative, and it comes in the nick of time. With its small and dwindling staff, a result of Congress putting it on a starvation diet of resources, OSHA has found it difficult to update its safety and health standards to protect workers, or to adopt new ones to address hazards …
