Chapter 7
Part III
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
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
Acronyms


OMB - Office of Management and Budget
OIRA - Office of Information and Regulatory
Affairs the division of OMB that does agency
oversight.
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?
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.
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.
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? :-)
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;
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;
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.
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?
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?
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?
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
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?
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
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
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?
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?