Inferring Tenure

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?