Suchergebnisse

As Professor Anne O'Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can depend more critically on the work of career civil servants than on the political leadership of an assistant secretary, further reducing the cost of midlevel vacancies. The Article then suggests that confirmation delays can have positive effects, although the list is short. Senior civil servants, serving as acting officials, can offer valuable expertise on regulatory decisions, and their expertise with respect to core implementation and enforcement issues may exceed that of more generalist political appointees. Additionally, confirmation delays may prompt both increased leadership by longtime civil servants and reduced turnover in their ranks, with benefits to overall agency function. On the other hand, confirmation delays surely cause significant problems by reducing resources to agencies and increasing turnover in management. Missing confirmed appointees also may contribute to slower White House regulatory review. More research is needed, but at a minimum, thinking about confirmation delays presents another opportunity to reflect on whether we should thin the layer of political management in agencies and on the relative importance, to administrative agency legitimacy and function, of specific expertise, compared with political accountability.

In the 1930s, Harvard professor Erwin Griswold famously complained about the enormous numbers of New Deal regulations that were obscurely published on individual sheets or in "separate paper pamphlets." Finding these binding federal rules was difficult, leading to "chaos" and an "intolerable" situation. Congress responded, requiring that agencies publish all rules in the Federal Register and in the Code of Federal Regulations (CFR). Currently, recent federal public laws, the entire U.S. Code, the Federal Register, and the CFR are all freely available online as well as in governmental depository libraries. But with respect to thousands of federal regulations, the clock has been turned back—and worse. To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into numerous federal regulations, but only by "reference." These standards range widely. The CFR presently contains nearly 9,500 "incorporations by reference" of standards, often referred to as "IBR" rules. Many IBR rules incorporate privately drafted standards from so-called "standards development organizations" or "SDOs." Agency use of IBR rules is likely to grow. Since the 1990s, both executive branch and congressional policies have officially encouraged agency use of privately drafted standards.

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal regulations — but only by "reference." These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization, or else she must travel to Washington, D.C., to the Office of the Federal Register's reading room. This law, under largely private control, is not formally "secret," but it is expensive and difficult to find. It raises the question of what underlies the intuition that law, in a democracy, needs to be readily, publicly available. Previous analyses of the need for publicity have focused almost wholly on the need of regulated entities for notice of their obligations. This Article assesses several other considerations, including notice to regulatory beneficiaries, such as Medicare recipients, consumers of dangerous products, and neighbors of natural gas pipelines. Ready public access to the law is also critical to ensuring that federal agencies are meaningfully accountable for their decisions, through both internal and external mechanisms, including voting, political oversight, and agency procedures. The need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm — a message inconsistent with core democratic values — is likely to flow from governmental adoption of regulatory law that is, in contrast to American law in general, harder to find and costly to access. Full assessment of the importance of public access to law both strengthens the case for reform of access barriers to incorporated-by-reference rules and limits the range of acceptable reform measures.

I am grateful to the Michigan Journal of Environmental & Administrative Law for the opportunity to reply to "Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts," a terrific article by Professor Cynthia Farina, Mary Newhart, and Josiah Heidt of the Cornell eRulemaking Institute ("CeRI"). Farina, Newhart, and Heidt's continuing commitment to structuring public engagement in e-rulemaking, both through scholarship and CeRI's Regulation Room project, is one of the most hopeful signs for the future of that process. In their Article, the authors are concerned with agency treatment of large volumes of public comments in rulemaking, an increasingly common phenomenon. In the first six months of 2012 alone, a quarter-million comments were filed on the Regulations.gov website. In 2011, I noted that agencies apparently gave so-called mass comments short shrift, sometimes acknowledging them but typically offering no answer. But agencies often must resolve value-laden policy questions in issuing a rule and ought to do so in a democratically responsive fashion. Accordingly, I argued that agencies should consider more seriously engaging the large volumes of comments they receive, even when those comments amount to simple statements of preference or value.1 All agree that public comments cannot serve as a plebiscite on the issue before the agency. But large volumes of comments could, as I argued, trigger more thoughtful consideration and evaluation by the agency.

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent any special legislative context, the most reasonable interpretation of these words is that neither a presidential delegation nor a simple delegation to an executive agency speaks to presidential directive authority. Instead, Congress's intent in delegating to the President appears to be simply to convey the additional power to choose which executive branch agency official will be primarily responsible for carrying out a statutory delegation. Moreover, even if simple delegations could be interpreted to limit presidential directive authority, it is unclear that the interpretation would have the claimed beneficial effect of increasing the resistance of individual agency officials to White House pressure. Policy matters and the legitimacy of White House control weigh heavily in Kagan's arguments as well as in the arguments of Robert Percival, Stack, Strauss, and Thomas Sargentich. I conclude with a few observations on the normative debate on presidential control. I also suggest that we put aside the interpretive arguments and focus instead on greater disclosure of the content of that control. Disclosure may be particularly helpful not only in helping us resolve the legitimacy of presidential direction, but also in informing clearer legislation.

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that agencies should more thoroughly consider public policy and values comments. Public comments filed with an agency in reaction to a concrete proposal would seem to have considerable potential as a source of information on citizen values and preferences. The presence of significant and numerous public comments in a rulemaking might at least trigger further investigation and deliberation by an agency. Alternatively, agencies should more candidly and publicly acknowledge that participation in rulemaking can serve only a limited function.

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated with high levels of changes in agency rules. Further, this Article documents the comparative silence regarding the effect of that supervision. The Office of Management and Budget and the agencies generally do not report the content of supervision by presidential offices. They also do not report whether a particular agency decision is consistent with presidential preferences. Silence about content, this Article suggests, threatens to undermine the promise of presidential influence as a source of legitimacy for the administrative state. This Article then argues for greater transparency. Agencies should be required to summarize executive influence on significant rulemaking decisions. Such an ex ante disclosure regime is superior to proposals that judges be more receptive to political reasons in reviewing a particular agency action. Finally, this Article suggests that while some, but not all, political reasons for agency action are legitimate, only a more transparent system-one that facilitates public dialogue and accountability to Congress-can fully resolve the question of which reasons are legitimate and which are not.