My name is David Burton. I am senior fellow in economic policy at the Heritage Foundation. This course is called how to promulgate a rule. In the eyes of many in the world, this every 4 year ceremony we accept as normal is nothing less than a miracle. In America, we understand that a nation is only living as long as it is striving.
Only a few generations have been granted the role of defending freedom in its hour of maximum danger. This great nation will endure as it has endured, will revive, and will prosper. Whether we go forward together with courage or turn back to policies that weakened our economy, diminished our leadership in the world, America’s future will be in your hands. The course is meant for any political appointee in an executive branch policy making role. The course is a guide to learning the skills necessary to actually win the executive branch conservative policy victories, victories in the real world given the political and legal environment in which we are actually in.
Allow me some introductory remarks before I get into the substance of the course. Many people, I suspect, will find the material in this course to be boring, tedious even. But let me be frank. If you don’t learn the material in this course, you will make mistakes that are likely to cripple your substantive policy agenda. Thus, if you want to be effective, you must learn this material.
To meaningfully advance the conservative agenda, you must learn this material. This is no exaggeration. One of the reasons the administrative state is so out of control is that conservative appointees usually do not know this material, don’t hit the ground running, take years to actually start making a difference, and are routinely thwarted by the federal bureaucracy. We simply cannot afford for that to happen this time around. Make no mistake, progressives understand this material, and they use it to relentlessly and aggressively advance their agenda.
We must do the same and be good at it. The left is malevolent, but they’re definitely not lazy or uninformed about government processes. Winning will take tedious and hard work, but win, we must. Unless a court strikes down a rule, which is rare under current deference doctrines that I’ll discuss later, there are only 2 ways to undo a rule. It takes either an act of Congress or a rule.
The budget reconciliation process offers reasonable prospects for conservative legislative victories on tax or budget matters with a simple conservative majority. And not all Republicans, remember, unfortunately, are particularly conservative, so we need a conservative majority. Otherwise, we are unlikely to have a super majority in the senate able to overcome a filibuster on important matters. Major legislative victories on nonreconciliation matters are possible, but they will be difficult and take presidential leadership. And a president can only pick so many fights.
Although I’ll discuss ways to achieve regulatory victories via legislation in congress, most conservative policy progress in the next administration on nonreconciliation matters is probably going to come by rulemakings in the executive branch. This represents a genuine opportunity to transform government in a positive way. But to accomplish this, political appointees need to learn this material. A rule must be done according to the rules of rulemaking if it is to survive judicial review. Most of this course is about the rules governing rulemaking.
Now there are federal employees who view their job in the traditional manner, as helping political appointees implement the agenda of the elected president. These employees are now a distinct minority. Much of the bureaucracy is committed to the progressive agenda. They will resist, slow walk, and stonewall those trying to implement a conservative agenda. In managing the bureaucracy, you will need to try to identify those who will actually do their jobs and avail yourselves of their skills.
But you will need to constantly push and control, And you’ll also need to have the knowledge and skills to circumvent those in the bureaucracy, a majority, who actively seek to impede the implementation of a conservative agenda. You must have the knowledge to draft proposed rules and final rules and the corresponding releases with a minimum of bureaucratic assistance. The federal government is not the private sector. Federal employees have their own agenda and are extremely difficult to fire. In most agencies, workers are more likely to die at their desks than they are to be successfully terminated.
Moreover, terminating an employee, even for rank insubordination or incompetence, is a lengthy time consuming process under current rules. It usually is simply not worth the time involved. Your time is better spent furthering the conservative policy agenda. As an aside, you should read chapter 3 in project 2025’s mandate for leadership, the conservative promise. The chapter is entitled Central Personal Agencies Managing the Bureaucracy.
Now you cannot expect the bureaucracy to simply do as you ask. In most cases, it will not. Or if it does, it will do so at an incredibly glacial pace. It is of incredible importance that an incoming conservative administration addresses this problem for senior federal workers with a role in policy making. It must adopt something akin to the Trump administration’s schedule f almost immediately or otherwise make senior federal officials employees at will.
Schedule f was adopted in the waning days of the Trump administration, never implemented, and revoked on the 3rd day of the Biden administration. Senior federal officials should not be able to ignore the American people and elected officials. And if they overtly or clandestinely are insubordinate, they should be forced to find employment in the wilds of the private sector. This will be highly controversial and will be fiercely resisted by progressive politicians, government unions, and the bureaucracy. But until that happens and the bureaucracy is forced to become more responsive to appointees of the elected president, reality requires that you have the skills and the knowledge to proceed despite the bureaucracy and not with its assistance.
Our job as conservatives is harder than that of progressives because the federal bureaucracy has generally become an arm of the progressive movement. Learning the material in this course is a necessary prerequisite to success if success is defined as actually taming the administrative state, actually rolling back the regulatory tsunami of the Biden and Obama administrations, and proactively implementing conservative policies. Complaining about the administrative state or the deep state on TV or on op eds accomplishes little. We have to do the hard work. Lastly, unless you learn this material, you will be able to implement only a fraction of your agenda because many of the rules that you do get out the door will not survive judicial review that we struck down in a courtroom.
And make no mistake, any important rule will be litigated. The left has plenty of lawyers, the and plenty of sympathetic judges, and you cannot afford to needlessly give them successful avenues of attack. The history of the past century has seen each liberal or progressive administration come in and substantially or dramatically increase the regulatory burden on the American people and alter our society in increasingly progressive ways using the heavy hand of the federal government. Republicans typically reverse a very small proportion of the rules that the predecessor administration has put in place. Thus, the size, scope, and intrusiveness of the administrative state has been steadily increasing.
The administrative state has also become a vital weapon in the left’s effort to remake this country. The only market exception to this ratchet effect was the Reagan administration in 19 eighties. The process has accelerated quite dramatically in the 21st century, and the Biden administration is simply unprecedented in terms of the cost, scope, and number of rules that is finalized or proposed. A quick look at the most recent unified agenda of regulatory and deregulatory actions demonstrates that there is no end in sight. Now on to the fun part of this course.
Just kidding. Before we get into the details, let me address the basic structure of the rulemaking process. In general, the Administrative Procedure Act or APA requires an agency to publish in the Federal Register a notice of proposed rulemaking. This is often called the proposing release or the NPRM. The agency must then receive comments from the public and address those comments in the document releasing the final rule.
Among other things, the proposing release must contain the following 10 things, a summary of the proposed rule, information about how to provide comments on the proposed rule, the date by which the comments are due, or in other words, the comment period the statutory authority for the proposed rule an explanation of the rule and the reasons for the proposed rule an initial regulatory flexibility analysis a discussion of the likely impact of the proposed rule on small entities, if the rule requires the provision of information to the government by the public, an initial Paperwork Reduction Act analysis, an office of management and budget circular a 4 compliant cost benefit analysis and other OMB required material, and then the actual proposed amendment to the code of federal regulations or CFR. Probably the best source of information regarding the detailed requirements for drafting either an NPRM or final rule is the document drafting handbook prepared by the Office of the Federal Register, all 238 pages of it. The Administrative Conference of the United States, a government agency, has a lot of detailed information that can help address specific questions relating to the rulemaking process. Most of this sounds harder than it is, but it is time consuming, requires significant attention to detail, and must be done correctly to accomplish your objective.
It’s not optional. Once the public comments are in, you must evaluate and respond to those public comments in the final rule. By final rule here, I mean not just the revised CFR language, but the entire release containing the final rule. Among other things, the final rule must contain the following ten things, a summary of the final rule, the statutory authority for the final rule, an explanation of the final rule and the reasons for the rule, a discussion of the comments made by various commentators, and the reasons why the agency accepted or rejected those comments. This discussion need not address each commentator individually by name, but it needs to address the issues raised by the commentators, or it may endanger the rule when it is subject to judicial review.
A final regulatory flexibility analysis has to be included, a discussion of the likely impact of the final rule on small entities. If the rule requires the provision of information to the government by the public, a final paperwork reduction analysis has to be included, and an OMB circular a 4 compliant cost benefit analysis and other OMB required material has to be in there as well. The actual final amendment to the CFR also has to be in there. It’s usually at the very end of the final rule release. Lastly, it has to have an effective date of the final rule.
It should be noted that, generally, a final rule cannot adopt a provision if the proposing release did not clearly provide notice to the public that the agency was considering whether to adopt it. The courts have developed a so called logical outgrowth test. In other words, the final rule must be a logical outgrowth of the proposed rule. If it is not, the court will probably decide that adequate notice was not provided to the public and strike down the rule. This is rare, but it does happen.
And a judicial doctrine such as this is necessary to prevent agencies from effectively evading the APA notice and comment requirements. If you do decide that you wanna substantially change your approach, it may be advisable to issue a revised NPRM and reopen the proposed rule for comments. At the very least, you should consult in house counsel. Also, consider that going forward with an approach that may result in a court invalidating rule may be fatal because litigation can take years. You may be out of office by the time the case is decided, and your successor may be less committed to the rule or from the other party and simply opposed to it.
I should also note that in certain instances, particularly if the agency is entering into a new field or the rulemaking is heavily dependent on empirical data, the proposed rule stage may be preceded by an advanced notice of proposed rulemaking, an ANPRM, or a request for information or RFI. These are designed to elicit data or ideas from the public prior to the issuance of a proposed rule, and it makes it much less likely that you will need to dramatically change direction and issue a second NPRM and reopen the proposed rule for comment. I estimate for the next administration to get the US back to the level of regulation at the begin beginning of the Obama administration, hardly a regulatory nirvana. It will have to promulgate about 800 major rules. That is nearly 1 per business day for the entire duration of the administration.
And because most political appointees will not be confirmed by the Senate until many months after the inauguration day, and because, as I will discuss later, of the Congressional Review Act, the time period in which this work must be done is actually much more truncated. Agencies only have the authority granted to them by congress. Unfortunately, congress has generally provided sweeping authority to most agencies. There are, however, limits. Any rulemaking must point to a statute that grants the agency the authority to promulgate the rule in question.
In some cases, the grant of authority is breathtakingly broad. In other cases, it’s more circumscribed. You need to become familiar with the relevant statutory language in the agency or agencies where you hope to work. Any rule that you choose to promulgate must fall within the statutory authority granted by Congress. Typically, this will not be a problem for conservatives, but you need to think through any potential issues, particularly for proactive rule rankings.
As I will discuss later in more detail, under current Supreme Court cases, notably the 1984 case Chevron versus Natural Resources Defense Counsel, courts lean over backwards to permit agencies to get their way. This is starting to change. In 2022, in West Virginia versus EPA, the Supreme Court held that the major question doctrine requires that a clear statutory statement is necessary for a court to conclude that Congress intended to delegate regulatory authority to an agency with respect to major questions. During this Supreme Court term, in Loper Bright Enterprises versus Raimondo, The court will decide whether to reverse or modify Chevron itself. This case will be decided before the next administration takes office.
The Administrative Procedure Act, enacted in 1946, provides the basic outline of how rulemaking is done. It also governs administrative hearings and other procedural matters, which we will not address here. Agencies promulgated 3,585 rules in 2022, 80 of which were deemed major rules. A major rule is defined generally as one that has resulted in or is likely to result in an annual effect on the economy of $100,000,000 or more, a major increase in cost or prices for consumers, individual industries, federal, state or local government agencies or geographic regions or 3, significantly adverse effects on competition, employment, investment, productivity or innovation or on the ability of the United States based enterprises to compete with foreign based enterprises in domestic and export markets. 2,167 rules were promulgated during the 1st 8 months of this year and more to come.
So what is a rule? The APA defines a rule in relevant part as, quote, the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency. That’s a broad definition. But increasingly, agencies have sought to evade the APA notice and comment requirement by issuing so called guidance documents. Courts have largely let them get away with this.
In principle, guidance documents do not have the force of law, unlike a rule. In practice, however, they do, since they inform the agency’s enforcement posture. Few regulated entities take guidance documents casually, since ignoring them often results in being on the receiving end of an enforcement action. The Trump administration tried to police the use of guidance documents as a means to evade the APA when it issued executive order 13891 on October 9, 2019. That order required each agency to post all guidance documents to a single searchable index website and subjected guidance documents to various requirements, including notably cost benefit analysis.
This in turn resulted in an OMB memorandum, m dash 20 dash 02, a few weeks later on October 31st, to implement the executive order. The Biden administration revoked executive order 13891 on its 1st day, so agencies are now free to return to their previous practices. Under Section 553 of the APA, interpretive rules, general statements of policy, or rules of agency organization procedure or practice, are exempt from the notice and comment requirements of the APA. So that raises the question, what is an interpretive rule? That’s a good and difficult question.
The courts are all over the map using different standards and different analysis. At least one court has said notice and comment is required if the rule creates new rights and duties. Others have asked whether the rule imposes a binding norm. If so, then it is subject to the notice and comment requirements. Others have used a 4 part legal effect test.
Others have asked whether the rule is truly interpretive or clarifying as opposed to making a, quote, substantive change, end quote. There are related cases about what is and is not a general policy statement. But in general, if the statement is deemed nonbinding, a court probably will not impose a notice and comment requirement. This is also related to the guidance document question discussed a few minutes ago. And various administrations have tried to impose various requirements on different types of interpretive rules and guidance documents.
Finally, the potentially evolving Supreme Court Chevron deference doctrine will have an impact in all of this. If the Loper Bright Enterprises case circumscribes deference, then courts will be less willing to accept at face value the agency’s designation of a rule as interpretive. Now what should you, as a potential political appointee, make of all this? My recommendation is this, if the proposed rule matters a lot to you, don’t try to circumvent the notice and comment requirements by deeming the rule interpretive. Obviously, the notice and comment requirements impose costs and consume limited time, but failing to run that gauntlet gives opponents one more angle of attack as they seek to overturn the rule in court.
Moreover, doing so will also make it that much harder for a future progressive administration to reverse the rule. I would also strongly, urge that you seek advice from in house counsel, provided that they’re genuine administrative law experts and seek advice from administrative law experts and the conservative policy community. While on the subject of guidance document, let me mention one more important thing. Because they are not rules, they are much easier to get rid of than rules. They can simply be withdrawn by an incoming administration.
Easy come, easy go. And in the vast majority of cases, Biden administration guidance should be withdrawn. Those monitoring a given agency should be preparing a running list of guidance documents issued during the Biden years and evaluate those documents. Those that need to be withdrawn should be identified now, and the new conservative administration should simply withdraw them within a week. Then, new alternative guidance can be issued.
Preferably, actual rules implementing a conservative policy agenda will soon follow. The APA imposes no statutory minimum comment period. A comment period shorter than 30 days, however, is almost unheard of. 60 or 90 days is more normal, especially for complex or controversial rules. The Biden administration, however, has been criticized for its excessively short comment periods.
The APA does require that final rules be published 30 days prior to their effective date. The APA requires a concise general statement of a rule’s basis and purpose. Concise is in the eyes of the beholder, but most such statements in proposing releases and final rules are not particularly concise. And there’s a reason for this. It’s judicial review.
The agency needs to show that its rule has a basis in law and, in fact, to survive judicial review, particularly the arbitrary and capricious standard. So you will need to put significant effort into explaining why your proposed rule makes sense from a legal, policy, and economics perspective. The APA requires the agency to provide notice and receive comments with respect to legislative or substantive rules. In your final rule, you need to address the issue raised by these comments. You do not need to accept the recommendations made in the comments.
You do not need to address each comment separately. You do need to address legitimate issues and concerns raised by the comments in the final release and explain why you accept or reject the point made in a comment. Otherwise, you risk a court determining that your actions were arbitrary and capricious. This process can be tedious and time consuming, but it is absolutely necessary. Comments are part of the formal regulatory record, or docket, and may be referred to by litigants.
In fact, they usually are. Agencies sometimes issue what are called interim final rules or temporary rules. These rules are sometimes colloquially called emergency rules. Such rules take effect immediately, but then a comment period is open. The APA permits this if the agency for, quote, good cause finds and incorporates the finding in a brief statement of reasons, therefore, and the rules issued, that notice and public procedure thereon are impractical, unnecessary, or contact contrary to the public interest, end quote.
The agency must consider post effective date public comments and in principle, should modify the rule in light of those comments and will then adopt a final rule. These rules are subject to judicial review like any other final rules. But, of course, the issue of whether or not there was actual good cause is also at issue. As to the issue of whether good cause is shown, in general, courts will let this happen if the agency is responding to something beyond its control rather than just trying to accelerate the regulatory process for political reasons. For your information, part of Project 2025, called Pillar 4 or the 180 Day Playbook, is developing potential rule makings for the next conservative administration.
You should become aware of the work being done with respect to the agency or agencies where you hope to work. Moreover, this effort needs your participation. A document called the unified agenda of regulatory and deregulatory actions is one that you should become familiar with. Most of it is required by the regulatory flexibility act, but some of the requirements are a function of executive order 12866, as amended. It can be accessed at www.reginfo.gov/public.
And once you’re there, click on the unified agenda and regulatory plan. You can sort by agency and determine and determine what rules they’re working on, including rules that have yet to be proposed. This will enable you to track what the Biden administration is doing in the regulatory space and what it plans to do. But you also need to become familiar with this because you will be required to provide similar information once you’re in office. This is a joint effort of the Office of Information and Regulatory Affairs at OMB, called OARA, and the Regulatory Information Service Center at the GSA.
OMB and its office of information and regulatory analysis, or ORA, plays a crucial role in the regulatory process. The administrator of OIRA is often called by the media the regulatory czar. OIRA’s website is white house.gov/omb forward slash information dash regulatory dash affairs. You need to spend some time there. OR is a very small agency, too small actually.
It has a staff of about 50. A conservative administration should increase its staffing levels considerably. 50 people are not enough to adequately police the regulatory actions of the entire federal government. OARA is one of the few government agencies that limits the regulatory ambitions of other agencies. There are a few others, like the SBA’s Office of Advocacy, but OARA is by far the most important.
The 2 most important things it does, at least in my opinion, is enforce the Paperwork Reduction Act and Executive Order 12,866 as augmented by OMB Circular A-four. OIRA reviews draft of proposed and final regulations. And in my judgment, working with OIRA closely will generally make your rule makings better. OIRA also coordinates a retrospective review of regulation under executive order 13610. It oversees the implementation of government wide policies in the areas of information policy, privacy, and statistical policy.
OIRR also coordinates agency implementation of the Information Quality Act and the implementation of CBREFA, the Small Business Regulatory Enforcement and Fairness Act. Executive order 12866 was originally adopted by president Clinton. It has been amended several times, most recently by president Biden’s executive order 14094. The Biden executive order, among other things, increases the threshold of a, quote, significant regulatory action to $200,000,000 from $100,000,000 requires that the regulatory analysis recognize distributive impacts and equity, and takes various steps regarding the promotion of inclusive regulatory policy. OMB Circular A 4 lays out in detail how cost benefit analysis should be done and other regulatory requirements.
Needless to say, the Biden administration has proposed amending Circular A 4 in a manner that will let far more regulations pass muster. For example, it would reduce discount rates for assessing future costs and benefits from 3 to 7% to 1.7%, The fact that 30 year treasury securities, effectively risk free, currently yield over 4% apparently doesn’t matter. It mandates more emphasis on distributional effects and requires the treatment of different people’s costs and benefits differently. Affluent people’s costs, for example, will be weighted less than low income people’s costs, for example, on a declining marginal utility of income theory. An incoming conservative administration will presumably revoke executive order 14094 and revise OMB Circular A four to something more like what it looked like prior to the Biden administration.
Hopefully, this will happen with alacrity. OIRA review only applies to significant regulatory actions as defined in the executive order. There are both monetary and nonmonetary standards. What you need to know is that you must ensure that your agency complies with these rules as revised. Compliance is not optional.
OIRA has the authority to return a rule to an agency for noncompliance. Moreover, poor cost benefit analysis is a common reason why courts invalidate rules. In most cases where an agency is proposing to require the public to produce information to the government, the 1980 Paperwork Reduction Act requires that agencies obtain an OMB control number, produce burden hour estimates, and, ultimately, to get OIR clearance. Under the Paperwork Reduction Act, or PRA, if an agency is going to institute a new information collection requirement and must place a notice in the Federal Register separate from and before the proposed rule and seek public comment, and then later provide notice that OIRA clearance has been requested by the agency. Then it must get OIRA clearance.
All this is prior to releasing a proposed rule. It would be my estimate that this process typically adds about 6 months to the overall rulemaking process, but it only applies to a rule that requires the public to provide information to the government. The Regulatory Flexibility Act or RFA was enacted in 1980. The statute has been amended several times since then. The RFA requires an agency to do an initial regulatory flexibility analysis or IRFA in its proposed rule.
In response to comments and any changes in the rule, a final regulatory flexibility analysis is also required in the release of the final rule. Agencies must assess the effects of the regulations on small entities, which the r f I RFA defines to include small businesses, small governmental jurisdictions, and small not for profit organizations. The agency must estimate the number of small entities affected by the proposed and final rule. It requires the agency to specifically and publicly address regulatory comments by the SBA’s Office of Advocacy. IRFAs are also required to contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of the proposed rule, and which minimize any significant economic impact of the proposed rule on small entities.
Further, the agency must discuss different types of flexibilities that could be included in the rule, including the establishment of differing compliance or reporting requirements or differing timetables that take into account the resources available to small entities. It also has to consider an exemption from coverage of the rule or any part of it for such small entities. The RFA imposes a whole series of other obligations that are more tangentially related to the regulatory process, such as mandating small entity compliance guides and the establishment of small business review panels. The Unfunded Mandates Reform Act of 1995 is designed to address federal legislation or or regulation that imposes an enforceable duty on state, local, or tribal governments, whether that involves costs or impedes their ability to collect revenue without a corresponding funding mechanism from the federal government. An agency that may impose such costs must provide a variety of information, including an estimate of the costs being imposed in both the proposing release and in the final rule.
The Federal Register has been with us since 1936. As I have discussed, all notices, proposed rules, and final rules must be published in the Federal Register. These documents have to be drafted in compliance with the rules promulgated by the Office of the Federal Register. The document drafting handbook, published by the Office of the Federal Register, lays out the details. 1st published in 1938, the 50 titled Code of Federal Regulations, or CFR, is the codification of regulations promulgated by the executive departments and other agencies of the federal government.
Almost any rule that you promulgate will involve an amendment or addition to the Code of Federal Regulations. The CFR is also published by the Office of the Federal Register. The online version is updated on a rolling basis and is available at ecfr.gov. You will need to check any agency specific regulatory requirements for the agency where you hope to work. As I will discuss in a minute, these are typically imposed by Congress, but some may be imposed by an agency’s own rules and procedures.
The Congressional Review Act was adopted as part of the Small Business Regulatory Enforcement Fairness Act in 1996. It allows Congress, in the form of a joint resolution of disapproval, to consider legislation to overturn rules. The disapproval resolution cannot be filibustered in the Senate. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the President, or if Congress successfully overrides a Presidential veto, the rule at issue cannot go into effect or continue in effect. With 3 fairly narrow exceptions, it adopts the APA definition of a rule.
The CRA requires agencies to submit their rules to both houses of Congress and the Government Accountability Office, or GAO, before they may take effect. Now there is a clock on CRA disapproval resolutions. The disapproval resolution must be introduced in the period beginning on the date which the agency gave notice to Congress and ending 60 days thereafter, excluding days either the House of congress, the house or the senate, is adjourned for more than 3 days. If a rule is submitted to congress fewer than 60 working days before it adjourns, its final session, I e, adjourns sine die, a new period for congressional review becomes available in the incoming congress. The disapproval resolution must use specific language, although it’s simple, to wit, that congress disapproves the rules submitted by name of agency relating to the name of rule and such rules shall have no force or effect.
That’s it. The CRA has been used successfully about 20 times. It usually is used by an incoming Congress and a new president to reverse so called midnight regulations by previous administration of the other party. There are 2 morals to this story. 1st, make sure that your rule is submitted to congress and the GAO as required, so that the CRA clock starts running.
Some agencies have actually blown this in the past. 2nd, try to get your rule out more than 60 legislative days before congress adjourns sine die if a new administration might take office so that the disapproval resolution clock will have expired. Determining the date for the 60 day clock can be a bit challenging since you don’t necessarily know what congress’s calendar in its 2nd session will look like ahead of time. Appropriations bills or riders are regularly used to affect the regulatory process. They usually take the form of, quote, no funds are appropriated or otherwise made available by law shall be used to end quote.
The would be filled in with the rule that you’re trying to affect. Congress uses this very often to stop regulations that it wants to to put it into, and it works. But it needs to be included in each annual appropriations bill to remain in effect. You need to also be aware of any such appropriations or appropriations riders relating to your agency that are in effect. In principle, an appropriations bill could require that funds be used to develop, propose, and finalize the regulation, but I am unaware of that actually being done via the appropriations process.
Rulemaking mandates in non appropriations bills are quite common. They usually impose unrealistic deadlines, and agencies routinely blow through the deadlines. But, eventually, they get the job done, sometimes years late. The speed with which the agency addresses the rulemaking mandate from Congress is, of course, related to whether those running the agency support the proposed rulemaking. These requirements vary substantially as to the substantive specificity of the rulemaking requirement.
Sometimes, they just impose a requirement that the agency promulgate a rule about some issue. Sometimes, they are quite specific about what the agency must do down to the paragraph that needs to be added or deleted. Rulemaking moratoriums are much less common, but they happen. I’ve gotten them done in the past myself. You need to be familiar with any rulemaking requirements or prohibitions imposed by statute for your agency.
Lawsuits challenging important rulemakings are virtually inevitable. You should expect that any rule you promulgate will be challenged in the courtroom and draft your rule, the proposing release, and the final release, assuming that will happen. You need to dot your procedural i’s and cross your regulatory process t’s. If you don’t, then all of your work will be for naught. Chevron deference, discussed to some extent previously, is about courts providing deference to agencies with respect to statutory interpretation.
As the court put it, quote, if the statute is silent or ambiguous with respect to the the specific issue. The question for the court is whether the agency’s answer is based on a permissible construction of the statute. Not best construction, not the most logical construction, not the construction most consistent with demonstrated congressional intention, but a permissible construction. As I mentioned, the Lorber Bright Enterprises versus Raimondo case before the Supreme Court this term may revisit this. For now, the standard effectively is whether the government’s lawyer can string together a rational argument for the agency position.
If so, they win. So called Auer or Seminole Rock deference is even more problematic, at least to me. Auer is a 1997 Supreme Court case, and Seminole Rock is a 1945 Supreme Court case. Those cases stand for the proposition that courts will show deference to an agency’s interpretation of its own rule unless it is plainly erroneous or inconsistent with the regulation. Now this provides a tremendous incentive for agencies to write bad rules with massive ambiguity in the rule’s language so that the agency retains the maximum amount of discretion going forward.
It also means that regulated entities or persons get the least amount of guidance about what the law actually requires of them. And in fact, modern agencies routinely write bad, opaque rules with massive ambiguity built in. A 2019 case, Kaiser versus Willkie, muddles the modders considerably. The existing Auer and Seminole Rock standards were seemingly modified, but the court did not explicitly overrule them. Dissenting justices, now probably in a majority, were willing to overturn Auer and Seminole Rock.
This area of the law is in flux. Stay tuned. With all of that as background, there are 5 major causes for rules being invalidated by courts. First, they may be found to be arbitrary, capricious, or an abuse of discretion. This happens, but it’s not common.
2nd, they may be found to be contrary to constitutional right, power, privilege, or immunity. This is rare. 3rd, they may be found to be in excess of statutory jurisdiction or authority. This happens, but the frequency is a function of which agency and which grant of authority. West Virginia v.
EPA makes this more likely. 4th, a rule may be found to be unsupported by substantial evidence. This happens, but it’s rare. 5th, they may be found to have been promulgated in violation of some procedural requirement. This happens.
And I would judge that the most common is the noncompliance with cost benefit analysis requirements, but that may just be a function of the agencies that I follow and work with rather than an accurate overall assessment. There’s a whole body of complex case law here, and as stated, the deference doctrines are in flux. But given time constraints, I’ll leave it at that. The important thing is that you in your proposing release and in the final release, you fortify your rulemaking as much as possible against these attacks. I have 10 recommendations for what you need to do to be an effective policymaker, a policymaker that will actually move the conservative agenda substantially forward.
1st, download and completely read 3 or 4 proposed rule and 3 or 4 final rules put out by the agency or agencies where you hope to work. Just reading these will give you a strong sense of what will be required. Pick some that are complex and long, and pick some that are simple and shorter. None are probably genuinely short. 2nd, download and read a few proposed rules and final rules from other agencies.
Different agencies do things differently, and you should not be locked into doing things the way the agency bureaucracy where you hope to work has always done it. Proposed and final rules can be found on agency websites, on regulations dot gov, and in the federal register at federal register dot gov. 3rd, download and read the section of the unified agenda on of regulatory and deregulatory actions at OMB that describes the regulatory agenda of the agency or agencies where you hope to hold office. This will serve two purposes. 1st, you will see what the agency is working on, much of which will need to be stopped, and you will see what you’ll need to put together at the beginning of the next administration.
4th, read the following 5 statutes, the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, the Unfunded Mandates Act, and the Congressional Review Act. 5th, read executive order 12866 as amended. And since the Biden administration is amending it unfavorably, you might wanna read the previous version. And also look at OMB Circular a 4. Be aware that the Biden administration is about to amend OMB Circular a 4 to to facilitate the regulatory agenda, and the next conservative administration will need to revise it, and you’ll have to comply with the revised version.
6th, download and read the sections in the office of the Federal Register’s document drafting handbook relating to proposed rules and final rules. 7th, read the parts of the US code that relate to the bureaucratic structure of the agency or agencies where you hope to work and the grant of authority to that agency where you hope to work. This, of course, will be different for each agency. 8, become familiar with the statutes that govern the general regulatory structure that applies to those whom your agency regulates. In some cases, this is relatively simple.
In others, it is a complex morass. If you’re a lawyer, you presumably know how to do this. If you are, however, for example, an economist or a business person, then you need to become familiar with the law. If you don’t understand the basic law governing your area, then it’ll be very difficult for you to be effective. 9, read chapter 3 in project 20 25’s mandate for leadership, the conservative promise.
That chapter is entitled Central Personal Agencies Managing and Bureaucracy. And 10, redevelopment chapters and mandate for leadership relating to the agency or agencies where you hope to work. Although this was a coalition effort and sometimes reflects differences within the conservative movement, this book will be very helpful to you as you develop priorities and a regulatory agenda. And then read as much as you can by the Heritage Foundation and other conservative or pro market think tanks or organizations in the substantive field where you hope to work. Become a genuine policy expert now, not on the job.
You have 2 years to prepare. If you do these 10 things and watch this video again, you will be way ahead of where the typical conservative political appointee is. Do these things now, so you’re not learning on the job. To be effective, you cannot waste massive amounts of time with on the job training. Instead, be prepared to do the job from day 1.
And once again, learning the material described in this course is simply not optional if you want to be effective. I hope you found this course to be of value. I appreciate you taking the time to watch it. Thanks again.