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August 01, 2015

ABA supports independent agency regulatory bill

The ABA expressed strong support last month for S. 1607, bipartisan legislation that seeks to expand presidential involvement in the rulemaking activities of independent regulatory agencies.

The bill – which was introduced by Sens. Rob Portman (R-Ohio), Mark Warner (D-Va.) and Susan Collins (R-Maine) – would affirm the president’s authority to issue an executive order requiring independent regulatory agencies to comply, to the extent permitted by law, with regulatory analysis requirements currently applicable to executive agencies when adopting new regulations.

“The core objective of S. 1607 falls squarely within longstanding ABA policy that the Constitution’s choice of a unitary executive justifies presidential involvement in rulemaking activities of federal agencies,” ABA Governmental Affairs Director Thomas M. Susman wrote to Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) and Ranking Member Thomas R. Carper (D-Del.)

Susman explained that ABA policy, first adopted in 1986 and reiterated in 1990, supports greater presidential coordination, review and oversight of the regulatory process for both executive and independent agencies because the president:

     • is in the best position to centralize and coordinate the regulatory process, particularly with the proliferation of administrative agencies that often have overlapping responsibilities;

     • is electorally accountable, unlike administrative officials, to the people and is the only official in government with a true national constituency; and

     • has the unique ability, by virtue of the president’s accountability and capacity for interagency coordination and centralization, to energize and direct regulatory policy in a way that would be impossible if that policy were to be set exclusively by administrative agency officials.

“From the standpoint of sound policy in the federal rulemaking process, we believe that there is no meaningful difference between the ‘independent agencies’ and those agencies to which the current executive order (E.O. 12866) applies,” Susman said. E.O. 12866, issued by President Clinton in 1993, requires agencies, among other things, to assess the cost of proposed regulations and submit those that are economically significant to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review.

Susman noted that the report underlying the ABA’s 1990 policy resolution acknowledges the perspective that some functions of independent agencies might be hampered in certain circumstances by presidential oversight, but he said several specific provisions in the bill appear to be designed to accommodate such concerns.

For example, the bill provides that OIRA’s assessment of a draft rule would be “nonbinding,” and OIRA would lack power to prevent the independent agency from going forward with its proposed rule until the two sides’ differences are settled. By contrast, E.O. 12866 allows OIRA to “return” a rule to an executive agency if it is dissatisfied with the rule.

Susman explained that although the ABA takes no position on specific provisions of this type, the association urges Congress to pay particular attention to ensuring that implementation of the legislation would not impair the ability of independent agencies to perform their statutory functions.

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