Questions on Rulemaking

1. Legislative language is the primary means by which Congress directs the course of agency rulemaking. But for important rules, congressional influence over the rulemaking process is not limited to the law as enacted. Often members of Congress, individually or jointly, seek to influence agency rulemakings through informal contacts with the agency. Congressional committees or subcommittees may hold oversight hearings during the rulemaking. (At their most extreme, oversight hearings may aim to humiliate agency officials or may involve threats to strip the agency of authority or cut its appropriations.)

A. Why might members of Congress believe it necessary to resort to such actions?

B. Are these actions an appropriate exercise of Congressional power? What are the limits on their use?

2. Your readings for this class discuss review of agency rulemakings by the Office of Management and Budget (OMB) under Executive Order 12866. E.O. 12866 requires OMB review of "significant regulatory actions" (including rules with an annual effect on the economy of more than $100M). OMB oversight of regulation, on behalf of the President, has existed in one form or another since 1971.

A. Why have Presidents of both parties believed such oversight to be necessary?

B. Is OMB oversight an appropriate exercise of presidential power over agencies? (In Sierra Club v. Costle, 657 F.2d 298 (1981), the D.C. Circuit "recognized the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy." But the constitutionality of the OMB review process has never been directly addressed by the courts.)

C. What are the limits on the President's power to control agency action? May the President dictate the terms of a rule to be issued by an agency?

3. For "significant regulatory actions," E.O. 12866 requires preparation of a Regulatory Impact Analysis that includes an assessment of the costs and benefits of the rule. OMB review of rules often explores whether the rule's costs are justified by its benefits.

A. What is the relationship between OMB's cost-benefit inquiry and the statutory criteria governing the Agency's action?

B. What is the scope of OMB review under a statutory provision that precludes consideration of costs? Under a provision that allows consideration of both costs and benefits but does not specify how they are to be considered?

4. The excerpt from Shepsle and Bonchek in your materials analyzes agency behavior within the framework of a principal-agency relationship.

A. Is Congress the principal of a federal agency? Or is the President? Or are both?

B. What is "bureaucratic drift" in the "McNollgast analysis" summarized in your materials? What restraints on agency behavior does McNollgast identify? Do you agree with McNollgast's analysis?

C. McNollgast analyzes agency behavior against the risk of "political reversal." What effect, if any, is the risk of judicial reversal likely to have on agency behavior?

5. An agency's own policy preferences may lead it to consider interpretations of statutory provisions which are arguably (or even patently) not supported by the plain meaning of the language or by the legislative intent.

A. Does an agency have an obligation to follow its lawyers' best reading of the statute? Is it obligated to adopt a reading that could be defended in a judicial proceeding?

B. What are the obligations of an agency lawyer who believes his or her agency is implementing an impermissible statutory interpretation?

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