And why do we give Chevron deference to partisan administrative agencies that delay rulemaking until after the Presidential election?

December 15th, 2013

In admin law, we like to think of executive branch agencies as groups of experts trying their best to pass rules to promote the general welfare. Of course these agencies are headed by officers appointed by the President, and they attempt to advance certain regulatory agendas, but the rulemaking process itself is supposed to be nonpartisan, and based on expertise and policy research. It is because of this idea (fiction maybe) that the entire notion of Chevron deference exists. Courts should defer to executive branch agencies because regulations are hard, and it is not for the judiciary to second-guess them. In fact, the deference for executive branch agencies can be greater than the deference for Congress under Chevron.

But stories like this from the Washington Post give me pause about deference based on these fictions: White House delayed enacting rules ahead of 2012 election to avoid controversy.

The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials.

Some agency officials were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before voters went to the polls, the current and former officials said.

The delays meant that rules were postponed or never issued. The stalled regulations included crucial elements of the Affordable Care Act, what bodies of water deserved federal protection, pollution controls for industrial boilers and limits on dangerous silica exposure in the workplace.

The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.

The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic.

Those findings are bolstered by a new report from the Administrative Conference of the United States (ACUS), an independent agency that advises the federal government on regulatory issues. The report is based on anonymous interviews with more than a dozen senior agency officials who worked with the Office of Information and Regulatory Affairs (OIRA), which oversees the implementation of federal rules.

The report said internal reviews of proposed regulatory changes “took longer in 2011 and 2012 because of concerns about the agencies issuing costly or controversial rules prior to the November 2012 election.”

It’s politics all the way down. And I don’t know that there is anything necessarily wrong with that. But much of administrative law is built on the false premise that it’s not. Stories like this should make us rethink our assumptions.

The officials interviewed for the ACUS report, whose names were withheld from publication by the study authors, said that starting in 2012 they had to meet with an OIRA desk officer before submitting each significant rule for formal review. They called the sessions “Mother-may-I” meetings, according to the study.

The accounts were echoed by four Obama administration political appointees and three career officials interviewed by The Post.

And who was the head of OIRA? Mr. Nudge himself, Cass Sunstein!

At the Environmental Protection Agency, for example, a former official said that only two managers had the authority to request a major rule in 2012: then-administrator Lisa P. Jackson and deputy administratorBob Perciasepe. Perciasepe and OIRA’s director at the time, Cass Sunstein, would have “weekly and sometimes semi-weekly discussions” to discuss rules that affected the economy, one said, because they had political consequences, the person said.

“As we entered the run-up to the election, the word went out the White House was not anxious to review new rules,” the former official said.

Sunstein, who has returned to his post as a Harvard Law School professor, declined to comment.

And don’t think this process was limited to merely the timing of the rules. It no doubt also extended to the content of the rules:

That regulation, which would reduce the amount of sulfur in U.S. gasoline by two-thirds and impose fleetwide pollution limits on new vehicles by 2017, was ready in December 2011, said three officials familiar with the proposal. But agency officials were told to wait a year to submit it for review because critics could use it to suggest that the administration was raising gas prices, they said. The EPA issued the proposed rule in March.

Remember in 2008, President Bush was criticized for not lowering gas prices in an election year. CNN ran a piece titled, President, Congress offer no immediate help on gas prices.”

Well, I guess President Obama had other ideas. Especially when he was up for reelection. Even though he said in 2011 there were no silver bullets for high gas prices:

“Whenever gas prices shoot up, like clockwork, you see politicians racing to the cameras, waving three-point plans for $2 gas,” he said. “You see people trying to grab headlines or score a few points. The truth is, there’s no silver bullet that can bring down gas prices right away.”

Don’t worry. Cass Sunstein has got this.

What else was delayed?

Other EPA regulations that were delayed beyond the 2012 election included rules on coal ash disposal, water pollution rules for streams and wetlands, air emissions from industrial boilers and cement kilns, and carbon dioxide limits for existing power plants.

Ross Eisenberg, who serves as vice president of energy and resources policy at the National Association for Manufacturers and has criticized several EPA regulations, noted that in the past year the administration moved ahead with proposals such as the rules on greenhouse gas emissions and boilers.

“The agenda certainly did slow down, but it doesn’t change,” he said.

And the Washington Post (which ran how many stories on presidential signing statements under Bush 43?) suggests that this practice is much worse under 44:

But Ronald White, who directs regulatory policy at the advocacy group Center for Effective Government, said the “overt manipulation of the regulatory review process by a small White House office” raises questions about how the government writes regulations. He said the amount of time it took the White House to review proposed rules was “particularly egregious over the past two years.”

Previous White House operations have weighed in on major rules before they were officially submitted for review. But Jeffrey Holmstead, who headed the EPA’s Office of Air and Radiation in the George W. Bush administration, said the effort was not as extensive as the Obama administration’s approach.

“There was no formalized process by which you had to get permission to send them over,” Holmstead said, referring to rules being submitted to the White House.

This is to say nothing about the utter lack of rulemaking by HHS with the Obamacare rollout. Rules are being changed on the fly, in clear contravention of the Affordable Care Act, based purely no political consideration. This lawlessness follows intentional delays of rules regarding the ACA until after the election.

The administration also was slow to handle rules pertaining to its health-care law. Several key regulations did not come out until after the 2012 election, including one defining what constitutes “essential health benefits” under a health plan and which Americans could qualify for federal subsidies if they opted to enroll in a state or a federal marketplace plan.

The latter focused on what constitutes “affordable.” Treasury proposed a regulation in August 2011 saying an employer plan was affordable as long as the premium for an individual was no more than 9.5 percent of the taxpayer’s household income. Several groups — including labor unions — argued that the proposal did not take into account that the premium for a family plan might be much higher than that standard.

Unions represent a vital part of the Democratic coalition, in part because they help mobilize voters during elections.

The Treasury Department held the proposal back while finalizing all the other tax-credit rules on May 23, 2012. Treasury officials later told those working on the regulation that it could not be published before the election, according to a government official familiar with the decision who spoke on the condition of anonymity because of its sensitive nature. The department made the rule on Feb. 1.

The rule of law has suffered immensely during this Presidency. And, sadly, it was from the hands of constitutional law professors.