The Administrative Procedure Act — Part of the Swamp or Moat?

Earlier this month on Who.What.Why, Christine Capozziello outlined several lawsuits that have been brought against federal agencies on the basis of violation of the Administrative Procedure Act (APA).  Before your eyes completely glaze over, please note that the Freedom of Information Act amended the APA.

Capozziello asks, “What do the Department of Energy, the Department of Education, and Environmental Protection Agency have in common? They’ve all faced lawsuits for putting the brakes on Obama-era regulations.” Each of the agencies is being sued on the grounds that argues that the delay violates the Administrative Procedure Act (APA).

In April, New York Attorney General Eric Schneiderman sued the Department of Energy; a total of six Obama-era energy efficiency standards were delayed and Schneiderman argued that the APA had been violated.

The same month, the Department of Labor came under fire for delaying a long-awaited rule that would significantly decrease the permissible exposure limit to silica dust for construction workers.

In early July, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions. In the same week, the attorneys general from 18 states and Washington D.C. sued Education Secretary Betsy DeVos for delaying borrower defense rules that were scheduled to take effect on July 1. In the same week, a federal court cancelled the EPA’s attempt to delay implementation for new regulations on methane emissions.

Those who wish to see the “Administrative State” dismantled likely see the delays as a needed push-back against the economic, political, and social costs on individuals and businesses by favored groups [see July 10 post]. Others see the regulations as the moat protecting those with less — or no — power against powerful individuals and businesses.

Understanding the Process of Deconstruction

The Environmental Law Institute (ELI) has issued a series of short “fact sheets,” to aid understanding of the legal mechanisms and processes that the White House, federal agencies, and Congress are considering as a means of changing the regulatory approach to environmental, natural resources, and health and safety standards and safeguards.

Rather than re-invent a wheel that has been already well-designed and well-implemented, a number of them are provided here.  My intent is to help readers understand the processes that can and, in some cases, must be followed to do away with public protections.

Each of the linked sheets addresses a specific legal tool or pathway that could be used to change existing environmental — and other — protections. They assume the reader has some familiarity with the federal regulatory landscape, but no particular legal or technical background. Each fact sheet identifies the relevant actors, describes the applicable procedures, discusses key features of each procedure, and opportunities for public engagement. The  information is current as of March 21, 2017. Where relevant, the fact sheets highlight opportunities for stakeholder engagement that are specific to individual processes. The links (in process..) below do not include all the fact sheets; see Regulatory Reform in the Trump Era for more.

1: Reversing or Revising Executive Orders and Actions; 2: Undoing Presidential Actions Protecting Public Lands and Resources; 3: Fast-Tracking Projects That Require Federal Approval; 4: “Cancelling” the Paris Agreement on Climate Change; 5: Reversing or Revising Agency Regulations, Generally; 7: Implementing the New “Two-for-One” Executive Order on Federal Regulations; 12: Subjecting Agency Regulations to Additional Cost-Benefit Analysis; 13: Enacting New Procedures for Federal Regulation

Nominee for Administrator of OIRA and “the Administrative State”

Neomi Rao, the nominee for Administrator of the Office of Information and Regulatory Affairs, comes from founding the Center for the Study of the Administrative State at George Mason University.  The home page for the Center has a good summary of the arguments put forward about the ‘Administrative State’ by proponents of its dismantling:

Problems of administrative accountability occur in all three branches of the federal government.

  • Congress often delegates open-ended authority to agencies, but manages waivers and exemptions for its favored groups.
  • Executive Agencies often seize broad authority from open-ended statutes, regulating through informal mechanisms, and imposing requirements through consent decrees and litigation threats.
  • The Judiciary has posed few barriers to this expansion, because current judicial doctrines require significant deference to agency interpretations.

Administration increasingly occurs in informal and unorthodox ways, allowing for the growth of the federal government outside the checks and balances of the Constitution. In practice, compliance with regulatory requirements imposes heavy economic, political, and social costs on individuals and businesses.

The Senate is expected to approve Ms. Rao’s nomination today.  For more background, see Steve Eder’s article in Sunday’s New York Times. UPDATE: Rao was confirmed by the Senate on 10 July 2017.

ICE should release its death reports so we can know the truth about immigration detention deaths

In a 25 May op-ed, Grace Meng (a senior U.S. researcher at Human Rights Watch) and Christina Fialho (an attorney and the co-executive director of CIVIC – Community Initiatives for Visiting Immigrants in Confinement) write that ICE is required to investigate every death in detention and produce a “detainee death report,” but it generally does not publicly release these reports. ICE provides only sparse information about deaths in detention in its news release — the person’s name, nationality, and occasionally immigration or criminal history.

Meng and Fialho report that last June, ICE took the unusual step of releasing reports covering 18 of the 21 deaths of immigrants in detention from May 2012 through June 2015. At the request of HRW and CIVIC,  independent medical experts analyzed the facts and timelines, as documented by ICE’s own investigation. They found that the patients had received appropriate care in only two cases. In 16 of the deaths, the experts found evidence of severely inadequate medical care. In seven of the cases, they concluded that the poor medical care directly contributed to the deaths of these immigrants.

Thanks to the Marshall Project for highlighting this story.

Disappearing Information/Deconstructing Accountable Government — What We Track

How do removals of information and limitations of access pertain to the Administrative State?  What is this thing (if it is, indeed, a thing), from where/whom does the concept come, and where does it lead (cui bono)?  Is it the immutable, first principles, originalist reading of the Constitution its proponents would have us believe — or is it quite mutable to suit the purposes of those it benefits?

This concept and how it relates to what is being done to our government and the career civil servants who make it work will be one of the focuses of Government Information Watch.

Continue reading