This summer, Ronald Levin, JD, the William R. Orthwein Distinguished Professor of Law at Washington University in St. Louis, testified before the House of Representatives’ Subcommittee on Courts, Commercial and Administrative Law regarding the “retrospective review” process for federal agency rules.
The hearing explored whether Congress should draft legislation requiring federal agencies to adopt formal retrospective review practices to make sure that agency rules are kept relevant, up-to-date and not overly burdensome.
In January 2011, President Barack Obama published Executive Order 13563 asking executive agencies (such as the Environmental Protection Agency and the Department of Transportation) to use such “look-back programs” to identify rules that had become “outmoded, ineffective, insufficient, or excessively burdensome.”
The agencies then would recommend whether to “modify, streamline, expand, or repeal” the rules.
Six months later, the administration issued Executive Order 13579 asking “independent agencies” (such as the Securities and Exchange Commission and the Federal Communications Commission) to do the same.
Agencies have heeded the president’s call to some extent, but the questions remain: Have these presidential programs resulted in adequate retrospective reviews? Or should Congress take legislative action to prescribe the scope and nature of such programs?
Levin addressed the possibility of legislative action in his testimony. He is a former chair and longtime member of the American Bar Association (ABA)’s Section of Administrative Law and Regulatory Practice and a public member of the Administrative Conference of the United States (ACUS).
His statement drew upon ABA and ACUS recommendations on retrospective review, although he was testifying only in an individual capacity.
With the caveat that “a flawed legislative scheme is harder to repair than a flawed executive program,” Levin outlined four themes he believes the subcommittee should take into account as it considers possible legislation on retrospective review:
- Selectivity. Agencies must be able to prioritize their review activities so that they aren’t burdened with unrealistic deadlines or unproductive inquiries, Levin said. However, agencies should not prioritize in a vacuum — instead, they should seek guidance from the White House, the Office of Information and Regulatory Affairs, congressional committees, and the public.
- Affordability. Look-back programs must be in line with the budgetary resources that Congress establishes for them. Levin drew attention to the 2011 Budget Control Act’s provisions for “significant reductions in discretionary spending.” He noted, “This trend does not bode well for the prospect of ambitious new ventures, other than at a significant cost to current operations. I would consider that cost a very high price to pay.”
- Flexibility. Retrospective reviews should take into account the fact that both executive and independent agencies vary widely in terms of “structure and responsibilities,” Levin said. “A one-size-fits-all approach would be too rigid,” he said.
- Evenhandedness. Reviewers must consider policies that, viewed with hindsight, are either “too broad or too narrow, too restrictive or too lenient,” he said.
“The agency should be open to uncovering problems that cut in either direction,” Levin said, so that existing regulations can be strengthened when necessary.
“An evenhanded approach would, of course, provide the most credible path to attracting broad-based public support for retrospective review legislation,” Levin said.
For video coverage of the full hearing, click here. Levin’s testimony begins at the 28-minute mark. His written testimony is available by clicking on his name on the website.