Partner J. Michael Showalter was quoted on President Trump’s executive order that asserted some agencies’ enforcement actions and adjudications could undermine the Administrative Procedure Act’s accountability and fairness goals, as well a follow-up Office of Management and Budget (OMB) Federal Register notice seeking public feedback on “improving” or “reforming” regulatory enforcement and adjudication.
Mike said that the problems are real and that concerns about transparency and fairness have guided not just the Trump Administration but conservative, business-oriented thinking for some time.
Mike cited a “classic example” of a complaint and situations in which the Department of Justice would for the first time adopt a “convenient litigation position” in a brief to win a case, an action that “strikes people as being profoundly unfair.”
Mike also cited a 2019 case, Kisor v. Wilkie, which included the Supreme Court’s ruling that an agency’s regulatory interpretation “must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc statement not reflecting the agency’s views.”
He noted that the OMB’s notice divides into two distinct sections. The first sets forth the problem motivating the OMB, describing “big picture” complaints that have long provoked critics. The second lists questions relating to the 11 specific topics of interest and appears to be an effort to “frame out an agenda for the future.”
Mike said that it is difficult to say whether the OMB is engaging in “something profound in terms of agency reform” or merely creating “political talking points.” He added that the OMB seems to be “spit balling,” floating questions one might hear in law school to get respondents to “put their ideas out there,” perhaps to support the OMB in developing big picture problem frameworks.
Mike noted that the OMB’s notice is inherently not a reform proposal, but rather an attempt to understand the scope of problems people have with enforcement and adjudication procedures.
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