John Cooney organized and served as Program Chair of the 12th Annual Administrative Law and Regulatory Practice Institute, presented by the Section on Administrative Law and Regulatory Practice of the American Bar Association, where he is Vice Chair.
The theme of the two-day Institute, which was attended by several hundred administrative lawyers, was regulatory reform, in the broadest sense of that term. The conference featured 30 speakers who addressed potential changes in the regulatory process in the legislative, executive, and judicial branches that may occur during the remaining months of the Obama administration and that of the next president.
The Institute presented two featured speakers who offered unique perspectives on major challenges currently facing the regulatory process:
Howard Shelanski, Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, described the procedures established by the Obama administration to plan for White House consideration of the major regulations that many agencies are now drafting in an effort to complete initiatives undertaken by the administration.
Christopher DeMuth, a former head of OIRA who then served as president of the American Enterprise Institute for two decades, discussed the failure of prior efforts by Congress to control the expansion of the administrative state and factors that the legislative branch must take into account in efforts to exercise greater influence over the regulatory process and the policy choices reflected in future agency rules.
The Institute also featured multiple panels that discussed major issues facing the three branches of government in the regulatory arena. The highlights included the following:
Executive Branch. Following Howard Shelanski’s presentation, a panel of two former OIRA administrators, a former deputy administrator, and a former deputy administrator of the Environmental Protection Agency discussed (1) how the issues involving Midnight Regulations had been handled by successive administrations dating back to the Carter-Reagan transition; and (2) problems incoming administrations have faced in assessing and seeking (generally without success) to obtain changes in regulations adopted by their predecessor in the last few months of his term.
Legislative Branch. A panel of senior congressional staff members from the committees with jurisdiction in the House and the Senate discussed the principal features of the many bills pending in Congress seeking to reform the rulemaking process and identified provisions in these proposals that might command majority support.
Judicial Branch. A panel of senior law professors with decades of experience in analyzing Supreme Court administrative law decisions discussed the implications of statements in several Supreme Court opinions in June 2015 suggesting that the Court should fundamentally reconsider its approach to granting deference to agency interpretations of their authorizing statutes under the Chevron doctrine. The speakers also discussed the immutable features of the regulatory process that the Supreme Court would have to take into account in trying to construct an alternative approach to replace Chevron.