Daniel B. Rodriguez (Northwestern University Pritzker School of Law) has posted Fulfilling the Unfulfilled Promise of Federalism Consultation in Agency Rulemaking on SSRN. Here is the abstract:
For more than a quarter century, Executive Order 13,132 has directed federal agencies to consult with state and local governments before adopting regulatory policies with federalism implications. The order’s language is mandatory. Its implementation has been anything but. Drawing on a recent report prepared by the author for the Administrative Conference of the United States (ACUS) — which combined legal analysis, surveys, interviews, listening sessions, and a public request for information — this Article examines the gap between the formal architecture of federalism consultation and its actual practice. The record the ACUS study assembles is striking: no designated federalism officer within the Office of Information and Regulatory Affairs (OIRA) has ever monitored compliance; federalism impact statements documenting consultation are effectively absent from the rulemaking record; agency officials with intergovernmental portfolios were in some cases unaware the order applied to them; and state and local officials describe consultation, where it occurs at all, as “box-checking” that arrives too late to matter. The Article situates this compliance gap within administrative law’s broader difficulty in enforcing presidential process mandates, defends consultation against the objection that it grants states privileged access inconsistent with the egalitarian premises of notice-and-comment rulemaking, and dismantles the persistent — and mistaken — agency belief that pre-proposal outreach to state officials risks unlawful ex parte contact. It then develops an institutionalist reform agenda built on the ACUS report’s recommendations: conditioning significant regulatory action on a completed Federalism Summary Impact Statement, designating an OIRA official responsible for federalism review, front-loading consultation before the notice of proposed rulemaking, requiring internal agency audits, and encouraging agency-specific consultation policies on the model pioneered by the Environmental Protection Agency. The Article argues that the deepest lesson of the E.O. 13,132 experience is not that consultation mandates fail, but that mandates without institutional owners fail. Process obligations unaccompanied by a designated official, a documentary trigger, and a review checkpoint decay into aspiration — however bipartisan and durable the parchment on which they are written.
Highly Recommended!
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