Passing New Regulations

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Roger severino

Former Director of the Office for Civil Rights, US Department of Health and Human Services

Prior to joining HHS, Severino served for two years as Director of the DeVos Center for Religion and Civil Society at Heritage, advocating for life, family, and religious-freedom policies. Before that, he was a trial attorney for seven years at the U.S. Department of Justice’s Civil Rights Division where he enforced the Fair Housing Act and the Civil Rights Act of 1964. Severino started his legal career at the Becket Fund for Religious Liberty, where he was Legal Counsel and Chief Operations Officer and defended the rights of people of all faiths under federal and international law. Severino holds a JD from Harvard Law School, a master’s degree in Public Policy, with highest distinction, from Carnegie Mellon University, and a bachelor’s degree in Business from the University of Southern California. He was appointed by President Trump to the Administrative Conference of the United States and is a member of the District of Columbia and the Commonwealth of Virginia bars.

Constitutional Authority

  • As a regulator you must first answer to the Constitution, to the law and to the President
    • It’s the President’s authority that you are ultimately executing
  • Our system has moved away from lawmaking where Congress issues the rules, to regulators who issue the rules
    • That is how we are governed today, often for the worse
    • It is imperative for Conservatives to learn the processes involved in regulating because that is where we could have the biggest impact

What is a Regulation?

  • A regulation is little more than a federal bureaucracy interpreting existing statutes, passed by Congress
  • Regulations have the force and effect of law
  • If there’s any gap, any ambiguity, any conflict that is visible in any federal statute, if Congress empowers an agency to issue regulations, they have the power to fill in all those gaps to resolve the ambiguities

Public Disclosure & Meetings

  • Regulatory Agenda: Every federal agency must identify major rules on the horizon and disclose them to OMB who will then share proposed rules with the American public (Spring and Fall)
  • 12866 Meeting: In addition to outside parties being able to comment on a rule, they can also request a meeting to discuss a proposed rule. This is made possible by executive order 12866

Administrative Record

    • The administrative record is the paper trail that documents the agency’s decision-making process and the basis for the agency’s decision
    • The administrative record should include every single resource used when drafting the rule. This could include: policies, guidelines, manuals, articles, books, factual information or data, communications the agency received from other agencies and the public (all comments and all 12866 meeting notes)
  • Have a process in place up front that tracks every resource you use.

Overview of the Regulatory Process

  • Regulatory agenda
  • 12866 meeting
  • Drafting the regulation
    • Generally internal but pending the topic, could include other agencies
  • Internal clearance
    • You will likely have to collaborate with several other components within your agency. 
  • Interagency review
    • It is important to have an open exchange within your agency, with other federal agencies, and with the White House to discuss how the policy will be shaped
    • Be careful of leaks and do your best to ensure the media does not become involved in those discussions
  • NPRM (Notice of Proposed Rulemaking) is issued
    • Issuance of the NPRM opens the public comment period
    • The NPRM will include:
      • The authority Congress has given the agency to draft the rule
      • The justification for the proposed rule that identifies why the rule is needed
      • The regulatory text

Comment Review

  • You must consider every single comment, which means you will need a process!
  • You will likely have identical comments submitted by advocacy groups - those can be batched and responded to at once
  • You need a mechanism to sort and categorize comments - contractors and career staff can assist with this process
  • You do NOT need to address comments that say “I am for” or “I am against” this rule

Tactics of the Left

  • The Left will strategize postcard campaigns to flood the agency with comments to make it seem like the public is opposed to the rule
  • The left will try to block every rule by going to very liberal judges in hand-picked districts
  • To ensure a judge doesn’t immediately block a rule, you CANNOT make a technical mistake in the regulatory process

Technicalities

  • When drafting a rule, regulators should:
    • Consult the Paperwork Reduction Act (does the rule impose undue paperwork burden for those living under the rule)
    • Use Plain language when drafting the regulation
    • Consult federal tribes
    • Assess the impact on small businesses
    • Assess the impact on Federalism
    • Assess the impact on families - ensure the rule is helping American families, not hurting them

Arbitrary & Capricious

  • “Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
  • The arbitrary-or-capricious test is used by judges when reviewing the factual bases for agency rulemaking
  • Courts can overturn agency rules if they find the underlying rationale or factual assertions to be unreasonable.

Final Lessons

  1. You must always anticipate what the left will do to trip you up and block your rule
    1. Their number one tactic is to say you ignored or failed to respond to legitimate arguments. Don’t leave any argument unaddressed!
  2. Go to regulations.gov and file a comment - it will be beneficial for you to see what it looks like from the commentor’s perspective and for you to familiarize yourself with the process. 
  3. Check to see if you are using any terms that are defined elsewhere in the code
    1. You can either stick with the default definition of the word or you can draft and submit your own definition