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View Diary: HIR Round Two: The Regulatory Fight (85 comments)

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  •  Regulation Writing 101 (5+ / 0-)

    The seminal laws regarding federal regulations are a Supreme Court case called "Chevron v. Natural Resources Defense Council, Inc." and the Administrative Procedure Act.  

    In a nutshell, Congress typically "charges" a specific federal agency with "administering" particular statutes.  The Patient Protection Act (or whatever the hell its called) charges the Secretary of Health and Human Services with administering the statute.  Included within the administration of any statute is the writing of regulations that further the statute's aims (or, in legalese, "are within the scope of the statute").

    An agency charged by Congress to administer a statute is not given cart blanche to write any regulations it pleases.  Instead, an agency's regulations must meet three criteria: (1) The language in the statute must not have "precisely answered" the question that the agency's regulation seeks to address (in other words, the statute's language must be "ambiguous" on the point that the regulation seeks to address); and (2) the agency's regulation must constitute a "reasonable" interpretation of the statute.  This is called the "Chevron two-step," which is named after the famous Chevron opinion that Justice Stevens wrote in the mid-1980s.  

    So that clarifies the question of when an agency can write a regulation (the statute doesn't answer the question) and whether a particular regulation is valid (it must constitute a reasonable regulation of the statute).  

    So what about the question of how regulations are written, and who can participate in the process?  Well, the Administrative Procedure Act answers those questions too.  Typically, an agency passes regulations through what it called "formal rulemaking."  The agency must provide for a "notice and comment" period.  Basically, the agency publishes a notice in the Federal Register that it intends to promulgate a particular regulation, or it going to choose between two or more different formulations of a regulation.  Essentially anyone who is an "interested person" (broadly defined) can submit "comments" on the agency's notice.  It can argue why a particular regulation should or should not be issued, or why one particular formulation of a regulation is better than the other.  The best comments include hearty factual and legal analysis.  

    After the "notice and comment" period, the agency must publish an opinion in the Federal Register explaining its reasoning for its chosen regulation.  In addition to having to satisfy the "Chevron two-step," the agency must base its decision on "substantial evidence" and its decision must not be "arbitrary and capricious."  Moreover, there are all sorts of rules regarding "ex parte communications," which basically means that an agency generally should not engage in "behind closed doors" interactions with private parties who claim to be interested.  Everything is supposed to be open and public through the notice and comment procedure.  If an ex parte communication does take place, the agency is supposed to include the details of that communication in the rulemaking record.  If the agency fails to do so, this can open up the regulation to being voided in subsequent litigation for failure to comply with the Administrative Procedure Act.

    Does this make sense?  If anyone has questions, just drop a comment and I'll try to help out.

    •  This is a nice summary. (1+ / 0-)
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      In terms of the informal (unwritten) steps there is a bit more.  Agencies will get extensive comments from all parties and those from the insurance industry will be the most in depth.  The agency will have to put a detailed response to comments in the preamble to the final rule or risk having the rule overturned in court.  If activists want to make a difference, it is important to get comments in to balance those from the insurance industry.  Monitor for the issuance of proposed rules and opportunities to comment.

      While the regulations are "written" by civil servants, Obama and his appointees will have a profound influence on the regulations.  Presidential authority to influence regulations is well established and Obama has already used the regulatory process to achieve policy goals in a number of areas.  

      Congress is pretty much out of the game now.  The action will be at HHS and at the White House and then in the courts.

      •  Late to the game via top comments (1+ / 0-)
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        Who / what are the effective activist organizations at the policy wonk level for this stuff?

        Up until now our focus has necessarily had to be on the yelling/screaming/arm-twisting political activism end of the deal.

        Where can an engaged lefty go to educate himself / throw a few bucks in for the cause?

        When I think back on all the crap I learned in high school, it's a wonder I can think at all.

        by Dan E in Blue Hampshire on Wed Mar 31, 2010 at 07:53:11 PM PDT

        [ Parent ]

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