Notice & Comment

Introduction: Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect

Over the next week or so, we will be hosting an online symposium on the 2016 Report to the President-Elect on Improving the Administrative Process, which was released by the ABA Section on Administrative Law and Regulatory Practice ahead of this year’s presidential election.  The symposium will feature posts from a wide diversity of administrative law scholars and experts examining the issues raised and recommendations made in the report.  Some of the participants served on the Ad Hoc Committee on Administrative Law Transition, which drafted the report, while other symposium participants will bring an outside perspective on the report and its recommendations.  It promises to be a rich discussion!

I’m pleased to kick things off with a short discussion of the process used to compose the current report and the success of the ABA AdLaw Section’s previous administrative law transition reports.  As I explained earlier this month, I had the pleasure of serving as one of the co-leads (with Paul R. Noe) of the committee that drafted the 2016 report.  So perhaps I am well-positioned to speak on these matters.

The 2016 report continues a long tradition: the Section has prepared a Report to the President-Elect on administrative law issues ahead of each presidential transition, including in 2000 and 2008.  Consistent with the Section’s custom, work on the 2016 report began well over a year ahead of the 2016 election, under the leadership of then-Chair Jeffrey A. Rosen.  After Paul and I accepted Jeff’s invitation to lead the project, we reached out to members of the Section to assemble the ad hoc committee.  We sought to assemble a group that was diverse along multiple dimensions.  To ensure a bipartisan group, we invited the participation of people with a range of political views.  We reached out to experts with experience in various sectors, including academia, private practice, and government service.  We strove to assemble a group with administrative expertise both broad and deep.  Our efforts were, I believe, very successful.

The process used to prepare the 2016 report was designed to ensure that the final product contains only nonpartisan, consensus-based recommendations addressing the most pressing needs of administration.  We began by creating an outline of issues and possible recommendations suggested by members of the Section Council, the ad hoc committee, and other experts.  Members of the committee offered to write sections of the report according to their interests and expertise, and Paul and I assembled these sections into a cohesive draft.  Over the course of many months and through several meetings of the committee and of the Section Council, the report was reworked.  Recommendations that generated any disagreement were removed, and the remaining recommendations were refined and improved, including with the addition of references to external materials (including prior Section work) that might be helpful to a new administration.

Again in keeping with the Section’s custom, the 2016 report was prepared and finalized well in advance of the presidential election.  This helped to ensure its nonpartisan character.  This year, the Section Council approved the report in principle on August 6, 2016, and finally approved the report on September 9, 2016.  The final product was shared with both transition teams prior to the November 8 election.

Perhaps because of the Section’s commitment to offering only nonpartisan suggestions addressing pressing issues, its previous reports have experienced a high rate of success.  The 2008 report illustrates.  Many of its recommendations were adopted, in whole or in part, by the Obama Administration.  To take just a couple of examples, the 2008 report urged the new administration to:

  • Improve the rulemaking process via the aggressive advancement of the use of information and communications technologies.  The Obama Administration’s significant efforts in this regard built upon the excellent work that the Bush Administration had already done in creating the Federal Docket Management System and its web portal,
  • Promote the revival of the Administrative Conference of the United States (ACUS).  Here again, the Obama Administration pursued the recommendation by building upon work that had been started by the Bush Administration.  Indeed, ACUS was first reauthorized in 2004.  In 2009, under the Obama Administration, funding was secured.  And in 2010, a new Chairman (Paul R. Verkuil) was appointed and confirmed by the Senate and the agency resumed operations.

The 2016 report offers a wide variety of similarly nonpartisan recommendations.  It is our hope that the Trump Administration will find the report helpful as it assumes the important and complex task of managing the administrative state.

The upcoming symposium will surely provide a wide-ranging and engaging discussion of the 2016 report and its recommendations.  I look forward to the discussion!

This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.

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