Capital Conversations: Hon. Paul J. Ray, OIRA Administrator

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Welcome to a special Capital Conversations edition of The Federalist Society's Practice Group Teleforum conference call, as today, October 13, 2020, we host Capital Conversations with the Honorable Paul J. Ray.

 

      I'm Dean Reuter, Vice President, Director of Practice Groups, and General Counsel at The Federalist Society. Please note that, as always, all expressions of opinion are those of the expert on today's call. Also, this call is being recorded and will be transcribed for use as a podcast on The Federalist Society's website.

 

      We're very pleased to return to our series Capital Conversations with the Honorable Paul J. Ray. He's the Administrator of the OIRA at the OMB, which he'll tell us about and describe in detail momentarily. As always, we're going to get opening remarks from our guest and, as always, we'll be looking to you, the audience, for questions when we get to that portion of our program.

 

      Just by way of brief background, Paul is a graduate of Hillsdale College and Harvard Law School, and he clerked for Justice Alito on the U.S. Supreme Court. We're very pleased to welcome him here today. Opening remarks of probably 15 or 20 minutes or so, and then we'll take audience questions. And we're going to wrap up at about the 35- or 40-minute mark, so a slightly abbreviated version of our call today.

 

      With that, Paul Ray, the floor is yours.

 

Hon. Paul J. Ray:  Well, thanks, Dean. I really appreciate that. And good afternoon, everyone. It's an honor to be with you today.

 

      So I'd like to do two things today: first, take you on a whirlwind tour of what OIRA does, and then give you an overview of the President's regulatory reform agenda. Now, either of those topics, as you might imagine, could keep us here for several hours. But don't worry; I won't. I'll keep my remarks brief and, as Dean said, leave some time for questions at the end.

 

      So I found one sure sign that a person lives in Washington is that he or she has heard of OIRA. And a sure sign that a person is either a lawyer or, I guess, a law professor is that he or she knows what OIRA stands for, which, as Dean mentioned, is the Office of Information and Regulatory Affairs. And I'd like to spend a few minutes unpacking that name, which summarizes OIRA's functions nicely.

 

      I should say at the beginning, there are other names people use for the office, usually in a moment of frustration when OIRA's staff has caught a non sequitur or a pushback on some dubious benefits. My personal favorite of these what we'll call "alternative names" is from an EPA official in a previous administration who writes that OIRA is "affectionately referred to by some as Zuul, the gatekeeper of Gozer the destroyer." I really love that quote. So I suppose those other alternative names are informative in their own way, but we'll stick with the official name today.

 

      So OIRA is best known for the "R" in the name which, as I mentioned, stands for "regulatory." OIRA is charged with reviewing and coordinating regulations across the Executive Branch. An executive agency may issue an important reg only after OIRA has signed off on it. That's under Executive Order 12866 issued by President Clinton.

 

      OIRA review really pursues two core missions. First, it ensures that regulations are rational and consistent with good regulatory practices. One of the principal tools for doing that is cost-benefit analysis, which evaluates whether a regulation is likely to do more good than harm. Weighing benefits against costs is a prerequisite for any sort of government that aims at the rational pursuit of the people's good, rather than the arbitrary imposition of the will of whoever happens to be in office. And that's why it's required in some form by the various statutes that require regulations that are not arbitrary, that are appropriate, and so on and so forth. That's the most important point from Justice Scalia's excellent opinion in Michigan v. EPA.

 

      So OIRA tries to assess all the costs of the rule and weigh them against all the benefits. We try to do that for all benefits, quantifiable and qualitative. Although, of course, we may focus on a particular set of costs and benefits if there's reason to believe those are the most germane to the agency's directive as given to it by Congress.

 

      OIRA's second major regulatory function is running the interagency review process, and here's how that works: When an agency submits a regulation to OIRA, my office sends it to all the other executive agencies and White House components that may have information or views. And, if there are disputes, we resolve them through what's known as the elevation process, which draws in higher and higher officials until a dispute is resolved. So we'll start with, say, assistant secretaries and their equivalents, and then we'll go to deputy secretaries and general counsels, and then cabinet secretaries and the most senior presidential advisors and, on occasion, the dispute will go to the President for resolution. That's rare, but it happens.

 

      And the goal is really to ensure that each regulation has the benefit of expertise and reviews from across the government and is the product of a united executive voice—basically so the executive right hand knows what its left is doing.

 

      So far, we've talked about the "R" in OIRA; now, let's talk about the "I," which stands for "information." Our information responsibilities fall into four main buckets.

 

      First, there's our role in reviewing and improving federal forms. Each and every federal form you fill out has to have passed through OIRA for approval. You can all thank me after this call for all of the pleasant hours you've spent with those forms. We evaluate the forms to make sure that they're likely to get useful information but not be unduly burdensome to the public.

 

      Second is our role in setting a statistical policy. The chief statistician of the U.S. works in OIRA. She and her colleagues curate a set of, we call them, statistical directives that keep the measures prepared by all the statistical agencies across the federal government accurate and informative. There's about a hundred statistical agencies and components across the government, and they do a lot of really important work.

 

      Third is OIRA's role in setting data policy. OIRA is charged with implementing the Information Quality Act, which sets standards for the data on which agencies base regulations and other actions.

 

      And fourth is, of course, our role in setting privacy policy for data held by the USG.

 

      I haven't mentioned one important thing that OIRA does, which is to help formulate federal regulatory policy. And, when I refer to regulatory policy, I mean the approach to the federal regulatory apparatus generally rather than any particular regulatory action.

 

      And that's a good segue to the second topic I'd like to discuss, which is a president's regulatory reform agenda. You know, if I had to sum up the President's agenda in a single phrase, it would be that he wishes to return to government as set out in Federalist 51.

 

      Some of you will remember a quote from that famous one of the Federalist Papers, which is that the government should be "a government administered by men over men." So that's a vision of government, and it's founded on a vision of what it means to be human. Part of what that means is that we're given reason, right? The ancients would have said that the possession of reason is what makes us unique among the animals. And so, where there's reason, there's the potential for self-rule. And, when I say "self-rule," I mean governance of our own actions and those of the community of which we're a part. And self-rule is really just one important form of reason's flourishing. So what all that means is that, any government that's appropriate to human beings—that would be, as Madison would put it, administered over men—ought to provide the most opportunities for self-rule that are consistent with public order and the ability of the people to put them to good use.

 

      So, if part of what it means to be human is that we're given reason, I think we all know that another part of what it means is that we don't always follow reason. Human beings aren't beasts; neither are we angels; we all learned that from Madison as well. And that's true, obviously, for people in government as much or even more as for those outside of it. And so that means that we must find some way—here's another quote from Federalist 51—to oblige the government to control itself. So we have to find some way that does not rely only on the virtue of the men and women who happen to be in government.

 

      The view of humanity and the consequent view of government that I'm describing was the view held by the founders. That's why they created a government that left most decisions, and the most important decisions, to the people themselves acting on their own or in states, towns, or diverse civic associations that Tocqueville tells us were present really everywhere throughout the early republic. And it's why even the decisions entrusted to the federal government were not left to the whim of federal officials. Those officials were subjected, as everyone on this call knows, to an array of restrictions that left as little as possible to their personal goodwill. The idea is that a federal official should discharge his or her duty without depending on that federal official being a good person.

 

      So, when the President talks about draining the swamp, he means that he wants to revive this kind of government. I'd like to spend the rest of the time today walking through three important executive orders that really embody this commitment to return power to the American people and restraint to the government. Those orders address three key ways in which agencies exercise power, which is through regulation, through guidance documents, and through enforcement and adjudication. And the EOs I'll be discussing are Executive Orders 13771, 13891, and 13924. And, yes, there will be a quiz on the numbers at the end of the call.

 

      I think everyone knows about 13771; that's the two-for-one executive order. As most of you know, the order requires agencies, every year, to have taken two deregulatory actions for each regulatory one they take. And the idea behind it is simply to pull back the long arm of Washington. With every deregulatory action, the space within which people may rule themselves grows; that's the idea there.

 

      Now, it's an ambitious order, two for one, but the agencies have exceeded it. As of our last official tally, they've taken seven and a half deregulatory actions for every regulatory action. So they've exceeded the EO's directive by 250%.

 

      Among the rescinded regulations are several of what I think are the most notorious examples of federal overreach. We've rescinded the oldest rule, which turned irrigation ditches into federal waterways—often a waterway that didn't even have water in it. We rescinded the Clean Power Plan, which transformed the electric grid into a single national asset. The Joint Employer Rule has been rescinded, so it no longer deprives thousands of Americans of the chance to start a small business. And I'm particularly glad to say that the United States government no longer requires nuns or other religious believers to violate their consciences by paying or directing others to pay for contraceptives they believe are wrong.

 

      The second order I'd like to mention is EO 13891, which is the guidance order. Many of you know that, for decades, and especially in recent years, agencies have turned to guidance documents, which are informal agency publications that don't go through statutory procedures, as a substitute for regulations. Now, the effect of a guidance document can be just as important as for a regulation, but the public has fewer ways to engage the agency when it's drafting guidance or to challenge guidance in court. In fact, members of the public may even have trouble finding guidance. We actually had an agency tell us that the agency itself couldn't find all of its guidance. And, if the agency can't, how can the public? So all of these factors make guidance, at least as it's been used in recent years, an easy way for agencies to expand their mandates outside the bounds of effective legal constraints.

 

      So the President has tackled this problem; he's the first to do so. Executive Order 13891 requires agencies to go through all their old guidance, rescind much of it, and put the rest of it online. And it requires agencies to send their most important guidance documents out for notice and comment, which would include cost-benefit analysis. If that sounds familiar, it's because that's what you have to do with a regulation. So we're closing the gap between important guidance and important regulations.

 

      The third executive order I'd like to discuss is the one from May on regulatory reform for economic recovery; that's EO 13924. It's no exaggeration to say this order is really one of the most remarkable in the history of American regulation. And the reason for that is this is the first time, as far as I'm aware, that you have a president responding to a crisis not by grabbing more power for the executive, but by sending power back to the states, local governments, tribes and, of course, the people. And that's not how things usually work in Washington, to put it mildly.

 

      The order directs agencies to rescind or modify regulations to promote economic recovery. It includes an instruction to go through all the temporary regulations that agencies issued to combat COVID to see which can be made permanent to promote growth. And the insight here is basically that, if an agency waived a regulation because it was unnecessary or even harmful to retain the regulation when responding to COVID, maybe we don't need that regulation in the first place. So we're working with agencies now on the directive from that EO. As of today, they have plans to make about a hundred of these temporary actions permanent to promote growth.

 

      What I'd really like to focus on for the rest of the time is several provisions of the order that strengthened the rule of law in enforcement and adjudication. Because, as we said earlier, men are not angels, power over another person inevitably carries with it the possibility of abuse. That's true whether the would-be guardian wears a crown or a uniform or a business suit. And the solution to that is governance under law, which protects the people's rights by constraining the guardian's power. Because the law applies to all alike, it abstracts from the temptations, errors, passions, and prejudices bound up with each particular situation.

 

      When we speak of the rule of law, we could refer to a couple of different things. We may refer to the substance of the laws, the notion that penalties are imposed only for doing what the law substantively forbids. Or we may refer to procedure; the rule of law guarantees that penalties are imposed only after fair and adequate process. In both instances, the rule of law is designed to constrain executive officials from imposing penalties whenever they want to.

 

      Executive Order 13924 strengthens the rule of law in both senses: in the administrative enforcement and adjudication context. First of all, it strengthens the rule of law by preventing the surprise imposition of liability—so to strengthen it in the first sense. That's vital because the rule of law can protect us from arbitrary executive power only if we, well, if we know what the law is. Where legal mandates are innumerable and vague, people can't avoid accidental technical violations.

 

      There's a famous book out there, which I have not read; but the title is Three Felonies a Day. It's the idea that there are so many laws, and they're so complicated that you just don't know what they are, and so you can't keep them. You know, obviously, if everyone—if what that book says is true—if everyone violates the law in some way, then the only thing standing between each of us and legal liability is the executive's will—who they decide to prosecute, they decide to enforce against, and who they decide not to. And that's exactly the situation that the rule of law is designed to avoid.

 

      So the President's order addresses that state of affairs by directing agencies to put together enforcement discretion policies that forego enforcement against people who make accidental compliance mistakes. So, basically, it directs agencies to recognize the difference between someone who really tries to comply with complex regulations and a bad actor who flouts the law. The latter must be subjected to the full rigor of enforcement, but the former, not so. They tried to comply with the law and the appropriate remedy for them might be for the agency to help them come back into compliance, rather than dropping a penalty on them. This policy is the right thing to do to promote the rule of law, and it also fosters a stable business environment to promote growth.

 

      You know, when we hear from the small business community, especially in the last year or so, a common theme is that small businesses just want certainty about the law that applies to them. That's why for more than -- the need to rescind additional regulations, but just the need for certainty. I've heard that they're afraid to invest because there's so many complex laws they can never be sure they won't accidentally break them. So the idea of EO 13924 is to address that concern and promote job growth that way.

 

      The order also strengthens the rule of law in a second sense—that's to say, focusing on the procedure used to assess liability. And it does that by promulgating what we call a regulatory bill of rights. It's a list of 10 principles and, as far as I can tell, it's the first time a president has comprehensively addressed what agency enforcement and adjudication should look like. The list includes the principle that the agency, not the citizen, must bear the burden of proof; that enforcement actions must be prompt; that all agency adjudicators must be independent of enforcement staff; that the government must provide favorable evidence in its possession to the target of enforcement; and others equally important.

 

      These principles, in various forms, long made our courts among the world's best, and now they will apply in the agency context, too. My office is working with the agencies across the government to review their existing procedures and update them as needed. We think this regulatory bill of rights also will help to promote a stable environment in which businesses, especially small businesses, can make the investment decisions they need to promote economic recovery and bring back jobs.

 

      Now, some people say that these principles will make it harder for agencies to prevent and redress misconduct, but they in no way detract from the President's commitment to enforce the law rigorously against wrongdoers. The great insight of the procedural protections afforded by the Constitution and various statutes is that enforcement may be both effective and fair, and that it's possible to safeguard citizens while respecting their rights. In fact, that's what the rule of law is all about, and it's an insight that should apply in the agency context as much as in the courts.

 

      So, Dean, that's all that I have. I am happy to take questions if there are any.

 

Dean Reuter:  Very good. We're off to a great start. I mentioned at the outset, for those of you who might have joined us late, that this is a somewhat abbreviated call. We'll probably wrap up at the 35- or 40-minute mark. So let's open the floor to questions. I have some myself, but let's get this process started. I'll get us started as I suggested, Paul, and thank you again for joining us.

 

      You talked quite a bit about executive orders—three primarily adopted by the President or signed by the President. I'm wondering if you could say -- inform our audience about how permanent executive orders can be or not, and whether or not you sense a change in culture. This is not necessarily related to those three executive orders, but the President's clearly trying to take administrative agencies in a new direction. Do you see a change in culture at the agency level?

 

Hon. Paul J. Ray:  Yeah, Dean. Thanks for that question; it's a great one.

 

      One objective that's been very important to me and to the whole White House team, when we're thinking about regulatory reform done by executive order, is permanence. Obviously, an executive order can be rescinded with the stroke of a pen, typically. So, as we've worked with the President to issue orders that reform the regulatory process, we thought a lot about, you know, are these reforms that can stick?

 

      So, in the guidance context—I'll just give you that as an example—there, the order addresses what's typically been a concern for the Right, which is the prevalence of guidance documents, but also a concern for folks on the Left, which is transparency, because a lot of guidance was not available -- easily accessible online, and because it wasn't going through sort of regular channels to get public input. And so we hoped that we explained what we were trying to do there in a way that folks with goodwill on both sides of the aisle could really say, "Oh, this is a good government reform; this makes sense to me."

 

      And I'm actually -- I'm glad to say we've seen that. One of my predecessors under President Obama, Cass Sunstein, had a very nice article about the EO saying this is something that moves the ship in the right direction. So I'm hopeful that, for our reforms in the regulatory reform space, that we've been able to make our case to people of goodwill on both sides of the aisle as to why they should be kept.

 

Dean Reuter:  We don't have any audience questions at this point. I want to pick up on one thing you mentioned, Paul, and that is with regard to 13891, the executive order on guidance. You mentioned that, I guess, at least one agency sort of complained that it couldn't locate all of its own guidance.

 

Hon. Paul J. Ray:  That's right.

 

Dean Reuter:  I've heard this before, and I just want to focus on that just a little bit and drill down just a little bit. I wonder if anybody's ever done any research on how many agencies a given business, the average business—or even the average person—must respond to, must follow, at the federal level only. Because, even if one agency can't find its own guidance, that certainly means that the regulated entity can't find it. But that same regulated entity's not just responsive to OSHA or the Department of Labor or the Department of Transportation, but any number of agencies.

 

Hon. Paul J. Ray:  Yeah. No, I think that's a great point. One project that my team here is working on is they're doing a pilot on laying out for different sectors what are the different agencies and regulatory regimes that govern that sector. We picked a sector kind of out of a hat and are experimenting with how we could basically model the different overlapping jurisdictions and then make that publicly available for people to review and come to understand the different regimes that apply to them and how they interact.

 

      Yeah, I think it is certainly the case that a number of regulated parties probably don't know how many agencies they have to answer to and may not know it until they get a cease-and-desist letter.

 

Dean Reuter:  And you also alluded to the Federalist Papers, so I'll make one allusion without quoting the Federalist Paper number. And that's a statement about, if rules and laws and regulations become so numerous, they become an impossibility to comply with, even if you're in good faith.

 

      We do now have questions from our audience, so everybody's waking up here. We've got three questions. So let's check in with our first caller of the day.

 

Wayne Abernathy:  Thank you very much, Administrator Ray. Great to have you giving your discussion here. Very important job that you have. This is Wayne Abernathy, by the way, private sector.

 

      You talked a little bit about the important rule of removing at least two regulations for each new regulation that goes into place. Another part of that that's important, related to that, that I'd like to have you talk a little bit more about is also the concept of a regulatory budget, which looks at the cost of regulations and that you shouldn't be exceeding a certain cost in terms of new regulations. Would you talk about that a little bit and OIRA's job in enforcing that?

 

Hon. Paul J. Ray:  Yeah, absolutely. And you're definitely right. EO 13771 has sort of a one-two punch approach. There's the two-for-one requirement and then the cost caps. So, each year, during the preparation of the fall agenda, there's sort of a regulatory budget process that goes on that's a little bit like the spending budget process as well, in which agencies and OIRA discuss what kind of cost savings they will achieve in the next year. And, I'm glad to say, agencies have had some pretty extraordinary savings. This last year will be our biggest by far. The SAFE rule alone, I want to say, has $150 billion of regulatory cost savings. I haven't looked at the number recently, but I think that's where they were at the end. So, yeah, really important, especially from the perspective of stimulating economic growth.

 

Wayne Abernathy:  That's very impressive. Thank you very much.

 

Hon. Paul J. Ray:  Thank you.

 

Dean Reuter:  Thank you, Wayne.

 

      We've got two questions pending. But I want to follow up on cost-benefit analysis, and that's whether or not -- I know cost-benefit analysis, I think, is typically done by the implementing agency itself, rather than a third party. Is that true? And, if so, is that a problem? And, then, is there ever any lookback cost-benefit analysis? That is, is anybody paying attention to whether or not those cost-benefit analyses were correct?

 

Hon. Paul J. Ray:  Yeah, I know. It's a great question.

 

      So the agency is supposed to prepare the cost-benefit analysis, and it's ultimately the agency's work product. We have a team of economists and analysts here who scrub into those numbers and kick the tires on them and make sure they make sense. Also, the agency has to submit its cost-benefit analysis as part of a proposed notice of rulemaking so the public can weigh in on it and critique it. So we think that, between OIRA and the public's critique, those are ways to keep the analyses honest, and we think it has that effect.

 

      One of the most important kinds of feedback I would ask for from the public is to submit comments on the cost-benefit analysis. A lot of folks will send in policy views in the comment process, but really rigorously documented, empirically based assessments of costs and benefits, there's usually not many comments that do that. And it is just incredibly helpful to receive those because what will happen, then, is the OIRA economist team will take those comments and basically use them to check the agency's work. And we can do a fair bit of that on our own, but it's just incredibly helpful to have outside parties weighing in on that.

 

      On the second part of your question, Dean, on retrospective analysis, that is one of our -- you know, if there is a second term, that's one of the priorities that we're most excited about. Even 13771 gets at that, in a way, because it asks agencies to find regulations that can be rescinded. And that obviously requires them to look back and see how particular regulations have performed.

 

      But I do think that there's work to be done to tee up the requirement that agencies go back through all their major regulations and ensure that the benefits and costs from those regulations are as expected. Obviously, sometimes they're not. So we've been working on a few different ideas on that here, actually, and hope to carry forward with that.

 

Dean Reuter:  Tremendous. Let's check in with another caller.

 

Caller 2:  All right. Thank you, Dean. And I was still muted. And, Paul, thank you for your time and this information.

 

      The interagency review is something that interests me a great deal. And every year the Government Accountability Office issues a report of fragmentation, overlap, and duplication in government programs. Is that report anything anyone in your office takes into account while doing the interagency review with a view toward, of course, streamlining the federal government to take away overlap and duplication and fragmentation?

 

Hon. Paul J. Ray:  Yeah, absolutely. Reducing overlap is one important reason for interagency review. The review process is with a view toward new regulations—so, in other words, a regulation that the agency is putting forward. And it's a good way to check to make sure there's not going to be additional overlap.

 

      But we also need a way to reduce existing overlap because, goodness knows, there's plenty of it out there, right? And that requires regulatory changes. Some of my team is working on a package of potential streamlining reforms for the next term, so that's one way to get at that.

 

      And, then, there's also the need for some statutory reform on that as well. There's definitely a—and anyone who lives and works in Washington can speak to this—there's a tendency for Congress, when it sees a problem, to just legislate a solution to it and entrust the solution to an agency. It doesn't always ask whether another agency with another regulatory regime could already be active there.

 

      And the last thing I'd say on that point is that's important; also important is to make sure that there isn't overlap with state and local regulations. So often, the appropriate regulatory regime already exists at the state and local level. There's a famous D.C. Circuit case from a few years ago, before this administration, that said that an SEC rule had just failed to analyze whether states were already taking care of a problem the SEC was going to claim to solve for it in its rule, and it actually invalidated the regulation for failure to assess state regulatory regime.

 

      I think, since that decision, agencies—at least some of them—have gotten a little better at assessing that. But, to my mind, that's one of the most important questions to ask when a regulation is going through the process is, are state and local governments already dealing with this adequately? Are they able to deal with this adequately? Should we defer to their more on-the-ground knowledge?

 

Caller 2:  Or is another federal agency already supposed to be doing it?

 

Hon. Paul J. Ray:  Yup, exactly.

 

Caller 2:  Great. Thanks very much.

 

Hon. Paul J. Ray:  Thank you.

 

Dean Reuter:  Paul, do you have time for one more answer?

 

Hon. Paul J. Ray:  Absolutely.

 

Dean Reuter:  Very good. You go right ahead, caller.

 

Caller 3:  Thanks very much.

 

      I don't want to turn too philosophical, and I know we're close to the end, so I'll try to be brief. But I'm just intrigued by the whole question of guidance as a legal product. I've been intrigued recently by the emergence of it as a term of art. And I haven't had a chance to survey judicial interpretations of things captioned as guidance but, generally, laws are supposed to be rules. It's supposed to be, you know, "You can do this; you can't do that; you must do the other." And it seems to be fraught with all kinds of peril. On the one hand, an agency can sort of take the ultimate cowardly approach of suggesting guidance and, then, if it goes awry, "Well, you know, it was just guidance."

 

      And there's a part of me that thinks maybe we should forbid the government from doing that. If you're going to make a rule, make a rule. At the same time, I've spent lots of time in Title 26, so I'm quite familiar with tax safe havens and so forth. I'm just curious, conceptually, judicially, what's the proper role of agencies in Article II versus Article I, for that matter, even Congress passing things that are denominated as guidance rather than actual rules?

 

Hon. Paul J. Ray:  Yeah, I know. Great question.

 

      And really, that's the -- trying to strike the right balance on that is what is behind Executive Order 13891 and its companion order, 13892. So one thing that those EOs did that I haven't discussed so far is they've required that at the top of each guidance document there has to be a disclaimer saying, "This is not a rule; there's no effect of law to this document. This is the agency's views of things but, you know, you don't have to -- you're not legally obligated to abide by it." They have to have that also on their guidance portals that have all their guidance documents on it.

 

      So I do think there's a role for guidance to inform the public on the way an agency is thinking about -- thinks about a legal question. In the same way that your lawyer might opine on what a provision means, the agency might opine on it also. And that's fine; I think that can be helpful for folks. I know, often, regulated entities want to know the answer to that question. Where you get into trouble is where anyone thinks they have to comply with it, or they think matters will go ill for them if they don't, either because a court will defer to the guidance document or because the agency will enforce only for violation to the guidance document, that sort of thing. So the disclaimers that we've required are designed to get at that. And, in Executive Order 13891, the President also made clear that the fact that an entity doesn't do what a guidance document says cannot ever be the basis for liability. The agency must always show a violation of a law or a duly enacted regulation.

 

Caller 3:  And if I could just briefly follow up that. When you say "cannot be the basis for liability," would that include private parties as well? Because the classic first-year-courts thing that everybody learns is that, oh, you know, violation of a law can be -- depending upon the jurisdiction, can be a conclusive evidence of negligence. But a violation of the guidance is -- you know, I'm just wondering if this has been an aperture that made people -- people in the plaintiff’s bar have used and people in the regulatory de-state have been interested in enabling.

 

Hon. Paul J. Ray:  Yeah, yeah, right. So, obviously, the executive order couldn't control the force given to federal guidance by state bodies. But I do think the fact that the President is expressly disclaiming any mandatory effect for guidance makes it harder for private parties and any other -- including in state court systems to argue that essentially a mandatory effect should be given to it.

 

Caller 3:  Great. Well, thanks very much. Fascinating area.

 

Hon. Paul J. Ray:  Thank you.

 

Dean Reuter:  Well, Administrator Ray, I'm afraid we're out of time. But I do want to give you a minute or so if you'd like to express a final thought or wrap up.

 

Hon. Paul J. Ray:  Yeah, I just wanted to thank everyone for joining the call. I understand there's another Capital Conversation happening somewhere right now with Judge Amy Coney Barrett and some Senators. So, obviously, everyone's very interested to see that. So thank you all for taking time away to join us. It's wonderful to be with you today.

 

Dean Reuter:  And my thanks to you, Paul, for joining us. We certainly appreciate your time and your thoughtfulness and your leadership at OIRA.

 

      I also want to thank the audience for dialing in today and for your thoughtful questions. A reminder to our audience to check The Federalist Society's website and monitor your emails for announcements of upcoming calls. But, until that next teleforum conference call, we are adjourned.

 

      Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.