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Insiders Talk: Guide to Executive Branch Agency Rulemaking: Policy, Procedure, Participation, and Post-Promulgation Appeal

Insiders Talk: Guide to Executive Branch Agency Rulemaking: Policy, Procedure, Participation, and Post-Promulgation Appeal

by Robert L. Guyer, Chris M Micheli
Insiders Talk: Guide to Executive Branch Agency Rulemaking: Policy, Procedure, Participation, and Post-Promulgation Appeal

Insiders Talk: Guide to Executive Branch Agency Rulemaking: Policy, Procedure, Participation, and Post-Promulgation Appeal

by Robert L. Guyer, Chris M Micheli


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This is a best practices manual for advocates attempting to influence lawmaking by executive branch agencies, that is, the adoption of rules and regulations enforceable on the public. This book rests on four foundations:

  • "The execution of laws is more important than the making of them." (Thomas Jefferson) Agencies make administrative law to implement statutory. Rather than ending a process, a statute initiates a constitutional process, that is, agency adoption of administrative laws. Administrative laws, that is, rules and regulations implement legislative laws. Statutes are dead letters until the agency promulgates rules.

  • You don't have a law until the agency tells you that you have a law. And you don't know what a law means until they tell you what it means. Agencies do both via rulemaking. Agency interpretation and application of legislative law via rulemaking constitute the real law. They are last in law making process making them first in authority. And agencies adopt many rules.

  • For every one page of broad legislature-made law, agencies can make ten pages of highly detailed agency-made law. The law as applied is found in the minutiae of administrative rules through which agencies can implement or redirect legislation. In other words, 90 percent of the body of law regulating your principal(s) is written by executive branch agencies.

  • Through rulemaking what the legislature gave, an executive agency can take away, and what the legislature wouldn't give, an executive agency might. For example, using agency discretion an agency can promulgate rules that extend benefits to one group to the exclusion of another.

And, to support the administrative state, taxpayers invest billions of dollars per year to employ and equip millions of state government workers. Each state has from dozens to hundreds of regulatory agencies, departments, boards, and commissions that implement public policy and adopt

and enforce regulations using legislatively delegated authority. They are the modern administrative state.

In terms of money, staff numbers, reach, and authority the administrative state dwarfs the executive, legislative, and judicial branches combined. While the legislative, executive, and judicial branches pursuant to the federal and state constitutions are coequal, in functional reality, the disproportionate size, power, wealth, and reach of the administrative state are so substantial that, since the 1930s, the administrative state has been called "the headless fourth branch of government." The strategies, skills, and techniques provided by this manual equip practitioners to achieve for their principals the best regulatory environment possible from the administrative state.

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Product Details

ISBN-13: 9781732343139
Publisher: Engineering the Law, Inc.
Publication date: 04/01/2021
Series: Insiders Talk
Pages: 292
Product dimensions: 5.98(w) x 9.02(h) x 0.66(d)

About the Author

Robert L. Guyer is a writer and lecturer with Engineering THE LAW, Inc. in Gainesville, Florida. Previously he served as Legislative Counsel for the Ralston Purina Company; Manager of Legislative Affairs for Energizer Power Systems, and Gates Energy Products, Inc.; and as a contract lobbyist, Director of Legislative and Regulatory Affairs for the Rechargeable Battery Recycling Corporation for which he lobbied internationally. Prior to becoming a lobbyist, he served as a pollution control inspector for a regulatory agency and later managed environmental compliance for an electric utility.

He has written seven best-practices lobbying manuals, including the 6-volume Insiders Talk series and recorded the 15-video training seminar the Campaign Method for More Effective State Government Affairs. He provides live seminars publicly and privately. He holds degrees in political science, civil engineering, and law - all from the University of Florida - and is licensed to the practice of law in Florida and the District of Columbia.

Chris Micheli is a founding partner of the governmental relations and advocacy firm of Aprea & Micheli, Inc. He has substantial legislative and regulatory experience in the areas of state and local taxation, transportation, labor and employment, environmental, health care, civil liability, and insurance.

As a legislative advocate, Micheli regularly testifies before policy and fiscal committees of the California Legislature, as well as a number of administrative agencies, departments, boards, and commissions. He regularly drafts legislative and regulatory language and is considered a leading authority on state tax law developments and California's knife laws. The Wall Street Journal called him "one of the top three business tax lobbyists in the state" and the Los Angeles Times described him as an "elite lobbyist."

Over the last twenty years, he has published over eight hundred articles and editorials in professional journals, newspapers and trade magazines, whose diverse subjects range from tax incentives to transportation funding. He wrote a bi-monthly column on civil justice reform for five years for The Daily Recorder, Sacramento's daily legal newspaper, authoring over 100 columns. He has served on the editorial advisory boards for CCH's State Income Tax Alert, a nationwide publication, as well as State Income Tax Monitor, another national newsletter, and Sacramento Lawyer, a monthly legal journal.

Micheli has been an attorney of record in several key cases, having argued before the Supreme Court of California (just two years out of law school), as well as the Court of Appeal several times. He has filed more than fifteen amicus curiae briefs in California courts. Additionally, Micheli has been qualified as an expert witness on California's knife laws in superior court, and has appeared as an expert witness before the State Board of Equalization in several key tax cases.

He is a graduate of the University of California, Davis with a B.A. in Political Science - Public Service and the University of the Pacific, McGeorge School of Law with a J.D. degree. He currently serves as an Adjunct Professor of Law at McGeorge where he teaches the course Lawmaking in California. He resides in Sacramento, California with his wife, Liza, two daughters, Morgan and Francesca, and son, Vincenzo.

Table of Contents

Chapter 1: Policy: Constitutional Foundations of U.S.

Agencies and the Administrative Process13

How Administrative Agencies Use Combined Legislative, Executive, and Judicial Powers 14

The Creation of Agencies and Delegated Legislative Authority 16

Clearing the Confusion Among the Terms: Administrative State, Deep State, and Bureaucracy 19

The Modern Administrative State 20

Even If Constitutionally Suspect, the Modern Administrative State Is Secure 21

Chapter 2: The Agency Model

Executive Branch Structure 28

Executive Agency Organizational Structure 29

Agency Tools 34

Menu of Agency Rulemaking Actions 39

Give and Take Among Rulemaking Players 43

Chapter 3: Administrative Procedure(s) Act

Protection from Agency Excess 54

Administrative Procedure(s) Act (APA) 56

Agencies Must Stay Within Limits 57

Insights into the APA Process 58

Revised Model State Administrative Procedures Act (RMSAPA) 60

A Concise Summary of Rulemaking under the RMSAPA 61

"Regular" vs. "Emergency" Rulemaking 73

Agency Discretion as to Giving Notice of Rulemaking 75

Chapter 4: Setting the Stage for Executive Agency Lobbying

Step 1.Tracking Regulatory Actions 78

Preparing for the Lobbying Visit 84

Ex Parte Communications 92

Effective Meetings 94

Influencing the Agency as Sales Calls 97

Motivating Agency Staff 99

Building Effective Relationships 104

Difficulties Building Relationships with Agency vs. Legislative Staff 105

Knowing with Whom to Build Relationships 107

Your Assets in Building Rulemaking Relationships 108

Deference by the Other Two Branches 110

Chapter 5: Lobbying Internal and External Influencers on the Rulemaking Proceeding

Consensus in Rulemaking 115

Who Are the Influencers? 116

Agency Lobbyists 123

Technical Experts 124

Face to Face Meeting with Agency Staff 126

Lobbying Staff Checklist 127

Losing Approaches 134

Never Mislead, Lie, or Think You Are Just Too Clever 135

Rulemaking Negotiations 137

Chapter 6: Rule Adoption

Review of the Basic Rulemaking Process 141

Introduction to Key Rulemaking Concepts 142

Why Agencies Develop Rules 143

Overview of Agency Rule Development Process 145

Specific Steps in the Rule Development Process 146

Triggers to Motivating Agency Rulemaking 153

Petitions to Repeal or Change Regulations 155

Informal Public Workshops and Meetings 156

Rule Adoption Hearing 157

Advocates' Testimony 157

The Nature of the Presiding Authority You Will Be Addressing 158

Our Experience Working with Presiding Authorities 159

Actions for You to Take Before the Rule Adoption Hearing 161

Participation in Rule Adoption 163

Conduct at an Adoption Hearing 165

The Rulemaking Record 168

Chapter 7: Post-Rulemaking

Responding to an Unfavorable Rule 172

Weights of Evidence in a Rule Challenge 175

The Process Is the Punishment 177

Count the Cost Before You Challenge an Agency 180

That the Process Can Be the Punishment Does Not Mean the Process Will Be the Punishment 181

Chapter 8: What You Should Learn, Accept and Challenge on Agency Regulatory Enforcement and Adjudications

A. Understanding the History of Administrative Law and Agency Enforcement 185

B. The Basic Rules of Agency Enforcement and Adjudication 187

C. The Advanced Rules of Agency Enforcement and Adjudication 190

D. Judicial Review and Oversight of Agencies by the Courts 193

E. Case Study 196

F. Conclusion: The Fierce Politics of Judicial Review Since Marbury v. Madison 198

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