Jeff Lubbers Guest Post

ACUS: A Small Oasis of Consensus-Based Oversight

The launch of the Oversight project comes at a propitious time. Oversight and investigations dominate the news. Many Americans are learning about Inspectors General and whistleblowers for the first time. Even lawyers “in the know” are having trouble navigating the new legal questions emanating from the polarized atmosphere surrounding Congress’s investigation of the White House and the Executive Branch. Many subpoenas have been issued and few have been honored so far. Even impeachment procedures are being challenged. The courts are going to have to answer some of these questions, and this will provide lots of interesting and possibly momentous grist for this blog. Amidst seemingly hardened positions on these issues, there is still a place where an internal governmental body meets to review legal issues in a non-partisan, scholarly-but-practical, and consensus-seeking fashion: the Administrative Conference of the United States (ACUS).

The “conference” in ACUS’s name refers to the Assembly of over 100 government and private sector experts who volunteer to serve as unpaid members of ACUS to develop official (but non-binding) “recommendations” to the three branches on administrative procedure reform.[1] The Conference consists of a Chair (who is nominated by the President and confirmed by the Senate), a ten-member Council appointed by the President (one of whom is designated as the Vice-Chair), about 50 representatives of all the major agencies, and about 40 private sector members appointed by the Chair for two year terms. Other non-voting “liaison representatives” from interested organizations and “senior fellows,” who have been term-limited off the active membership, also participate in discussions. ACUS has a small staff of career attorneys and an equally small budget of about $3 million to carry out its activities.

ACUS’s full Assembly meets twice a year in plenary session, but its real work is done in its standing and special committees that review the research reports undertaken by outside consultants and staff, which are designed to address procedural problems—either regarding specific programs and agencies or government-wide ones. In these committee and plenary session debates, the members, who are chosen to represent many points of view, speak and debate issues openly and collegially. In the end, a Recommendation normally is approved when there is a strong consensus among the membership. Adopted Recommendations are published in the Federal Register, and are forwarded to the relevant agencies or to Congress or the courts for their review. Although not binding, they have the power of persuasiveness and consensus behind them and are normally well received and often implemented over time.

ACUS’s statute, the Administrative Conference Act, was enacted in 1967 following recommendations of two temporary conferences established by Presidents Eisenhower and Kennedy. After making over 300 recommendations,[2] ACUS found itself caught up in the budget wars of the mid-1990s. Despite strong bi-partisan support in the Senate, the House Appropriations Committee in 1995 eliminated ACUS’s budget, and in the conference committee, the Senate conferees acquiesced, thus leading to ACUS’s shutdown in October 1995.[3]

In 2010, Congress gave bipartisan support to re-establishing ACUS with only a minor change to its never-repealed statute. Under the leadership of its first Chair of the new era, Paul Verkuil, who served until 2015, and its current acting Chair, Matt Wiener, “ACUS 2.0” has picked up where the agency previously left off and performed numerous studies of important administrative procedure issues.

Since 2010, ACUS has issued about 60 Recommendations and two Statements about administrative rulemaking, administrative adjudication, judicial review, ADR, regulation and enforcement, and certain cross-cutting procedural laws other than the Administrative Procedure Act (APA). All are available on the ACUS website.

ACUS has devoted a lot of attention to the agency rulemaking process. The era of electronic rulemaking had not occurred when ACUS 1.0 had to shut its doors in 1995, so the revived ACUS undertook numerous studies and produced many recommendations on this topic, including:

  • 2011-1, “Legal Considerations in e-Rulemaking”
  • 2011-2, “Rulemaking Comments”;
  • 2013-5, “Social Media in Rulemaking”
  • 2018-6, “Improving Access to Regulations.gov‘s Rulemaking Dockets”
  • 2018-7, “Public Engagement in Rulemaking”

Recommendations on other aspects of rulemaking include:

  • 2012-1, “Regulatory Analysis Requirements”
  • 2012-2, “Midnight Rules”
  • 2013-4, “Administrative Record in Informal Rulemaking”
  • 2014-4, “‘Ex Parte’ Communications in Informal Rulemaking”
  • 2014-5, “Retrospective Review of Agency Rules”
  • 2014-6, “Petitions for Rulemaking”
  • 2017-2, “Negotiated Rulemaking and Other Options for Public Engagement”
  • 2017-3, “Plain Language in Regulatory Drafting.”

ACUS has also focused on the other major agency activity under the Administrative Procedure Act, adjudication. Examples of ACUS’ Recommendations in this area include:

  • 2014-7, “Best Practices for Using Video Teleconferencing for Hearings”
  • 2016-4, “Evidentiary Hearings Not Required by the Administrative Procedure Act”
  • 2016-6 “Self-Represented Parties in Administrative Proceedings”
  • 2017-1, “Adjudication Materials on Agency Websites”
  • 2018-3, “Electronic Case Management in Federal Administrative Adjudication”
  • 2018-4, “Recusal Rules for Administrative Adjudicators”
  • 2018-5, “Public Availability of Adjudication Rules”
  • 2019-2, “Agency Recruitment and Selection of Administrative Law Judges”

Other studies focus specifically on Social Security Disability and Asylum adjudication.

Because “administrative procedure” is broadly defined in the Administrative Conference Act, ACUS does not shy away from considering regulatory approaches and innovations. Examples of such Recommendations include:

  • 2011-5, “Incorporation by Reference [of Private Standards]”
  • 2011-6, “International Regulatory Cooperation”
  • 2012-7, “Agency Use of Third-Party Programs to Assess Regulatory Compliance”
  • 2013-2, “Benefit-Cost Analysis at Independent Regulatory Agencies”
  • 2017-4, “Marketable Permits”
  • 2017-7, “Regulatory Waivers and Exemptions”
  • 2018-8, “Public-Private Partnerships”

ACUS has also made recommendations about judicial review of agency action, alternative dispute resolution, the three main openness laws (Freedom of Information Act, Government in the Sunshine Act, and the Federal Advisory Committee Act), and other cross-cutting government procedural laws such as the Paperwork Reduction Act, Government Performance and Results Act, and the Inflation Adjustment Act.

ACUS will soon be holding its 72nd Plenary Session on December 12 to discuss a new batch of recommendations. The session promises to be a non-partisan and civil discussion of issues that may not have the visibility of today’s headline news, but nonetheless have an important impact on whether our everyday governance continues to as be fair, efficient, and productive as it can be.

[1] “Administrative procedure” as defined “is to be broadly construed to include any aspect of agency organization, procedure, or management which may affect the equitable consideration of public and private interests, the fairness of agency decisions, the speed of agency action, and the relationship of operating methods to later judicial review, but does not include the scope of agency responsibility as established by law or matters of substantive policy committed by law to agency discretion.” 5 U.S.C. § 592(3).

[2] A handy list of all of ACUS’s Recommendations from that era is maintained at https://fall.law.fsu.edu/admin/acus/acustoc.html. For a bibliography of all of ACUS’s published work from 1968-1995, see https://www.acus.gov/publication/acus-bibliography-1968-1995.

[3] I served through this period and can say that ACUS’ members and staff were surprised that this happened, and that the reasons were somewhat beyond our control. See Toni M. Fine, A Legislative Analysis of the Demise of the Administrative Conference of the United States, 30 Ariz. St. L.J. 19 (1998).