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Obama's Vow to Use Executive Authority Could Trickle Down to OSHA, Other Agencies

Wednesday, February 5, 2014
By Stephen Lee

Feb. 3 --President Barack Obama's vow in his Jan. 28 State of the Union address to use executive authority to advance his agenda, with or without congressional approval, has some business representatives worried about a flow of heavy-handed regulations streaming out of federal agencies.

“America does not stand still, and neither will I,” Obama said. “So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do.”

Later in his speech, Obama announced that he would issue an executive order to raise the minimum wage for federal contractors to $10.10 per hour.

Potential Spillover Effects
That approach to governance could have spillover effects on federal agencies, which may feel more emboldened to move their own agendas through mechanisms such as letters of interpretation and guidance documents to bypass the lengthy rulemaking process, Norm Ornstein, resident scholar at the American Enterprise Institute, told Bloomberg BNA Jan. 30.

Indeed, some business leaders have alleged that the Labor Department's Occupational Safety and Health Administration under Obama already has been regulating by fiat, broadly expanding its authority to rule on issues such as permissible exposure limits, fines for violations, employee walkaround rights on safety inspections, noise controls and employer safety incentive programs.

“They've been trying to use the guidance process--which is far more streamlined and less complicated than rulemaking--to do things that should be done through rulemakings, things that create new policy and new obligations,” said Marc Freedman, executive director of labor law policy with the U.S. Chamber of Commerce.

In particular, the chamber has expressed concern that OSHA might wield the general duty clause of the Occupational Safety and Health Act as a cudgel to expand its enforcement power on a broad set of workplace hazards, such as workplace violence.

OSHA Rejects Allegations
OSHA, however, has firmly rejected claims that it overreaches, saying it merely seeks to uphold its legislative mandate to protect workers and consistently follows a clear, transparent process for issuing rules.

OSHA Administrator David Michaels has said, for example, that the agency's October 2013 framework to help employers transition to safer chemicals and the agency's list of more stringent exposure levels developed outside of OSHA are recommendations only, and don't signal an attempt to regulate.

Guidance and reinterpretations have triggered too much opposition for OSHA to attempt any significant expansion of its authority, especially in light of its failed 2011 proposed reinterpretation of its noise control standards, according to Aaron Trippler, director of government affairs with the American Industrial Hygiene Association.

OSHA withdrew the proposed reinterpretation shortly after announcing it.

“There is way too much politics in occupational health and safety issues for the agency to use these processes in any other way,” Trippler told Bloomberg BNA Feb. 3.

Agencies Restrained
Moreover, agencies' ability to regulate without following the Administrative Procedure Act is highly restrained, Ornstein said.

“It's not like OSHA could turn around and say, 'You know what, we're going to change safety rules creating a whole new set of categories,' ” Ornstein said. “The safety rules that OSHA has implemented all come within boundaries set by the OSH Act, and related laws. You can't do this stuff on your own.”

“There's some significant leeway in terms of implementing the directives, and in some cases the laws are vague,” he said. “But what we also have to keep in mind is that, in a larger sense, if you get an agency or the president taking an action that pushes the envelope or goes way beyond what is allowed in the laws, Congress has its own remedies.”

Ornstein further said Obama's hand has been forced by an intransigent Republican party in Congress.

“I think he would prefer, and still would, to do this through Congress, as any president would, because laws have more reach, more bite, more endurance and more legitimacy than executive actions,” he said. “But if you can't get laws, then you have two choices: You wring your hands or you do whatever you can.”

Paul Verkuil, chairman of the Administrative Conference of the United States, told Bloomberg BNA in December 2013 that he understood why agencies would try to “find a way around” the cumbersome notice-and-comment process.

Republicans Critical of Plan
Following Obama's speech, several Republican lawmakers blasted his plans to use more executive authority.

“For years, President Obama has chosen to withdraw from policy debates and ignore our Constitutional balance of power,” House Majority Leader Eric Cantor (R-Va.) said in a statement. “Identifying that you cannot work with a Republican House or a Democratic Senate should not be a point of pride or a governing philosophy. Let's put away the pen and pick up the phone and work together to find common ground.”

Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, in a statement said the Regulations from the Executive in Need of Scrutiny (REINS) Act (H.R. 367, S. 15), which would subject all significant regulations to an up-or-down vote in Congress before they can take effect, is a powerful measure to check a runaway executive.

McConnell Queries Justice Department
On Jan. 31, Senate Minority Leader Mitch McConnell (R-Ky.) sent a letter to Attorney General Eric Holder saying he was “gravely concerned that the system of checks and balances enshrined in the Constitution is threatened by the President's determination to take unilateral action.” He requested a response by Feb. 14.

“Policy decisions should not be created in a vacuum,” Molly Fuhs, a spokeswoman for the American Legislative Exchange Council, told Bloomberg BNA Jan. 31. “Mandates--and in the president's case, broad executive authority--prevents the creation of thoughtful and sound policy.”

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Jim Stimson at jstimson@bna.com

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