Masquerading as regulatory reform, a new proposal now circulating in Sacramento would create an unelected administrative dictatorship with unchecked powers over every California regulatory agency.
Here is some context for this proposal. There is a little-known administrative agency in California called the Office of Administrative Law (OAL). The head of the OAL is appointed by the Governor subject to confirmation by the California Senate. Its website describes its mission this way:
The Office of Administrative Law (OAL) ensures that agency regulations are clear, necessary, legally valid, and available to the public. OAL is responsible for reviewing administrative regulations proposed by over 200 state agencies for compliance with the standards set forth in California's Administrative Procedure Act (APA), for transmitting these regulations to the Secretary of State and for publishing regulations in the California Code of Regulations.
The legislation that created the OAL is very clear that the OAL must not second-guess the wisdom of the regulatory agencies whose work it reviews. California Government Code Section 11340.1 states that: "It is the intent of the Legislature that neither the Office of Administrative Law nor the court should substitute its judgment for that of the rulemaking agency as expressed in the substantive content of adopted regulations."
But the proposal I'm writing about would enshrine second-guessing and add potentially years of delay to all new California regulations -- which is obviously its aim. The proposal would amend California Government Code Section 11346.3 to insulate the changes it makes from judicial review. That's a danger sign, just by itself.
Tellingly, the proposal would eliminate the Government Code language that now states: "It is not the intent of this section to impose additional criteria on agencies, above that which exists in current law . . ." So what are the "additional criteria" that would be required?
Here's the meat of the proposal. It would require all state agencies, when the agency adopts, amends or repeals a regulation, to perform an economic analysis as provided in the provision. That sounds innocuous -- until you look at what that analysis must contain. Here are two of the new sections. First the analysis must examine "the extent to which the regulation will achieve the regulatory or statutory objective intended." Second, it must examine "whether there is a less burdensome regulatory alternative that will effectively achieve the same benefits." That is second-guessing, pure and simple.
What’s more, the the proposal gives OAL the authority to reject an analysis that it thinks does not "adequately" comply with the new economic analysis requirement. It the hands of a hostile Administration, regulations could be delayed for years under that language, shifting power from the legislature to the executive branch and giving the executive sole, unreviewable discretion over all state regulations.
That's not democracy. That is rule by an elite, in secret and with no public review. Today, California's regulations are enacted after a long public process that is open to the public and reviewable in court. Making that process end in a secret proceeding isn't reform -- it's destruction.