By Tom Milligan
Today I’m reviewing the first official directive signed by Reince Priebus, Assistant to the President and Chief of Staff which, as the title indicates, is a memo to various department heads.
To be honest, I debated the value of writing a review of Orders, Actions, or Memorandums not signed by the President, but ultimately decided that anything and everything our President – or his staff – puts out will affect us in some way and is therefore worthy of review and study.
Let me start this out by sharing that I’m a business person. So when I read an Order or Memorandum, I don’t read it from the viewpoint of a politician, government official, or attorney.
I read it from the viewpoint of a business person who’s often tasked to implement new Orders, Actions, or Memorandums – sometimes on short notice.
In business, every time I see a new order, a series of questions forms in my mind:
What’s the best way to implement the Order with the least disruption?
Does this Order apply globally?
What questions does the Order answer?
What new questions does the Order raise?
Is it even possible to comply with the Order as written?
Is this an order or a suggestion?
With that in mind, let’s dive right in…
The subject line of Reince’s Memorandum reads: “Regulatory Freeze Pending Review.” (emphasis added)
Now, if I’m at work, and I get a memo from my boss with a subject line ending with, “Pending Review,” I’m going to ignore the entire memo because “pending review” is just a shorter way of saying, “heads up gang: here’s something we’re thinking about doing at some point in the future but we’re not quite sure.”
Now the fact that Reince goes on to give some pretty detailed instructions probably means he really didn’t mean for the entire US government to ignore his memo.
In fact, with just a few glaring exceptions, the rest of the Memorandum is surprisingly clear, concise and logical.
The introductory paragraph clearly states the purpose and objective of the Memorandum:
…to ensure that the President’s appointees or designees have the opportunity to review any new or pending regulations…
From the outset, after 8 years of added agencies, bureaus, rules, regulations, fees, Directors, and red tape, I cheer President Trump for halting any new regulations until his team has had a chance to review and approve them.
I like to think I’d do the same thing if our situations were reversed.
The first instruction Reince gives reads:
Send no regulation to the Office of the Federal Register (the “OFR”) until a department or agency head appointed or designated by the President…reviews and approves the regulation.
(you knew it couldn’t be that easy right?)
Before offering such a clear directive, he provides a series of loopholes big enough to drive a bus through:
Subject to any exceptions…for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise…
Health, safety, financial or national security matters?
What else is there?
But just in case, Reince adds, “or otherwise” to make sure everything is a possible exception.
The next instruction starts out just as strongly as the first and applies to regulations still working their way through the labyrinth:
With respect to regulations that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval…
subject to the exceptions described in paragraph 1.
The third instruction applies to those rules that have previously been approved and recorded, but haven’t taken effect:
…as permitted by applicable law, temporarily postpone their effective date for 60 days from the date of this memorandum…
You know what’s coming next right?
subject to the exceptions described in paragraph 1
Damn it Reince!
He goes on to instruct the department heads, when the law allows, to postpone the effective date beyond the 60-day period.
Paragraph 4 excludes any regulations “subject to statutory or judicial deadlines” and instructs the reader to report those to the OMB for review while Paragraph 5 instructs them to report any additional regulations that should be excluded from the previous directives “because those regulations affect critical health, safety, financial, or national security matters, or for some other reason.”
“Some other reason?!”
Could you be more vague?
Obama’s Administration was rule happy. Period.
Anyone that is willing to take a hard look at the purpose for those regulations is doing the right thing.
I really like the overall spirit and intent of this Memorandum and encourage Trump to stick with actions like this one.
Let’s face it, I’ll probably never be asked to write a Presidential Memorandum.
But if I were, I’d try to lose quite a bit of the ambiguity.