By Gwyneth K. Shaw
In 2012, President Barack Obama issued an executive order aimed at inducing U.S. government agencies to work with their international peers to promote international regulatory cooperation and harmonize standards to eliminate transnational regulatory barriers. The Administrative Conference of the United States (ACUS), an independent federal agency tasked with finding ways to better protect and serve the public’s interests, had been studying the goal for years and the order built on some of its recommendations.
But since then, there has been little analysis of the order’s actual impact. So ACUS asked three academics — UC Berkeley Law Professor Elena Chachko, Georgetown University Law Professor Kathleen Claussen, and Professor David Zaring of the University of Pennsylvania’s Wharton School of Business — to study how executive agencies responded to Obama’s order.
The trio’s extensive research, which included many interviews with government and outside officials, virtual roundtables with federal employees, and a one-day public forum in Washington, D.C., was recently published as an ACUS report, “International Regulatory Cooperation in Agency Practice: Assessment and Best Practices.”
Chachko studies and teaches Administrative Law and institutions, drawing on experience in diplomacy and intelligence analysis to also explore foreign relations law and the intersection of law, national security, and bureaucracy.
Below, she outlines the report’s findings and why they matter in an era when executive orders are more common than ever.
How did you get involved in this project?
I’ve worked on this with two very good friends, Kathleen Claussen at Georgetown and David Zaring at Wharton. And all of us were doing things that covered aspects of the problem of how the administrative state engages with the international environment. Kathleen was analyzing the trade domain and I started looking at the doctrinal landscape that shapes what agencies are allowed to do in terms of incorporating international considerations in their day-to-day work. David was looking at financial and banking regulation. And then we teamed up with ACUS, which showed interest in thinking about this through the prism of how this particular executive order — Executive Order 13,609, on international regulatory cooperation, which was issued in 2012 by President Obama — influenced international regulatory cooperation within the administrative state. That is how we got going.
Why is ACUS interested in this?
The development of the ideas that ultimately led to the issuance of the executive order in 2012 came, in part, from a set of earlier recommendations that ACUS issued about how to improve agency engagement with international standards, international regulations, and international partners. So ACUS has been on this for a while, and I think they thought about this project as a follow-up to see where previous work on international regulatory cooperation the administrative state stood 10 years after the issuance of Executive Order 13,609.
What are some of the highlights of what you and your colleagues discovered?
The way I approached it was, this is an executive order, and something of a signature initiative of the Obama administration — prioritizing international engagement, a return to the international stage, and a better role for the United States in leading various processes at the international level. Within the White House, it was supported by pretty powerful actors. At the time, [Harvard Law Professor] Cass Sunstein was the administrator of White House Office of Information and Regulatory Affairs, or OIRA, and there were other very strong proponents of this initiative both inside and outside the administration. During our research, we also talked with representatives from the U.S. Chamber of Commerce who were extremely supportive of this initiative, and so that is how the executive order came to be.
I am a student of presidential control of the administrative state, and I thought this order surely shifted things in a palpable and significant way within the administration. Surely it changed how regulators approached international cooperation, alignment with international standards, and their day-to-day work. And what we ended up finding — after about a year of interviews with government officials, OIRA officials, academics, and private sector representatives — was that the picture was much more nuanced than that. Any added value the executive order had was largely on the procedural side of things, rather than making agencies pay more attention to international regulatory cooperation in their work if they hadn’t been doing that already regardless of the executive order. That was surprising to me.
In doing this research and talking to all of those individuals, we also held a public forum discussion in Washington, D.C., where we brought together various experts from the categories that I mentioned to talk about specific aspects of the problem. Judge Timothy Reif from the Court of International Trade and formerly U.S. Trade Representative, shared his insights as well. It was very interesting to see how things that we as academics think about a certain way are perceived in a completely different way from the trenches, as it were, from within the administrative state.
Do you think that moving forward, this executive order will have more impact?
Our research revealed that the executive order had a very modest impact on the practices of agencies. We found that, basically, the executive order was pretty endogenous to other factors that shape international regulatory cooperation. Agencies that were deeply integrated in the international environment because of the subject matter that they were tasked with, and because of their statutory mandates, kept doing those things. Agencies that didn’t were not particularly swayed by the executive order. Some of them didn’t know about the executive order; some of them said, “Oh, we know there’s an executive order. And when we write up the rule, when we publish it, we tick the box somewhere. But other than that, we didn’t really do anything to change our process.”
The implementation of the executive order has ebbed and flowed throughout its lifespan. There were times in which the White House, and OIRA specifically, were deeply engaged and backed this process with various high-level diplomatic exchanges with some countries and the EU. They gave it more visibility and a greater priority, and during those times, you saw some incremental impact for the executive order.
But when White House participation and support diminished, and the White House looked into other priorities, then you saw the impact of the executive order fade. And now, it’s hard to say what’s going on. I think administrators and regulators have different priorities and different concerns at the moment, given the barrage of White House policies and action that affect agencies.
But the executive order is still on the books. It enjoyed bipartisan support, as well as the support of the private sector that was very excited about the prospect of having to deal with fewer divergent regulatory standards across markets. That’s important to them. It makes business sense, and those are structural factors that make this a more stable executive order than many of the other executive orders that the Trump administration has revoked since it came into office, including President Biden’s flagship initiative on modernizing regulatory review.
The administration revoked all those things, but that didn’t happen to the executive order on international regulatory cooperation. That is a good sign that maybe one day, when the White House prioritizes this issue again, our recommendations could have an impact because in terms of the bureaucracy of it and the processes that were put in place to make sure the order is implemented, we identified serious gaps there.
And we think there’s a lot more to do to make agency work related to international regulatory cooperation more effective, more efficient, and more beneficial to the mission of those agencies that are engaged in international work or that incorporate international standards into their domestic work.
What are some of the reasons international regulatory cooperation is valued?
This is an era of interconnectedness, and increasingly so — no one is an island. All industries are impacted by the international environment, be it by international standards, or competing standards, or divergent standards in other jurisdictions. Many U.S. companies operate in foreign markets. And it creates serious challenges for those actors when there are completely different regulatory schemes and when the U.S. preference is not necessarily reflected in the regulatory schemes of other jurisdictions.
I think at least trying to cooperate around those issues with foreign counterparts has advantages, even if harmonization is not viable for various reasons. At least we have this dialogue so that we talk to the other regulators and we understand their viewpoint and we understand the barriers that make harmonization more difficult.
The process itself is generative and important in an era of globalization and interconnectedness. Some on the left have expressed concerns about this executive order, the idea that there will be a race to the bottom, that everybody will adopt the least protective form of regulation that most benefits businesses. But even if that’s a concern, you have to have the processes and dialogue and at least bring those issues to the surface. And I think that is primarily what the executive order does. It invites thinking, it invites engagement, it invites dialogue, it invites consideration. It does not dictate what kind of standard an agency is ultimately supposed to adopt. So that’s its importance: You need something at the White House level to tell the administrative state how it’s supposed to be thinking about international regulatory cooperation because it is a trans-substantive issue of regulatory method.
It’s tremendously valuable for us academics to interact and engage with those who are doing the work in the federal government. As I said, I started with these expectations and preconceived notions about what it was going to look like, and just from those conversations, I learned so much in a way that will inform my work moving forward, and it gave me context. It’s invaluable for researchers to have that kind of dialogue and to work with organizations like ACUS to facilitate these conversations and provide the infrastructure and the connections to be able to do this work.