Centralized Oversight of the Regulatory State (original) (raw)

Regulatory Review, Capture, and Agency Inaction

This Article highlights the role of capture in providing a normative foundation for regulatory review of administrative action, which at the federal level is conducted by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB). It also establishes a reform agenda to help bring the practice of review in line with its anti-capture justification. There are two traditional justifications for OIRA review: that centralized review facilitates the exercise of presidential authority over agencies; and that bureaucratic tendencies toward overzealousness require a centralized checking response. Both of these justifications are problematic, however. The normative desirability of maximizing presidential power is subject to debate, and OIRA’s contribution to increasing presidential control is minimal. Bureaucratic incentives can lead to both over- and underregulation, raising doubts about the need for a systematic check focused solely o...

Reforming 'Regulatory Reform': A Progressive Framework for Agency Rulemaking in the Public Interest

SSRN Electronic Journal, 2018

For over three decades, "regulatory reform" has been an aspiration chiefly for opponents of regulation. "Better regulation" is a goal nearly everyone would embrace. But changes in the federal administrative process since the 1980s have frequently had the foreseeable, and often intended, effect of hindering efforts to protect the environment, public health, civil rights, and other well-established public interest goals. The purpose of this Issue Brief is to envision what regulatory reform could look like from a different direction. Our specific focus is on administrative rulemaking, the primary target of contemporary law reform efforts. We ask, what if reformers started with full recognition of the value of administrative regulation in the public interest? Progressives have always argued for strengthening the law's substantive requirements in advancing the public good, such as stronger rules against pollution or more robust protections for worker safety. But beyond any specific substantive agenda, it is worth asking whether there are potential changes in agency process and in the oversight of agencies that would improve the administrative state. Are there changes that could make regulation more evidence-based, more transparent, more inclusive, more accountable, and more efficient? If so, then progressives should take up the cause of regulatory reform as our own. Our immediate aim is not to propose a specific text for the ideal progressive regulatory reform platform, but rather to set out a framework and illustrative suggestions to demonstrate that such a platform is plausible and significant. In Part I, we discuss ways of improving notice-and-comment rulemaking. In Part II, we cover the role of the White House Office of Information and Regulatory Affairs (OIRA). We seek to improve OIRA's processes and reset its mission to better align with congressional mandates. We then analyze, in Part III, the rules governing judicial review of agency actions, with the aim of clarifying the law and making judicial review more effective and efficient. Finally, in Part IV, we advocate the repeal of the Congressional Review Act, to eliminate this avenue for special interests to ambush important regulations in Congress. By focusing on rulemaking, we do not mean to slight the importance of other administrative activities such as issuing permits, distributing benefits, overseeing state regulatory programs, or enforcing legal requirements and issuing sanctions. But the biggest controversies over administrative law have involved rulemaking, which involves the most important and visible policy decisions. For that reason, we view this topic as the appropriate starting point for an agenda of progressive regulatory reform.

How Should Standards Be Set and Met?: On the Allocation of Regulatory Power in a Federal System

The B.E. Journal of Economic Analysis & Policy, 2010

Regulation often takes the form of a standard that can be met through the implementation of any of a number of different policies. This paper examines how the authority to set the standard and the authority to choose the combination of policies to meet the standard should be allocated between a central government and local governments. In the context of the United States, for example, should standards regarding such public goods as the environment or education be set and implemented by the federal government, by individual state governments, or by both? Because decisions about setting and/or meeting the standard can be non-contractible, an incomplete contracting approach is used. A central finding is that "conjoint federalism" (the central government sets the standard while the local governments meet the standard), which is the regulatory structure often used in federations such as the United States and the European Union, can be the least efficient form, while a reverse form of delegation, in which local governments choose their own individual standards which the central government then decides how to collectively meet, can be the most efficient.

How Should Standards Be Set and Met?: On the Allocation of Regulatory Power in a Federal System C.-Y. Cynthia Lin1

Regulation often takes the form of a standard that can be met through the implementation of any of a number of different policies. This paper examines how the authority to set the standard and the authority to choose the combi- nation of policies to meet the standard should be allocated between a central government and local governments. In the context of the United States, for example, should standards regarding such public goods as the environment or education be set and implemented by the federal government, by individual state governments, or by both? Because decisions about setting and/or meet- ing the standard can be non-contractible, an incomplete contracting approach is used. A central finding is that "conjoint federalism" (the central govern- ment sets the standard while the local governments meet the standard), which is the regulatory structure often used in federations such as the United States and the European Union, can be the least effi cient form, while ar e...

The Evolving Role of the U.S. Office of Management and Budget in Regulatory Policy

SSRN Electronic Journal, 2007

In order to promote public understanding of the impact of regulations on consumers, business, and government, the American Enterprise Institute and the Brookings Institution established the AEI-Brookings Joint Center for Regulatory Studies. The Joint Center's primary purpose is to hold lawmakers and regulators more accountable by providing thoughtful, objective analysis of relevant laws and regulations. Over the past three decades, AEI and Brookings have generated an impressive body of research on regulation. The Joint Center builds on this solid foundation, evaluating the economic impact of laws and regulations and offering constructive suggestions for reforms to enhance productivity and welfare. The views expressed in Joint Center publications are those of the authors and do not necessarily reflect the views of the Joint Center.

Reinventing the Regulatory State

The University of Chicago Law Review, 1995

Reinventing the Regulatory State 2. Some people complained that the process of regulatory oversight was too secretive. In their view, the lack of public visibility disguised a new system in which well-organized private groups-particularly regulated industries-were allowed to dictate national policy.' 4 Especially during the period of Vice President Quayle's Council on Competitiveness, some feared that regulatory policy was being made by a "shadow government" operating at the behest of private factions and accountable, in practice, to no one with an adequate claim to public legitimacy. 15 3. Some people complained that the reviewing process dwarfed OMB's limited resources and resulted in excessive delay. The few officials at OIRA lacked the time and capacities to engage in truly expert assessment of regulation and its complex costs and benefits. Because OMB was unable effectively to assess the wide range of regulations submitted to it, its principal function was to slow things down. The result was to deprive the public of desirable or necessary regulations and, on occasion, to violate the law. 6 4. Some people complained about the substantive principles reflected in the Reagan orders. In their view, cost-benefit analysis was too partisan a standard to capture the full array of considerations properly invoked by regulatory agencies. In practice and perhaps in principle, critics urged, the idea of cost-benefit analysis was a device not for producing the right kind and amount of regulation, but for diminishing the role of regulation even when it was beneficial. This substantive agenda, it was said, violated "'