Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making “Ossified”? (original) (raw)

Picking up the Slack: Bureaucratic Rulemaking in Times of Legislative Inaction

Bureaucratic rulemaking is a crucial aspect of American policymaking. We argue bureaucratic policymaking is particularly significant when legislatures are unable or unwilling to pass legislation. To test this hypothesis, we leverage an original dataset containing all rules proposed by bureaucratic agencies in three states over a ten-year period. We combine this with information about divided government and legislative session calendars in each state to identify periods of gridlock or recess when legislatures are less likely to produce legislation. With this data, we investigate whether rulemaking activity increases during periods of legislative inaction. Our results are supportive—during periods of divided government or a split legislature, state bureaucracies issue significantly more proposed rules. Moreover, state bureaucracies are most productive during periods of legislative recess. These results underscore the importance of bureaucratic policymaking as a key feature of governan...

Handmaidens of the legislature? Understanding regulatory timing

Journal of Public Policy

When does legislation trigger regulation? The US Congress regularly passes laws that authorise government agencies to write legally binding regulations. Yet, when this occurs, agencies may take years to act – or, at times – may never act at all. We theorise that the breadth of the congressional statutory delegation drives the timing of agency policy production. In particular, when Congress expressly tells an agency to promulgate a rule, we expect agencies to do so quickly. Yet, when Congress provides greater policymaking discretion to agencies, we expect other factors – and especially, internal agency considerations – to drive regulatory timing. We use data from almost 350 statutes spanning four decades, which are then matched up with thousands of regulations, to assess the argument. Using innovative methods, we find support for our hypotheses. Overall, we produce a deeper understanding of the link between delegation and discretion: suggesting when it occurs, as well as, importantly...

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.

Constraining Bureaucracy Beyond Judicial Review

Dædalus: The Journal of the American Academy of Arts & Sciences, 2021

As part of this special issue of Daedalus, the Journal of the American Academy of Arts and Sciences, that assesses the twenty-first-century administrative state in the United States, this Essay argues that the modern regulatory state—and the field of administrative law that studies it—are in need of “deconstruction.” To be sure, this Essay does not advocate for a “deconstruction of the administrative state” that President Trump’s chief strategist likely envisioned when he grabbed headlines with that declaration shortly after the election. The administrative state plays a vital role in modern governance—a role that should be strengthened and improved, not dismantled entirely. Nor does this Essay embrace the field’s and the reformers’ fixation on courts as the core bulwark against agency overreach. That is because so much of bureaucracy is beyond judicial review. Federal agencies regulate us in many meaningful, and sometimes frightening, ways that either evade judicial review entirely or are at least substantially insulated from the courts’ purview. This Essay makes two contributions to this deconstruction debate. First, the concept of bureaucracy beyond judicial review is undertheorized. It should not be limited to the conventional account of agency actions that statute or judicial doctrine precludes from judicial review. Instead, the concept should also encompass agency actions technically subject to judicial review yet effectively insulated from such review. It should also include the agency policymaking space created by judicial deference doctrines as well as the judicially unreviewable role that federal agencies play in drafting the laws that delegate agencies power in the first place. Second, appreciating this phenomenon of bureaucracy beyond judicial review should encourage us to rethink theories and doctrines in administrative law. If judicial review provides no safeguard against potential abuses of power in most regulatory activities, we must turn to other mechanisms to protect liberty and the rule of law. All three branches of the federal government must play their roles. As should civil society and the agencies themselves.

Divided government and US federal rulemaking

Regulation & Governance, 2009

Despite paying a great deal of attention to the effects of divided government on legislative outputs, scholars of American politics have surprisingly ignored the potential impact of divided government on bureaucratic regulatory outputs. In this article we argue that divided government should reduce the volume of federal agency rulemaking. We test this hypothesis against a data set covering 21,000 rules from 1983 to 2005. Our study is one of the first to analyze the determinants of federal bureaucratic rulemaking activity across such a long period of time. Our results demonstrate that during periods of divided government, agencies issue fewer rules and fewer substantively significant rules than they do during periods of unified government. These findings suggest that divided government impedes agency rulemaking.

Centralized Oversight of the Regulatory State

Born out of a Reagan-era desire to minimize regulatory costs, and not fundamentally reconsidered since its inception, the centralized review of agency rulemakings has arguably become the most important institutional feature of the regulatory state. Yet it is a puzzling feature: Although centralized review is sometimes justified on the ground it could harmonize the uncoordinated sprawl of the federal bureaucracy, the agency tasked with regulatory review, the Office of Management and Budget (OMB), has never embraced that role. It has instead doggedly clung to its original cost-reduction mission, justifying its function as a check on the federal bureaucracy with reference to the pervasive belief that agencies will systematically overregulate.

The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform

University of Pennsylvania Law Review, 1970

Few complaints about administrative law are pressed more insistently than the charge that the administrative process is "overjudicialized."1 Although discordant notes to the contrary are sometimes heard,' the dominant chord of criticism has long been that administrative agencies have become too attached to judicial forms of proceeding, particularly when formulating policy rules and standards. The suggestion has been made that to improve agency performance, policy-making and judicial functions should be separated and allocated to different agencies.' However, institutional separation has thus far won few supporters." Nevertheless, there continues to be widespread concern that agencies tend to subordinate broad policy planning to

Is Administrative Law Inevitable

2009

Prepared for Law and Economics Workshop, Berkeley Law School, March 9, 2009. This is a very rough draft; please do not quote or circulate without permission; comments welcome: drodriguez@law.utexas.edu; weingast@stanford.edu . Is Administrative Law Inevitable? Daniel B. Rodriguez 1 Barry R. Weingast 2 If we lacked an administrative law would we and should we devise one? This is the question at the heart of our essay. While a large body of legal scholarship wrangles over questions of how and why certain doctrines are developed to control agency decisionmaking, limit bureaucratic discretion, and improve the processes of governance, the question of how administrative law writ large fits into the fabric of regulatory politics is, if considered at all, takes a back seat to the practical matters of, say, administrative procedure and standards of judicial review. We argue that administrative law performs a dual function: it enables Congress and President to maintain adequate mechanisms of ...

Regulation and the Separation of Powers

Southern California Interdisciplinary Law Journal, 2019

This essay argues that current regulatory roles of administrative agencies, Congress, and courts are not fully consistent with separation of powers principles. Regulatory agencies often hold all three governmental functions, including judicial-like punitive sanctioning powers and comprehensive legislative powers for setting major regulations, with almost no supervision by other branches of government. Courts tend to grant de facto immunity from judicial review to many regulatory actions of administrative agencies under different types of deference doctrines, while Congress holds merely supervisory veto power over regulations. Executive regulatory functions are also misallocated, as decisions in specific cases with particular applicability are sometimes made by the legislative branch via enactment of laws, rather than by agency action. This essay suggests an innovative theory, both descriptive and normative, of the relationship between regulation and the separation of powers, bringing together constitutional law, administrative law, and regulation scholarship.