Handmaidens of the legislature? Understanding regulatory timing (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...

Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making “Ossified”?

Journal of Public Administration Research and …, 2010

We provide the first empirical assessment of the ossification thesis, the widely accepted notion that procedural constraints on federal agencies have greatly hindered the ability of those agencies to formulate policy through notice and comment rule-making. Using data that cover all active federal rule-writing agencies from 1983 to 2006, our results largely disconfirm the ossification thesis. Agencies appear readily able to issue a sizeable number of rules and to do so relatively quickly. Indeed, our empirical results suggest that procedural constraints may actually speed up the promulgation of rules, though our model suggests that this positive effect may decline, or even reverse, as proposed rules age. We conclude that procedural constraints do not appear to unduly interfere with the ability of federal agencies to act, or in most cases, to act in a timely manner. Have procedural constraints on federal agency autonomy unduly hindered the ability of federal agencies to regulate in the public interest or to regulate in a timely manner? Scholars working in the fields of public administration, administrative law, and political science routinely assert that the federal regulatory process is broken (Seidenfeld 1999, 429). These scholars present what we call the ''ossification thesis''-the widely accepted notion that procedural constraints imposed on federal agencies by the president, Congress, and the courts have had the undesirable side effect of making the federal regulatory process so burdensome and inefficient that federal agencies now routinely promulgate important regulations only after significant delay (

While Congress sits on its hands, presidents are making policy by regulation

2020

Despite what most of the public may think, the vast majority of policymaking by the federal government comes in the form of rules and regulations rather than through new laws. Using the 2010 Affordable Care Act as a case study, Simon F. Haeder and Susan Webb Yackee write that the move from law-based to regulatory policymaking has given Democratic and Republican presidents alike unprecedented powers that often do not need to take into account the views of Congress

Reconsidering Agency Capture During Regulatory Policymaking

2013

Abstract In this chapter, I study agency capture as it applies to the federal rulemaking process. I define agency capture, and I put forward a two-prong test for identifying it. I apply this test to a dataset of 36 US Department of Transportation regulations. The data are drawn from a content analysis of both rules and public comments, as well as a telephone survey of public commenters.

Statutory interpretation and political advantage

International Review of Law and Economics, 1992

The relationship between Congress and those institutions charged with implementing the legislators' will has been characterized as one between a principal and an agent. I As principal, Congress has a number of instruments available to control agency costs. While the elements of these strategies may differ substantially, the essential goal is the same: to create the conditions under which the principal is assured that its will is being carried out by its agents. Much of this literature has focused on the ways in which legislators control regulatory decisionmaking through structural, procedural, and monitoring strategies. 2 Often overlooked, however, is perhaps the most critical control device of all, namely, the statute that defines the scope of the agency's regulatory authority. To be sure, statutes-even clear ones-are hardly selfenforcing. Indeed, the basic principal-agent predicament is based on the assumption that agencies will find ways to avoid performing their duties described in Congress's instructions. But it is a mistake to underestimate Congress's ability to control agencies, and hence to reap political advantage, through careful attention to the structure and interpretation of the statute. This paper considers why and how Congress seeks to control agency action through the device of controlling and influencing the process of statutory interpretation. I am grateful for the comments of participants in the Conference on "Constitutional Law and Economics" at Stanford University. October 25-27.1990, and at a Hoover Institution Workshop. I would especially like to thank

Regulatory Hide and Seek: What Agencies Can (and Can't) Do to Limit Judicial Review

Boston College Law Review, 2011

Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies' role in modulating that oversight. We consider cases in which the timing or form of an agency action has curtailed judicial review of the agency's policy choices. In some such cases, the agency's choice of form deprived the court of statutory or Article III jurisdiction. In others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differences, though, all such "reviewability" cases pose important constitutional questions about the degree to which an agency should be able to limit judicial oversight of its activities. We argue that courts pay too little attention to these questions, and we propose a more systematic framework for evaluating the constitutional implications of allowing an agency to modulate the availability of judicial review by manipulating the structure of its actions.

Political Insulation and Legislative Interventions: The Impact of Rule Review

State Politics & Policy Quarterly, 2009

While previous work suggests that enacting coalitions' use of ex ante control devices shapes future legislatures' incentives to intervene in the bureaucracy, it is less clear how such insulation motivates individual legislators. We advance an individual-level account of how legislative rule review, a control device that structures an agency's insulation from political interference, differentially shapes legislators' preferences for direct and statutory intervention tactics. Using an original survey of U.S. state legislators, we find that insulation reduces the expected policy benefits of direct interventions, making these tactics less attractive to legislators. Moreover, to capitalize on more permeable agency design, legislators must have access to key resources. For statutory tactics, insulation has no effect on legislators' intervention preferences. Our findings suggest that insulation is a durable control device that casts a long shadow in protecting an enacting coalition's interest in agency affairs.

Congress and the Executive: Challenging the Anti-Regulatory Narrative

Michigan State Law Review, 2018

Recently, critics of the administrative state have been urging Congress to reassert itself and rein in regulatory action that they maintain is both undesirable as a matter of policy and in violation of constitutional principles. This anti-regulatory position is unwarranted. While regulatory agencies have indeed been more active in recent decades, in part due to increasing gridlock in Congress, the resulting regulatory actions produced large net benefits to the American people and were carried out pursuant to authority delegated by Congress and reviewed by the courts. By contrast, more robust action by Congress, as long as Congress continues to exhibit its current pathologies, is unlikely to be beneficial. Furthermore, in a troubling development, the Trump Administration's has turned away from cost-benefit analysis in order to carry out its anti-regulatory agenda, disregarding an established bipartisan consensus that stretched back several decades.

Agent discretion, regulatory policymaking, and different institutional arrangements

Public Choice, 1996

ABSTRACT This paper examines agent discretion that is a result of the structure of the legislative process. Based on several distributions of lawmaking powers, different games are analyzed in which players decide on regulatory policies. The analysis shows that agent discretion increases as lawmaking powers are differentiated and assigned to specialized players. Particularly, monopoly initiation power, which allows a player to act as a gatekeeper, has a substantial impact on discretion. Agent discretion will be even larger when these players also have heterogeneous preferences. The framework that is developed in this paper permits comparisons across different political systems with regard to agent discretion and legislative control on policymaking. Copyright 1996 by Kluwer Academic Publishers