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Tuesday, December 06, 2011
Regulatory Changes: Concluding Thoughts
The proposed changes to federal administrative law that I've been blogging about represent some pretty significant changes to how we think about the regulatory process, at least at the federal level. (Anyone interested in those changes can read my earlier posts here, here, and here, or consult this Congressional Research Service Report). As readers of those earlier posts probably know, I'm critical of at least some of those changes, for example, the proposals to increase the role of formal procedures in rulemaking, as pretty seriously inconsistent with generally accepted good administrative practice. Others, such as the provisions to increase White House power to oversee the regulatory actions of independent administrative agencies, raise difficult questions of first prinicples about which reasonable persons could disagree. I'd like to conclude this series with a couple of general observations about these proposals, and the process by which they're being considered.
First, it seems fairly clear that at least some of these proposals are driven by a desire to reduce the amount of regulation in American life, rather than concerns for fairer or improved regulatory processes per se. As an abstract matter, I have no problem with arguments that there's too much regulation today. I'm not sympathetic to those arguments, but claims like those have every right to be heard and decided by the American people, acting through their representatives. But I am concerned with the under-the-table character of some of these reform provisions. For example, the requirement that agencies increase their use of formal rulemaking seems to serve no purpose other than to slow down the regulatory process and reduce the number of regulations produced. If Congress wants to reduce the scope of a particular regulatory program, or even reduce the amount of regulation more generally, that's their decision. But using a procedural gimmick to get there strikes me as seriously dishonest. If people think we're regulating air pollution too stringently, let's have an open debate about it.
Second, some of these proposals greatly expand the number and specificity of requirements imposed on agencies when they regulate. As such they change the character of the APA from a skeletal constitution for the administrative state into a detailed legal code prescribing exactly how agencies should conduct themselves. Reasonable minds can differ about the value of such a code. A few years ago I waded into this debate with an argument for keeping the APA skeletal, on the theory that that approach allowed a healthy evolution based on a dialogue between courts and agencies. As an example of the contrast, "The Jobs, Growth and Regulatory Accountability Act of 2011" imposes, by my count, eight criteria that an agency has to discuss in a notice of proposed rulemaking.
I'm not troubled by agencies having to provide detailed discussions of their data and analysis in their rulemaking notices; that sort of requirement has been around for decades as a matter of judicial interpretation of the APA. However, I am concerned that specifying the criteria at this level of detail will turn rulemaking notices into a game of "gotcha," rather than exercises in sound administrative practice. Of course, under the current regime judicial review makes agencies careful to check the relevant boxes as identified by the courts. But those judicially-imposed requirements are based on solid reasoning: if an agency comes up with a good faith (and good) explanation for not fully complying, or complying in a different way, then one might expect a reasonable reviewing court to affirm the agency's action. Explicit requirements, such as those in this bill, cannot be so easily finessed. Indeed, requirements like the one in this bill might even backfire, if agencies figure out ways to formally comply with them while ignoring other steps that might be more relevant to that particular rulemaking. Judicially-led evolution has done a decent job of applying the APA's basic principles to the modern world; I'd hesitate before substituting a set of detailed criteria that, at best, reflect the regulatory concerns of the moment and, at worst, are stand-ins for a substantive bias against regulation.
I'm not against amending the APA if there's good reason. But junking major parts of it -- which is what some of these proposals amount to -- strikes me as a really bad idea in today's toxic and polarized political environment.
Posted by Bill Araiza on December 6, 2011 at 08:58 AM | Permalink
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