Much Ado about Nothing? despite the Claims of Opponents and Supporters, Changes in Procedure Seem to Have Little Effect on the Regulatory Process

By Coglianese, Cary | Regulation, Summer 2008 | Go to article overview

Much Ado about Nothing? despite the Claims of Opponents and Supporters, Changes in Procedure Seem to Have Little Effect on the Regulatory Process


Coglianese, Cary, Regulation


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Early last year, President Bush signed Executive Order 13422, implementing modifications to the review requirements for new federal regulations. EO 13422 follows previous orders signed by presidents Ronald Reagan and Bill Clinton that established White House policy for scrutinizing federal rulemaking and incorporated aspects of cost-benefit analysis into regulatory review. The Bush order gives presidential appointees in regulatory agencies increased "gatekeeper" functions, requires agencies to specify in writing the market failures they hope new rules will solve, and calls for agencies to provide the Office of Management and Budget with information on certain guidance documents.

EO 13422 met with strong opposition from Congress and received considerable attention from the media. A subcommittee of the House Committee on Science and Technology held hearings on the order and the full House voted to block its implementation. Critics of the measure charge that it gives the White House too much control over the regulatory process and that it will create "paralysis by analysis"--that is, it will hamper agencies' ability to issue regulations in a timely manner, jeopardizing public welfare.

Such lamentations have been heard before. For at least 70 years, significant changes in rulemaking procedures have elicited criticisms that federal regulation will be obstructed. Yet the federal government continues to issue many new, high-impact regulations. Is the rhetoric--from both supporters and detractors--over changes in regulatory procedure like EO 13422 really much ado about nothing?

RHETORIC ...

In testimony before the House Subcommittee on Investigations and Oversight, Georgetown law professor David Vladeck claimed that EO 13422 "deals a body blow to the ability of our agencies to do their jobs" and could "lead to the further ossification of an already overburdened administrative process." At a later hearing of the same subcommittee, Columbia law professor Peter Strauss suggested that the order might "throw a good dose of sand into the gears or rulemaking." The sub-committee chair, Rep. Brad Miller (D-N.C.), agreed with those assessments, claiming the order is "another avenue for special interests to slow down and prevent agencies from protecting the public." Rep. Henry Waxman (D-Calif.) also agreed, saying EO 13422 will "make it harder for agencies to take virtually any action."

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The rhetoric over EO 13422 could easily have been borrowed from the early part of the last century. At that time, observers worried that New Deal changes to administrative procedures would create "a partial paralysis ... by reason of excessive formality and litigation," as the author of a 1938 Harvard Law Review article put it. The Administrative Procedure Act (APA) of 1946, although praised today as the source of simple and efficient rulemaking techniques, was actually chastised around the time of its adoption. In 1946, the prestigious Public Administration Review featured an article asserting that the APA amounted to a "sabotage of the administrative process." The author of an article in the University of Pennsylvania Law Review's 1948 volume claimed that the APA would "severely cramp the style of government regulation." The American Political Science Review in 1947 published an article arguing that the right to file a rulemaking petition under the APA's section 553(e) was of "doubtful value" and would lead to regulatory agencies being "swamped by frivolous requests having delay as their sole objective."

Over the years, other changes to administrative procedures--from freedom of information laws to environmental impact statement requirements--have prompted similar predictions. Following President Reagan's issuance of EO 12291, a 1986 Harvard Law Review paper by Alan B. Morrison claimed that the OMB's power to review regulations under the order "imposes costly delays that are paid for through the decreased health and safety of the American public. …

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