21 Pages Posted: 9 Jan 2008
Date Written: December 31, 2007
In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response to the Bush amendments. It begins by comparing criticisms of the Bush amendments with criticisms of previous regulatory reforms, showing that concerns about delay date all the way back to the creation of the Administrative Procedure Act of 1946. Notwithstanding the perennial nature of charges of delay and obstruction, the U.S. regulatory state has grown dramatically in both size and impact over the last six decades. In addition, the extant social science literature has failed to find any systematic delays associated with the specific procedure affected by the Bush amendments, namely regulatory review by the Office of Management and Budget. Overall, the burdens associated with regulatory reforms appear to be far smaller, or more manageable, than critics usually suppose. This paper concludes with several explanations for persistent reality of regulatory growth in the face of the persistent rhetoric of obstruction. These alternative accounts not only help explain the rhetoric-reality divide over regulatory reform in general, but they also provide reason to expect the Bush amendments will have, at most, only a trivial impact on the overall regulatory process.
Keywords: Administrative Law, Executive Order 13,422, rulemaking, bureaucracy, federal regulations, regulatory review, regulatory policy, regulatory process, regulatory delay, growth of regulation, cost-benefit analysis, economic analysis, Presidency
JEL Classification: K23, L51, P16
Suggested Citation: Suggested Citation
Coglianese, Cary, The Rhetoric and Reality of Regulatory Reform (December 31, 2007). U of Penn Law School, Public Law Research Paper No. 08-02; Yale Journal on Regulation, 2008. Available at SSRN: https://ssrn.com/abstract=1081949