A Regulatory Budget Takes Form
Administrative Law Review Accord, Volume 67, 2016
24 Pages Posted: 29 Mar 2016
Date Written: March 3, 2016
In their article, The Regulatory Budget Revisited, Jeffrey Rosen and Brian Callahan write, “[T]here is good reason to expect political actors to rely increasingly on regulation to ‘fund’ major new government initiatives.” Regulatory analysts are witnessing a reliance on regulation to accomplish what would be nearly impossible in the taxing and spending arena in Congress. Instead of expanding the Earned Income Tax Credit to address inequality and poverty, the administration has opted to push for a minimum wage increase, expand wages for government contractors, and modify overtime protections for previously exempt employees. Rather than usher through formal legislation easing the process for joining a union, the National Labor Relations Board has finalized a process for expedited unionization and expanded the definition of “joint employer” for the specific aim of increasing union rates. Instead of a formal price on carbon or a cap-and-trade system for greenhouse gas emissions reductions, the Environmental Protection Agency and other agencies have regulated emissions and efficiency standards, bypassing a legislative route, but increasing the likelihood a court challenge could curtail this regulatory approach. During the past few years, Congress has taken notice of these regulatory interventions and its push for regulatory reform, namely a regulatory budget, is as much about politics as it is about reasserting its constitutional authority. As it has delegated away power during the past decades, Congress now recognizes that even with majorities in both houses, it is often powerless to check executive action, aside from a perfunctory oversight hearing or a toothless Congressional Review Act vote that the president will not sign.
This perceived or real power vacuum has resulted in a surge of regulatory reform legislation. Increasingly, leaders in the House and Senate have moved toward a regulatory budget, as one vehicle that could curb controversial regulation, and more importantly, reassert Congress’s role in regulatory action. This Article presents a response to Rosen and Callahan’s article on a regulatory budget with a specific focus on the logistical, legal, and political hurdles that likely stand in the way of a successful budget. Part I outlines the legislative path that may be necessary to make a regulatory budget effective in today’s administrative state and highlights the current efforts in the House and Senate to establish a budget. Part II describes the practical, legal, and political arguments against a functioning budget and offers rebuttals. Part III describes the possible economic benefits of a regulatory budget, with perspectives from other countries that have adopted forms of regulatory budgeting.
JEL Classification: K23, R38, G28
Suggested Citation: Suggested Citation