Improving Regulatory Analysis at Independent Agencies
American University Law Review, Vol. 67, p. 733, 2018
35 Pages Posted: 20 Sep 2017 Last revised: 16 Oct 2019
Date Written: 2018
Each year, independent regulatory agencies — such as the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission — issue highly consequential regulations. When they issue their regulations, however, they do not have to meet the same requirements for analysis that apply to other agencies. Consequently, courts, policymakers, and scholars have voiced serious reservations about a general lack of high-quality prospective analysis of new regulations at independent agencies. These agencies’ track records with retrospective analysis of their existing regulations raise similar concerns. In this article, I approach the quality of regulatory analysis at independent agencies as a policy problem, assessing the current quality and offering possible solutions Congress could adopt to improve these agencies’ regulatory analysis. I present three options for improving prospective analysis by independent agencies: continuing to allow courts to encourage better analysis; subjecting independent agencies to the same White House review that currently applies to executive agencies; and amending the Unfunded Mandates Reform Act (UMRA) to impose a requirement for analysis but not White House review. The UMRA option would best balance the desire to improve prospective regulatory analysis at independent agencies with prevailing norms of autonomy that surround these agencies. In addition to improving prospective analysis, independent agencies should seek to produce more rigorous retrospective analysis of their existing regulations, both to improve the substantive performance of their existing regulations and to learn better what to expect when analyzing new regulations. I thus offer options for improving retrospective analysis by independent agencies, each of which could be adopted without undermining autonomy norms. Ultimately, to see independent regulatory agencies better fulfill their public missions, their leaders must make still smarter regulatory decisions — and the first step toward smarter decisions is to improve regulatory analysis.
Keywords: Administrative law, government regulation, rulemaking, Paperwork Reduction Act, PRA, agency independence, retrospective review, regulatory analysis, benefit-cost analysis, executive orders, judicial review
JEL Classification: K23, H83
Suggested Citation: Suggested Citation