39 Pages Posted: 23 Feb 2018 Last revised: 21 Apr 2019
Date Written: February 14, 2018
The regulator that designs and first implements a federal regulatory program does not always have the ability to control the timing and process of how that regulatory program will, in this Symposium’s language, “exit.” As the 2016 election has demonstrated, the initiating regulator cannot necessarily plan in advance for the program’s expiration, diminution, or scaling back. A successor instead wields this power. Whether one views this as a terrible thing or a salutary feature of democracy depends in part upon one’s relationship to the regulatory status quo, but also implicates broader questions about policy stability and democratic accountability. At the very least, however, this fact raises several important questions about strategic regulatory design. First, is it possible to insulate or harden regulatory programs from successor exit? And second, when, if ever, would this be a good thing? While some scholars have examined the substantive and procedural strategies that federal agencies can employ internally to insulate their actions from presidential or congressional transitions, or from judicial review, this Article instead looks outward, beyond the walls of a single, primary federal agency to other potential regulators or co-regulators, including secondary federal agencies, the states, and private actors.
This Article identifies a constellation of strategic techniques that I call regulatory horcruxes – much like the horcruxes Lord Voldemort relied on to ensure his immortality by placing portions of his soul into multiple external objects. An initiating regulator, be it Congress or a federal agency, can use such horcruxes in an effort to make successor exit more difficult by splitting programs beyond the walls of a single federal agency into other institutions. This Article first offers an analytical framework laying out five primary types of horcruxes. It then examines horcruxes from a normative perspective, evaluating the comparative benefits and costs of their use, in terms of their potential impact both on the durability of regulatory programs, and on the quality of democratic deliberation. It acknowledges that horcruxes are an imperfect solution. Although dispersal of regulatory authority may insulate a program from deregulatory pressure, the regulatory program (or progress toward a regulatory goal) may exist in a weakened form that cannot accomplish as much as more direct, centralized regulation can. The Article concludes by offering a research agenda, including suggestions for further empirical research.
Keywords: horcrux, administrative law, deregulation, regulatory exit, shared regulatory space, new governance, collaborative governance
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