54 Pages Posted: 10 May 2018 Last revised: 15 Jun 2018
Date Written: April 25, 2018
The front line for business regulation — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — guard against toxic air, financial ruin, and deadly explosions. Like police officers patrolling the streets for crime, this federal regulatory front line decides when and how to enforce the law. Yet whereas scholars devote considerable attention to the role of police officers in criminal law enforcement, they have paid limited attention to their civil law counterparts, regulatory police. This Article is the first to chronicle the statutory rise of regulatory police and to situate them empirically at the core of modern administrative power. Since the Civil War, often in response to crises, the largest federal regulators have steadily accrued authority to collect documents remotely and enter private space without any suspicion of wrongdoing. Those exercising this monitoring authority within agencies administer the law at least as much as the groups that are the focus of legal scholarship: enforcement lawyers, administrative law judges, and rule writers. Regulatory police wield sanctions, influence rulemaking, and create quasi-common law. Moreover, they offer a better fit than lawyers for the modern era of “collaborative governance” and compliance, because their principal function — information collection — is less adversarial. Yet unlike lawsuits and rulemaking, monitoring-based decisions are largely unobservable by the public, often unreviewable by courts, and explicitly excluded by the Administrative Procedures Act (APA). The regulatory police function can thus be more easily ramped up or deconstructed by the President, interest groups, and agency directors. A better understanding of regulatory police — and their relationship with agency lawyers — is vital to designing democratic accountability not only during times of political transition, but as long as they remain a central pillar of the administrative state.
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