Regulatory Productivity in Federal Administration: An Empirical Analysis of the Deep State
Rutgers University Law Review, forthcoming.
43 Pages Posted: 30 Jan 2022 Last revised: 4 Apr 2022
Date Written: February 4, 2022
Critics of the so-called "Deep State" charge that administrative agencies regulate too pervasively and too often. These claims, however, do not stand on solid empirical ground. Instead, denunciations of the administrative state rely on sensationalized and unrepresentative narratives of regulatory overreach.
This Article introduces a two-dimensional conception of regulatory productivity comprising the volume of regulations promulgated by federal agencies, as well as temporal trends in regulatory activity. We marshal comprehensive data on all rulemaking pursuant to all significant federal legislation since the enactment of the Administrative Procedure Act to provide a systematic, empirical examination of regulatory productivity among administrative agencies. Namely, we present readily interpretable measures of regulatory productivity for every significant federal statute, and supply recommendations for the cultivation of an empirical administrative law.
Further, we employ these data to consider how longitudinal variation in political conditions influences regulatory productivity across all federal statutes. This Article thus offers a template for an empirically rigorous analysis of the Deep State that should allow scholars and practitioners alike to under-stand better the scope of administrative power. Taken together, our analyses suggest that federal administration, considered systematically and empirically, bears scant resemblance to the domineering Leviathan imagined in conventional critiques of regulatory power in the administrative state.
Keywords: administrative law, regulation, empirical analysis of the law
JEL Classification: K10, K23, H11, H83
Suggested Citation: Suggested Citation