We Need to Get Back to Work

by Rena Steinzor | May 13, 2016

Originally published on RegBlog by CPR Member Scholar Rena Steinzor.

Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress—rule, adjudication, guidance, or bully pulpit—will be problem-free. The opposition party made clear, almost as soon as President Barack Obama was elected, that over-regulation would remain among its most shrill and pervasive battle cries.

Professor Tom McGarity, my friend and colleague at the Center for Progressive Reform and a gifted commentator on these trends, calls the new reality surrounding the rulemaking process a “blood sport administrative law.” By this he means that industry opponents of new rules have broadened the arena of conflict to include early and constant appeals to Congress and the courts, raising the stakes and making the costs quite high for any constituency that wants to prevail in rulemaking battles. Not coincidentally, this blood-sport approach edges public interest groups to the sidelines.

But my assignment here is not to lament the gridlock that dominates the present; it is to forecast the future. When I asked Professor Cary Coglianese, RegBlog’s faculty advisor, how I might frame my predictions of what will happen to the administrative state over the ...

The Public Needs a Voice in Policy. But is Involving the Public in Rulemaking a Workable Idea?

by Bill Funk | April 13, 2010
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have ...

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