Administrative Law & Regulatory Process
GW Regulatory Studies Center content analyzing administrative law and the regulatory process.
Series on Contractors in Rulemaking
By: Bridget C.E. Dooling and Rachel Augustine Potter
This series of reports examines the roles that contractors play in federal agency rulemaking. For the Administrative Conference of the United States (ACUS).
Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis
February 18, 2020
By: Christopher Carrigan, Mark Febrizio, & Stuart Shapiro
This working paper is part of a symposium hosted by the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School titled Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.
GSA Moving to Deal with Mass and Fake Comments
February 11, 2020
By: Zhoudan Xie
GSA convened a public meeting on mass and fake comments as part of its initiative to modernize Electronic Rulemaking Management. The meeting raised several fundamental questions on the nature and impact of mass and fake comments for us to consider.
Regulatory Oversight and Benefit-Cost Analysis: A Historical Perspective
January 15, 2020
By: Susan E. Dudley
The Office of Information and Regulatory Affairs (OIRA) in the Executive Office of the President coordinates the federal government’s regulatory agenda, reviews executive branch agencies’ draft regulations, and oversees government-wide information quality, peer review, privacy, and statistical policies. Remarkably, its regulatory oversight functions, and the benefit-cost framework underlying them, have not changed significantly through six very different presidential administrations. This article examines the evolution of executive regulatory oversight and analysis from the 1970s to today, exploring the reasons for its durability and whether the current imposition of a regulatory budget challenges the bipartisan nature of regulatory practice.
Pursuing Consilience: Using Behavioral Public Administration to Connect Research on Bureaucratic Red Tape, Administrative Burden, and Regulation
December 30, 2019
By: Christopher Carrigan, Sanjay K. Pandey, & Gregg G. Van Ryzin
Behavioral public administration (BPA) research aspires not only to draw on developments in behavioral science but also, importantly, to address central themes in public administration. By focusing a symposium on bureaucratic red tape, administrative burden, and regulation, we encouraged BPA scholarship to engage with fundamental public administration topics that are also relevant for the broader literature on organizations and management. Indeed, the symposium contributions demonstrate how BPA can better meld the behavioral science and public administration literatures. They expand on existing conceptions of BPA, with respect to both methodology and topical focus, and provide a basis for demarcating what might and might not be usefully described as BPA. The symposium contributions provide a blueprint for how BPA research might usefully evolve and the introduction offers a philosophical reflection on the future development of BPA and behavioral science.
OIRA’s Regulatory Reform Report for Fiscal Year 2019
December 18, 2019
The Regulatory Reform Results for Fiscal Year 2019 are out, and OIRA is touting that regulatory agencies produced $13.5 billion in present value cost savings. Beyond the glossy highlights, however, are a few important “firsts” in implementation, such as total agency cost savings falling short of the government-wide targets.
Upcoming CRA Deadline has Implications for Regulatory Oversight by Congress
December 11, 2019
The Congressional Review Act allows Congress to disapprove regulations issued by agencies and contains a lookback provision that places almost six months of rulemaking in jeopardy of elimination by the next Congress. The window for this period of review opens in 2020, but agencies will have to weigh the tradeoffs of rushing to publish their rules before the window. According to the 2020 House calendar, any rules issued after May 19, 2020 may be subject to review by the 117th Congress. However, historical data suggest the lookback period is more likely to begin sometime in July or early August of 2020.
Designing a Choice Architecture for Regulators
December 03, 2019
By: Susan E. Dudley & Zhoudan Xie
Recognizing that cognitive biases can also affect regulators themselves, this article attempts to understand how the institutional environment in which regulators operate interacts with their cognitive biases. This article offers suggestions for improving the regulatory choice architecture at federal agencies by having public managers and policy makers factor in predictable biases when regulating individual behaviors or market transactions.
Regulatory Impact Analysis and Litigation Risk
November 22, 2019
By Christopher Carrigan, Jerry Ellig, and Zhoudan Xie
This paper explores the role that the regulatory impact analyses (RIAs) that agencies are required to prepare for important proposed rules play in decisions by courts about whether these rules should be upheld when they are challenged after promulgation. The results suggest that better RIAs are associated with lower likelihoods that the associated rules are later invalidated by courts, provided that the associated agency explains how it used the RIA in its decision-making. When the agency does not describe how the RIA was utilized, there is no correlation between the quality of analysis and the likelihood the regulation will be invalidated. An explanation of the RIA’s role in the agency’s decision also appears to increase the likelihood that the regulation will be invalidated by inviting an increased level of court scrutiny, and as a result, the quality of the RIA must be sufficiently high to offset this effect.
Unified Agenda Released without FY 2019 Regulatory Reform Report
November 20, 2019
This morning, the Office of Information and Regulatory Affairs (OIRA) released its annual Regulatory Plan and semiannual Unified Agenda of Regulatory and Deregulatory Actions. Notably absent is the Regulatory Reform Status Report, which tracks executive agency performance in complying with the deregulatory requirements of Executive Order (EO) 13771. With regards to actions listed as active in the Agenda, agencies plan to issue an average of approximately 2.5 significant deregulatory actions for every 1 regulatory action. However, our analysis of economically significant actions suggests a potential shift in agency rulemaking.
Tracking Regulatory Activity through Trends in Federal Budgets
November 12, 2019
The FY 2020 Regulators’ Budget requests an overall increase in spending. Details within that request point to a notable increase in spending for agencies focused on homeland security, with a decrease in agency spending for regulators focused on the environment and energy.
Exhaustion can be Exhausting! EPA Proposes Reforms to Permit Appeals Process
November 06, 2019
The proposed Environmental Appeals Board reforms will provide a faster path to a final EPA decision, so that applicants can either live with it or challenge it in court, but in either case they will not be stuck in administrative limbo.
Consultation as Policymaking Innovation: Comparing Government Transparency and Public Participation in China and the United States
November 01, 2019
By Steven J. Balla & Zhoudan Xie
This article compares government transparency and public participation in consultation—a prominent instrument of policymaking innovation—across China and the United States. The analysis specifically focuses on consultation at the Chinese Ministry of Commerce (MOC) and United States Environmental Protection Agency (EPA)—leading agencies in the implementation of consultation in policymaking in their respective countries—as a means of evaluating best practices in China relative to a corresponding benchmark in the United States. The analysis reveals both similarities and differences in transparency and participation at the MOC and EPA. The findings suggest that differences in the Chinese and American political systems, rather than issues of administrative capacity, are the primary limitations of consultation as a policymaking innovation in contemporary China.
ED Settles on Less Ambitious Overhaul of Borrower Defense
October 16, 2019
The Department of Education recently published its long-awaited, final rule detailing how the agency will process borrower defense and other loan discharges related to its Federal Direct Loan Program. The final rule applies to all loans disbursed on or after July 1, 2020 and departs from the agency’s approach to adjudicating claims under the Obama administration.
Are Agencies Responsive To Mass Comment Campaigns?
October 07, 2019
New research finds that agencies perform a detailed review of mass comment campaigns on their proposed rules, but the affect of these campaigns on the outcome of final rules may be negligible.
Lost in the Flood?: The Efficacy of Mass Comment Campaigns in Agency Rulemaking
October 02, 2019
By: Steven J. Balla, Alexander R. Beck, Elizabeth Meehan, and Aryamala Prasad
By assembling information about more than 1,000 mass comment campaigns that occurred during Environmental Protection Agency rulemakings between 2012 and 2016, the analysis addresses the manner in which the agency responds to campaigns and the association between campaigns and the substance of rules.
Bigger Stones for David: Tools to Give OIRA More Leverage in Regulatory Review
October 02, 2019
Regulatory review of agency rulemaking activity through the Office of Information and Regulatory Affairs should be linked to each agency’s strategic planning, and carry budgetary consequences. This will help agencies to more clearly define their goals, achieve their objectives, and reward positive results.
Where's the Spam? Interest Groups and Mass Comment Campaigns in Agency Rulemaking
September 27, 2019
By: Steven J. Balla, Alexander R. Beck, William C. Cubbison, & Aryamala Prasad
Through an analysis of more than one thousand mass comment campaigns submitted on Environmental Protection Agency rulemakings between 2012 and 2016, this article's findings suggest that mass comment campaigns are not a phenomenon meriting unique explanation, but rather occur in a manner similar to lobbying in other policymaking venues, such as lawmaking in Congress. The research also confirms expectations that campaigns submitted by regulated entities (i.e., industries) are more substantive than campaigns generated by beneficiaries of stringent regulations (e.g., environmental advocacy groups).
Dynamic Benefit-Cost Analysis for Uncertain Futures
September 17, 2019
By: Susan E. Dudley, Daniel R. Pérez, Brian F. Mannix, & Christopher Carrigan
Policymakers face demands to act today to protect against a wide range of future risks, and to do so without impeding economic growth. Yet traditional analytical tools may not be adequate to frame the relevant uncertainties and tradeoffs. Challenges such as climate change, nuclear war, and widespread natural disasters don't lend themselves to decision rules designed for discrete policy questions and marginal analyses. We refer to such issues as "uncertain futures."
An OIRA Rule on Rules
September 16, 2019
Judicial review of agency benefit-cost analysis is on the rise. Although courts are paying more attention to these analyses, they lack a robust toolkit to assess them. A cross-government rule, written by OIRA, could help by giving courts a set of standards against which they can assess agency rules.
The Ambition of the Administrative State
August 29, 2019
America’s founders strove for a government based on a separation of powers, wherein federal power would be limited, and divided among three branches. Counting on “ambition [to] counteract ambition,” they designed the Constitution to allow each branch to challenge the powers or decisions of another. Over the last century, the executive branch has grown dramatically, raising questions as to how relevant the Framers’ notion of checks and balances is today.
OIRA Wants You…To Schedule Meetings Online
August 19, 2019
In an effort to modernize a critical part of the rulemaking process, the Office of Information & Regulatory Affairs recently developed an online platform for individuals and groups interested in a particular proposal to request a formal meeting.
From Beginning to End: An Examination of Agencies’ Early Public Engagement and Retrospective Review
May 07, 2019
By: Susan E. Dudley
Susan Dudley testified before the U.S. Homeland Security and Governmental Affairs Regulatory Affairs and Financial Management Subcommittee on May 7, 2019, commending the Subcommittee’s bipartisan regulatory reform legislation. By 1) engaging public input earlier in the regulatory development process and 2) providing for retrospective review of regulations to evaluate whether they are achieving their objectives, the two bills can help ensure that regulations are based on the best evidence available and that they are working as intended for the American people.
Increasing Transparency in Considering Costs and Benefits in the Rulemaking Process -- Update
August 20, 2018
By: Brian F. Mannix
In this comment, Mannix explores the reasons why the Council on Environmental Quality might choose to conduct a rulemaking on the general topic of how it considers benefits and costs, reviews some of the legal considerations that should be brought to bear on that effort, and recommends that the administration consider encouraging this type of activity in other agencies.