Commentaries & Insights

Our Commentaries and Insights are short-form publications intended to distill long-form research and synthesize current policymaking activity into easily understood concepts.

February 11, 2020

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.


Epistemic Lessons from Economic Regulatory Reform

February 5, 2020

Jerry Ellig offers three lessons learned major regulatory reforms over the past forty years; 1. Intentions do not equal results, 2. Facts are stubborn things, and 3. We can make progress together on policy if we focus on evidence.


2019: The Year in Review

January 27, 2020

Zhoudan Xie and Mark Febrizio recap the top ten regulatory developments in 2019.


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.


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.


Rail Regulators Ponder Benefit-Cost Analysis

November 18, 2019

Although regulatory impact analysis would certainly not automate STB regulatory decisions, it would provide a coherent and organized framework for discovering and presenting information about the likely consequences of regulatory alternatives.


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.


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.


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.


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.


10 Years of Going Back to School

August 26, 2019

Later this Fall, the GW Regulatory Studies Center will celebrate 10 years at the university. The Center’s first decade has been a fulfilling journey to improve regulatory policy through research, education, and outreach, and we look forward to the decade ahead.


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.


Eliminating Barriers to Affordable Housing

August 12, 2019

Executive Order 13878 creates a council tasked with reducing regulations to make housing more affordable. The multi-agency council will work with all levels of government, and private sector stakeholders to collect information and propose reforms before its termination date of Jan. 21, 2021.


Paradise by the DASHBOARD Act?

August 05, 2019

The DASHBOARD Act would impose several data-disclosure requirements on large companies that monetize online user data. The Act assumes a market failure of information asymmetry, where consumers undervalue their personal data. However, the evidence for this claim is indeterminate, and a lack of clarity on data property rights and liability could make corresponding rules difficult to enforce.


Clean Power v. Clean Energy

July 31, 2019

The Environmental Protection Agency (EPA) recently issued three final regulatory actions governing greenhouse gas emissions from electric power plants. These rules will face new legal challenges based on both the economic analysis and the statutory authority for EPA’s actions. Mannix briefly reviews some of the major issues likely to be in contention.


Bounded Rationality in the Rulemaking Process

July 23, 2019

Regulators are humans, not robots. This simple truth reminds us that individual decision-makers responsible for developing and implementing regulations face the same cognitive limitations that consumers face in the marketplace. Institutional reforms to regulators’ choice architecture may help mitigate these biases.


A Two-Year Lookback on Trump’s Deregulatory Record

July 15, 2019

Susan Dudley and her co-panelists discuss the effect of Trump’s Executive Order 13771, repeated losses for the administration in court, the administration’s view of benefit-cost analysis, and more at an ABA Regulatory Policy Committee meeting.


Privacy Research: The Need for Evidence in the Design of U.S. Privacy Policy

July 03, 2019

This regulatory policy insight details the importance of using evidence to inform the development of U.S. privacy policy and identifies the kinds of evidence that would be particularly useful for policymakers to consider.


Francisco Franco Still Dead, Naked Alcohol Protectionism Still Unconstitutional

July 03, 2019

The Supreme Court ruling in Tennessee Wine & Spirits Retailers Association v. Thomas confirms that the U.S. Constitution does not allow states to engage in naked economic protectionism just because the product is alcohol.


IRS Rule on Charitable Deductions: A Worthy Goal, a Skillful Fix, but Surprisingly Thin Evidence

June 17, 2019

The IRS prohibits individual taxpayers from deducting charitable contributions on their federal taxes if they received a state or local tax credit in exchange for the contribution, but allows them to count such donations as state or local tax payments subject to the $10,000 cap on state and local tax deductions.


Research Brief: Why Should We Focus on the Form of Regulation?

June 12, 2019

As part of a cooperative agreement with the USDA, a new GW Regulatory Studies Center report finds that growth in total regulation has a negative relationship with land productivity growth, and the relationship differs according to the form of regulation.


2019 Spring Unified Agenda

May 22, 2019

The Spring 2019 Unified Agenda includes a total of 3,791 actions, 295 of which are classified as regulatory, 721 as deregulatory, with the remainder exempt or classified as “other.” Of the total number of actions, 177 are economically significant. The agencies with the most deregulatory actions planned are the Department of Transportation (DOT) with 129 actions and the Department of Health and Human Services (HHS) with 65; these same two agencies have had the most deregulatory actions planned since the Fall 2017 Agenda.


Proposed Revisions to DOE’s Process Rule Include Beneficial Changes and Areas for Improvement

May 21, 2019

On February 13, 2019, the Department of Energy (DOE) released a notice of proposed rulemaking (NPRM) that updates its internal rulemaking procedures for energy conservation standards, called the Process Rule. Policy analyst Mark Febrizio submitted a public comment on DOE’s proposed revisions to the Process Rule that focused on eight areas of interest in the revised Process Rule, highlighting both beneficial changes and additional areas for improvement. This commentary builds on the public comment by examining how the Process Rule connects with two broader concepts in regulatory policy—formalizing internal procedures and retrospective review.


Early but Not Often: A Look into the Use of ANPRMs in Rulemaking

May 03, 2019

Prior to the proposal of a new rule, agencies may decide to seek public comment through an advance notice of proposed rulemaking (ANPRM) on whether a new rule is necessary and what should be included if the rule progresses. Despite the importance of public participation in rulemaking, only 5% of all significant rules are preceded by an ANPRM. This commentary takes a closer look at trends in the use of ANPRMs and suggests questions for further research.


Statutory Clarity and Judicial Review of Regulatory Impact Analysis

April 29, 2019

Precise statutory language corresponds to better benefit-cost analysis and more consistent judicial review. Originally posted in The Regulatory Review.


Revising WOTUS

April 16, 2019

The proposed revision to the definition of the “waters of the United States” is a significant improvement over prior definitions, including that adopted in 2015. If the definition contained in the final rule is similar to that which has been proposed, it is likely to provide greater legal certainty for the regulated community and is likely to be less vulnerable to legal challenge than were prior definitions.


Is GDPR the Right Model for the U.S.?

April 03, 2019

Recent discussions on online privacy regulation refer to the European Union’s General Data Protection Regulation. It is often seen as a good model to follow for protecting personal data in the digital age. We apply a benefit-cost framework to understand its implications on this side of the Atlantic. Given the existing regulations, an evidence-based approach to identify net-benefits might offer a balanced approach to personal data protection.


The Eagle and the Dragon: Comparing Government Consultation and Public Participation between the US and China

March 27, 2019

This commentary demonstrates an interesting comparison in government consultation and public participation between the US and China. It shows that the US and China appear to have little variation in consultation procedures and participation levels, but major divergence in the level of transparency and the type of stakeholders who participate.


Regulatory Sludge: Reducing Paperwork Burdens to Preserve Our Time

March 20, 2019

Cass Sunstein spoke at the Society for Benefit-Cost Analysis Annual Conference & Meeting on March 15th, graduate assistant Julie Balla summarizes his remarks which included a call to action to tackle both the stock and flow of paperwork burdens.


Policy Analysis for Uncertain Futures

March 13, 2019

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.”

More flexible and dynamic decision-analysis approaches that anticipate the need to learn from experience (and that encourage learning) are essential. Developing a body of research that cuts across disciplines to introduce better tools for anticipating and examining uncertain future risks can lead to policies that lower the probabilities and mitigate the consequences of these uncertain futures while encouraging economic growth and increasing resilience. To this end, the GW Regulatory Studies Center commissioned four papers from leading experts in different fields.