Improving Regulatory Accountability: Lessons from the Past and Prospects for the Future (as published)

Congress 1941

by Susan E. Dudley, Director

July 15, 2015

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Abstract

This Article examines efforts by the three branches of federal government to oversee regulatory policy and procedures. It begins with a review of efforts over the last century to establish appropriate checks and balances on regulations issued by the executive branch and then evaluates current regulatory reforms that would hold the executive branch, the legislative branch, and the judicial branch more accountable for regulations and their outcomes.

Introduction

In the more than 125 years since Congress created the first regulatory body,1  the number of regulatory agencies and the scope and reach of the regulations they issue has increased significantly. In 2014, there were more than seventy federal agencies, employing almost 300,000 people to write and implement regulation.2  Every year federal agencies issue tens of thousands of new regulations,3 which now occupy more than 175,000 pages of regulatory code.4 For over a century, concerns over the accountability of what some have called the “fourth branch of government” have led all three branches of government to take steps to exercise checks and balances on the development and enforcement of regulations.5 This Article examines efforts by the three branches of federal government to oversee regulatory policy and procedures. It begins with a review of efforts over the last century to establish appropriate checks and balances on regulations issued by the executive branch and then evaluates current regulatory reforms that would hold the executive branch, the legislative branch, and the judicial branch more accountable for regulations and their outcomes.

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1. The Interstate Commerce Act established the Interstate Commerce Commission in 1887 to regulate railroad rates. Interstate Commerce Act, ch. 104, 24 Stat. 445 (1887).

2. Susan Dudley & Melinda Warren, Economic Forms of Regulation on the Rise: An Analysis of the U.S. Budget for Fiscal Years 2014 and 2015, at 2, 7 (2014), available at http://regulatorystudies.columbian.gwu.edu/sites/g/files/zaxdzs1866/f/do....  Note that “[a]gencies that primarily perform taxation, entitlement, procurement, subsidy, and credit functions are excluded from this report,” so these figures exclude staff developing and administering regulations in the Internal Revenue Service, the Centers for Medicaid and Medicare Services, etc. Id. at 14.

3. Office of the Federal Register, Federal Register Pages Published 1936–2013 (2014).

4. Office of the Federal Register, Code of Federal Regulations Page Breakdown: 1975 through 2013 (2014).

5. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2253–69 (2001) (outlining nonpresidential mechanisms of controlling agencies and presidential administration of agencies generally).


See also:

2014 Working Paper: Improving Regulatory Accountability: Lessons from the Past and Prospects for the Future

Blog post: Improving Regulatory Accountability: Lessons from the Past and Prospects for the Future, U.S. Chamber of Commerce blog