This working paper is forthcoming in Duke Law Journal (2024)
Abstract
Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, capacity, and more, stemming from the fact that contractors are in privity with the government, not the public. This scholarship does not take up the implications of service contracting for rulemaking, the primary mode of executive branch lawmaking, nor does it delineate between types of contracting arrangements, which vary dramatically.
This Article takes variation in rulemaking contracting arrangements seriously. We define three types: ministerial contractors, who perform administrative work; expertise contractors, who provide discrete scientific and technical inputs; and regulatory body shops, which are embedded into agencies, functioning like staff and encompassing many functions. We argue that while the former two arrangements pose minimal risks to an agency, regulatory body shops are a different story. Not only do they open the door to conflicts of interest issues that are not adequately addressed under current law, they also threaten the quality of agency reasoning and have the potential to hollow out an agency’s rulemaking apparatus over the long run. Reliance on regulatory body shops has the potential to put an agency’s rules in legal jeopardy by violating the Administrative Procedure Act and diminishing an agency’s claim to Chevron deference. These various risks, which pose challenges for the quality of public decision-making, sit in tension with the reality that some agencies lack adequate resources staff their rulemakings, turning to regulatory body shops as a pragmatic matter. The Article concludes with reforms to help agencies responsibly manage the risks posed by regulatory body shops.