Archive for November, 2017
From: The Journal of Politics
Rachel Augustine Potter, University of Virginia
The slow pace of administrative action is arguably a defining characteristic of modern bureaucracy. The reasons proffered for delay are numerous, often centering on procedural hurdles or bureaucrats’ ineptitude. I offer a different perspective on delay in one important bureaucratic venue: the federal rulemaking process. I argue that agencies can speed up (fast-track) or slow down (slow-roll) the rulemaking process in order to undermine political oversight by Congress, the president, and the courts. That is, when the political climate is favorable, agencies rush to lock in a rule, but when it is less favorable, they wait on the chance that it will improve. I find empirical support for this proposition using an event history analysis of more than 11,000 agency rules from 150 bureaus. The results support the interpretation that agencies strategically delay, and that delay is not simply evidence of increased bureaucratic effort.
Editor’s Note: See, The Evolution of Chevron Deference: The Need for Public Involvement.
From: The Regulatory Review
A forthcoming article by Christopher J. Walker, a law professor at The Ohio State University Moritz College of Law, surveys recent arguments in favor of scaling back or eliminating judicial doctrines under which federal courts defer to agency interpretations. Walker disclaims any attempt to “break major new ground” in the debates over whether deference should be modified by the courts or which arguments for doing so are strongest. Rather, Walker aims in his article to “provide a literature review of sorts concerning the arguments that have been advanced in recent years to eliminate or narrow” the courts’ deference doctrines. Recognizing “a growing call to eliminate—or at least narrow—administrative law’s judicial deference doctrines regarding agency interpretations of law,” Walker assesses recent arguments against Chevron and a related doctrine known as Auer in an effort to help “judges, legislators, litigants, and scholars better focus arguments for reforming how federal courts review agency interpretations of law.”
From: US GAO
Report to the Chairman, Subcommittee on Regulatory Affairs and Federal Management, Committee on Homeland Security and Governmental Affairs, U.S. Senate
Federal agencies can design their regulations in many ways. For example, some regulatory designs establish an outcome but allow flexibility in how to achieve it, while others are more prescriptive and require certain technologies or actions.
We looked at how some agencies choose among the regulatory designs and compliance and enforcement tools available to them, and how they evaluate those choices. We also identified key considerations and questions that can help decision makers identify, assess, and evaluate options when designing federal regulations and encouraging compliance.