We Need to Get Back to Work
Editor’s Note: The solution to regulatory ossification is the regulatory budget. See, Regulatory Deossification Revisited.
Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress—rule, adjudication, guidance, or bully pulpit—will be problem-free. The opposition party made clear, almost as soon as President Barack Obama was elected, that over-regulation would remain among its most shrill and pervasive battle cries.
Professor Tom McGarity, my friend and colleague at the Center for Progressive Reform and a gifted commentator on these trends, calls the new reality surrounding the rulemaking process a “blood sport administrative law.” By this he means that industry opponents of new rules have broadened the arena of conflict to include early and constant appeals to Congress and the courts, raising the stakes and making the costs quite high for any constituency that wants to prevail in rulemaking battles. Not coincidentally, this blood-sport approach edges public interest groups to the sidelines.