The Checks & Balances of the Regulatory State

From: Real Clear Policy

By Paul R. Verkuil

The regulatory state is deeply misunderstood. No one denies the importance of federal agencies in formulating the rules that shape the modern economy and civil society. But the regulatory state is not, as its critics maintain, an illegitimate “Fourth Branch” of government, operating on its own. It is, instead, a vital function of government, which is part of the executive branch (though not within the White House), and is subject to numerous constitutional checks and balances.


Another way the president assures faithful execution of the laws is by reviewing significant agency rules for consistency with administration policy and for efficiency (e.g., costs and benefits). This function is performed by Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), and its mission is sometimes controversial. Much of that controversy can be overcome if it is understood that the president is not, as a New York Times piece from last summer put it, the “prolific author of major regulations,” but, instead, the coordinator of regulatory policy. Congress usually makes the agency heads the author of regulations by placing authority in them directly.

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