Judicial Review of Regulatory Impact Analysis
From: Mercatus Center
One of the most controversial issues in comprehensive regulatory process reform is the role of courts in reviewing the quality of the regulatory impact analysis (or other similar economic analysis) that agencies conduct to inform their regulatory decisions. Proponents of judicial review of regulatory impact analysis see it as a much-needed enforcement mechanism to ensure that agencies have an adequate factual basis for their regulatory decisions. Critics argue that judicial review of this analysis would allow judges to impose their own policy preferences on regulatory agencies and strike down necessary regulations for trivial reasons.
Research Chief of the Administrative Conference of the United States Reeve Bull and Mercatus Senior Research Fellow Jerry Ellig explain how judicial review of agencies’ regulatory impact analysis could motivate agencies to base regulatory decisions on the best available evidence about the problems they seek to solve, the proposed regulation and alternative solutions, and the likely consequences. They offer a proposal for limited but consistent court review that would allow courts to remand regulations for material errors in the agency’s analysis but would prevent courts from remanding regulations because of trivial errors or omissions.
A Key to Evidence-Based Regulation: Judicial Review