That’s bad enough, but often regulators don’t bother to go through the arduous, regimented, required rulemaking process; instead, they make policy by issuing documents variously called “guidance” or “points to consider.” Sometimes policies become evident only from agencies’ decisions to prosecute real or imagined transgressions of its regulations, or from the two extremes of inaction or excessive regulatory zeal.
We need to put a brake on federal agencies’ “regulatory creep,” excessive zeal and incompetence–which might actually be possible given the mindset of Congress and the appointees of the Trump Administration. Some mechanisms to review the actions of government agencies already exist, and others are in the offing. zFor example, there is the Congressional Review Act of 1996, which has been invoked only once in more than two decades, but never successfully (largely because the president can veto the congressional action), as well as the review of new regulations by the Office of Information and Regulatory Activities (OIRA), a component of the Office of Management and Budget. But these “checks” on the power of regulators apply only to published rules, not to the case-by-case decision-making that causes so much mischief. There is also, of course, Congress’ Constitution-based oversight over Executive Branch agencies, but this has been weak in recent decades.