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Jun
06

Stealth Regulation: Addressing Agency Evasion of OIRA and the Administrative Procedure Act

Via: Mercatus Center/George Mason University

Published in: Harvard Journal of Law & Public Policy: Federalist Edition

By: John D. Graham , James Broughel

In theory, the regulatory system in the United States is a bi-lateral relationship between the will of Congress, as expressed in authorizing statutes, and the actions of agencies, ordered to implement the statutory mandates they receive.8

Assuming a statute is constitutional, the judiciary’s role is to ensure that the agencies’ actions are faithful to the statutes. The reality of the regulatory state is more complicated because of additional checks and balances imposed by Congress and the President. The APA and the OIRA review process are perhaps the two most important checks and balances added since the Progressive Era.

Both the APA and OIRA review touch on the themes of democratic accountability and technical competence. Democratic accountability asks regulators to be sensitive to the wishes of the people the regulatory system is supposed to serve, as reflected in the legislation their elected representatives pass and the comments citizens submit to agencies.

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