Getting Agencies Back Into the Game

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Regulatory reform should reduce rulemaking burdens to promote effective agency action.

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In a recent issue brief, Daniel A. Farber, Lisa Heinzerling, and Peter M. Shane kicked off an important conversation about a progressive agenda for rulemaking reform. Urging changes in agency process and oversight , they say that “progressives should take up the cause of regulatory reform as our own.”

Farber, Heinzerling, and Shane’s suggestions are designed to improve notice-and-comment rulemaking and White House and judicial review of rules by increasing transparency, accountability, inclusiveness, public confidence, and deliberation. These are all important values to pursue and each suggestion merits serious consideration.

Yet Farber, Heinzerling, and Shane omitted an important point: The progressive regulatory reform agenda also should focus on alleviating the burdens that agencies confront when making rules and consider how that objective should be balanced against other progressive rulemaking goals.

As Heinzerling has said, “we rely—deeply and pervasively—on administrative agencies to fix our troubles,” but “we often do not let them do their jobs.” Rulemaking has become enormously time- and resource-intensive due to statutory requirements, executive orders, and judicially created rules. As a result, agencies have lost much of their policymaking agility. They are largely unable to respond to changing circumstances in a timely fashion. The U.S. Environmental Protection Agency’s recent efforts to roll back earlier policies, for example, for the most part have failed because they bypassed procedural requirements.

At the same time, Congress’s policymaking muscles also have atrophied. The current Congress rescinded fifteen regulations through the Congressional Review Act—a tool that enables Congress and the President to prevent recently enacted rules from going into effect. This Congress also set a record for confirming appellate judges, but, like most congresses in the past several decades, it has done little to set policy affirmatively. Neither agencies nor Congress are making significant plays in the policymaking game.

Government power in the United States can be seen as a hydraulic system. The U.S. Supreme Court often has expressed concern about one branch of the government aggrandizing its own power at the expense of another branch. Now we see the inverse phenomenon: a branch of government failing to exercise its power, leaving a vacuum for the other branches to fill. If neither agencies nor Congress make policy, the President and the courts will fill the breach.

Past Presidents increasingly have made policy decisions unilaterally, even in contexts in which Congress delegated decision-making authority to a particular agency officer. The President is not subject to the same procedural requirements as agencies and thus can bypass the rulemaking process by issuing orders.

President Donald J. Trump bypasses the rulemaking process constantly: He established a policy on mental health care for veterans, dictated timing and testing requirements under the Clean Air Act, and established new procedures for firing federal employees. Farber has pointed out that Congress’s inability to be an effective policymaking partner inspires unilateral presidential policymaking, as does the desire to take the credit for policies in this fast-paced game with media-savvy spectators. Part of the reason Presidents increasingly make policy by decree, though, is that rulemaking has grown increasingly difficult. As Phillip Cooper explained, Presidents may use executive direct action to avoid lugubrious congressional procedures or “to avoid sometimes equally time-consuming administrative procedures,” especially rulemaking.

Ideally, Congress—the most representative branch—would get back into the policymaking game. Short of that, progressives should prefer agency rulemaking, even with all of its flaws, to policymaking by presidential fiat. Presidential decision-making entails less transparency, public participation, deliberation, and accountability than rulemaking does. The President has no obligation to consult affected parties to hone his policy. Presidential decision-making necessarily limits the parties involved in the process. We may never know who or what a President consulted in developing his policy. The President lacks the expertise of agencies. And he is less accountable than agencies are: he often is not subject to judicial review; he does not answer to Congress; and he can only be removed from office via impeachment or the Twenty-Fifth Amendment.

In his wonderful book Madison’s Nightmare: How Executive Power Threatens American Democracy, Shane demonstrated that presidential administration “breeds an insularity, defensiveness, and even arrogance within the executive branch that undermines sound decision making, discounts the rule of law, and attenuates the role of authentic deliberation in shaping political outcomes.”

Many of the agencies and regulatory programs that are now overburdened with rulemaking requirements were created during the New Deal and the New Society eras. Those rulemaking requirements hinder agencies from doing the important jobs that earlier progressive Congresses entrusted them to do. Progressives should re-empower agencies to do their work. That means alleviating some of the burdens of rulemaking to enhance agency efficiency, even if it entails compromising transparency, public participation, and other competing values in some instances.

Administrative law always has necessitated balancing values. It is time to rebalance so agencies can get back into the game and be effective partners in governance.

Kathryn E. Kovacs

Kathryn E. Kovacs is a professor of law at Rutgers Law School.