Editor’s Note: Please see Regulatory Pacesetters for cutting edge regulatory developments.
In a meeting sponsored by the Federalist Society on May 17, 2017 Professor David Vladek of Georgetown University law school made two observations:
(1) That there is no need for the REINS Act given the Congressional Review Act, and
(2) That the Reagan Executive Order 12291, which instituted government-wide centralized regulatory review is, along with the APA, one of the two most influential documents of the regulatory state. (N.B. Centralized Regulatory Review began in the Nixon Administration, was given statutory support by Carter [Paperwork Reduction Act] and went government-wide [Reagan])
Observation (1) above is significant to those concerned that the passage of the REINS Act will make it even more difficult for the Congress to ever address annual budgets and the national debt. It should be noted by students of the administrative state that any action which diminishes the attention paid to budgetary matters could effect the size of the administrative state because if you do not want a lot regulations do not provide funding for a lot of regulators.
With respect to Observation (2), it raises the question as to what should be the sequel to establishing centralized regulatory review as a means for controlling or reducing the size of the administrative state? One mechanism is to continue to add procedural constraints on regulators, another is to fully implement the Data Quality Act and a regulatory budget prior to adding additional procedural constraints.
What is the downside of the latter strategy given that the Data Quality Act is law and that the regulatory budget has already been mandated by Executive Order; specifically what is the downside of implementing the DQA/Reg Budget option?
Reference Material
- Richard J. Pierce, Jr., A Good Effort, with One Glaring Flaw
- Christopher Walker, The Regulatory Accountability Act Is a Model of Bipartisan Reform
- Kent Barnett, Looking More Closely at the Platypus of Formal Rulemaking
- William Funk, Requiring Formal Rulemaking Is a Thinly Veiled Attempt to Halt Regulation
- Daniel E. Walters, Ditch the Flawed Legislative Proposal to Police Agency Communications
- Martha Roberts, The Misguided Regulatory Accountability Act
CRE appreciates the emails we have received on this topic; in keeping with our past practices we never publish an email unless the author requests that we take such an action.
It appears that the opponents of the Regulatory Accountability Act either believe that no additional controls should be placed on the regulators, even those in an existing statute as well as those in a recently issued Executive Order, or there is no possibility of implementing the DQA/Reg Budget option as an alternative to the Regulatory Accountability Act.
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